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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Linda L. Harris, Harris & Ventrell, Billings, 

Montana 

For Respondent: 

E. Lee LeVeque, Conklin, Nybo & LeVeque, Great 

Falls, Montana 

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Submitted on Briefs: April 19, 1990 

t Decided: MaY 241 1990 

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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 were married in 1966 and divorced in 1979. 

The parties entered into a separation agreement (Agreement). After 

specifically finding that the Agreement was not unconscionable, the 

District Court incorporated the Agreement into the Decree of 

Dissolution. The Agreement provided in pertinent part: 

THIS AGREEMENT made this 16th day of January, 1979, 

between CHARLOTTE MAY PATZER, hereinafter referred to as 

Wife, and JAMES HOWARD PATZER, hereinafter referred to 

as Husband; . . . 

WHEREAS, it is the desire of the parties to finally 

and for all time settle and determine the property 

rights, rights to the 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 in a mutually satisfactory and equitable 

manner. That the Wife 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, title 
and interest to his tools, guns, two (2) motor cycles and 

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 as Wife'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 sources by either 

of the parties; and it is agreed that this instrument 

shall constitute a full and final settlement between the 

parties based upon such disclosure by each of the parties 

to the other, and to the extent that such full disclosure 

may be discovered in the future to have been incomplete, 

this agreement shall not be final as to such undisclosed 

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 further alleged that she was a co-owner or tenant in common in 

the pension fund by virtue of the past marriage of the parties, 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 jurisdiction of 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 

judicata barred the complaint; laches barred the complaint; and no 

conditions existed which would justify the reopening of the 
judgment. 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 the military 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 specifically mentioned. 

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 are marital 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 re Marriage of Miller (1980), 187 Mont. 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 the 
military pension is community property 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 interpretedthe Uniformed Services Former Spouses1 Protection 

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. In Waters the issue was whether USFSPA 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 distribution laws. In Waters 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 

the marriage and were subject to equitable distribution. 

After the USFSPA was passed, this Court . . . reaffirmed 

that military retirement pay constituted a marital asset. 

Thus, those spouses of members of the armed forces who 

obtained dissolutions prior to McCartv were entitled to 

share in their spouses1 military pension. . . . The legislative history of the USFSPA indicates that 

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 

Patzers1 marriage was dissolved in 1979, prior to both McCartv and 

the USFSPA. Therefore Mr. Patzerls military pension is clearly a 
marital 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 the parties hold at the time 

of their dissolution. Furthermore, since Mrs. Patzer specifically 

states she does not claim that the Agreement was unconscionable, 

there is no basis to reopen the judgment under 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: