Legislation: ROMAN v. NIEVES
Roman v. Nieves
Supreme Court of Puerto Rico
LEOPOLDO DELUCCA ROMAN, Plaintiff and Appellant
v.
OLGA M. COLON NIEVES, Defendant and Appellee
NO. RE-86-293
San Juan, Puerto Rico, November 25, 1987
1. DIVORCE - ALIMONY, ALLOWANCES, AND DISPOSITION OF PROPERTY - STATUTORY PROVISIONS.
Contrary to our decision in Torres Reyes v. Robles Estrada, 115:765, after carefully analyzing the legislative history of the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408, and our case law, the Supreme Court holds that this type of pension is separate in nature.
2. ID. - ID. - ID.
The Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408, is applicable to Puerto Rico.
3. ID. - ID. - ID.
Section 1408 of the Uniformed Services Former Spouses' Protection Act, 10 U.S.C., was intended to allow state courts to apply state law, and thus repeal, through legislation, the existing federal doctrine set down in McCarty v. McCarty, 453 U.S. 210 (1981).
4. ID. - ID. - ID.
Section 1408(c)(1) of the Uniformed Services Former Spouses' Protection Act, 10 U.S.C., does not specify how this pension is to be treated in those jurisdictions where it applies. Said section allows the pension to be treated as either the sole property of the Armed Forces member or as community property of the spouses, as each jurisdiction sees fit.
5. ID. - ID. - ID.
Before the United States Congress legislated on the payment of pensions under the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408, McCarty v. McCarty, 453 U.S. 210 (1981), was the law, which case always considered the military pension as separate asset.
6. ID. - ID. - ID.
Local substantive law is applicable in Puerto Rico when the point in controversy is whether the Armed Forces retirement pension is considered as separate property of the member or as community property of the conjugal partnership.
7. ID. - ID. - DISPOSITION OF COMMUNITY PROPERTY.
In Maldonado v. Superior Court, 100:369, this Court held that retirement pensions were separate property.
8. ID. - ID. - ID.
Certain property is considered separate because it resists, by its very nature, classification as community property. This may be attributed to the assignability of the asset or to its personal nature.
9. ID. - ID. - STATUTORY PROVISIONS.
It is true that the federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408, was intended to overrule McCarty v. McCarty, 453 U.S. 210 (1981), by legislation. That case obliged the states to consider this type of pension as separate property. But § 1408(c)(1) of the federal act allows state courts to apply the prevailing doctrine in each state, that is, that the pension is the sole property of the serviceman or of the conjugal partnership.
10. ID. - ID. - DISPOSITION OF COMMUNITY PROPERTY.
We readopt the rule prevailing prior to Torres Reyes v. Robles Estrada, 115:765, which is hereby expressly overturned. Contrary to the decision therein, the federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408, did not preempt the field and neither did it oblige us to withdraw from the wise rule of Maldonado v. Superior Court, 100:369, and its progeny, which provides that retirement pensions are separate property.
PARTIAL JUDGMENT of María M. Pérez de Chaar, Judge (San Juan), declaring that a pension under the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408, was community property for purposes of a conjugal partnership liquidation proceeding. Reversed, and the case is remanded to the trial court for the adjudication of the parties' rights in keeping with our decision herein.
**766 Erick E. Kolthoff Benners for appellant. Kenneth B. La Quay Rebollo for appellee.
**767 JUSTICE ORTIZ delivered the opinion of the Court.
[1] Once again this Court passes on the question of whether the pension granted under the Uniformed Services Former Spouses' Protection Act (U.S.F.S.P.A.), 10 U.S.C. § 1408, when the Conjugal Partnership is liquidated, is deemed separate property of one of the spouses or community property subject to division. Contrary to our decision in Torres Reyes v. Robles Estrada, 115 D.P.R. 765 (1984), after carefully analyzing the legislative history of the cited act and our case law, we hold that this type of pension is separate in nature.
Appellant Leopoldo Delucca Román and appellee Olga M. Colón were married on December 20, 1950, and were divorced on September 7, 1978. The divorce judgment awarded patria potestas, custody, and child support, and established the father's visitation rights with regard to the minor child born of the marriage. It made no adjudication with regard to the assets of the conjugal partnership, the liquidation of which is sought in this case.
Appellant was a member of the United States Armed Forces from July 1, 1949, to April 15, 1985, when he retired with a pension.
**768 In August 1984, appellant brought an action to Liquidate the Conjugal Partnership in the Superior Court, San Juan Part. Appellee answered the complaint and filed a counterclaim. At the pretrial conference, appellee claimed her rights to a part of the appellant's retirement pension under the U.S.F.S.P.A., 10 U.S.C. § 1408. The trial court rendered a partial judgment in favor of Olga M. Colón Nieves, recognizing her right to fifty percent (50%) of Delucca Román's retirement pension, which was considered community property.
