dissenting:
The majority opinion is premised, I believe, on the assumption that if the Idaho district court had jurisdiction over Mr. McHugh sufficient to satisfy the due process clause of the United States Constitution, that it also had jurisdiction over his retirement benefits under the Uniformed Services Former Spouses Protection Act (USFSPA), 10 U.S.C. § 1408. However, a careful review of that Act will demonstrate that that assumption is incorrect.
The USFSPA limits the jurisdiction to divide military retirement pay to the state of the serviceman’s residence or his domicile (unless he consents to the jurisdiction of the court, which will be discussed later). Under a due process analysis if a defendant has minimum contacts with a state, the state may assert jurisdiction over him regardless of where his residence or domicile may be. However, under 10 U.S.C. § 1408(c)(1) and (4), jurisdiction over the military retirement pay of servicemen is restricted to the state of his residence or domicile unless he consents to jurisdiction elsewhere. The purpose for the congressional limitation on the jurisdiction of state courts to adjudicate and dispose of a portion of a serviceman’s military retirement benefits was to prevent a serviceman from having to travel all over the United States, or for that matter the world, in order to defend his rights to his military retirement benefits. To permit the plaintiff in this case to assert her claim in the Idaho courts will violate the federal statute, in my opinion.
The procedural facts of this case are not controverted. The parties were married on February 14, 1972, while domiciled in the State of Maryland. Subsequently, the husband’s military duties brought them to the State of Idaho. The wife filed for divorce in Idaho on November 19, 1979, while both parties were residing and domiciled in Idaho. The husband appeared in the divorce action and filed an answer and counterclaim. In 1980, while the divorce was pending in the Idaho district court, the husband was reassigned to military duty in the State of Maine. The case was tried in the Idaho district court on October 13-16,1981.
Prior to the trial in this case in October of 1981, the United States Supreme Court on June 26, 1981, issued its opinion in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), holding that under federal law the retirement benefits of a serviceman were his separate property, and his spouse had no property right in them.
At the trial of this case on October 13, 1981, the plaintiff neither introduced evi*204dence nor made any claim to the military retirement benefits of Mr. McHugh, apparently because of the United States Supreme Court’s decision in McCarty. The trial court issued its decree on March 1, 1982, and as the majority opinion correctly points out, the trial court made “no division of Mr. McHugh’s military retirement benefits because of the McCarty decision having withdrawn the military retirement benefits from the subject matter jurisdiction of the state courts.” Ante at 134. After several post trial motions, an appeal was taken by Mr. McHugh on December 3, 1982. Mrs. McHugh did not appeal from the trial court’s decree, which made no division of Mr. McHugh’s future military retirement benefits. On appeal the trial court’s decision was affirmed, except for two items — a mathematical calculation, and a remand for a more specific finding on child support. McHugh v. McHugh, 108 Idaho 347, 699 P.2d 1361 (1985).
While the appeal from that divorce decree was pending in this Court the United States Congress on September 8, 1982, enacted the Uniformed Services Former Spouses Protection Act (USFSPA), 10 U.S.C. § 1408, effective February 1, 1983. Part of that act provided that:
“[13(c)(1) 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.”
Thus, effective February 1, 1983, the Congress of the United States returned jurisdiction to the state courts to divide “disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, ... in accordance with the law of the jurisdiction of such court.” However, that return of subject matter jurisdiction to the state courts was “subject to the limitations of this section.... ” Those limitations were set out in subsection (c)(4), which reads as follows:
“[c](4) 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.”
On December 26, 1984, nearly two years after the effective date of the USFSPA, and while the appeal from the original divorce decree was still pending in this Court, Mrs. McHugh filed a motion with the district court and asked the district court to assert jurisdiction over Mr. McHugh’s military retirement benefits and “divide the community portion of the Defendant’s military pension rights.”2 When Mrs. McHugh filed her motion requesting the Idaho court to assert jurisdiction over Mr. McHugh’s military retirement benefits, Mr. McHugh had for more than three years been residing in and domiciled in the State of Maine.
