dissenting.
28. I respectfully dissent because I do not agree that the award of military retirement benefits to Wife is preempted by federal law. Wife’s interest in Husband’s military retirement benefits was not addressed in the divorce decree filed in 1973. Availing herself of her right to bring an action to divide previously undivided community property under NMSA 1978, Section 40-4-20(A) (1993), Wife properly brought her petition within the applicable statute of limitations established by NMSA 1978, Section 37-1-4 (1880). See Plaatje v. Plaatje, 95 N.M. 789, 790, 626 P.2d 1286, 1287 (1981) (“[T]he four year statute of limitations of Section 37-1-4, applies to suits to divide personal property brought under Section 40-4-20.”).
29. Since 1969, New Mexico courts have treated a married couple’s interest in military retired pay earned during the marriage as community property. See LeClert v. LeClert, 80 N.M. 235, 236, 453 P.2d 755, 756 (1969); Walentowski v. Walentowski, 100 N.M. 484, 486, 672 P.2d 657, 659 (1983); Norris v. Saueressig, 104 N.M. 76, 77, 717 P.2d 52, 53 (1986). Community property that is left undivided by a divorce decree is held by the parties as tenants in common after the divorce. See Berry v. Meadows, 103 N.M. 761, 769, 713 P.2d 1017, 1025 (Ct.App.1986); Harris v. Harris, 83 N.M. 441, 442, 493 P.2d 407, 408 (1972); Jones v. Tate, 68 N.M. 258, 262, 360 P.2d 920, 923 (1961); William A. Reppy, Jr., The 1990 U.S.F.S.P.A Amendment: No Bar to Recognition of Tenancy in Common Interests Created by PreMcCarty Divorces that Fail to Divide Military Retirement Benefits, 29 Idaho L.Rev. 941, 943-45 (1992-93).
30. A New Mexico statute in existence since 1901 provides a mechanism for dividing, distributing, and otherwise partitioning such previously undivided community property. See 1901 N.M. Laws, ch. 62, § 31 (codified as amended at § 40-4-20). This statute expressly reserves jurisdiction to treat such undivided property and necessarily became part of the divorce decree at issue in the present case by operation of law. See Scanlon v. Scanlon, 60 N.M. 43, 49, 287 P.2d 238, 242 (1955) (domestic-relations statutes become part of divorce decree by operation of law); Zarges v. Zarges, 79 N.M. 494, 495, 445 P.2d 97, 98 (1968) (statute confers jurisdiction on district court to hear subsequent, independent action to divide property left undivided in divorce decree).
31. In Pacheco v. Quintana, 105 N.M. 139, 143, 730 P.2d 1, 5 (Ct.App.1985), this Court applied Section 40-4-20(A) in the context of military retirement benefits. The central question in the present appeal is the operative effect of Section 40-4-20(A) after Congress amended Paragraph 1408(c)(1) of the Uniformed Services Former Spouses Protection Act (USFSPA) in 1990. See Pub.L. No. 101-510, § 555(a), 104 Stat. 1569 (codified at 10 U.S.C. § 1408(c)(1) (1994)).
32. I do not agree with the majority that the preemptive effect of Paragraph 1408(c)(1) of USFSPA depends on whether or not the language in a particular divorce decree reiterates (literally) the statutory reservation of jurisdiction found in Section 40-4-20(A). Section 40-4-20(A) is incorporated into the divorce decree by operation of law regardless of whether its reservation of jurisdiction is repeated on the face of the decree, and hence the parties would have no reason to include such redundant language in their decree at the time it was entered. To make USFSPA’s preemptive effect hinge on the presence or absence of such language in the decree is to rely on exactly the kind of arbitrary, technical distinction that Congress wanted to avoid.
33. The Court, in its opinion today, acknowledges that congressional committee reports are not always reliable indicators of legislative intent, especially in the domestic relations context where state law is preeminent and courts “will not find pre-emption absent evidence that it is ‘positively required by direct enactment.’ ” Mansell v. Mansell, 490 U.S. 581, 587, 109 S.Ct. 2023, 2028, 104 L.Ed.2d 675 (1989) (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979)). Nevertheless, the Court relies on language in a House Committee report expressing disapproval of the practice of reopening divorce decrees entered before the United States Supreme Court’s decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), to award a share of military retired pay to a service member’s former spouse. See H.R.Rep. No. 101-665, at 279 (1990), reprinted in 1990 U.S.C.C.A.N. 2931, 3005; cf. In re Marriage of Curtis, 7 Cal.App.4th 1, 9 Cal.Rptr.2d 145, 153 (1992) (interpreting USFSPA as preempting this practice in California). The wording of the House Committee report does not affirmatively demonstrate that preemption of New Mexico law is “positively required by direct enactment” in this context.
