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Cline v. Cline (04/30/2004) sp-5803
Cline v. Cline (04/30/2004) sp-5803
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
NEIL K. CLINE, )
) Supreme Court No. S-10821
Appellant, )
) Superior Court No.
v. ) 3AN-91-3905 CI
)
DEBRA S. CLINE, ) O P I N I O N
)
Appellee. ) [No. 5803 - April
30, 2004]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Neil K. Cline, pro se,
Anchorage. Dorothea G. Aguero, Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Federal law provides that a state court has the power
to divide a military pension in a divorce case, but caps the
amount that can be distributed to the non-military spouse at
fifty percent. Because the superior court awarded sixty-two
percent of the military spouses pension to the non-military
spouse, and because the court did not adjust the award when the
military spouse received disability benefits in place of
retirement benefits, we reverse the superior courts decision
II. FACTS AND PROCEEDINGS
Neil Cline and Debra Lopez (formerly Debra Cline) were
married in January 1984 in Peru, Indiana. They have three
children, born in 1984, 1986, and 1987. The couple separated in
April 1991 and their divorce trial was held before Superior Court
Judge Peter A. Michalski in June 1992. A decree of divorce was
entered shortly after trial. Neil was granted sole custody of
the children, but Debra was given liberal visitation provided
that she continued to live in Anchorage. Debra was ordered to
pay child support pursuant to Alaska Civil Rule 90.3.
At the time of the divorce trial, Neil was preparing to
retire from the military. As part of the property division, the
court distributed Neils military retirement, the exact amount of
which had not yet been determined. The court made the following
finding:
The court finds that it is proper to use
the date of trial of June 1992 for the date
of distribution for the military retirement
earned by Mr. Cline during the marriage. The
court finds that approximately eighteen (18%)
of the retirement was earned during the
marriage. The court hereby orders that Five
Hundred Dollars ($500.00) a month is awarded
to Ms. Cline as her share of the retirement.
The court further finds that it would be fair
and equitable to leave the issue of military
retirement available to be reopened for
future calculation if it is so warranted.
On August 27, 1992, after the findings of fact
were submitted to the court, but before they were signed, Neil
filed a motion for reconsideration. In his motion, Neil
explained that since the conclusion of the trial, he had begun to
receive his military retirement in the amount of $799.09 per
month. Because $500 greatly exceeded eighteen percent of his
retirement, Neil asked the court to adjust the award to $143.83
per month. Without discussion, the court denied Neils motion for
reconsideration of the order dividing his retirement on September
29, 1992. Neil did not appeal the courts denial.
On May 29, 2002 nearly ten years later Debra filed a
motion seeking payment for past due retirement benefits awarded
to her in the 1992 property division. In the memorandum
accompanying her motion, Debra maintained that she had never
received any portion of Neils retirement despite having asked him
to begin paying her. She requested a lump sum payment of
$60,000, the amount she should have received between June 1992
and June 2002, plus $6,300, representing prejudgment interest
calculated at a rate of ten and one-half percent, for a total
award of $66,300. Debra also asked for attorneys fees and
postjudgment interest calculated at a rate of four and one-
quarter percent.
Neil objected to Debras motion and concurrently filed a
motion to amend the original judgment, asking the court to reopen
the issue of military retirement as provided for in its 1992
order, since the $500 award actually amounted to approximately
sixty-two percent of his $800 monthly military retirement. Neil
maintained that he had thought it was incumbent upon Debra to
contact the military to arrange for them to pay her directly. He
claimed that he did not believe it had been his responsibility to
pay her and therefore he had never done so. Invoking Alaska
Civil Rule 60(b)(6), which gives courts discretionary authority
to relieve a party from a final judgment, Neil asked the court to
retroactively modify the divorce decree to align his payments to
Debra more closely to the eighteen percent figure.
Debra contested Neils characterization of the facts,
claiming that she had asked him to begin paying her approximately
five years earlier and had explained to him that her attempts to
arrange to be paid directly by the military were unsuccessful.
