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, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Linda 

### L. Harris, Harris & Ventrell, Billings, Montana For Respondent: E. Lee LeVeque, Conklin, Nybo & LeVeque, Great Falls, Montana LQ 1-4 . (r-4 Submitted on Briefs: April 19, 1990

t Decided: MaY 241 1990 ;.~igd:

5- -- c-- L-< (1. 1- c-3 i \ i. L,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 weremarried in 1966 and divorced in 1979. Theparties entered intoa separation agreement (Agreement). After specificallyfindingthat theAgreementwasnotunconscionable, the District Court incorporated the Agreement into the Decree of Dissolution. TheAgreement provided in pertinent part: THISAGREEMENT made this 16thday of January, 1979, between CHARLOTTEMAY PATZER,hereinafter referred to as Wife, and JAMES HOWARD PATZER, hereinafter referred to as Husband; 

# . . . WHEREAS, it is thedesire of theparties to finally and for all time settle and determine the property rights,rights tothe 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 inamutually satisfactoryand equitable manner. That theWife 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, titleand interest tohis tools, guns, two (2)motor cyclesand 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 asWife'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 sourcesby either of the parties; and it is agreed that this instrument shall constitute a full and final settlementbetween the partiesbasedupon suchdisclosureby each of theparties to theother,and to theextent that such fulldisclosure may be discovered in the future tohave been incomplete, this agreement shallnot be final as to suchundisclosed 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 furtheralleged that shewas a co-owner or tenant in common in thepension fundbyvirtue of thepastmarriage of theparties, 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 jurisdictionof 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 540-4- 208, MCA. It concluded that the complaint was not timely; res judicatabarred the complaint; lachesbarred the complaint; and no conditions existed which would justify the reopening of thejudgment. 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 themilitary 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 specificallymentioned. 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 aremarital 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 reMarriage of Miller (1980), 187Mont. 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 themilitary pension is communityproperty 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 interpretedtheUniformedServices FormerSpouses1Protection 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. InWaters the issuewaswhetherUSFSPA 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 distributionlaws. InWaters 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 themarriage and were subject to equitable distribution. After theUSFSPAwas passed, this Court 

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# . . reaffirmed thatmilitary retirementpay constitutedamarital asset. Thus, those spouses of members of the armed forces who obtained dissolutionsprior to McCartv were entitled to share in their spouses1military pension. 

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# . . Thelegislativehistoryof theUSFSPA indicatesthat 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 Patzers1marriage was dissolved in 1979,prior to both McCartv and the USFSPA. Therefore Mr. Patzerlsmilitary pension is clearly amarital 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 theparties hold at the time of theirdissolution. Furthermore, sinceMrs. Patzer specifically states she does not claim that theAgreement was unconscionable, there is no basis to reopen the judgmentunder 540-4-208, MCA. We hold that the ~istrict Court 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: