(Download) "Leroy Eugene Nieman v. Erna Luise Nieman" by Supreme Court Of Idaho # eBook PDF Kindle ePub Free
eBook details
- Title: Leroy Eugene Nieman v. Erna Luise Nieman
- Author : Supreme Court Of Idaho
- Release Date : January 07, 1983
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 62 KB
Description
On March 6, 1973, LeRoy Nieman obtained a default divorce decree from his wife Erna based on a complaint which did not mention LeRoys entitlement to military retirement pay. Accordingly, rights to that asset were not adjudicated. Several years later, following this Courts decision in Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975), Erna Nieman petitioned the district court to divide the military retirement pay. The district court noted that the military retirement pay had not been part of the earlier property distribution, and held that such was community property pursuant to this Courts decision in Ramsey, supra, (military retirement benefits community property subject to division between the parties upon dissolution of the marriage). By judgment dated October 26, 1977, the court awarded Erna $95,365 in a "lump sum, or in such manner as the parties might agree upon." R., p. 44. Neither party appealed. LeRoy thereafter executed a stipulation with Erna which directed that 43.5 percent of his monthly military retirement benefits be paid Erna through the district court. R., p. 45.[Footnote 1] Such was being done when, in June of 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 military retirement benefits are not subject to division as community property. LeRoy thereupon moved under I.R.C.P. 60(b)(4), (5) and (6)[Footnote 2] to set aside the district courts 1977 decree. However, his principal argument before the court was that the 1977 decree was either void under the McCarty ruling or was not a final judgment. The court denied LeRoys motion on the grounds that the 1977 decree was res judicata, hence, not subject to being vacated or modified. That determination led to this appeal.