She maintained that Neil had refused to pay her even part of the
award, based on his belief that the amount had been calculated
incorrectly. Debra claimed that until she consulted with her
present attorney, she was unaware that she could obtain a
judgment from the court to collect the past due payments. Each
party argued that the others motions should be barred by laches
or estoppel.
Judge Michalski ruled on both parties motions on July
30, 2002. He first noted that Mr. Cline has not previously
sought a timely correction of what facially sounds like an error
when he claims his monthly retirement never exceeds $800 per
month. Accordingly, the court denied any retroactive relief.
Based on Neils 2001 tax return, which had been filed in
connection with the parties arguments regarding child support,
Judge Michalski then determined Neils retirement to be
$18,815.40, and calculated eighteen percent of that amount to be
$245.78 per month. Because the court had retained jurisdiction
over the case to address modification of the distribution of
military retirement, the court prospectively amended the award to
$245.78 per month from the date the motion was filed.
Neil filed a motion for reconsideration, citing his
August 27, 1992 motion for reconsideration in response to Judge
Michalskis statement that he had not previously sought a timely
correction of the divorce decree. Neil asked the court to amend
the original decree to reflect an award of eighteen percent of
Neils military retirement, without attaching a specific dollar
amount. Neil then stated that he was about to begin receiving
disability payments from the military, which would reduce his
retirement by $199 per month. Given this reduction, Neil asked
the court to adjust the prospective amount owed to Debra to
$209.96 per month. The superior court denied Neils motion for
reconsideration without explanation.
The court entered final judgment in September 2002.
The court required Neil to pay Debra the amount past due and
amended the divorce decree from that point forward.
Specifically, the courts order stated:
Defendant having moved this court to
amend the Decree of Divorce regarding the
amount of retirement to be paid to Debra
Lopez, formerly Cline, as her marital share,
and this court having considered the
opposition, and being fully advised in the
premises, finds that there is cause to reduce
the previously ordered amount of $500 per
month to $245.78, which represents the
marital share due to Debra Lopez. However,
this reduction shall have prospective effect
only from the date Mr. Cline filed his Motion
to Amend Decree. Therefore, Mr. Cline shall
pay $245.78, effective June 18, 2002, and
payable on July 1, 2002 and the first day of
each month thereafter.
According to the courts calculations, Neil owed Debra $93,221.39,
consisting of $60,491.56 in principal, $32,254.82 in prejudgment
interest, and $475.01 in attorneys fees.
Neil appeals. While he has been represented by counsel
in all prior proceedings, he is representing himself pro se on
this appeal.
III. STANDARD OF REVIEW
I. We will not overturn a trial courts decision to modify a
decree adjudicating property rights except upon a showing that
the court has abused its discretion.1 We will find an abuse of
discretion only when we are left with a definite and firm
conviction, after reviewing the whole record, that the trial
court erred in its ruling.2
Similarly, we will not reverse a trial courts decision
on a motion for reconsideration absent an abuse of discretion.3
Because prejudgment interest is awarded under Alaska
law largely as a matter of course rather than as a matter of
discretion left to the trial court,4 we review the trial courts
application of the prejudgment interest statute de novo.5
IV. DISCUSSION
Neil argues that, because the superior court admitted
that the amount awarded to Debra in the courts initial order was
erroneous, his Civil Rule 60(b) motion to retroactively correct
the error in the courts original calculation should have been
granted. In addition to challenging the courts failure to
correct its calculation error, Neil argues that the superior
courts order violated the Uniformed Services Former Spouses
Protection Act (USFSPA), a federal law that authorizes state
courts to include federal military retirement pay in dividing of
marital property.6 Debra responds that the court acted within
its discretion in refusing to retroactively amend the original
order pursuant to Civil Rule 60(b). Debra does not address Neils
claim that he is entitled to relief based on the conflict between
the courts decision and federal law. For the reasons that
follow, we conclude that Civil Rule 60(b)(4) applies to attempts
to retroactively modify past arrearages where the underlying
judgment is void or partially void as a matter of law, and that a
property division order that directs more than fifty percent of a
spouses military retirement to the other spouse conflicts with
federal law and is, to that extent, void.
