No. 8 5 - 6 2 1
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
DORIS V. WATERS,
Petitioner and Respondent,
and
DUANE R. WATERS,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Strause & Anderson; Lawrence A. Anderson, Great Falls,
Montana
For Respondent :
Swanberg, Koby, Swanberg & Matteucci; Gorham Swanberg,
Great Falls, Montana
Submitted on Briefs: May 30, 1 9 8 6
Decided: September 10, 1986
Filed: SEP 1 0 I986
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Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
This case concerns the narrow question whether the
Uniformed Services Former Spouses' Protection Act, 10 U.S.C.
S 1408, should be applied retroactively to final decrees of
dissolution which were entered subsequent to the United
States Supreme Court decision in McCarty v. McCarty but prior
to the aforementioned federal statute. Although a number of
states have already considered this question, it is one of
first impression before this Court.
Doris Waters filed a petition in the District Court of
the Eighth Judicial District to modify the dissolution decree
entered in that court on October 20, 1981. The petition was
filed May 24, 1985, pursuant to Rule 60 (b) (5) or (6) of the
Montana Rules of Civil Procedure, or, in the alternative,
5 40-4-208, MCA. Duane Waters moved to dismiss the petition.
The court denied his motion and entered judgment awarding
Doris Waters one-half of Duane Waters' military pension and
relieving the latter of his obligation to pay maintenance.
We affirm that judgment.
Duane Waters, appellant, and Doris Waters, respondent,
were married in FJray, Colorado, on May 23, 1954. Duane
joined the a.rmed forces of the United States approximately
eighteen months before marrying Doris. In 1975 he retired
from the United States Air Force and began receiving his
military pension. On October 20, 1981, the parties obtained
a dissolution of their marriage.
At the time of the initial hearing, the law in Montana
treated military pensions as a marital asset which was sub-
ject to equitable distribution. In Re Marriage of Miller
(Kont. 1980), 609 P.2d 1185, 37 St.Rep. 556. However, before
the final decree of dissolution was entered, the United
States Supreme Court held, in effect, that federal law pre-
cluded state courts from dividing military retirement pay
pursuant to state community property or equitable distribu-
tion laws. McCarty v. McCarty (1981), 453 U.S. 210, 101
S.Ct. 2728, 69 L.Ed.2d 589. As a result, the District Court
found that Duane's military pension was not a marital asset,
and it awarded Doris $300 per month in maintenance in lieu
thereof. She did not appeal from that judgment.
Effective February 1, 1983, Congress passed the "Uni-
formed Services Former Spouses' Protection Act" (USFSPA)
which 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.
10 U. S.C. .
S 1408 (c) (1) This Act specifically overruled
McCarty and allowed state courts to once again consider
military retirement pay when making a distribution of proper-
ty upon divorce. Some twenty-seven months after the Act was
passed, Doris filed her petition to modify the decree of
dissolution.
Appellant has raised three issues on appeal:
1. Has Doris Waters waited an unreasonable length of
time to petition for modification of the judgment?
2. Is the petition to modify the judgment barred by
laches?
3. Does a change in the applicable law after a final
judgment has been rendered establish "changed circumstances
so substantial and continuing as to make the terms
unconscionable" under S 40-4-208, MCA?
I
Respondent filed her petition under Rule 60(b)(5) or
(6), M.R.Civ.P., and the District Court found that the action
was proper under Rule 60 (b)(6). Appellant contends that the
action was not brought within a reasonable time, but he does
not raise the issue whether Rule 60 (b) can properly be used
in this case as a means for reopening the final judgment.
Nevertheless, we must consider this question since it in-
volves the subject matter jurisdiction of this Court and of
the lower court.
A
Respondent contends and the District Court found that
the USFSPA should be applied retroactively so as to allow her
to begin receiving a share of appellant's military pension.
In order to prevail on this argument, respondent must over-
come two formidable obstacles. First, as a general rule,
statutes are presumed to operate prospectively only. Penrod
v. Hoskinson, M.D. (1976), 170 Mont. 277, 552 P.2d 325;
Sullivan v. City of Butte (1922), 65 Mont. 495, 211 P. 301.
