NO. 83-559
IN THE SUPPaME COURT OF THE STATE OF NOTJTANA
1984
IN RE THE MARRIAGE OF
KARIN M. KECSrnS,
Petitioner and Respondent,
and
GREGORY KECSKES,
' Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
~,
I The Honorable H. William Coder, Judge presiding.
COUNSEL OF RECORD:
C I
For Appellant:
J. V. Barron, Great Falls, f4ontana
For Respondent :
Gorham Swanberg, Great Falls, blontana
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Submitted on Briefs: April 12, 1984
Decided: June 19, 1984
"
, *
Filed:
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Gregory Kecskes, Appellant, appeals from the judgment
entered on November 8, 1983 by the District Court of the
Eighth Judicial District, distributing marital assets.
Karin M. Kecskes (Wife) and Gregory Kecskes (Husband)
were married in Ramstein, Germany on September 18, 1959.
Husband was an Airman 1st Class in the Air Force pursuing a
military career. During the course of their 23 year
marriage, Wife followed her Husband to various points around
the globe. In May 1974 after twenty years of service,
Husband retired from the military service and returned to
Great Falls with his Wife.
In addition to rearing their only son, the Wife also
worked while her Husband fulfilled his military service.
Frequent military transfers required the Wife to commence
employment in each new location. In certain instances where
a job was not available, the Wife took volunteer positions.
Upon the parties return to Great Falls, the Wife became a
dental assistant, a position she continues to hold at the
time of this action.
Because of the parties' limited finances at the time of
their marriage, Wife never received a wedding ring. In 1965
when Husband was serving a tour of duty in the Vietnam war
zone, he mailed Wife a diamond wedding ring which he
purchased in Saigon for $4,700.
Subsequent to his retirement from the Air Force in May
1974, Husband started receiving monthly retirement payments
of approximately $850.00. Additionally, both parties
invested in "Pit Stop", a foreign car repair business, which
the Husband later sold for $5,000. Five-hundred dollars of
net proceeds of this sale Husband remitted to Wife. Husband
presently draws $800.00 per month as a car salesman.
The home, owned jointly by the parties, is valued at
approximately $47,000 with a mortgage of about $38,000. At
the time of this action parties have agreed to equally divide
the net proceeds from the sale of the house.
In addition to other minor debts, the parties owe the
IRS approximately $2,100 pursuant to a delinquent 1981 tax
obligation relating primarily to Husband's business
endeavors; Wife' s tax was withheld by her employer. By
agreement with the IRS, Wife is paying $105.00 per month and
Husband $62.00 per month to liquidate this debt.
The pa-rties separated in April 1982 and Wife petitioned
for a divorce the following October. Having found the
marriage to be irretrievably broken, the district court
granted a dissolution in December 1982.
On November 3, 1983 the matter of the property
distribution was heard by the same court. Pursuant to
pre-trial stipulation, matters of child custody, support and
maintenance were settled. The trial court's order dated
November 8, 1983 distributed: half the net equity in the
house to each party; divided the remaining real and personal
property; held both parties responsible for half of their
delinquent 1981 joint tax obligation; awarded Wife a 50%
share in the Husband's military retirement benefits. The
Husband filed a Notice of Appeal on November 22, 1983. He
presents the following issues:
1. Did the court follow the mandates of statutory law
in equitably distributing the marital estate?
2. Are all portions of the Decree supported by
evidence?
3. Did the court abuse its discretion in allocating
one-half of the proceeds of the retirement benefits of
A.ppellant to Respondent during his lifetime?
In reviewing divisions of marital property, this Court
must determine only " . . . whether in the exercise of its
discretion the court acted arbitrarily, unreasonably or
without regard to recognized principles resulting in
substantial injustice." Balsam v. Balsam (1979), 180 Mont.
1.29, 589 P.2d 652, 653-654. The trial court acted within its
discretion to award the engagement ring to Respondent and to
divide marital assets and debts equally.
The primary issue for consideration concerns the
inclusion of Appellant's military retirement benefits as a
marital asset and equal disposition thereof.
In Re The Marriage of Miller (Mont. 1980), 609 P.2d
1185, 1187, this Court held that military retirement pay
resembled any ordinary pension and should be treated as a
vested property right which constitutes a marital asset
subject to distribution by the trial court. In 1981 the
United States Supreme Court ruled that a military person's
retirement benefit could not be considered marital property
/:/ <' -
.:
in a settlement division. McCarty v. McCarty, (1981) , ' . .
@US
210, 101 S.Ct. 2728, 69 Law Ed.2d 589. In deference to the
Supreme Court's decision, this Court carved out an exception
for military retirement benefits from the established rule
that ordinary pensions constituted marital property. In Re
the Marriage of McGill, (Mont. 1981), 637 P.2d 1182.
Congress enacted 10 U.S.C. section 1408 et seq., the
Uniform Services Former Spouses' Protection Act, H.R. Rep.
No. 97-749, 97th Congress, 2nd Session (1982), with the
express purpose of reversing the Supreme Court McCarty
decision. 10 U.S.C. 1408(c) (1) provides:
"Subject to the limitations of this section, a
court may treat disposable retired or retainer pay
payable to a member for pay periods beginning after
June 25, 1981, either as property solely of the
member or as property of the member and his spouse
in accordance with the law of the jurisdiction of
such court."
Appellant argues that the federal statute does not
ma-ndate that the military retirement benefits of one spouse
be invaded and allocated. to the other spouse in the event of
dissolution of marriage. Appellant maintains that
disposition of military pension funds remains a matter of
equitable determination by the trial court. Appellant argues
that he was married to Respondent only 15 years of his 20
years of military service making the 50% division of his
retirement pay inequitable.
In Kis v. Kis (1982), 196 Mont. 296, 300, 639 P.2d 1151,
1153, this Court unequivocably applied the McCarty exemption
to military retirement benefits only: "In McCarty, the
United States Supreme Court decided that military retirement
benefits could not be considered community property to be
divided equally in divorce proceedings . . .. As the case
before this Court does not involve a. military retirement
benefit, the McCarty decision is not controlling."
It is the ruling of this Court that military retirement
benefit pay is analogous to any pension fund and constitutes
a marital asset. Pursuant to 40-2-202, MCA which requires
apportionment of all property and assets of parties to a
dissolution, military retirement pay shall be included for
purposes of establishing the marital estate.
Equal division of Husband's military retirement benefits
in the distribution of marital assets evidences no abuse of
discretion by the trial judge.
Affirmed.
We concur:
V~44-WWdq
Chief Justice