A. Civil Rule 60(b)(4) Provides a Basis for Relief if a
Judgment is Void as a Matter of Law.
The parties focus their arguments concerning the
availability of relief from judgment on differing provisions of
Civil Rule 60(b). While the first five sections of that rule
provide relief in specific circumstances, Neil relies on
subsection (6), the final, catch-all provision of the rule that
allows for relief for any other reason justifying relief from
operation of the judgment. He points to the superior courts
recognition that the original order was erroneous and argues that
its failure to correct the mistake is a sufficient reason
justifying relief from the judgment. Debra responds that
subsection (6) may only be used when subsections (1) through (5)
do not apply, and argues that Neils claim for relief should have
been brought under subsection (1) because he earlier
characterized the courts action as a mathematical error.7
Because relief under subsection (1) must be sought within one
year of the original order, Debra argues that Neils motion is
untimely.
There is no question that Civil Rule 60(b) governs
motions to modify an order or judgment for property division.8
This rule provides:
On motion and upon such terms as are just,
the court may relieve a party or a partys
legal representative from a final judgment,
order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise or
excusable neglect;
(2) newly discovered evidence which by
due diligence could not have been discovered
in time to move for a new trial under Rule
59(b);
(3) fraud (whether heretofore
denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an
adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied,
released, or discharged, or a prior judgment
upon which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment should have
prospective application; or
(6) any other reason justifying relief
from the operation of the judgment.
The motion shall be made within a
reasonable time, and for reasons (1), (2) and
(3) not more than one year after the date of
notice of the judgment or orders as defined
in Civil Rule 58.1(c). A motion under this
subdivision (b) does not affect the finality
of a judgment or suspend its operation. This
rule does not limit the power of a court to
entertain an independent action to relieve a
party from a judgment, order or proceeding,
or to grant relief to a defendant not
personally served, or to set aside a judgment
for fraud upon the court.
Neil argues that the courts initial property division
violated the USFSPA, which provides that no more than fifty
percent of a recipients military retirement may legally be
awarded to a former spouse under state law.9 As we have noted
previously, the USFSPA was enacted to provide state courts with
the option to consider military retirement pay in effecting an
equitable and just property division. 10 Relevant to this case
are sections (c) and (e) of the USFSPA. Section (c) provides
state courts with the authority to treat retired pay as marital
property:
(1) Subject to the limitations of this
section, a court may treat disposable retired
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.
Subsection (e)(1) states that [t]he total amount of the
disposable retired pay of a member payable under all court orders
pursuant to subsection (c) may not exceed 50 percent of such
disposable retired pay. The plain language of this statute
authorizes state courts to award no more than fifty percent of a
recipients military retirement in a property division.11 We next
consider whether a state trial court exceeds its jurisdiction
when it awards more than fifty percent of a spouses military
retirement in a property division. For the reasons that follow,
we hold that it does.
We considered a related issue in Clauson v. Clauson,12
in which an ex-wife sought modification of a property division
agreement based on her ex-husbands election to receive disability
benefits in lieu of military retirement pay.13 (Indeed, the issue
of how to treat disability benefits received in lieu of military
retirement pay is also present in this case. See discussion
infra Part IV.B.) In considering the effect of the USFSPA on the
ability of state courts to divide military retirement benefits,
we explained:
There are actually two related but
separate questions that must be answered in
order to resolve this appeal. The first is
whether state courts have any power, after
Mansell,[ 14] to equitably divide veterans
disability benefits received in place of
waived retirement pay. The answer to that is
an unequivocal no. . . . Accordingly, we
hold that the USFSPA prohibits our courts
from distributing this type of military
benefit to a former spouse when allocating
property upon divorce.[15]
While we did not explicitly consider the issue of a state courts
jurisdiction to divide disability benefits in Clauson, we did
express the opinion that state courts had been preempted by
federal law from dividing such payments in the context of a
property division.16 Our decision in Clauson was based on our
reading of the federal law as stripping state courts of subject
matter jurisdiction over those benefits disability benefits
received in lieu of retirement benefits specified in the USFSPA.