Second, the doctrine of finality of judgments is an important
concept in our law, and it is entitled to great weight.
There must be some point at which litigation ends and the
respective rights between the parties are forever estab-
lished. Under ordinary circumstances, once this point is
reached a party will not be allowed to disturb that judgment.
However, Rule 60 (b) is an exception to the finality of judg-
ments doctrine.
Rule 60 (b)(6), M.R.Civ.P., provides:
On motion and upon such terms as are
just, the court may relieve a party or
his legal representative from a final
judgment, order, or proceeding for the
following reasons:
(6) any other reason justifying relief
from the operation of the judgment. The
motion shall be made within a reasonable
time. ..
The source of this rule is Rule 60(b) of the Federal Rules of
Civil Procedure. Our rule is identical to the federal rule
except in certain respects not pertinent to this decision.
In determining what the ambiguous phrase "any other
reason" means, the United States Supreme Court has stated:
In simple English, the language of the
"other reason" clause, for all reasons
except the five particularly specified,
vests power in courts adequate to enable
them to vacate judgments whenever such
action is appropriate to accomplish
justice.
Klapprott v. United States (1949), 335 U.S. 601, 614-615, 69
S.Ct. 384, 390, 93 L.Ed. 266, 277. Subsequent to Klapprott,
the Court set up the "extraordinary circumstancesn test in
Ackermann v. United States (1950), 340 U.S. 193, 71 S.Ct.
209, 95 L.Ed. 207. Thus, before a party will be allowed to
modify a final judgment under Rule 60(b) (6), he must first
show that none of the other five reasons in Rule 60(b) apply,
and he must also demonstrate extraordinary circumstances in
his case which justify relief.
We find that respondent has met both of these require-
ments. None of the other five reasons listed in the rule
apply to this case. Likewise, respondent has shown extraor-
dinary circumstances sufficient to allow reopening of the
dissolution d.ecree .
Appellant is correct in his assertion that a change in
the decisional law subsequent to a final judgment does not
represent extraordinary circumstances under Rule 60 (b) so as
to allow reopening of that judgment. Most federal courts
considering that issue have so held. See e.g., McKnight v.
United States Steel Corp. (7th Cir. 19841, 726 F.2d 333, 336,
holding that "a change in the applicable law after entry of
judgment does not, by itself, justify relief under 60(b) ,"
and DeFilippis v. United States (7th Cir. 1977), 567 F.2d
341, 343, stating at Fn. 5 that the "courts are generally
agreed that a change in the law after entry of judgment does
not alone justify relief under [Rule 601 (b) (6)." Additional-
ly, this Court has previously held that a change in the
decisional- law after a final judgment does not provide a
sufficient basis for modifying that judgment under Rule
.
60 (b) Fiscus v. Beartooth Elec. Cooperative, Inc. (1979),
180 Mont. 434, 591 P.2d 196. However, the circumstances of
this case go far beyond a mere change in the law.
The law in Montana prior to McCarty was such that
military pensions were treated like any other asset of the
marriage and were subject to equitable distribution. After
the USFSPA was passed, this Court decided In Re Marriage of
Kecskes (Mont. 1984), 683 P.2d 478, 41 St.Rep. 1170, which
reaffirmed that military retirement pay constituted a marital
asset. Thus, those spouses of members of the armed forces
who obtained dissolutions prior to McCarty were entitled to
share in their spouses' military pension. Likewise, those
spouses who obta.in dissolutions after Kecskes will be enti-
tled to have their spouses' military pensions treated as a
marital asset. However, those spouses who were divorced
during the period between McCarty and Kecskes were denied
this right. To forbid those spouses who were divorced during
this period from obtaining a modification of their decrees
would create a category of people who were denied substantial
rights solely because of the unfortunate time within which
their decrees happened to be made final. This fate does not
befall others similarly situated whose decrees were not or
will not be made final during that period.