34. I do not doubt that Congress generally intended to stop state courts from reopening divorce decrees for the purpose of taking property rights in military retired pay from an individual and transferring those rights to his or her former spouse when such rights already had become the separate property of that individual either by operation of state law or as a result of express language in a pre-McCarty divorce decree. See Reppy, supra, at 953-54 n. 33 (discussing legislative history of USFSPA). However, the legislative history on which the opinion relies does not support a prediction as to what result Congress specifically intended with regard to New Mexico marital-property laws under the circumstances of this case. In particular, “[tjhere is little to suggest that the writer of the Committee Report intended to deprive the military member’s ex-spouse of an affirmative remedy that would merely implement property rights previously vested in her by the divorce decree.” Id. at 960-61 (footnotes omitted).
35. Both the statutory language and the legislative history of USFSPA speak in broad terms that leave courts with the task of sorting out the subtle but significant differences among the marital property laws of the fifty states to which USFSPA applies. In this case, such differences exist between New Mexico’s longstanding tradition of community property law and recent developments in the California courts, upon which the majority so heavily relies. See, e.g., Stephens v. Stephens, 93 N.M. 1, 3, 595 P.2d 1196, 1198 (1979) (declining to adopt concept of “quasi-community property” embodied in California statute). Thus, if one infers that the reference to the California courts in the House Committee report means, that Congress wanted to preempt certain developments in California law, it does not follow that Congress positively required the preemption of New Mexico marital-property law.
36. Further, the historical circumstances regarding the development of California marital-property law at the time Congress was considering the 1990 amendments to USFSPA also do not support the inference that Congress positively required the preemption of New Mexico law in this context. The timing of the 1990 amendments to USFSPA coincides with statutory changes in California law which allow for equitable (in lieu of equal) distribution of previously undivided property in proceedings where a divorce decree is reopened, a feature not found in the New Mexico statute which has remained essentially unchanged since 1901. Compare 1989 Cal.Stat. ch. 1105, § 2 (codified as amended at Cal.Fam.Code § 2556 (West 1994)) with 1901 N.M.Laws, ch. 62, § 31 (codified as amended at § 40-4-20(A)); see also Reppy, supra, at 951 n. 28 (citing California statute as example of major change “from 50-50 divisibility to a right to claim an equitable share greater than 50%”). In light of these differences, I do not agree that Congress positively required New Mexico courts to refrain from reopening a preMcCarty divorce decree under Section 40-4-20(A) in order to divide an interest in military retired pay which the parties held as tenants in common after the divorce.
37.Under the plain language of Paragraph 1408(c)(1), a New Mexico court is not prohibited from awarding a share of military retired pay to a former spouse if the couple’s interest in the military retired pay was community property during the marriage, the divorce decree effectively treated this interest by changing its status from undivided community property to a tenancy in common, and the divorce decree effectively reserved jurisdiction to further treat the military retired pay in a later action to partition the tenancy in common and award separate shares to each spouse. Cf. Walton v. Lee, 888 S.W.2d 604, 605 (Tex.Ct.App.1994) (under Texas law, courts automatically treat or reserve jurisdiction to treat community interest in military retired pay by virtue of laws governing ownership of undivided property, and subsequent partition is not precluded by federal law); Southern v. Glenn, 677 S.W.2d 576, 582 (Tex.Ct.App.1984) (quoting a dictionary definition of “treat” as meaning “to deal with a matter or subject”); Security Escrow Corp. v. Taxation & Revenue Dep’t, 107 N.M. 540, 543, 760 P.2d 1306, 1309 (Ct.App.1988) (“Unless the legislature indicates a different intent, we must give statutory words their ordinary meaning.”).