By the same logic, we now hold that the USFSPA bars state courts
from exercising subject matter jurisdiction over more than fifty
percent of a recipients military retirement benefits.
In the past, we have looked to the Restatement (Second)
of Judgments for guidance in situations such as this.17 Section
11 of the Restatement provides that [a] judgment may properly be
rendered against a party only if the court has authority to
adjudicate the type of controversy involved in the action.18 But
we observed that this definition is not especially helpful, for
much depends on how the term type of controversy is defined.19 We
reasoned that whether a controversy is of the type a court may
resolve cannot be identified by terminology alone, but rather
should be determined by reference to whether the matter can more
plausibly be characterized as one of subject matter jurisdiction
or of merits or procedure.20 Section 12 of the Restatement
discusses the application of res judicata if a judgment is later
challenged for lack of subject matter jurisdiction, explaining
that:
When a court has rendered a judgment in a
contested action, the judgment precludes the
parties from litigating the question of the
courts subject matter jurisdiction in
subsequent litigation except if:
(1) The subject matter of the action was
so plainly beyond the courts jurisdiction
that its entertaining the action was a
manifest abuse of authority; or
(2) Allowing the judgment to stand would
substantially infringe the authority of
another tribunal or agency of government; or
(3) The judgment was rendered by a court
lacking capability to make an adequately
informed determination of a question
concerning its own jurisdiction and as a
matter of procedural fairness the party
seeking to avoid the judgment should have
opportunity belatedly to attack the courts
subject matter jurisdiction.[21]
When the issue of subject matter jurisdiction has only
been implicitly resolved by virtue of a judgment on the merits
and is later raised in the context of an attack on that judgment,
the Restatement explains that the interests primarily at stake
are not those of the parties, which earlier had the opportunity
to litigate the issue of jurisdiction (whether they chose to or
not), but of the government and society.22 This prompts the
question of
whether the public interest in observance of
the particular jurisdictional rule is
sufficiently strong to permit a possibly
superfluous vindication of the rule by a
litigant who is undeserving of the
accompanying benefit that will redound to
him. The public interest is of that strength
only if the tribunals excess of authority was
plain or has seriously disturbed the
distribution of governmental powers or has
infringed a fundamental constitutional
protection.[23]
In the present case, the subject matter of state courts
is clearly confined to the distribution of fifty percent or less
of a recipients military retirement.24 In the words of the
Restatement, the superior courts action in distributing more than
fifty percent of the military retirement was so plainly beyond
the courts jurisdiction that its entertaining the action was a
manifest abuse of authority.25 Furthermore, while the interests
of the parties themselves may be minimal given the failure to
appeal the courts initial decision (by Neil) or to seek relief
for nearly ten years (by Debra), the public interest in remedying
this wrong is great. Prior to the passage of the USFSPA, state
courts had no authority to divide military retirement benefits at
all.26 The USFSPA established a limited grant of subject matter
jurisdiction to state courts.27 The supremacy clause of the
federal constitution requires that state courts defer to federal
law.28 Because allowing the superior courts decision to stand
would violate the supremacy clause of the federal constitution,
we must require the property division to be retroactively
modified to the extent that the division exceeds the fifty
percent federal limit on state jurisdiction.
However, to the extent that the superior courts
original property division did not exceed the federal limit, that
part of its order did not amount to a jurisdictional error.
