Nos. 14636 & 14726 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

IN RE THE MARRIAGE OF: 

RONALD D. MILLER, 

Petitioner and Appellant, 

VS . 

JANET C. MILLER, 

Respondent and Respondent. 

Appeal from: ~istrict Court of the Eighth Judicial ~istrict, 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Smith, Emmons, Baillie and Walsh, Great Falls, Montana 

Robert J. Emmons argued, Great Falls, Montana 

For Respondent: 

Marra, Wenz, Iwen and Johnson, Great Falls, Montana 

David Hopkins argued, Great Falls, Montana 

Submitted: November 5, 1979 

Decided : MAR 2 7 1980 

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Filed: . 'i 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Husband, Ronald C. Miller, appeals the orders of the 

Cascade County District Court which granted the wife a 38.5 

percent share in the husband's military pension and temporary 

maintenance during the pendency of this appeal. 

The husband asserts that his military retirement pay 

is not a marital asset under Montana's Uniform Marriage and 

Divorce Act and in any event, that 10 U.S.C.A. g1401, et 

seq., which authorizes payment of his pension, preempts any 

state law which would permit distribution of a property 

interest in military retirement pay to the retiree's spouse. 

The primary issue in this appeal concerns the husband's 

military retirement pay. A United States Code provision 

provides that an officer of the armed forces who completes 

20 years of service is entitled to retirement pay based upon 

the number of years he serves in the armed forces, and his 

rank at retirement. See 10 U.S.C.A. 51401, et seq. See 

also Cose v. Cose (Alaska 1979), 592 P.2d 1230; In Re Marriage 

of Fithian (Cal. 1974), 111 Cal.Rptr. 369, 517 P.2d 449. 

Benefits are paid monthly and terminate upon the serviceman's 

death. As of October 1, 1978, the husband here received 

$1,279.02 monthly retirement pay. The amount of his retirement 

pay is adjusted for changes in the cost of living. 

The husband commenced this action on November 22, 1977 

by filing a petition for divorce. The trial court granted the 

parties a divorce on February 8, 1978 and the following November 

entered its judgment granting custody of the parties' minor 

child to the husband, and distributing their property. The 

court's order further provided that neither party was entitled 

to maintenance or attorney fees. The court amended its judgment 

on November 29, 1978 to allow the husband thirty days to 

purchase the wife's interest in their home. The husband 

filed his notice of appeal of the amended judgment on December 

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28, 1978. The husband also appealed the court's order of 

February 26, 1979 which granted the wife's motion for temporary 

maintenance pending the husband's appeal. 

The husband and wife were married in 1959 and now are 

both in their middle to late forties. The husband served 

for 20 years in the United States Air Force and retired in 

1974 with the rank of lieutenant colonel. Since his retirement, 

he has worked at Northwestern Bank in Great Falls, Montana, 

where he presently earns approximately $12,000 per year. The 

wife worked intermittently as a teacher during their marriage. 

Immediately prior to her divorce she was employed by the 

University Extension Service where she earned a gross of 

$361 a month. Presently she is a full time student at the 

University of Montana where she is completing courses toward 

a sociology degree. The parties at the time of the divorce 

decree had one minor child but custody and support are not 

at issue. The primary issues involve the disposition of 

the husband's military pension. 

The pension is by far the greatest asset of the parties. 

According to evidence submitted by the wife, it has a 

present worth of $442,307. The trial court valued the 

parties net equity in the family home at $38,988 and the 

remainder of their real and personal property at approximately 

$20,000. 

The court's order distributed half of the net equity of 

the home to each of the parties, divided the remainder of 

their real and personal property, and provided that the wife 

should have a 38.5 percent share in the husband's military 

pension. The decree provided that the wife's share in the 

pension should be paid monthly as it was received by the 

husband. Furthermore, it provided that in the event the 

wife predeceased her husband, that the pension should pass 

to her estate. At the time of this appeal, the wife's share 

in the husband's pension amounted to $492 per month. 

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The husband,contends that his right to receive the 

pension is not a vested right and therefore the wife has 

no right to receive a share of his pension as part of a 

marital property division. Courts cannot reach agreement 

as to whether a military pension is income or, on the other 

hand, a vested property right. See Cose v. Cose, supra. 

Courts finding that a military pension is income have analogized 

retirement payments to salary because retirement payments 

are paid monthly and are earned in the sense that the retiree 

remains a member of the armed forces and is subject to 

recall to active duty. In Re Marriage of Ellis (Colo. C.A. 

1975), 36 Colo.App. 234, 538 P.2d 1347, affd. 191 Colo. 317, 

552 P.2d 506; Watson v. Watson (E.D. N.C. 1976), 424 F.Supp. 

866. Viewed realistically, however, the better view is that 

the retiree has "earned" his pension by his years of active 

duty in the service. See In Re Marriage of Musser (111. 

