Domestic Relations – Military Pension Division Order – Uniform Services Former Spouses’ Protection Act

The court properly denied Defendant husband’s motion to dismiss for lack of subject matter jurisdiction to consider Plaintiff ex-wife’s motion for military pension division order.

We affirmed.

Defendant argued the district court lacked subject matter jurisdiction to consider Plaintiff’s motion for entry of a military pension division order, erred by rejecting his laches defense, and erred by entering a military pension division order. Plaintiff filed a motion for entry of the military pension division order on August 25, 2021, voluntarily dismissed that motion on February 25, 2022, then refiled it December 20, 2022. Defendant argued the voluntary dismissal of the motion should be construed as dismissal of Plaintiff’s sole pending claim, terminating the civil action and requiring her to commence a new action by filing a summons and complaint. The record shows Plaintiff intended only to withdraw her motion, not her underlying equitable distribution claim. She used a pre-printed AOC form specific to voluntary dismissal of actions and claims under Rule 41(a). Rather than checking the box to dismiss her complaint or a counterclaim, she marked the “other” box and specified “Motion (See Below),” attaching only her military pension motion. Plaintiff did not reference the greater equitable distribution claim within which the motion was asserted. If she had intended to dismiss the claim in its entirety, she would have identified it explicitly. This filing error does not cause prejudice to the opposing party. A party cannot unilaterally alter a court-ordered and entered consent judgment by withdrawing a motion. As a result, Plaintiff’s equitable distribution claim remained pending despite her voluntary dismissal of the motion, which amounted to a harmless procedural error. She refiled the motion within one year of dismissal, and Defendant has not shown he suffered prejudice from her action. The civil action remained pending despite dismissal of Plaintiff’s procedural motion. The court retained subject matter jurisdiction to resolve the equitable distribution claim. We affirmed the trial court’s order denying Defendant’s motion to dismiss for lack of subject matter jurisdiction.

Defendant next argued the district court’s Military Pension Division Order is barred under the doctrine of laches. The trial court found Plaintiff did not unreasonably delay filing this suit to foreclose Defendant’s laches defense. Defendant challenged this finding and argued Plaintiff’s 15-year delay in seeking to resolve her equitable distribution claim was barred by laches. Defendant asserted prejudice and testified he would have pursued alternate employment had he known his pension would be divided. This Court has found prejudice to exist where a defendant entered into real estate contracts and incurred financial obligations while a plaintiff, having knowledge of these facts, delayed filing suit. Defendant did not incur legal or financial obligations, nor did he change his position in reliance upon Plaintiff’s delay during the period between the time of 2005 consent judgment and Plaintiff’s motion for division of the pension. His asserting he may have sought other financially-fulfilling employment is too speculative to support a laches defense. Defendant’s military pension vested June 30, 2021. Plaintiff filed her motion to divide the pension on August 25, 2021, less than two months after it vested. Until vesting, Defendant remained at risk of ineligibility. As the pension’s value and status could not be ascertained before mid-2021, Plaintiff’s timing in filing less than two months after the pension vested was reasonable. The consent judgment and record shows Defendant was aware of the grounds for the claim he sought to bar. He agreed and had received clear notice the issue of the military pension remained unresolved, because the 2005 Consent Judgment explicitly reserved the matter for further consideration. Plaintiff also filed an equitable distribution status report in 2007 confirming her claim remained pending. Competent evidence supports the trial court’s finding and conclusion Plaintiff did not act in a manner to unreasonably delay asserting her claim. We affirmed the district court’s denial and dismissal of Defendant’s laches defense.

Finally, Defendant contended the court failed to make sufficient findings to support its award of 24.7720% of his pension and to remit $50,111.73 of back payments to Plaintiff. The court’s Military Pension Order distributed Defendant’s pension in accordance with § 50-20.1(a)(3)(ii). The court found Plaintiff was eligible to receive a portion of Defendant’s retirement under the Uniform Services Former Spouses’ Protection Act, which permits classification of military retirement pay as either marital or separate property and authorizes direct payments to a former spouse, when the marriage overlapped with at least ten years of the service member’s military service. Evidence exists to support the court’s calculation and award of 24.7720% of Defendant’s pension to Plaintiff. We affirmed the trial court’s order dividing Defendant’s military pension and the award of back pay.

Affirmed.

Holland v. Holland (Lawyers’ Weekly No. 011-155-25, 14 pp.) (John Tyson, J.) Appealed from Iredell County District Court (Bryan A. Corbett, J.) Poyner & Spruill, LLP, by Steven B. Epstein, for the plaintiff-appellee. Sullivan & Hilscher Family Law, by Kristopher J. Hilscher, for the plaintiff-appellee. Pope McMillan, P.A., by Clark D. Tew, and Christian Kiechel, for the defendant-appellant. North Carolina Court of Appeals