dissenting.
Unlike the three justices who continue to adhere to the views expressed and the conclusion reached in the majority opinion of January 7, 1987, I do not so continue, and, even were I to do so, I would deem it unbefitting that this, the highest court in Idaho, virtually beyond being held accountable for that which it does and that which it does not do, flatly does not deign to address the issues which were well presented to it on the rehearing which was granted.
There has been a procedure for petitioning this Court for a rehearing since statehood in 1889, and even before that. In territorial days, when the Idaho Supreme Court consisted of three federally appointed district judges, it was apparently reasoned that a party dissatisfied with the “views and conclusions” of a Supreme Court opinion should have the right to explain and argue the grounds of dissatisfac*968tion. Rules of the Supreme Court of the Territory of Idaho, volume 1, Idaho Reports, pp. 23-30. Rule XXVIII thereof provided that:
All motions for a rehearing shall be upon petition in writing presented within five days after the judgment or order made by the court, and before the adjournment of the court for the term, and no argument will be heard thereon.
No remittitur or remandate to the court below shall be issued until after the expiration of ten days from the entry of judgment, and all decisions upon petitions for rehearing shall be made before the adjournment of the term.
Rule XXXI informs us that were former rules of practice in the Supreme Court, and the set of rules found in vol. 1 promulgated had an effective date of January 2, 1882.
No one has ever questioned the reason for the rule. The rule serves the purpose of giving the Court another opportunity to review the validity of an opinion for the court which has been issued and reviewed by those persons, the involved attorneys, who will best know if the court as a whole has understood the issues presented to it, and whether authority cited in the court’s opinion is reliable, and/or, if it has proper application. Best of all, it presents each individual justice who has joined some other justice’s opinion with an opportunity to ascertain whether he has joined an unsound opinion which, perhaps, misstates the facts, misstates the law, or has ignored certain facts and has ignored recognized principles of law.
In this particular instance, the case being before us for a second time, the reader of the majority opinion on rehearing would surmise that the petition for rehearing was inadequate and/or a supporting brief was not submitted, or if filed, was not in the least persuasive, and could be turned aside as being of no merit. However, as the dissenting opinion of Huntley, J., unrefuted anywhere in the majority opinion of January 2, 1987, makes quite clear, the validity of that opinion was open to question: “The voluntariness with which Mrs. McBride entered into the agreement, upon which Justice Shepard so heavily relies, cannot be deemed meaningful in the absence of knowledge of both the USFSPA and its retroactivity.” Jan. 2,1987, Dissenting Op. p. 265. Justice Huntley also raised another good point relative to the majority opinion’s assertion that military retirements are, and were at the time of the divorce, in futuro, i.e., prospective.
The brief of counsel for Mrs. McBride filed in support of the petition for rehearing raises a serious question as to the validity of the majority opinion even beyond the problems seen by Justice Huntley, and in particular with the majority’s res judicata and finality of judgments theory.1 The brief is well written, and it would be inefficient to paraphrase its content — which is concise and direct. It reads:
The majority opines that “to hold under the instant circumstances that there is a lack of equity would only operate to destroy the finality of judgment.” (87 ISCR 1, 8). The majority has held that the doctrine of res judicata applies to the facts shown above.
Black’s Law Dictionary, 1470 (Rev’d 4th ed. 1968), in defining res judicata states in part:
“Rule that final judgment or decree on merits by court of competent jurisdiction is conclusive of rights of parties or their privies in all later suits on points and matters determined in former suit. American S.S. Co. v. Wickwire Spencer Steel Co., D.C.N.Y. [1934], 8 F.Supp. 562, 566.” (textual emphasis added)
In the case at bar res judicata does not apply because: (1) due to McCarty the court, at the time of decree, did not have competent jurisdiction to divide military retirement in a divorce; (2) the current action is not a later suit, but rather a motion to reopen; and (3) res judicata applies only to matters determined or able to be previously determined.