C.A. 1979), 70 Ill.App.3d 706, 388 N.E.2d 1289; Kruger v. 

Kruger (N.J. 1977), 73 N.J. 46q, 375 A.2d 659; In Re Marriage 

of Ellis (dissenting opinion), supra; In Re Marriage of 

Fithian (Cal. 1974), 517 P.2d 449, 111 Cal.Rptr. 369. 

After 20 years of active duty a person desiring to retire 

from the military is entitled to a pension. Under normal 

circumstances, a retiree does not have to perform any significant 

duties as a condition to receiving his monthly retirement check. 

In the present case, at his retirement in 1974, the 

husband had the opportunity to enjoy a leisurely retirement 

or assume a second career. He chose to become a full time 

employee at Northwestern Bank of Great Falls. He therefore, 

has two sources of income, one from his retirement pay, and 

another from his salary as a bank employee. Unless an 

extraordinary chain of events should arise, the husband will 

not be recalled to active duty. The husband's military 

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retirement pay resembles an ordinary private pension, and 

just as a private pension, it should be treated as a vested 

property right which can be distributed as part of a court's 

property division. 

The husband's second contention is that 10 U.S.C.A. S1401, 

et seq. preempts Montana's Uniform Marriage and Divorce Act 

insofar as it permits distribution of a property interest in his 

retirement pay. He relies on Hisquierdo v. Hisquierdo 

(1979), 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1. There, the 

United States Supreme Court held that treatment of a railroad 

pension receivable under the Railroad Retirement Act, 45 

U.S.C. 5231, et seq, as community property, violated the 

purpose of the Act and was prohibited by the supremacy 

clause. See also Knudson v. Knudson (1980)~ Mont . 

- P.2d , 37 St.Rep. 147. The husband argues 

that the relevant portions of 10 U.S.C.A. S1401, et seq. 

governing military pensions are analogous to the Railroad 

Retirement Act and therefore that the rationale of the 

Supreme Court's decision in Hisquierdo applies to the present 

case. The Railroad Retirement Act is however, explicit as 

to what happens to a railroad pension upon an absolute divorce. 

The Hisquierdo decision was based on the broad language of 

5231m of the Railroad Retirement Act which protects the pensioner's 

benefits from "legal process under any circumstances whatsoever." 

The Court noted that Congress had carefully targeted its benefits 

towards the working spouse by providing that the nonworking 

spouse's "entitlement . . . to an annuity . . . shall end on the 

last day of the month preceding the month in which . . . the 

spouse and the individual are absolutely divorced." 45 

U.S.C. §231d(d) (3). The Court stated that its decision might 

well have been different if Congress had not explicitly 

terminated a spouse's benefits upon absolute divorce. On the 

other hand, Chapter 71, 10 U.S.C.A. 51401, et seq., which 
governs the husband's military pension does not contain 

any section similar to the provisions deemed controlling 

in the Hisquierdo decision. Chapter 71 does not protect 

a pensioner from attachment or other legal process, nor does 

it expressly provide that a wife's interest in her husband's 

pension shall terminate upon divorce. We cannot say that 

federal statutes directly or indirectly prevent the distribution made here. Czarnecki v. Czarnecki (Ariz. 1979), 600 

P.2d 1098. Furthermore, we do not believe that the trial 

court's distribution to the wife goes contrary to the intent 

of Congress to promote continued service in the armed services 

by means of its military retirement plan. See In Re Marriage 

of Musser, supra; see also Gorman v. Gorman (Cal. C.A. 1979), 

90 Cal.App.3d 454, 153 Cal.Rptr. 479. Congress must certainly 

have contemplated that the service people of this country 

would get married and therefore assume the duties and obligations of marriage. 

Finally, the husband argues that it was error for the 

trial court to rule that heirs of the wife could inherit her 

interest in the military pension. We find no basis to 

distinguish the wife's interest from other marital assets 

which may be distributed by a trial court. See Kruger v. 

Kruger, supra. The court order provides the wife's share in 

the husband's retirement will be taken out of his monthly 

payments as he receives them. The husband's obligation lasts 

only so long as he continues to receive government retirement 

benefits. Thus the heirs of the wife can share in these 

benefits only while the husband is living. We affirm the 

trial court's order in this respect. 

We note here that the trial court awarded the wife $500 

per month as temporary maintenance pending the husband's 

appeal. The amount of temporary maintenance order by the court 

is almost equal to the wife's share in the pension which she 

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would have received had there been no appeal here. Since 

we affirmed the amended judgment, the wife will receive 

payment for her share of the pension which has accrued since 

the date of the amended judgment. In order to avoid a double 

payment to the wife, the trial court's award of temporary 

maintenance is vacated. 

As modified, the amended judgment of the District Court 

is affirmed. 

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-------------------------------- 

Justice 

We Concur: 

7 Chef Justice n 

Justices