The legislative history of the USFSPA indicates that
the Act was meant to apply to those spouses who were divorced
during the period between McCarty and the Act. "The primary
purpose of the bill is to remove the effect of the United
States Supreme Court decision in McCarty v. McCarty, 453 U.S.
210 (1981). I 1 1982 U.S. Code Cong. & Ad. News 1555, 1596. It
is also clear that Congress meant for the law to apply retro-
actively. The Committee Report states at p. 5:
The provisions of S. 1814 reversing the
effect of the McCarty decision are
retroactive to June 26, 1981, the date
on which the U. S. Supreme Court issued
that decision. That is, the committee
intends the legislation to restore the
1a.w to what it was when the courts were
permitted to apply State divorce laws to
military retired pay. Former spouses
divorced in the interim period between
the McCarty decision and the effective
date of this law will have the opportu-
nity to return to court to have their
decrees modified in light of this
legislation.
At p. 16, the Report reiterates:
This retroactive application will at
least afford individuals who were di-
vorced (or had decrees modified) during
the interim period between June 26, 1981
and the effective date of this legisla-
tion the opportunity to return to the
courts to take advantage of this
provision.
Thus, it is obvious that Congress intended the USFSPA to
apply to those spouses who were denied their share in
military pensions solely because of the McCarty decision.
Because of the unique factual situation which is
present in this case and in others similarly situated, we
hold that the USFSPA should be applied retroactively and that
Rule 60 (b) (6) may be used to modify dissolution decrees that
were final after the McCarty decision but before the effec-
tive date of the USFSPA. However, we emphasize the limited
nature of this decision; it does not establish a general rule
for reopening a final judgment merely because there has been
a subsequent change in the law upon which that judgment was
based. Only when extraordinary circumstances are found to
exist, as in the present case, may Rule 60 (b) (6) be used to
modify a final judgment.
This holding is consistent with decisions in other
jurisdictions. We have found no cases which have refused to
allow modification of divorce decrees which became final
after McCarty where a procedural mechanism similar to Rule
60(b) existed in the state. See e.g., Flannagan v. Flannagan
(Wash. 1985), 709 P.2d 1247; Smith v. Smith (Del. 1983), 458
A.2d 711; Koppenhaver v. Koppenhaver (N.M. 19841, 678 P.2d
1180; Castiglioni v. Castiglioni (N.J. 1984), 471 A.2d 809.
Like the views expressed by other courts considering this
issue, we find that to rigidly apply the doctrine of finality
of judgments in this situation would work a substantial
injustice and would frustrate the intent of Congress in
passing the USFSPA.
B
Rule 60 (b) (6) provides that the motion "shall be made
within a reasonable time . . ." What is a reasonable time
will depend on the particular facts of the individual case.
Questions of timeliness under the rule are addressed to the
sound discretion of the court, and the court's judgment will
be overturned only upon a showing of abuse of discretion.
See McKnight, supra. Relevant to the determination of time-
liness is prejudice to the party opposing the motion and the
basis for the moving party's delay. See Matter of Whitney-
Forbes, Inc. (7th Cir. 1985), 770 F.2d 692.
Appellant contends that the motion was not filed within
a reasonable time because the USFSPA became effective on
February 1, 1983, and respondent's motion was not filed until
May 24, 1985. Were appellant prejudiced by this delay, his
argument might have some merit. However, the court granted
respondent the right to one-half of appellant's military
pension payments starting on August 1, 1985, and relieved
appellant of his obligation to pay maintenance after July 31,
1985. We perceive no prejudice to appellant by respondent's
delay. The District Court did not abuse its discretion by
finding that the motion. was filed within a reasonable time.
I1
Appellant contends next that respondent's motion is
barred by laches. Since we have determined that respondent
filed her motion within a reasonable time and that appellant
has suffered no prejudice by the delay, this assertion is
without merit.
The third issue raised by appellant will not be consid-
ered since we have determined that respondent's motion was
proper under Rule 60(b) ( 6 ) , M.R.Civ.P.
Affirmed.
We concur: