dissenting.
I thoroughly detailed my views supporting the limited reopening of those divorce decrees which became final during the twenty-month effective period of McCarty in my dissent to the initial majority opinion. I noted the extraordinary circumstances which required such a view: congressional intent, the speed with which congress enacted the USFSPA, the limited number of decrees which became final during the McCarty era, the anomaly of disparate treatment between those with decrees finalized during McCarty and those with earlier or later decrees. I still adhere to those views, but feel compelled to further note that by denying rehearing this Court is needlessly delaying this case and perpetuating litigation in an area where our state legislature has recently provided us with express guidance.
Since our initial decision in this case, the legislature passed Senate Bill 1076, 1987 Idaho Session Laws, Chapter 68, effective July 1, 1987. Senate Bill 1076 was enacted to allow modification of community property settlements, judgments or decrees which became final between June 25, 1981 and February 1, 1983 by allowing the inclusion of military retirement benefits.
As Idaho has no formal, written legislative history for us to draw upon, I would be hard pressed to point to a more obvious expression of legislative intent than that which surely preceded the passage of S.B. 1076, as it specifically operates to control the effective dates of McCarty.
For this Court to ignore S.B. 1076 by denying rehearing in this matter, thereby entailing needless and expensive future litigation by the McBrides, is a slap in the face to this state’s legislature and shows blatant and calculated disregard of its intent. Not content in ignoring the stated intent of the U.S. Congress in its first opinion, the majority now disregards the actions of the state legislature as well.
Our failure to either adhere to the mandate of the Idaho Legislature or to refer this case back to the trial court for consideration of the effect of the 1987 Idaho legislation, proves unnecessarily costly to both litigants because nine days after this opinion issues, that is, shortly after July 1, 1987, plaintiff will be filing an action for relief under that Idaho statute. The parties will then have to litigate the matter in district court, and if this litigation runs true to form, whichever side loses will appeal to this court, and we will have this issue squarely presented to us. It is already squarely presented to us and our lack of openness to entertain the proceeding now, gains nothing other than to cost the litigants money and add to the burden on the court system.