dissenting.
This litigation began in 1979. Since that time there have been enumerable proceedings before the trial court, and two appeals to this Court, together with numerous motions and special proceedings. Plaintiff brought proceedings to enforce the judgment of the trial court in the courts of Maryland and Maine. Special proceedings were brought through military channels of the federal government to seize portions of the defendant’s military pay.
The trial court entered the decree of divorce in March 1982. An appeal from that decree was filed by defendant. No appeal or cross-appeal was filed by plaintiff. The opinion of this Court issued April 11, 1985, and the only issues raised on that appeal are set out in that opinion, McHugh v. McHugh, 108 Idaho 347, 699 P.2d 1361 (1985), and do not include any issue pertaining to a division of defendant’s military retirement.
On October 2, 1986, the trial court entered the following order:
Plaintiff has moved to reopen a divorce proceeding to modify the division of property and award a portion of the defendant’s military retirement to her as community property.
This matter was tried and no issue was ever raised with regard to a division of the military retirement funds.
A complicated division of all other property was entered into and the matter was appealed to the Supreme Court. The Supreme Court remanded the matter back to make additional findings on the question of the amount of support to be awarded for the children and to correct a mathematical error in the values attributed to the property divided.
In all other respects the decree was affirmed.
This Court is of the opinion that the motion now to reopen is a collateral attack upon a matter that has been fully adjudicated by the Court and is not proper. The Court does not have the jurisdiction to consider the matter.
In my view the trial court was eminently correct. This case was initially argued before this Court on October 12, 1984. On September 8, 1982, Congress had enacted the Uniform Services Former Spouses Protection Act, 10 U.S.C. § 1408. It was only after the appeal had been argued and submitted to this Court that plaintiff went to the district court seeking an amendment of the divorce decree dividing the military pension rights.
As noted, the trial court correctly denied the motion on the basis that it was a collateral attack upon a matter fully litigated, and that the trial court had no jurisdiction to consider the matter. “Once an appeal is *202taken from the district court, the district court is divested of jurisdiction, except to take action in aid of the appeal.” First Security Bank v. Neibaur, 98 Idaho 598, 604, 570 P.2d 276 (1977), citing Coeur d’Alene Turf Club, Inc. v. Cogswell, 93 Idaho 324, 461 P.2d 107 (1969); 7 Moore’s Federal Practice, § 60.30(2) (2d ed. 1975); 4 Am. Jur.2d Appeal and Error § 352. See also Avondale Irrigation District v. North Idaho Properties, Inc., 99 Idaho 30, 577 P.2d 9 (1978).
The majority cites LeVine v. Spickelmier, 109 Idaho 341, 707 P.2d 452 (1985) as authority for the result obtained by the majority. LeVine is simply not applicable to the facts of this case. In LeVine the issue of military retirement was properly before the trial court. The trial court noted that federal legislation on the question was then pending before the Congress, and the trial court reserved jurisdiction of the question of division of the military pension rights. The facts of LeVine are a far cry' from those of the instant case. While doubts, as expressed by Bakes, J. in Le-Vine, may exist as to the propriety of such reservation of jurisdiction, nevertheless that procedure was affirmed by this Court in LeVine. In the instant case no appeal was taken on the issue of the division of the military retirement pension. Indeed, it was only after the case had been submitted to this Court for decision that the question of military retirement benefits was raised, and it was then raised before the trial court which had been clearly divested of jurisdiction by the appeal.
It is argued in the majority that Mr. McHugh subjected himself to the jurisdiction of this Court for the purposes of the initial divorce proceedings, and the first appeal to this Court. That argument is correct, but is simply inapplicable in the case at bar. Since the inception of the divorce proceedings, Mr. McHugh has been a resident of Maine, not of Idaho. While he subjected himself to the jurisdiction of the Idaho courts in the original divorce action, and the initial appeal, none of those proceedings purported to dispose of Mr. McHugh’s retirement income. The district court, on remand from this Court, had only jurisdiction to consider the matters remanded to it by the opinion of this Court. As to the remainder of the cause, as well noted by the district court, the principles of res judicata prevented additional issues being raised in the district court.
The congressional enactment specifically limits jurisdiction as follows:
A court may not treat the disposable retired or retainer pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of
a) his residence, other than because of military assignment, in the territorial jurisdiction of the court,
b) his domicile in the territorial jurisdiction of the court, or
c) his consent to the jurisdiction of the court.
10 U.S.C. 1408(c)(1), (4).
Thus, even assuming that Mrs. McHugh’s failure to appeal from the original divorce decree does not render it res judicata as to all issues raised in Mr. McHugh’s appeal, and their subsequent disposition by this Court and the district court, nevertheless there is no jurisdiction in the courts of Idaho to entertain the instant action.
Mr. McHugh has not been a resident of Idaho, nor has he been within the territorial jurisdiction of the court since the initiation of the original divorce proceedings. Consequently, the district court had no authority in the instant proceedings to render a personal judgment against Mr. McHugh. Any petition for a division of military retirement benefits as a community asset is a wholly separate independent action, and not a subsequent proceeding within the original dissolution action. Henn v. Henn, 26 Cal.3d 323, 161 Cal.Rptr. 502, 605 P.2d 10 (1980). In Sparks v. Caldwell, 104 N.M. 475, 723 P.2d 244 (1986), the parties had been divorced in New Mexico, and the court had retained jurisdiction to modify the decree of divorce as to custody of the children, and as to child support. The former husband was no longer a resident of the state of New Mexico. When the wife *203sought declaration of her interest in the husband’s military retirement pay, it was held that the court did not have personal jurisdiction over the former husband. See also Tarvin v. Tarvin, 187 Cal.App.3d 56, 232 Cal.Rptr. 13 (1986).
In Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975), I joined the majority of the Court in holding that military retirement pay was a community asset to be divided upon divorce. Holdings of the United States Supreme Court overturned the effectiveness of the Ramsey decision, but in turn the actions of Congress have effectively overturned the holdings of the United States Supreme Court. In effect, the wisdom of the majority in Ramsey has been reaffirmed. Nevertheless, I do not view the congressional action as a basis for reopening every Idaho divorce action which fell within that time framework wherein a spouse was a member of the military service. Particularly in the instant case do I view such a reopening as being improper. The initial action was filed more than nine years ago, the decree of the trial court was entered nearly seven years ago, and the decision of this Court was entered three and one-half years ago. The parties should not be divorced only from each other, but should also be divorced from this interminable litigation.
The doctrine of res judicata should be used to finalize this litigation, and the holding of the trial court in that regard should be affirmed. In any event, the courts of this state have long since been divested of any jurisdiction over the instant litigation.