Delucca Román appeals to this Court, assigning the following errors:
[1.] The Court erred in ruling that, under Puerto Rico's laws and case law, the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. [§] 1408, is applicable to Puerto Rico.
[2.] The Court erred in ruling that since the marriage between the parties was dissolved in 1978, defendant-appellee was entitled to benefits under the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. [§] 1408, which act was approved on February 1, 1983, and became effective on June 25, 1981.
[3.] The Court erred in computing in Fifty Percent (50%) the pension benefits attributable to defendant as community property. Petition to Review, at 2-3.
We issued a writ of certiorari to review the partial judgment.
[2] Appellant alleges, in his first assignment of error, that the trial court erred in ruling that under the laws and case law of Puerto Rico, the U.S.F.S.P.A. is applicable to Puerto Rico. This act expressly includes Puerto Rico in its definition of competent jurisdictions. Section 1408(a)(1)(A) provides that:
§ 1408. Payment of retired or retainer pay in compliance with court orders
(a) In this section:
(1) "Court" means--
**769 (A) any court of competent jurisdiction of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands.
As we have seen, the U.S.F.S.P.A. is applicable to Puerto Rico. Now we shall see what substantive law is applicable to this type of pension. The U.S.F.S.P.A., 10 U.S.C. § 1408(c)(1), provides the following:
Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.
[3][4] The aforecited U.S.F.S.P.A. section was intended to allow state courts to apply state law, and thus repeal, through legislation, the existing federal doctrine set down in McCarty v. McCarty, 453 U.S. 210 (1981). Section 1408(c)(1) of the U.S.F.S.P.A. does not specify how this pension is to be treated in those jurisdictions where it applies. [FN1] Said section allows the pension to be treated as either the sole property of the Armed Forces member or as community property of the spouses, as each jurisdiction sees fit.
FN1. This section was not expressly dealt with in Torres Reyes v. Robles Estrada, 115 D.P.R. 765 (1984).
[5] Before Congress legislated on the payment of this type of pension, McCarty was the law. It ruled: "that such military retirement benefits belonged exclusively to the military spouse and could not be treated as community property under state law." At 221. That is, this military pension was always considered a separate asset. When Congress enacted the law, the rule changed. **770 Koenes v. Koenes, 478 N.E.2d 1241, 1242 (Ind. App. 1st Dist. 1985), held that: "the Act does not require division of military retirement funds. The Act permits, but does not command, state courts to consider military retirement benefits as marital property." (Underscore supplied.)
The legislative history of § 1408(c)(1) is clear as to the objectives of the act.
Subsection (c) of section 1408 sets forth several conditions and limitations applicable to court orders served and payments made pursuant to section 1408. Paragraph (1) of subsection (c) provides that, subject to the other limitations of section 1408, a court, as defined by paragraph (1) of subsection 1408(a), may treat the disposable retired or retainer pay payable to a member for pay periods beginning on or after June 26, 1981, either as solely the property of the member or as the property of the member and the member's spouse, depending on the law applicable to the court in question. The purpose of this provision is to place the courts in the same position that they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of non-disability military retired or retainer pay. The provision is intended to remove the federal pre-emption found to exist by the United States Supreme Court and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisible. Nothing in this provision requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution. 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. S. Rep. No. 502, 97th Cong., 2d Sess. 16 (1982), 1982 U.S. Code Cong. & Admin. News 1555, 1611. (Underscore supplied.)
When this section of the act (which was made retroactive to June 25, 1981) became effective, several cases in different jurisdictions afforded the courts the opportunity to construe the same. Most jurisdictions seem to coincide in that the legislative intent was to leave this type of decision in the hands of the state. In **771 Casas v. Thompson, 720 P.2d 921, 929 (Cal. 1986), the Supreme Court of California stated:
We note a basic proposition: "The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the United States." (Ex Parte Burrus (1890) 136 U.S. 586, 593-594, 10 S.Ct. 850, 852-53, 34 L.Ed. 500.) That Congress was aware of this principle and intended that state laws apply to the characterization of military pensions as community property is made abundantly clear by the legislative history surrounding the enactment of USFSPA.
Section 1408(c)(1) allowed courts to apply local law and issue decisions consistent with pre-McCarty case law. Savoie v. Savoie, 482 So.2d 23 (La. App. 5th Cir. 1986); Simmons v. Simmons, 453 So.2d 631 (La. App. 3d Cir. 1984); Koppenhaver v. Koppenhaver, 678 P.2d 1180 (N.M. App. 1984); Walentowski v. Walentowski, 672 P.2d 657 (N.M. 1983).