While the courts expressed intent to award Debra only eighteen
percent of Neils military retirement makes it clear that it was
error to allow Debra to receive more than eighteen percent, Neils
remedy for challenging the non-jurisdictional part of the
erroneous order was to file a timely appeal. Because he failed
to do so, we remand with instructions for the superior court to
modify the award of retirement benefits to fifty percent of the
amount Neil received. Retroactive modification of the award to
eighteen percent of his retirement benefit would allow Neil to
subvert the rule that Civil Rule 60(b) may not be used as a
substitute for a timely appeal.29
B. Disability Benefits Received in Place of Waived Retirement
Pay Are Not Subject to Equitable Division.
Neil next asserts that the court abused its discretion
in denying his motion for reconsideration requesting that the
court adjust the amount due to Debra by deducting his disability
pay from his income. Following the courts July 30, 2002 decision
in which the court prospectively amended the payment due to Debra
based on Neils 2001 tax return, Neil filed a motion for
reconsideration under Alaska Civil Rule 77(k)(ii) and (iii) in
which he stated:
A further problem has just developed in
that the Defendant has just received notice
that he is being awarded disability of
$199.00 per month which will be subtracted
from his monthly retirement checks thereby
reducing the Plaintiffs claim of 18% of
$16385.00 to 18% of $13997.00 or $209.96 per
month. A copy of the official notice of this
change is attached to Neil Clines affidavit.
Attached to the motion was a copy of a letter from the Department
of Veterans Affairs, which appears to have been dated July 5,
2002, explaining that the department had determined that Neil
would be entitled to military disability payments in the amount
of $199.00 per month. While the benefit was effective April 1,
2002, Neil did not receive the first disability payment until
July 1, 2002 in order to avoid the possibility of double
recovery. In his reply brief, Neil maintains that, because the
court did not consider all of the facts and information available
to it at the time it entered its September 2002 order, and
because it did not take into account the relevant information
provided in Neils August 2002 motion for reconsideration, its
decision should be reversed.
Debra counters that the superior court did not abuse
its discretion in failing to consider that Neils retirement would
be reduced by $199 in disability payments, since the issue was
not raised until Neil filed his motion for reconsideration, and
therefore was not properly before the court when the calculations
were made. Because the issue was not properly raised before the
trial court, Debra argues that it cannot be reached in the
context of either a motion for reconsideration or an appeal.
Civil Rule 77(k) provides:
(1) A party may move the court to
reconsider a ruling previously decided if, in
reaching its decision:
(i) The court has overlooked,
misapplied or failed to consider a statute,
decision or principle directly controlling;
or
(ii) The court has overlooked or
misconceived some material fact or
proposition of law; or
(iii) The court has overlooked or
misconceived a material question in the case;
or
(iv) The law applied in the ruling
has been subsequently changed by court
decision or statute.
Neil filed his motion pursuant to subsections (ii) and
(iii), arguing that the court had not considered the fact that
Neil had begun to receive disability pay from the military and
that such pay could not be divided in the context of a property
distribution under federal law. In Mansell v. Mansell,30 the U.S.
