MARRIAGE OF KECSKES
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NO. 83-559 IN THE SUPPaME COURT OF THE STATE OF NOTJTANA 1984 IN RE THE MARRIAGE KARIN M. KECSrnS, OF Petitioner and Respondent, and GREGORY KECSKES, ' APPEAL FROM: ~, I Respondent and Appellant. District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable H. William Coder, Judge presiding. COUNSEL OF RECORD: C I For Appellant: J. V. Barron, Great Falls, f4ontana For Respondent : Gorham Swanberg, Great Falls, blontana - - - - Submitted on Briefs: Decided: , " * Filed: Clerk April 12, 1984 June 19, 1984 Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court. Gregory Kecskes, Appellant, appeals from the judgment entered on November 8, 1983 by the District Court of the Eighth Judicial District, distributing marital assets. Karin M. Kecskes (Wife) and Gregory Kecskes (Husband) were married in Ramstein, Germany on September 18, 1959. Husband was an Airman 1st Class in the Air Force pursuing a military career. During the course of their 23 year marriage, Wife followed her Husband to various points around the globe. In May 1974 after twenty years of service, Husband retired from the military service and returned to Great Falls with his Wife. In addition to rearing their only son, the Wife also worked while her Husband fulfilled his military service. Frequent military transfers required the Wife to commence employment in each new location. In certain instances where a job was not available, the Wife took volunteer positions. Upon the parties return to Great Falls, the Wife became a dental assistant, a position she continues to hold at the time of this action. Because of the parties' limited finances at the time of their marriage, Wife never received a wedding ring. In 1965 when Husband was serving a tour of duty in the Vietnam war zone, he mailed Wife a diamond wedding ring which he purchased in Saigon for $4,700. Subsequent to his retirement from the Air Force in May 1974, Husband started receiving monthly retirement payments of approximately $850.00. invested in "Pit Stop", Additionally, both parties a foreign car repair business, which the Husband later sold for $5,000. Five-hundred dollars of net proceeds of this sale Husband remitted to Wife. Husband presently draws $800.00 per month as a car salesman. The home, owned jointly by the parties, is valued at approximately $47,000 with a mortgage of about $38,000. At the time of this action parties have agreed to equally divide the net proceeds from the sale of the house. In addition to other minor debts, the parties owe the IRS approximately $2,100 pursuant to a delinquent 1981 tax obligation relating primarily to Husband's business endeavors; Wife' s tax was withheld by her employer. By agreement with the IRS, Wife is paying $105.00 per month and Husband $62.00 per month to liquidate this debt. The pa-rties separated in April 1982 and Wife petitioned for a divorce the following October. marriage to be irretrievably broken, Having found the the district court granted a dissolution in December 1982. On November distribution was 3, heard 1983 by the matter of the same court. the property Pursuant to pre-trial stipulation, matters of child custody, support and maintenance were settled. The trial court's order dated November 8, 1983 distributed: half the net equity in the house to each party; divided the remaining real and personal property; held both parties responsible for half of their delinquent 1981 joint tax obligation; awarded Wife a 50% share in the Husband's military retirement benefits. Husband filed a Notice of Appeal on November 22, 1983. The He presents the following issues: 1. Did the court follow the mandates of statutory law in equitably distributing the marital estate? 2. Are evidence? all portions of the Decree supported by Did the court abuse its discretion in allocating 3. one-half of the proceeds of the retirement benefits of A.ppellant to Respondent during his lifetime? In reviewing divisions of marital property, this Court " . . . court acted must determine only discretion without the regard to whether in the exercise of its arbitrarily, recognized substantial injustice." unreasonably principles or resulting in Balsam v. Balsam (1979), 180 Mont. 1.29, 589 P.2d 652, 653-654. The trial court acted within its discretion to award the engagement ring to Respondent and to divide marital assets and debts equally. The primary issue for consideration concerns the inclusion of Appellant's military retirement benefits as a marital asset and equal disposition thereof. In Re The Marriage of Miller (Mont. 1980), 609 P.2d 1185, 1187, this Court held that military retirement pay resembled any ordinary pension and should be treated as a vested property right which constitutes a marital subject to distribution by the trial court. asset In 1981 the United States Supreme Court ruled that a military person's retirement benefit could not be considered marital property /:/ in a settlement division. <' .: McCarty v. McCarty, (1981) , ' . . @US 210, 101 S.Ct. 2728, 69 Law Ed.2d 589. In deference to the Supreme Court's decision, this Court carved out an exception for military retirement benefits from the established rule that ordinary pensions constituted marital property. In Re the Marriage of McGill, (Mont. 1981), 637 P.2d 1182. Congress enacted 10 U.S.C. section 1408 et seq., the Uniform Services Former Spouses' Protection Act, H.R. No. 97-749, 97th Congress, 2nd express purpose decision. of 10 U.S.C. reversing Session the (1982), with Supreme 1408(c) (1) provides: Court Rep. the McCarty "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." Appellant argues that the federal statute does not ma-ndate that the military retirement benefits of one spouse be invaded and allocated. to the other spouse in the event of dissolution of marriage. Appellant maintains that disposition of military pension funds remains a matter of equitable determination by the trial court. Appellant argues that he was married to Respondent only 15 years of his 20 years of military service making the 50% division of his retirement pay inequitable. In Kis v. Kis (1982), 196 Mont. 296, 300, 639 P.2d 1151, 1153, this Court unequivocably applied the McCarty exemption to military retirement benefits only: "In McCarty, the United States Supreme Court decided that military retirement benefits could not be considered community property to be divided equally in divorce proceedings . . .. As the case before this Court does not involve a. military retirement benefit, the McCarty decision is not controlling." It is the ruling of this Court that military retirement benefit pay is analogous to any pension fund and constitutes a marital asset. Pursuant to 40-2-202, MCA which requires apportionment of all property and assets of parties to a dissolution, military retirement pay shall be included for purposes of establishing the marital estate. Equal division of Husband's military retirement benefits in the distribution of marital assets evidences no abuse of discretion by the trial judge. Affirmed. We concur: V~44-WWdq Chief Justice
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