Collins v. Collins5/30/2002
dified in light of this legislation."
And later, the report explains (id. at 1611):
This power is returned to the courts retroactive to June 26, 1981. This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the effective date of this legislation the opportunity to return to the courts to take advantage of this provision. Andresen, 317 Md. at 384-85.
Accordingly, the Senate specifically contemplated the revision of decrees that had been entered or modified during the period between the date of the McCarty decision and the effective date of the USFSPA. If the language of the statute referring to "treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981," were construed without reference to the legislative history, part of the purpose of the statute, to fix the inequities caused by the McCarty decision, would be defeated.
As recognized by the California Court of Appeals, First Appellate District, the USFSPA "contained no provisions relating to the division of military retirement pay which became payable prior to June 25, 1981." In re Marriage of Curtis, 7 Cal. App. 4th 1, 14, 9 Cal. Reptr. 2d 145 (Ct. App. Calif. 1992). Based on the history of the statutory provision, the court stated "that benefits which had become payable prior to the enactment of [the USFSPA], would also be divided in accordance with state law principles (because McCarty would not be applied retroactively)." Id. Courts addressing this issue, but not applying McCarty retroactively, have declined to apply the decision retroactively because of the res judicata effect of final divorce decrees as well as the fact that the Supreme Court provided no indication in McCarty that it intended a retroactive application. See Armstrong v. Armstrong, 696 F.2d 1237, 1238 (9th Cir.), cert. denied, 464 U.S. 933, 104 S. Ct. 337, 78 L. Ed. 2d 306 (1983); Erspan v. Badgett, 659 F.2d 26, 28 (5th Cir. 1981); Erbe v. Eady, 406 So.2d 936, 938-39 (Ala. Civ. App.), cert. denied, 406 So.2d 939 (Ala. 1981); Rodrigues v. Rodrigues, 133 Ariz. 88, 649 P.2d 291, 291 (Ariz. Ct. App. 1982), approved, 133 Ariz. 87, 649 P.2d 290 (Ariz. 1982); Burt v. Smith, No. CA84-26, 1984 Ark. App. LEXIS 1823 at *3 (Ark. Ct. App. Oct. 24, 1984); Allcock v. Allcock, 107 Ill. App. 3d 150, 437 N.E.2d 392, 396 (1982); Tarver v. Tarver, 441 So.2d 451, 452 (La. Ct. App. 1983), cert. denied, 445 So.2d 1232 (La. 1984); Chisnell v. Chisnell, 149 Mich. App. 224, 385 N.W.2d 758, 760 (1986); Duke v. Duke, 98 Nev. 148, 643 P.2d 1205, 1206 (1982); Stroshine v. Stroshine, 98 N.M. 742, 652 P.2d 1193, 1995 (N.M. 1982); In re Marriage of Vinson, 57 Ore. App. 355, 644 P.2d 635, 636 (1982); Bachelder v. Moore, 288 S.C. 405, 343 S.E.2d 32, 33 (S.C. S. Ct. 1986); Segrest v. Segrest, 649 S.W.2d 610, 612 (Tex. 1983); and In re Marriage of Brown, 98 Wn. 2d 46, 653 P.2d 602, 605 (Wash. 1982).
Accordingly, we hold that the portion of Lt. Col. Collin's retirement pay available for distribution was not limited to the portion accruing after June 26, 1981.
2. The Constituted Pension Order
Lt. Col. Collins' arguments as to why the constituted pension order ("CPO") was improper became more clear at oral argument. Based on the assumption that the CPO would remain valid in the event Lt. Col. Collins is entitled to and awarded disability pay, his problem with the CPO is two-fold. First, he contends that the CPO awarded Dr. Collins more than 50% of his disposable retired pay, because the CPO speaks in terms of a specific dollar amount, rather than a percentage. Second, he complains about the following langu
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