38. This conclusion is consistent with USFSPA’s purpose of protecting the economic interests of former spouses by “‘removing the federal pre-emption found to exist’ ” in McCarty, 453 U.S. at 236, 101 S.Ct. at 2743. Walentowski, 100 N.M. at 486, 672 P.2d at 659 (quoting S .Rep. No. 97-502, at 16 (1982), reprinted in 1982 U.S.C.C.A.N. 1596, 1611). In enacting USFSPA, Congress recognized that “the unique status of the military spouse and that spouse’s great contribution to our defense require that the status of the military spouse be acknowledged, supported and protected.” S.Rep. No. 97-502, at 6, reprinted in 1982 U.S.C.C.A.N. at 1601. Congress found that such protection is needed because “frequent change-of-station moves and the special pressures placed on the military spouse as a homemaker make it extremely difficult to pursue a career affording economic security, job skills and pension protection.” Id.
39. The 1990 amendments to USFSPA did not alter these findings or modify these important considerations. See H.R.Rep. No. 101-665, at 279, reprinted in 1990 U.S.C.C.A.N. at 3005 (stating that 1990 amendment “is consistent with the balancing of state and federal interests that has been the hallmark of this law since its inception”). Rather, the legislative history of the 1990 amendments demonstrates an intent to clarify the statutory language so that courts would not interpret the removal of the preemption found to exist in McCarty as the creation of a new federal right to retroactively deprive retired service members of their separate property. See Pub.L. No. 101-510, § 555(a), 104 Stat. at 1569 (entitled “Prohibition of Certain Retroactive Court Orders”); cf. Black’s Law Dictionary 1317 (6th ed.1990) (defining “retroactive laws” as “those which take away or impair vested rights acquired under existing laws”); Reppy, supra, at 959 (“The House Committee ... sees the Amendment as addressed at reopenings that disturb a final divorce decree which left the military member as sole owner of the pension.”). Although Congress recognized this limitation on reopening pre-McCarty divorce decrees when the statute was originally enacted, see H.R.Conf.Rep. No. 749, at 167-68 (1982), reprinted in 1982 U.S.C .C.A.N. 1569, 1573, the 1990 amendments were necessary because some courts were not interpreting USFSPA in accordance with the. drafters’ original intent. See H.R.Rep. No. 665, at 279, 1990 U.S.C.C.A.N. at 3005 (“[S]ome state courts have been less than faithful in their adherence to the spirit of the law.”); Reppy, supra, at 960 n. 46 (citing Missouri court’s interpretation of USFSPA in 1988 as example of what the 1990 amendments sought to abrogate).
40. New Mexico courts were never cited as being among those which failed to interpret USFSPA in accordance with congressional intent. Moreover, if the spirit of the law is to protect the parties’ property rights following a divorce, then courts should disfavor a construction of Paragraph 1408(c)(1) of USFSPA which terminates the interest in military retired pay that a former spouse may hold as a tenant in common under New Mexico community property law. Such a construction could result in an unconstitutional denial of equal protection or a taking of private property for public use without just compensation. See U.S. Const, amends. V, XIV; Reppy, supra, at 964-73. “[Wjhen one of two constructions raises substantial problems of unconstitutionality, the other construction is adopted.” Reppy, supra, at 947.
41. Finally, “public policy considerations favor permitting the states to define a [former] spouse’s interest in military retirement benefits” and do not favor a construction of Paragraph 1408(e)(1) that only serves to deprive “older and less-ably advised or represented [former] spouses” of the benefit of state marital-property laws that routinely apply to others. In re Marriage of Curtis, 9 Cal.Rptr.2d at 153. The general rule established by USFSPA is that the division of military retired pay under state marital-property laws is not preempted. The exception to this general rule-only applies to certain divorce decrees that were finalized before McCarty was decided in 1981. See § 1408(c)(1). Holding that the present case falls under the general rule rather than the exception can affect only those divorce decrees that apply New Mexico community property law, do not expressly divide a community interest in military retired pay earned during the marriage, and were entered between the LeClert decision in 1969 and the McCarty decision in 1981—and then only if the petition to reopen the decree was brought within the applicable time limitation. Thus, a determination that Wife’s petition in the present case meets all of these requirements is necessarily limited in scope and would not “do ‘major damage’ to ‘clear and substantial’ federal interests.” Hisquierdo, 439 U.S. at 581, 99 S.Ct. at 808 (quoting United States v. Yazell, 382 U.S. 341, 352, 86 S.Ct. 500, 507, 15 L.Ed.2d 404 (1966)).
42. I would find that the award of retirement benefits is not preempted by federal law. Because the majority decides otherwise, I respectfully dissent.