Supreme Court unequivocally held that the Former Spouses
Protection Act does not grant state courts the power to treat as
property divisible upon divorce military retirement pay that has
been waived to receive veterans disability benefits.31 We
recognized that holding in Clauson, stating that the answer to
the question whether state courts have any power, after Mansell,
to equitably divide veterans disability benefits received in
place of waived retirement pay . . . is an unequivocal no.32
Without responding to the substance of Neils argument,
Debra maintains that, because the issue of Neils disability pay
was not raised in his motion to amend the original judgment, it
could not be raised in the context of a motion for
reconsideration. She relies on Miller v. Miller33 for this
proposition. In Miller, a father seeking an offset to his child
support obligation based on his daughters receipt of social
security benefits derived from his eligibility for them, argued
in a motion for reconsideration that he should not have been
required to pay child support in the first place since he was not
the childs biological father.34 We rejected that argument
because he had not disputed his paternity in the divorce
proceedings and sought to raise the issue for the first time in a
motion for reconsideration.35 Furthermore, since the motion for
reconsideration had not been timely filed, and no good cause for
lateness was shown, we held that the issue had not been properly
raised at trial and therefore would not be considered on appeal.36
While we have held that a motion for reconsideration
[may not] be used as a means to seek an extension of time for the
presentation of additional evidence on the merits of a claim,37 we
were referring to information which had been available to the
parties prior to the filing of the motions underlying the order
for which reconsideration was sought.38 The information in
question here did not become available to Neil until after those
motions had been filed. As we have explained, the purpose of
Rule 77(k) is to remedy mistakes in judicial decision-making
where grounds exist while recognizing the need for a fair and
efficient administration of justice.39 In this case, resolution
of the issue whether veterans disability payments could be
divided would both further the fair and efficient administration
of justice and would permit the court to remedy an error in its
original decision. Because these criteria have been met and
because some adjustment to the parties property distribution must
be made in order to avoid conflict with the USFSPA, and thus with
the supremacy clause, we conclude that the superior court abused
its discretion in failing to consider the information provided by
Neil in his motion for reconsideration.
C. Calculation of Award for Payments Past Due
Neil also contests the award of prejudgment interest,
arguing that [i]nterest should only accrue from the date of
judgment, not prior years. The superior court ordered Neil to
pay prejudgment interest based on its judgment of payments past
due from June 12, 1992 to August 19, 2002. While the award of
interest was justified, the superior court mischaracterized the
collection action as a judgment rather than a writ of execution
of an existing judgment.
The superior court entered an order on June 12, 1992
ordering Neil to pay Debra $500 per month as her share of the
military retirement benefits earned by Neil during marriage. In
State, Department of Revenue, Child Support Enforcement Division
ex rel. Inman v. Dean,40 we held that efforts to collect past due
alimony payments ordered by decree, like actions to collect past
due child support, involve periodic support obligations that are
judgments that vest when an installment becomes due but remains
unpaid.41 This reasoning is equally applicable to past-due
installment payments of marital property. Accordingly, each
monthly payment owed to Debra pursuant to the 1992 court order
was a judgment that vested when it became due and payable.
Postjudgment interest accrues on these sums at the statutory rate
as prescribed by AS 09.30.070(a),42 and different interest rates
will apply to judgments vesting in different years. On remand,
the trial court should determine the interest rate in effect
during each year encompassed in the courts modified judgment, and
then recalculate the amount of postjudgment interest owed based
on the date of accrual of each enforceable obligation and the
interest rate in effect at that time during the year it accrued.
IV. CONCLUSION
Because the superior courts decision conflicts with the
USFSPA, we hold that the court abused its discretion in denying
Neils motions for relief under Civil Rule 60(b)(6) and for
reconsideration of its amended order. Because different interest
rates will apply to judgements vesting at different times, the
court must recalculate prejudgment interest. Accordingly, we
REVERSE and REMAND for proceedings consistent with this opinion.
_______________________________
1 Clauson v. Clauson, 831 P.2d 1257, 1260 n.4 (Alaska
1992) (citing Schofield v. Schofield, 777 P.2d 197, 202 (Alaska
1989)).
2 Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375,
378-79 (Alaska 1982).
3 Neal & Co., Inc. v. Assn of Vill. Council Presidents
Regl Hous. Auth., 895 P.2d 497, 506 (Alaska 1995).
4 Hofmann v. von Wirth, 907 P.2d 454, 455 (Alaska 1995).
5 City of Seward v. Afognak Logging, 31 P.3d 780, 783
(Alaska 2001). See also Johns Heating Service v. Lamb, 46 P.3d
1024, 1041 (Alaska 2002) (reviewing application of prejudgment
interest rules de novo).
6 10 U.S.C. 1408 (West 2003). This law provides that no
more than fifty percent of a military spouses retirement may be
awarded to the other spouse. At the time the original award was
made in 1992, if Neils retirement benefit was $799.09, Debras
share would have amounted to sixty-two and one-half percent of
his retirement.
7 Civil Rule 60(b)(1) provides for relief from judgments
based on mistake, inadvertence, surprise or excusable neglect, if
brought within one year of the original judgment or order.
8 Morris v. Morris, 908 P.2d 425, 427 (Alaska 1995)
(quoting Allen v. Allen, 645 P.2d 774, 776 (Alaska 1982)).
9 10 U.S.C. 1408(e)(1) (West 2003).
10 Clauson v. Clauson, 831 P.2d 1257, 1261 (Alaska 1992)
(quoting Chase v. Chase, 662 P.2d 944, 946 (Alaska 1983)).
11 As explained by the House of Representatives in
amending subsection (e)(1):
The USFSPA authorizes state courts to
treat disposable retired or retainer pay as
property and defines such pay to exclude
military retired pay waived in order for the
retiree to receive veterans disability and
civil service benefits. . . .
The law would be clarified to ensure
that regardless of the number of former
spouses, the aggregate amount of retired pay
that would be payable to them would not
exceed 50 percent of the service members
disposable retired pay.
H. Rep. No. 101-665, at 279-81 (1990), reprinted in 1990
U.S.C.C.A.N. 2931, 3005-06.
12 831 P.2d 1257 (Alaska 1992).
13 Id. at 1259.
14 Mansell v. Mansell, 490 U.S. 581 (1988).
15 Clauson, 831 P.2d at 1262.
16 Id.
17 See, e.g., Perry v. Newkirk, 871 P.2d 1150 (Alaska
1994).
18 Restatement (Second) of Judgments 11 (1982) (emphasis
added).
19 Perry, 871 P.2d at 1154.
20 Id.
21 Restatement (Second) of Judgments 12 (1982).
22 Id. at cmt d.
23 Id.
24 See 10 U.S.C. 1408(c), (e) (West 2003).
25 Restatement (Second) of Judgments 12 (1982). See
also Clauson v. Clauson, 831 P.2d 1257, 1262 (Alaska 1992) (the
USFSPA prohibits our courts from distributing [disability
benefits] to a former spouse when allocating property upon
divorce); Ryan v. Ryan, 600 N.W.2d 739, 745 (Neb. 1999) ([b]ased
on the preemptive effect of the USFSPA, we conclude that federal
law precludes a state court, in a dissolution proceeding, from
exercising subject matter jurisdiction over VA disability
benefits).
26 McCarty v. McCarty, 453 U.S. 210, 236 (1981).
27 Clauson, 831 P.2d at 1261 n.6.
28 Article VI, 1, cl. 2 of the U.S. Constitution states:
This Constitution, and the Laws of the United
States which shall be made in Pursuance
thereof; and all Treaties made, or which
shall be made, under the Authority of the
United States, shall be the supreme Law of
the Land; and the Judges in every State shall
be bound thereby, any Thing in the
Constitution or Laws of any State to the
Contrary notwithstanding.
29 Burrell v. Burrell, 696 P.2d 157, 163 (Alaska 1984).
30 490 U.S. 581 (1989).
31 Id. at 594-95.
32 831 P.2d at 1262.
33 890 P.2d 574 (Alaska 1995).
34 Id. at 576 n.2.
35 Id.
36 Id.
37 Magden v. Alaska USA Fed. Credit Union, 36 P.3d 659,
663 (Alaska 2001); Neal & Co., Inc. v. Assn of Vill. Council
Presidents Regl Housing Auth., 895 P.2d 497, 506 (Alaska 1995).
38 See id.
39 Id.
40 902 P.2d 1321 (Alaska 1995).
41 Id. at 1323.
42 The statutory interest rate used to calculate pre- and
postjudgment interest was changed in 1997. See ch. 26, 18, 19,
SLA 1997. Because this case involves judgments due from 1992 to
2002, both the current and former statutes will apply.