*969Even if this doctrine is held applicable, the court, in Duthie v. Lewiston Gun Club, 104 Idaho 751, 663 P2d 287 (1983), after twice considering the issues therein, held that res judicata did not bar the raising of an issue that was not ripe for trial in the first case. (104 Idaho 751 at 753 [663 P.2d 287]) The court in Duthie, cited Intermountain Food Equipment Co. v. Waller, 86 Idaho 94, 383 P2d 612 (1963), for determining when res judicata applies. The court cited that case, in part, as follows:
“We think the correct rule to be that in an action between the same parties upon the same claim or demand, the former adjudication concludes parties and privies not only as to every matter offered and received to sustain or defeat the claim, but also as to every matter which might and should have been litigated in the first suit.” Id at 98, 383 P2d at 615 (quoting Joyce v. Murphy Land & Irrigation Co.) 35 Idaho 549, 553, 208 P 241, 242 (1922).
Duthie, 104 Idaho 751, 753 [663 P.2d 287].
The court goes on to seemingly support appellant’s position in this case by citing other Idaho authority with approval:
“(h)owever, sometimes a single trial covering all aspects of the case will be neither desirable nor feasible ... or certain matters may be ripe for trial while consideration of others would be premature.” Heaney v. Board of Trustees of Garden Valley School District No. 71, 98 Idaho 900, 903, 575 P2d 498, 501 (1978). (Emphasis added)
In the Duthie case, affirmative action by one of the parties changed the facts of the case and the court held res judicata did not apply. In the case at hand, affirmative action by the Congress of the United States in a specific attempt to cure the effect of McCarty, with specific retroactive provisions, is held by the court to not be of enough significance to alter the initial scenario. USFSPA was intended to not merely overrule McCarty as the majority states (71 ISCR 1, 4) but to cure the inequities it had created. In Duthie, the issue of revocation could have been raised and litigated in the first Duthie case, but in the case at hand the issue of division of military retirement division was affirmatively barred from being raised at the time of the divorce until later retroactively cured.
The majority opinion relies on the fact that the appellant entered into an agreement and took a default judgment to obtain the decree. The fact that the appellant had no legal right at the time to do otherwise is ignored. Under this theory all attorneys must ignore Rule 11 and contest clear precedent to preserve possible future rights.
The one thing that makes this case different from all other cases is the procedural background. There was a clear policy to divide military retirement pursuant to community property principles. (Ramsey) There was an erroneous judicial determination of congressional intent. (McCarty) There were injustices due to the 20 month window or gap between McCarty and the corrective measure of USFSPA. There was a prompt congressional response to McCarty with the specific purpose of retroactively curing the inequities created by McCarty. (USFSPA) There are procedural mechanisms under the Federal and Idaho Rules of Civil Procedure to cure the inequities created by McCarty to allow all similarly situated parties from the date of Ramsey until the effective date of USFSPA to be treated equally. (IRCP, Rule 60(b)(4) & (5)) There is precedent in cases with far less compelling fact situations that res judicata does not apply. (Duthie, supra; Heaney, supra;) Then there is McBride (Yockey) v. McBride, the only piece of the puzzle that does not fit.
The majority opines that IRCP 60(b)(4) is not available as a procedural mechanism to reopen and cites Nieman v. Nieman, 105 Idaho 796, 673 P.2d 396 (1983) as authority. It is respectfully submitted that Nieman is easily distinguishable and inapplicable. Nieman did not involve a curative statute with a provision specifically making the change retroactive. This is an unusual and *970major step beyond finding precedent incorrect.
The majority opinion, in attempting to bar the use of IRCP, Rule 60(b)(5) makes a surprising statement of fact. At 87 ISCR 7 in footnote two (2) the court found; “The testimony of both parties is not in dispute that Yockey was aware of the Congressional enactment ...” That conclusion which Justice Huntley highlights in the dissent (87 ISCR 1 at 10) is completely contrary to Mrs. Yockey’s deposition.
“It was my understanding at that time that I could not .. the current court ruling and the current law stated that I could not try to get to a portion of his retirement as community property, and that was what I believed to be the case at that point in time____ I made a decision at that time that I couldn’t do anything else, the law wouldn’t let me.”
Not only was that Mrs. Yockey’s understanding, it was a fact.