Recently in Rose v. Rose, 95 L.Ed.2d 599, 607 (1987), the Court stated:
"On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has 'positively required by direct enactment' that state law be preempted." Hisquierdo, supra, at 581, 59 L Ed 2d 1, 99 S Ct 802, quoting Wetmore v Markoe, 196 US 68, 77, 49 L Ed 390, 25 S Ct 172 (1904). Before a state law governing domestic relations will be overridden, it "must do 'major damage' to 'clear and substantial' federal interests." Hisquierdo, supra, at 581, 59 L Ed 2d 1, 99 S Ct 802, quoting United States v Yazell, 382 US 341, 352, 15 L Ed 2d 404, 86 S Ct 500 (1966).
[6][7] Thus, local substantive law is applicable in Puerto Rico when the point in controversy is whether the Armed Forces retirement pension is considered as separate property of the member or as community property of the conjugal partnership. This controversy has already been settled in Puerto Rico. In a case similar to the one under our consideration, we held that the retirement **772 pension was separate property. Maldonado v. Superior Court, 100 P.R.R. 369, 374 (1972):
The doctrine considers that the strictly personal nature of these annuities determines their separate nature. It is a question of assets intuitu personae-- that is, in consideration of the person--which on account of their own nature are excluded from the assets of the partnership.
[8] Further on, in the same opinion, the Court stated that "certain property is considered separate because it is repugnant, because of its very nature, to any classification as community property. The repugnance, he explains, may be attributed to the assignability of the asset or to its personal nature. Among these assets he specifically mentions retirement pensions." [FN2] The Maldonado doctrine was later reaffirmed in Rosa Resto v. Rodríguez Solís, 111 D.P.R. 89, 92 (1981), where we stated that:
FN2. The Statement of Motives (Purposes) of Act No. 21 of April 28, 1980, explains why the benefits of and contributions to the Employees Retirement System of the Puerto Rico Electric Power Authority are the exclusive right of the employee.
"Section 24 of Act No. 447 of May 15, 1951, as amended, the Employees Retirement System of the Government of Puerto Rico Act, directs that the benefits and rights of the employee thereunder are a personal right derived from his contributions; it also directs that said benefits cannot be attached. This provision protects the stability of the System by preventing the funds from being subject to the eventualities of the dissolution of the community property of its participants, and protects the security of the pensions." 1980 P.R. Laws, at 66. (Underscore supplied.)
A public servant's right to a retirement pension for years of service has a respectable ethical and moral content and constitutes an assurance of dignity for the man or woman who, having devoted his fruitful years to public service, should not find himself unprotected at the final stage of his life or feel that he has become a burden for his relatives or the **773 State. Román Mayol v. Tribunal Superior, 101 D.P.R. 807, 811 (1973). [FN3]
FN3. In Sánchez v. A.S.R.E.G.J., 116 D.P.R. 372, 378 (1985), we cited approvingly Román Mayol v. Tribunal Superior, 101 D.P.R. 807, 811 (1973), using the following language:"As stated in Román Mayol v. Tribunal Superior, 101 D.P.R. 807, 811 (1973), it is 'a final and well-earned compensation earned by the public employee who honoring a vocation of service, which on many occasions entails sacrifice and renunciation of material properties, devotes the years of productivity of his life to the common welfare.' It is not a gratuity but 'a moral obligation of the State."'
[9] This was the doctrine, even in cases involving Armed Forces retirement pensions, until in 1983 we held in Torres Reyes that military retirement pensions were community property and thus subject to division when established in the liquidation proceedings of the conjugal partnership. It is true, as the opinion states, that the federal act, 10 U.S.C. § 1408, was intended to overrule McCarty by legislation. That case obliged the states to consider this type of pension as separate property. But § 1408(c)(1) of the federal act allows state courts to apply the prevailing doctrine in each state, that is, that the pension is the sole property of the serviceman or of the conjugal partnership. The doctrine in Puerto Rico at the time of this legislation, which was made retroactive to June 25, 1981, was that the retirement pension belonged to the person who received it for the years of services rendered, hence it was separate in nature. [FN4]
FN4. Having concluded that the pension is separate property, we need not discuss the remaining errors assigned.
[10] For these reasons, after analyzing the law applicable to this situation, we readopt the rule prevailing prior to Torres Reyes, which is hereby expressly **774 overturned. Contrary to the decision therein, the federal legislation did not preempt the field and neither did it oblige us to withdraw from the wise rule of Maldonado and its progeny.
The judgment of the trial court is reversed and the parties' rights will be adjudicated in keeping with our decision herein.
Justice Negrón García concurs in the result without a written opinion. Justice Rebollo López disqualified himself.