MARRIAGE OF MCGILL
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No. 81-91 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981 IN RE THE MARRIAGE OF: DOROTHY McGILL, Petitioner and Respondent, and WILLIAM WESLEY McGILL, Defendant and Appellant. Appeal from: District Court of the Fourth Judicial District, In and for the County of Ravalli Honorable James B. Wheelis, Judge presiding. Counsel of Record: For Appellant: Lee A. Jordan, Missoula, Montana For Respondent: Tipp, Hoven, Skjelset & Frizzell, Missoula, Montana Submitted on briefs: November 6, 1981 Decided: December 9, 1981 Filed: DEc 9 19w1 w CLerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal by the husband from the property distribution in the decree of the District Court of the Fourth Judicial District, in and for the County of Ravalli. This is the second time this cause has been before this Court. , See In re Marriage of McGill (1980), 609 P.2d 278, 37 St.Rep. 578. Mont. The fact situation set forth in that opinion is satisfactory for our consideration of this case in view of the fact that it is again necessary to return this case to the District Court for reconsideration. Although eight issues are raised on appeal, they can be summarized in two issues: v. McCarty L.Ed.2d (1981), (1) What effect does McCarty , U.S. 101 S.Ct. 2728, 69 589, have on this case? (2) Did the the District Court abuse its broad discretion in making the property settlement? Our first decision in this case was rendered on March 27, 1980. On June 26, 1981, the United States Supreme Court reversed a California decision and held that the federal law precludes a state court from dividing military retirement pay pursuant to state community property laws. McCarty (1981), 589. - U.S. , McCarty v. 101 S.Ct. 2728, 69 L.Ed.2d The Court held that there is a conflict between the terms of the federal military retirement statutes and the community property rights asserted by the respondent; that the military retirement system confers no entitlement to retirement pay upon a retired member's spouse, and does not embody even a limited "community property" concept. that the language, structure, and Rather the history of the s t a t u t e s make c l e a r t h a t r e t i r e m e n t p a y c o n t i n u e s t o be a personal entitlement t o the r e t i r e e . See a l s o , Sandoval v. S a n d o v a l ( A r i z . A p p . 1 9 8 1 ) , 634 P.2d 405. McCarty is d i r e c t e d a t C a l i f o r n i a and o t h e r community property states, certainly broad states. but the enough to The C o u r t n o t e s , language include of the opinion noncommunity is property "Congress h a s determined that a y o u t h f u l m i l i t a r y is e s s e n t i a l t o t h e n a t i o n a l d e f e n s e ; it i s n o t f o r S t a t e s t o i n t e r f e r e w i t h t h a t g o a l by l e s s e n i n g t h e i n c e n t i v e t o r e t i r e c r e a t e d by t h e m i l i t a r y system." McCarty, 1 0 1 S . C t . In the instant a t 2742, 69 L.Ed.2d case, appellant's retirement a t 607. major asset is $720.97 p e r month i n m i l i t a r y r e t i r e m e n t p e n s i o n , v a l u e d a t $93,108.80. Therefore, this case is remanded to the D i s t r i c t Court f o r exclusion of t h a t a s s e t . The a p p e l l a n t a l s o c l a i m s t h e D i s t r i c t C o u r t e r r e d i n failing to divided, (1) order t h e home s o l d and t h e a s s e t s e q u a l l y ( 2 ) properly establish the wife's p r e s e n t income, ( 3 ) p r o p e r l y e v a l u a t e t h e f a m i l y home t o i n c l u d e i r r i g a t i o n systems, etc., proper t i e s and and (4) mortgage properly evaluate balance. the These can insurance all be r e c o n s i d e r e d on r e t r i a l . The judgment of t h e D i s t r i c t Court t h e c a s e remanded f o r f u r t h e r h e a r i n g s . is reversed and W e concur: %A& - Chief Justice
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