The court, in the same footnote, summarily disagrees that the division of property is inequitable. The court makes this finding despite the fact that using the evidence most favorable ,to and supplied by Mr. McBride (contrary to the applicable burden of proof) he valued the real and personal property at $107,400.00, of which, again by his reckoning, he received $50,250.00 and Mrs. Yockey received $57,150.00. Then, still using Mr. McBride’s testimony, the military retirement is valued at $432,-000.00. If the correct equitable division of military retirment benefits is made, pursuant to the dictates of USFSPA, Mrs. Yockey is entitled to $147,355.00 from that asset alone, nearly three times the value of what Mr. McBride concedes she received. Using Mr. McBride’s figures, he has received $467,250.00 from the “substantially equal” split of the property and his ex-wife received $57,150.00 in value. The court finds the approximately 10% award of property for the wife and the 90% award for the husband equitable.
It would be a strange type of equity to hold that because appellant made an agreement based on the law as it existed, she is barred from taking advantage of a curative statute specifically enacted to resolve the exact inequity created herein.
The majority apparently finds the $48,-154.00 cash award was intended to equalize the award of military retirement benefits to Mr. McBride, despite; (1) the obvious inequity detailed above; (2) the fact the law, as it then existed, did not allow such an equalization; (3) deposition testimony by Mrs. Yockey that the payment was intended to offset the award of real property to Mr. McBride; (4) the fact it was, by applicable precedent, separate property, but the offsetting award was made, as the majority acknowledges, “to make an even division of the community assets ...” (87 ISCR 1, 2) (emphasis added) and; (5) the fact the husband, not the wife, should have had the burden of proof on his motion to dismiss, and pursuant to such motion all facts, intendments and inferences that may be reasonably drawn must be viewed most favorably as to the party opposing such motion. Idaho Commission on Human Rights v. Campbell, 95 Idaho 215, 217, 506 P2d 112 (1973).
CONCLUSION
The intent of Congress, in passing USFSPA, is clearly shown in the legislative history:
“The purpose of this provision is to place the courts in the same position that they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of non-disability military retired or retainer pay. The provision is intended to remove the federal preemption found to exist by the United States Supreme Court and permit state and other courts of competent jurisdiction to apply pertinent state or other laws in determining whether military retired or retainer pay should be divisible. Nothing in this provision requires *971any division; it leaves that issue up to the court supplying community property, equitable distribution or other principles of marital property determination and distribution. This power is returned, to the court retroactive to June 26, 1981. This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the effective date of this legislation the opportunity to return to the courts to take advantage of the provision.
(Senate Report S.Rep. No. 502, 97th Congress, 2nd Session 16, reprinted in 1982 U.S. Code Congresson and Ad. News 1555, 1596, 1611. (Emphasis added).
The current opinion in this case does not afford this individual the opportunity to return to court to take advantage of USFSPA.
It seems appropriate to again quote the closing lines of the U.S. Supreme Court’s majority opinion in McCarty where Justice Rehnquist prophetically wrote:
“... Congress may well decide, as it has in the Civil Service and Foreign Service contexts, that more protection should be afforded a former spouse of a retired service member. This decision, however, is for Congress alone. We very recently have re-emphasized that in no area has the Court accorded Congress greater deference than in the conduct and control of military affairs. See Rostker v. Goldberg, [453 U.S. 57] ante, at 64-65, 69 L.Ed.2d 478, 101 S.Ct. 2646 [(1981)].
Thus, the conclusion that we reached in Hisquierdo [v. Hisquierdo ], follows a fortiori here:
Congress has weighed the matter, and ‘it is not the province of state courts to strike a balance different from the one Congress has struck.’ 439 U.S. [572] at 590, 59 L.Ed.2d 1, 99 S.Ct. 802 [at 813] (1979).
McCarty v. McCarty, 453 U.S. 210, 235-236 [101 S.Ct. 2728, 2742-743, 69 L.Ed.2d 589] (1981) (Emphasis added).
It is respectfully submitted that the present opinion strikes a balance different from the one Congress has struck and is contrary to Idaho precedent.