*205Under 10 U.S.C. § 1408(c)(1) and (4), the Idaho courts could not obtain jurisdiction over Mr. McHugh’s military retirement pay. As the majority opinion itself acknowledges, under McCarty and prior to February 1, 1983, when the Act of Congress took effect, the Idaho court did not have subject matter jurisdiction of “Mr. McHugh’s military retirement benefits because the McCarty decision [had] withdrawn the military retirement benefits from the subject matter jurisdiction of the state courts.” Ante at 134. However, contrary to the assertion in the majority opinion, 10 U.S.C. 1408 did not render “McCarty void ab initio.” Ante at 134. Rather, effective February 1, 1983, the Congress merely extended to state courts jurisdiction to “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. § 1408(c)(1) (emphasis added). Stated another way, after February 1, 1983, state courts had subject matter jurisdiction to divide military retirement pay received after June 25, 1981. However, that grant of jurisdiction on February 1, 1983, was “subject to the limitations of [subsection (c)(4)],” which stated that “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, ... (B) his domicile ..., or (C) his consent to the jurisdiction of the court.” The Idaho courts had no subject matter jurisdiction of the military retirement pay prior to February 1, 1983, as the majority opinion itself acknowledges. When Congress finally gave subject matter jurisdiction to the state courts on February 1, 1983, no state court could “treat disposable retired or retainer pay ... in accordance with the law of the jurisdiction of such court ... unless the court has jurisdiction over the member by reason of (A) his residence, ... (B) his domicile ..., or (C) his consent to the jurisdiction of the court.” When Mrs. McHugh filed her motion on December 26, 1984, Mr. McHugh refused to consent to the Idaho court assuming subject matter jurisdiction over his military retirement pay.
The original complaint filed by Mrs. McHugh in 1979 alleged that the military retirement of Mr. McHugh was acquired with their joint earnings, and therefore was community property and requested an equitable division of that retirement benefit. However, no evidence in support of that claim, either as to her entitlement or the amount of any such claim, was introduced at trial, and as the district court pointed out in its decision, “This matter was tried and no issue was ever raised with regard to the military retirement funds.” The divorce decree entered by the district court after trial awarded her no interest in the retirement benefits, and she took no appeal from that judgment. Thus, having asserted the claim in her complaint, and then failing to produce any evidence to support it, the issue was abandoned. When she took no appeal from the judgment, that decision was the law of the case, and res judicata. “[T]he doctrine of res judicata applies not only as to all matters decided, but also as to ‘every matter which might and should have been litigated in the first suit.’ ” McQuillen v. City of Ammon, 113 Idaho 719, 721, 747 P.2d 741, 743 (1987), quoting Duthie v. Lewiston Gun Club, 104 Idaho 751, 753, 663 P.2d 287, 289 (1983). Accord Austin v. Fulton Ins. Co., 498 P.2d 702 (Alaska 1972) (where implied holding of the trial court was not disputed on appeal, it became the law of the case); Sand Springs Home v. State ex rel. Dept. of Highways, 536 P.2d 1280 (Okla.1975) (unappealed findings and conclusions of trial court became the law of the case); De-tonics “.45” Associates v. Bank of California, 97 Wash.2d 351, 644 P.2d 1170 (1982) (en banc) (unappealed trial court’s finding became the law of the case); Vigil v. Spokane County, 42 Wash.App. 796, 714 P.2d 692 (1986) (application of 3-year statute of *206limitations, to which defendant did not object in trial court, became law of the case despite argument on appeal that catchall 2-year statute applied); South Hill Sewer Dist. v. Pierce County, 22 Wash.App. 738, 591 P.2d 877 (1979) (where issue was abandoned on appeal, the trial court’s order in that regard became the law of the case). See also Angel v. Bullington, 330 U.S. 183, 189, 67 S.Ct. 657, 661, 91 L.Ed. 832 (1947) (“If a litigant chooses not to continue to assert his rights after an intermediate tribunal has decided against him, he has concluded his litigation as effectively as though he had proceeded through the highest tribunal available to him.”).
The district court was correct in concluding that the motion to divide the military pension was “a collateral attack upon a matter that has been fully adjudicated by the Court ...,” and that “the Court does not have the jurisdiction to consider the matter.” First, Mrs. McHugh had made a claim to the military retirement benefits in her original complaint, but failed to produce any evidence to support that claim at trial, and the original judgment gave her no relief on that claim in her complaint. As the district court correctly noted, the district court decree had not been appealed by the plaintiff Mrs. McHugh and had been affirmed on appeal by the Supreme Court except for a mathematical correction, and a remand for additional findings on child support. Accordingly, the property distribution was the law of the case and res judica-ta and could not be collaterally attacked. McQuillen v. City of Ammon, supra; Angel v. Bullington, supra. Furthermore, the motion to divide the pension, which was made over two years after the entry of the decree, did not assert any legal grounds for reopening under I.R.C.P. 60(b), nor did the motion set out any factual allegations asserting any right to relief under that rule. Accordingly, the district court did not have any basis for modifying its prior decree which had been affirmed by the Supreme Court.
