
    No. 86-283.
    Cox v. Cox.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.

Justice White,

with whom Justice O’Connor joins,

dissenting.

This Court, in McCarty v. McCarty, 453 U. S. 210 (1981), held that federal law precludes a state court from dividing military retired pay pursuant to state community property laws. Congress, concerned with the effect our holding would have on the divorced spouses of retired military personnel, enacted the Uniformed Services Former Spouse’s Protection Act (USFSPA), Pub. L. 97-252, 96 Stat. 730, 10 U. S. C. § 1408. That Act, in effect, nullified our decision in McCarty and permitted States to treat military retired pay as either the property of the military member or as property of both the member and his spouse. California enacted 1983 Cal. Stats., ch. 775, Cal. Civ. Code Ann. § 5124 (West) (effective up to January 1, 1986). In so doing, the California Legislature declared that California would return to its pre-McCarty practice of treating military retired pay as community property.

This case presents the question whether USFSPA is to be given retroactive effect. In other words, is that Act to be read to permit spouses, whose divorce decrees were made final after our decision in McCarty but before USFSPA was enacted, to set aside that part of their divorce decrees denying them a share in a military pension because of our holding in McCarty. Petitioner in this case attempted to set aside her divorce decree which became final during the period of time between our decision in McCarty and enactment of USFSPA. The California Court of Appeal held that USFSPA is not to be given retroactive effect. Other state courts which have considered this question have come to a different conclusion. E. g., Edsall v. Superior Court, 143 Ariz. 240, 693 P. 2d 895 (1984); Smith v. Smith, 458 A. 2d 711 (Del. Fam. Ct. 1983). Because of this confusion, and because the answer to the question presented turns on an interpretation of a federal statute, I would grant the petition for certiorari.  