(Double underscoring emphasis added.) Those who remain with the earlier majority opinion would better serve the litigants, the trial bench and bar, and future litigants were something written pointing out the error in the facts or conclusions of the Yockey brief. In particular, when we first heard this case, it seemed to me that under existing pertinent law as Mrs. Yockey knew, and as many lawyers also knew or so believed, the military pension rights of her husband were not part of the community assets, and that she had no claim on the same. In particular, the Yockey brief should hit a responsive chord somewhere in the majority when it challenges the final sentence of footnote 2 of the majority opinion stating that Mrs. Yockey was aware of the McCarty nullification legislation during settlement negotiations. If this be so, and it is certainly to be assumed that every statement of law or fact in the majority opinion is as portrayed, then it would work no great effort and consume little time to point to the evidence which contradicts, impeaches, or destroys Mrs. Yockey’s own sworn testimony restated both per Justice Huntley and the Yockey rehearing brief. Just before the Court heard oral argument on the rehearing we were made aware of legislative action being taken by the Idaho Legislature as to implement on argument or somehow make certain that the benefits of the Act of Congress would accrue in Idaho as well as in the 49 other states of the Union. Justice Huntley’s dissenting opinion of this date mentions it. The governor approved the bill on March 24th of this year, just two weeks before oral argument was heard on April 8th. Counsel for Mrs. Yockey discussed its applicability in his opening remarks.
One may well surmise that this legislation, and the expression of legislative will and intent would be in the minds of counsel a matter of proper concern and discussion for the members of the Court. If the majority opinion has given any mention to this statute, then I am remiss in my reading capabilities. Maybe it is all a dream? However, Justice Huntley has mentioned it.
*972Perhaps those who comprise the majority share Justice Huntley’s belief that, because of the lack of an emergency clause, the Idaho legislation does not become effective until July 1st. Justice Huntley apparently believes that it is on that date that Mrs. Yockey will have to begin anew her quest for the benefits of the Congressional anti-McCarty legislation. Perhaps he, and the majority are correct in that view, but I think not.
True, the legislation, copy of which is appended, does not contain an emergency clause. BUT, equally true, the very first thing the statute provides is an effective date, and that effective date commences with June 25th, 1981, and, per § 4 its effectiveness ceases, and it is automatically repealed, and null and void as of July 1, 1988. Section 1 makes it applicable to all community property settlements, judgments, or decrees which became final during the period of time from June 25, 1981, until February 1, 1983.
Why does it apply to a McBride property settlement signed October 31, and a divorce decree entered November 22, 1982? Simply because the date of the Property Settlement and the date of the Divorce Decree both fall after June 25, 1981 — but before February 1, 1983.
The unspoken view of the majority that the legislation does not go into effect until July 1,1987, runs contrary to the language of the legislation itself. Moreover, the requirement of a declaration of an emergency went out the window with this Court’s opinion in Idaho State AFL-CIO v. Leroy, 110 Idaho 691, 718 P.2d 1129 (1986). From the date of that decision by this Court, the constitutional provision requiring the existence of an emergency 2 has ceased to exist. A fortiori, and because when the reason for a rule ceases to exist, the rule itself ceases to exist, then this Court’s decision obliterated not only the requirement that an emergency actually existed, as Judge Newhouse ruled, see 718 P.2d at 1137, 110 Idaho at 699, there is no valid reason for the legislature any longer to mouth the words that “an emergency exists” in setting the effective date of its statutory enactments.
Here, not only is the Act in question clear in declaring an effective date (and an ineffective date) which coincides with the Congressional legislation, but the legislature’s statement of purpose fortifies the fact that legislative intent was to have in place, an effective remedy matching the federal act. That statement is extremely well worded:
STATEMENT OF PURPOSE
Background: A U.S. Supreme Court decision handed down on June 26, 1981, precluded military retirement pensions from consideration as community property in divorce cases.
The court in its decision urged Congress to correct the situation which it did by enacting the Federal Uniformed Services Former Spouses Act (U.S.Code 1408) providing that military retirement pensions can indeed be considered as community property. The bill was enacted on February 1, 1983.
In Idaho, this left a gap of two years during which courts were unable to treat military retirement pensions as community property.
Purpose: This bill would correct that inequity and provide a procedural mechanism to permit courts to reopen the few military divorce cases that fell into that 2 year gap.
FISCAL IMPACT:
None
The final line is key to the legislative intent which was to “correct that inequity and provide a procedural mechanism to permit courts to reopen the few military divorce cases that fell into that 2 year gap.”
