IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
CHARLOTTE MAY PATZER, n/k/a
CHARLOTTE SKINNER,
Plaintiff and Appellant,
JAMES HOWARD PATZER, United States of
America, Commander of Air Force
Accounting and Finance Center, and
DOES I Through 111,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Linda L. Harris, Harris & Ventrell, Billings,
Montana
For Respondent:
E. Lee LeVeque, Conklin, Nybo & LeVeque, Great
Falls, Montana
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Submitted on Briefs: April 19, 1990
t Decided: MaY 2 4 1 1990
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Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiff, Charlotte May Patzer (Mrs. Patzer) filed a
complaint for partition of personal property; namely defendant's
(Mr. Patzer) military pension. The District Court of the Eighth
Judicial District, Cascade County, granted defendant's motion to
dismiss pursuant to Rule 12, M.R.Civ.P. Plaintiff appeals. We
affirm.
The sole issue for our consideration is whether the District
Court erred in granting defendant's motion to dismiss.
Mr. and Mrs. Patzer were married in 1966 and divorced in 1979.
The parties entered into a separation agreement (Agreement). After
specifically finding that the Agreement was not unconscionable, the
District Court incorporated the Agreement into the Decree of
Dissolution. The Agreement provided in pertinent part:
THIS AGREEMENT made this 16th day of January, 1979,
between CHARLOTTE MAY PATZER, hereinafter referred to as
Wife, and JAMES HOWARD PATZER, hereinafter referred to
as Husband; ...
WHEREAS, it is the desire of the parties to finally
and for all time settle and determine the property
rights, rights to the custody of the support payments for
the minor child of the parties, and all other rights
existing between the parties and growing out of the
marital relationship;
7. PERSONAL PROPERTY: That prior hereto, the
parties have divided their household furniture and
personal effects in a mutually satisfactory and equitable
manner. That the Wife has the use, title and possession
of a 1972 Buick Riviera automobile and the Husband has
a 1973 GMC pickup. The Husband shall assume all
underlying liens, debts and encumbrances on the
aforementioned vehicles at the Malstrom Federal Credit
Union. That the Husband has received all right, title
and interest to his tools, guns, two (2) motor cycles and
motor cycle trailer, pool table, console television,
console stereo and family room furniture. The Wife has
all right, title and use to the remaining household
items, furniture and effects as well as Wife's personal
effects.
...
14. COVENANT OF FULL DISCLOSURE: Each party
covenants that he or she has made a full disclosure to
the other of all property owned by him or her or by the
parties together, and of all income derived from such
property, or income derived from other sources by either
of the parties; and it is agreed that this instrument
shall constitute a full and final settlement between the
parties based upon such disclosure by each of the parties
to the other, and to the extent that such full disclosure
may be discovered in the future to have been incomplete,
this agreement shall not be final as to such undisclosed
property or income.
On February 3, 1988, nearly 10 years after the entry of the
Decree of Dissolution, Mrs. Patzer filed a complaint alleging that
the Decree of Dissolution did not ''specifically or otherwise
provide1' for the distribution of Mr. Patzer's military pension.
She further alleged that she was a co-owner or tenant in common in
the pension fund by virtue of the past marriage of the parties, and
requested that the pension be partitioned between the parties.
Mr. Patzer filed a Rule 12, M.R.Civ.P., Motion to Dismiss on
the grounds that it failed to state a claim upon which relief can
be granted; lacked jurisdiction of subject matter; was not timely;
was barred by res judicata; and was barred by laches.
The District Court treated the complaint as a pleading
pursuant to Rules 59 and 60, M.R.Civ.P. or a motion under 5 4 0 - 4 -
208, MCA. It concluded that the complaint was not timely; res
judicata barred the complaint; laches barred the complaint; and no
conditions existed which would justify the reopening of the
judgment. From that decision, Mrs. Patzer appeals.
Mrs. Patzer brought this action for partition personal
property under 570-2-211, MCA (1987), rather than seeking a
modifiction of the decree under 540-4-208(3), MCA. She contends
that until partitioned and distributed the Court, the parties
to this action hold the military pension in dispute as tenants in
common and the lapse of time between the dissolution and this
action is therefore irrelevant. She maintains that the military
pension was not considered by the District Court because it was
not specifically mentioned.
Mr. Patzer urges that 570-2-211, MCA, does not control this
action. He contends it would be ludicrous to set forth each
specific item of personal property in a decree of dissolution.
Lastly, he maintains that pensions are marital assets. We agree.
Although Mrs. Patzer brought this action as a partition of
personal property, we conclude that 5 70-2-211, MCA, is not
controlling here. Rather, 5 40-4-208(3), MCA, controls, which
states:
The provisions as to property disposition may not be
revoked or modified by a court, except:
(a) upon written consent of the parties; or
(b) if the court finds the existence of conditions that
justify the reopening of a judgment under the laws of
this state.
Military pensions are marital assets subject to equitable
distribution. In re Marriage of Miller (1980), 187 Mont. 286, 609
P.2d 1185. Mrs. Patzer relies on the California case of Casas v.
Thompson (Cal. 1986), 720 P.2d 921, for the proposition that the
military pension is community property and thus allows the ex-wife
to assert her interest for partition of the pension because the
asset was not before the court at the time of the dissolution.
Casas interpretedthe Uniformed Services Former Spouses1 Protection
Act, 10 U.S.C. 9 1408 ("USFSPA1I). We have also addressed USFSPA
in Montana in In re Marriage of Waters (1986), 223 Mont. 183, 724
P.2d 726. In Waters the issue was whether USFSPA should be applied
retroactively to final decrees of dissolution which were entered
subsequent to the United States Supreme Court decision in McCarty
v. McCarty but prior to USFSPA. McCarty v. McCarty (1981), 453
U.S. 210, held that federal law precluded state courts from
dividing military retirement pay pursuant to state community
property or equitable distribution laws. In Waters the final decree
of dissolution had not been entered when McCartv was decided.
Hence, even though Montana had treated military pensions as a
marital asset, McCarty affected the final decree and Mr. Waters
pension was held not to be a marital asset. This Court stated:
The law in Montana prior to McCartv was such that
military pensions were treated like any other asset of
the marriage and were subject to equitable distribution.
After the USFSPA was passed, this Court . .. reaffirmed
that military retirement pay constituted a marital asset.
Thus, those spouses of members of the armed forces who
obtained dissolutions prior to McCartv were entitled to
share in their spouses1 military pension. . ..
The legislative history of the USFSPA indicates that
the Act was meant to apply to those spouses who were
divorced during the period between McCartv and the Act.
Waters, 724 P.2d at 729, 730. McCartv was decided in 1981. The
Patzers1 marriage was dissolved in 1979, prior to both McCartv and
the USFSPA. Therefore Mr. Patzerlsmilitary pension is clearly a
marital asset and Title 40 controls.
The parties agreed that the separation Agreement was a "full
and final settlementf1. A separation agreement does not have to
mention every single item of property the parties hold at the time
of their dissolution. Furthermore, since Mrs. Patzer specifically
states she does not claim that the Agreement was unconscionable,
there is no basis to reopen the judgment under 540-4-208, MCA. We
hold that the ~istrictCourt was correct in granting Mr. Patzer's
Motion to Dismiss. We conclude it is unnecessary to address the
issues of laches, res judicata and lack of jurisdiction.
Affirmed.
We Concur: