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  "name": "Joyce NORRIS, formerly Joyce Saueressig, Petitioner-Appellee, and Cross Appellant, v. Joe Stanley SAUERESSIG, Respondent-Appellant, and Cross Appellee",
  "name_abbreviation": "Norris v. Saueressig",
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  "casebody": {
    "judges": [
      "RIORDAN, C.J., SOSA, Senior Justice, and STOWERS, J., concur.",
      "WALTERS, J., dissents."
    ],
    "parties": [
      "Joyce NORRIS, formerly Joyce Saueressig, Petitioner-Appellee, and Cross Appellant, v. Joe Stanley SAUERESSIG, Respondent-Appellant, and Cross Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION\nFEDERICI, Justice.\nThis case is before us pursuant to a writ of certiorari granted to review the opinion of the Court of Appeals.\nThe facts, law and result reached by the Court of Appeals are set forth in its opinion of December 12, 1985, 104 N.M. 85, 717 P.2d 61, and we direct that the Court of Appeals opinion be published with this opinion.\nIn its opinion, the Court of Appeals held that the rule established in LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (1969) has been reinstated. We agree with the Court of Appeals but we write this opinion to clarify the application of LeClert.\nIn LeClert, we held that military retirement pay was community property. Our subsequent opinions concerning the community aspect of retirement pay were based on the LeClert rule. See, e.g., Copeland v. Copeland, 91 N.M. 409, 575 P.2d 99 (1978); Hughes v. Hughes, 91 N.M. 339, 573 P.2d 1194 (1978); Otto v. Otto, 80 N.M. 331, 455 P.2d 642 (1969). However, in 1981, the United States Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) held that nondisability military retirement pay was not community property. In Espinda v. Espinda, 96 N.M. 712, 634 P.2d 1264 (1981), we held that McCarty effectively overruled LeClert and its progeny which held that military retirement pay was community property. In Whenry v. Whenry, 98 N.M. 737, 652 P.2d 1188 (1982), we refused to apply either McCarty or Espinda retroactively to those judgments based on LeClert which became final before McCarty.\nIn 1982, Congress enacted the Uniformed Services Former Spouses\u2019 Protection Act. 10 U.S.C. \u00a7 1408 (1982). Section 1408(c)(1) permits the states to treat military disposable retirement or retainer pay either as separate or community property after June 25, 1981. Several months later, in Walentowski v. Walentowski, 100 N.M. 484, 672 P.2d 657 (1983), we held that the Uniformed Services Former Spouses\u2019 Protection Act applied retroactively to the date of the McCarty decision of June 26, 1981. We also reinstated \u201cthe law as it was under LeClert. \u201d Id. at 486, 672 P.2d at 659. See also Koppenhaver v. Koppenhaver, 101 N.M. 105, 678 P.2d 1180 (Ct.App.), cert. denied, 101 N.M. 11, 677 P.2d 624 (1984).\nThe Court of Appeals concluded that LeClert, which was decided in 1969, does not apply to this case because petitioner\u2019s decree of dissolution of marriage was entered in 1965. This result is correct. The Court of Appeals further concluded that reinstating LeClert must have the effect of preserving the final judgments entered pursuant to the rule established in LeClert. This result is also correct.\nWe have previously held, and now reaffirm that: (1) the LeClert rule that military retirement pay is community property has been reinstated in New Mexico, and applies to those final judgments entered prior to the McCarty decision; and (2) that the Uniform Services Former Spouses\u2019 Protection Act applies retroactively only to judgments which were final after the announcement of the McCarty opinion on June 26, 1981.\nWe affirm the opinion of the Court of Appeals.\nIT IS SO ORDERED.\nRIORDAN, C.J., SOSA, Senior Justice, and STOWERS, J., concur.\nWALTERS, J., dissents.",
        "type": "majority",
        "author": "FEDERICI, Justice."
      },
      {
        "text": "WALTERS, Justice,\n(dissenting).\nI do not agree with the opinion of the Court of Appeals or this Court\u2019s clarification of it and must, therefore, respectfully dissent.\nThe underlying opinion holds that \u201cin 1965, the military retirement benefits did not constitute a community asset, and, therefore, were not subject to division.\u201d (104 N.M. at 86, 717 P.2d at 62.) Clearly, that is an incorrect statement. LeClert, to which the opinions of both courts refer, was indeed decided in 1969, just as was Otto v. Otto, 80 N.M. 331, 455 P.2d 642 (1969), but LeClert and Otto dealt with military retirement benefits earned for periods of more than 20 and 30 years, respectively, before those cases were decided. Just because appellate decisions on the subject had not been written earlier, that fact could not, did not, and does not change the character of community property in existence prior to the decisions. They merely declared the already existing classification of such property.\nThe majority states that the McCarty opinion \u201ceffectively overruled LeClert,\u201d but that Walentowski then \u201creinstated \u2018the law as it was under LeClert.\u2019 \u201d If that is so, it doesn\u2019t matter that the parties here were divorced in 1965 and LeClert was decided in 1969, because their 1965 Property Settlement Agreement specifically provided, and the trial court found, that if there was community property not disposed of by that Agreement, the parties would own such property as tenants in common \u2014 which, by definition, means undivided ownership and possession (1 Bouvier\u2019s Law Dictionary, 3d rev.), of which an owner may demand partition. The 1969 cases {LeClert and Otto) recognized that retirement benefits accruing prior to those decisions were community assets. The retirement benefit here, a recognized community asset, had not been divided in the 1965 Agreement. Our divorce statutes declare how community property shall be divided; thus, how community property, by agreement held \u201cin common\u201d after divorce, may and should be converted to separate property of the parties.\nThe Uniformed Services Former Spouses\u2019 Protection Act may properly be held to apply retroactively to judgments final after the McCarty decision of June 26, 1981, but that has nothing to do, in my mind, with the status or character of community property in 1965, nor with the Court\u2019s obligation to enforce the division of community property not disposed of at the time of divorce under the principles of community property law. LeClert, \u201creinstated\u201d as good law by this Court, would mandate that \u201cretirement pay which was earned during coverture [in LeClert, from 1949 to 1968] became property of the community,\u201d and thus divisible between husband and wife.\nI would reverse the trial court\u2019s limitation of the wife\u2019s share of those benefits from the date of her claim and direct a division of all retirement benefits paid to the husband from the date he began to receive them.",
        "type": "dissent",
        "author": "WALTERS, Justice,"
      }
    ],
    "attorneys": [
      "Susan M. Conway, Robert D. Levy, Conway & Levy, P.A., Albuquerque, for petitioner-appellee, and cross-appellant.",
      "Ann Steinmetz, Albuquerque, for respondent-appellant, and cross-appellee."
    ],
    "corrections": "",
    "head_matter": "717 P.2d 52\nJoyce NORRIS, formerly Joyce Saueressig, Petitioner-Appellee, and Cross Appellant, v. Joe Stanley SAUERESSIG, Respondent-Appellant, and Cross Appellee.\nNo. 16204.\nSupreme Court of New Mexico.\nApril 8, 1986.\nSusan M. Conway, Robert D. Levy, Conway & Levy, P.A., Albuquerque, for petitioner-appellee, and cross-appellant.\nAnn Steinmetz, Albuquerque, for respondent-appellant, and cross-appellee."
  },
  "file_name": "0076-01",
  "first_page_order": 110,
  "last_page_order": 112
}