More importantly, however, at the time that the plaintiff Mrs. McHugh filed the Motion to Divide Pension on December 26, 1984, and asserted a claim to the military pension rights, 10 U.S.C. § 1408(c)(1) and (4) did not give the Idaho courts subject matter jurisdiction over Mr. McHugh’s military retirement pay, because Mr. McHugh was a resident of and domiciled in the State of Maine. For that additional reason, the judgment of the district court should be affirmed.
The majority opinion argues that because the Idaho court acquired personal jurisdiction over Mr. McHugh in 1979 as a result of his being served with process in Idaho, and by his filing an answer and counterclaim in the action, that he has consented to the jurisdiction of the Idaho court to adjudicate adverse claims to his military retirement pay within the meaning of 10 U.S.C. §. 1408(c)(4). Thus, the majority opinion states,
“We can see no reason why Mr. McHugh, who has already expressly subjected himself to the personal and subject matter jurisdiction of the Idaho courts with regard to all aspects of community and separate property division, may validly claim that he must again be served with process under USFSPA. [Footnote omitted.] Admittedly, had the appeal been completed, remittitur issued, and final judgment entered, Mrs. McHugh may have had to file a new action under the USFSPA in Maine, but such a second action would be improper where there is a current action pending.” Ante at 135 (emphasis added).
However, Mr. McHugh is not merely arguing that “he must again be served with process under USFSPA.” Rather, he asserts that under USFSPA the claim against his military retirement benefits can only be litigated in Maine, the state of his residence and domicile at the time the claim is asserted. If Mr. McHugh’s objection to jurisdiction was based solely upon the due process clause of the fifth amendment, then the majority might be correct in concluding that the Idaho courts had continuing in personam jurisdiction of Mr. McHugh, subject to his res judicata defense. However, that is not the issue in this case. The issue is whether or not when Mrs. McHugh filed her motion on December 26, 1984, *207requesting the Idaho courts to assert subject matter jurisdiction and divide Mr. McHugh’s military retirement benefits, had the limitations set out in 10 U.S.C. § 1408(c)(4) been met. In my view they had not. At that time Mr. McHugh was not a resident of Idaho, was domiciled in the State of Maine, and did not consent to the subject matter of the Idaho Court over his military retirement benefits. Under that act of Congress, the only state which could assert such jurisdiction over those military retirement benefits of Mr. McHugh was the State of Maine.
The primary purpose of the Congress in enacting 10 U.S.C. § 1408(c)(4) was to place a geographical limitation on where a serviceman would have to go to defend claims against his military retirement pay. Even though a court might be able to assert personal jurisdiction over a military serviceman for some purposes without violating the due process clause of the United States Constitution, in order to litigate a claim to military retirement pay the congressional geographical limitation set out in 10 U.S.C. § 1408(c)(1) and (4) must also be satisfied. Congress required the claimant to go to the state of residence of the serviceman rather than requiring the serviceman to go to the jurisdiction where the claimant chose to sue, even though the exercise of in personam jurisdiction in that state would not offend the due process clause (the minimum contacts analysis) of the fifth amendment to the United States Constitution. The protection which Congress intended to give servicemen by 10 U.S.C. § 1408(c)(1) and (4) is thwarted by today’s decision.
. The motion, in its entirety, reads as follows:
"DISTRICT COURT, SECOND JUDICIAL DISTRICT STATE OF IDAHO, LATAH COUNTY
BERIT ELISABET McHUGH, )
)
Plaintiff, ) Case No. 15589
)
v. ) MOTION TO DIVIDE PENSION
)
RICHARD GREGORY McHUGH, )
)
“Plaintiff moves the court to divide the community portion of defendant’s military pension rights. This asset was not dealt with in the trial, the Findings and Conclusions, or Decree. Plaintiff requests that this be done by amending the *205Decree, by Supplementary Decree, or by new Judgment as the court deems appropriate.
"DATED: this 26th day of December, 1984.”