What surfaces all too clearly in the majority disposition of this case, and its refusal to even mention the Idaho legislation, is the overriding obsession of one member of the Court, unfortunately joined by two oth*973ers, that unless the inequity can be cured by one of the court’s plethora of rules, it cannot be done at all.
A principle entirely forgotten by those who are today’s majority, is that rules sometimes emanate from appellate decisions. The 1882 rules promulgated by the Territorial Supreme Court specifically stated that rules of practice established in the decisions of the court shall remain in force as heretofore, and were in addition to those made administratively — which were few, thirty-one in all.
Today, we have a court which has so fettered itself with rules made administratively, that it has well-nigh emasculated itself. One recent exception comes to mind. In Minnich v. Gem State Developers, Inc., 99 Idaho 911, 591 P.2d 1078 (1979), the Court by decision, and not by rule, held “that the statutory power to award attorney’s fees applies to the members of this Court as well as to the district judges throughout the state.” Today, in stark contrast, the Court has the statutory power to correct an inequity, but turns it away ostensibly because the statutory power does not fit into any particular pigeonhole of the various court-made rules affording relief from judgments.
Todays’ inaction by the majority presents a sad commentary on the intellect and capabilities of this Court to function as earlier courts have functioned. Finding itself with a 613 page bound volume of rules plus a 1986 pocket parts of 357 more pages of rules, but without a specific rule thought applicable to applying a legislative remedy, this Supreme Court will be unique in deeming itself no longer able to act by deciding a case which will itself provide a case-law rule notwithstanding a legislative enactment which is all the authority needed. APPENDIX ATTACHED.
APPENDIX
LEGISLATURE OF THE STATE OF IDAHO
Forty-ninth Legislature
First Regular Session — 1987
IN THE SENATE
SENATE BILL NO. 1076
BY JUDICIARY AND RULES COMMITTEE
AN ACT
RELATING TO ACTIONS FOR DIVORCE; AMENDING CHAPTER 7, TITLE 32, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 32-713A, IDAHO CODE, TO ALLOW MODIFICATION OF COMMUNITY PROPERTY SETTLEMENTS, JUDGMENTS, OR DECREES WHICH BECAME FINAL IN THE PERIOD OF JUNE 25, 1981, TO FEBRUARY 1, 1983, BY ALLOWING THE INCLUSION OF MILITARY RETIREMENT BENEFITS IN THE SETTLEMENT, JUDGMENT, OR DECREE, TO PROVIDE A STATUTE OF LIMITATIONS, AND TO PROVIDE A SUNSET CLAUSE.
Be It Enacted by the Legislature of the State of Idaho:
SECTION 1. That Chapter 7, Title 32, Idaho Code, be, and the same is hereby amended by the addition thereto of a NEW SECTION, to be known and designated as Section 32-713A, Idaho Code, and to read as follows:
32-713A. MODIFICATION OF DIVORCE DECREE — EFFECTIVE DATE. 1. Community property settlements, judgments, or decrees that became final on or after June 25,1981, and before February 1, 1983, may be modified to include a division of military retirement benefits payable on or after February 1, 1983, in a manner consistent with federal law and the law of this state as it existed before June 26,1981, and as it has existed since February 1, 1983.
2. Modification of community property settlements, judgments, or decrees under this section may be granted whether or not the property settlement, judgment, or decree expressly reserved the pension issue for further determination, omitted any reference to a military pension, or assumed in any manner, implicitly or otherwise, that a pension divisible as community property before June 25, 1981, and on or after February 1, 1983, was not, as of the date the *974property settlement, judgment, or decree became final, divisible community property.
3. Any proceeding brought pursuant to this section shall be brought before July 1, 1988.
4. This section shall remain in effect until July 1, 1988, and on that date it is repealed and null and void.
. This member of the Court finds interesting the brief of respective counsel wherein the applicability of the Duthie case is discussed. Duthie was a judicial accident which should never have happened, and until overturned leaves that area of the law in shambles.
. Idaho Const., art. 3, § 22 provides:
§ 22. When acts take effect. — No act shall take effect until sixty days from the end of the session at which the same shall have been passed, except in case of emergency, which emergency shall be declared in the preamble or in the body of the law.