                            No.    90-145

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1990



IN RE THE MARRIAGE OF DONNA A. SAMSON,
     Petitioner and Appellant,
     and
EDWIN C. SAMSON,
     Respondent and Respondent.
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APPEAL FROM:   District Court of the Eleventh Judicial ~igtric&
               In and for the County of Flathead,        ;o
               The Honorable Leif B. Erickson, Judge presfbing.


COUNSEL OF RECORD:
          For Appellant:
               Randall S. Ogle, Ogle              &   Worm, Kalispell, Montana
               59903-0899

          For Respondent:
               Gary G. Doran, Moore           &       Doran, Kalispell, Montana
               59903-1198



                                         Submitted:          September 20, 1990
                                              Decided:       December 11, 1990
Filed:                                    0
Justice John C. Sheehy delivered the Opinion of the Court.

     On April 7, 1989, Donna A. Samson filed a motion to amend the
parties' decree of dissolution requesting the ~istrictCourt to
evaluate and equitably divide ~ d w i nC. Samson's military pension
as an asset of the marriage. The Eleventh Judicial District Court,
Flathead County, denied Donna's motion and granted summary judgment
in favor of Edwin.   Donna now appeals the District Court's order.
We affirm.

     Donna raises the following issue on appeal:
     Whether the ~istrictCourt erred in denying her an equitable
share of Edwin's military retirement pension?
     Donna and Edwin were married in Great Falls, Montana, on
September 17, 1961.      At the time of the marriage, Edwin was
enlisted in the United States Air Force.      The parties had one
child, Bruce S. Samson, born September 26, 1964.     Edwin retired
from the Air Force in February, 1978, after the parties had been
married over 16 years.
     Donna filed her petition for dissolution in this matter on
September 9, 1982.    The couple signed a separation and property
settlement agreement on March 27, 1983, which made no mention of
Edwin's military retirement pension.   The agreement provided that
Edwin would pay maintenance to Donna in the amount of $450 per
month from August 1, 1983, through March 31, 1989. Later, on April
27, 1983, the court entered the parties' decree of dissolution.
     Edwinls military pension was considered in determining the
amount of maintenance to be paid to Donna, however, the military
pension   was not considered or divided as a marital asset at the
time of the dissolution.    Donna now claims she was unaware that
Edwin's military pension was a marital asset at the time of the
dissolution and did not learn the fact until early 1989.
     Donna filed her motion to amend the decree of dissolution on
April 7, 1989, seeking an equitable division and distribution of
Edwin's military pension as a marital asset.     On January 23, 1990,
the District Court denied Donna's motion and granted Edwin's motion
for summary judgment finding Donna's claim barred by the doctrine
of laches.
     Donna claims the District Court erred when it denied her a
share in ~dwin's military pension.       Edwin claims the federal
Uniform Services Former Spouses' Protection Act (USFSPA) and case
law interrupting this Act, support the District Court's decision
to deny Donna a share of his military pension.    Furthermore, Edwin
contends that Donna accepted maintenance in the place of an actual
division of military pension.
     The standard that this Court applies in reviewing a grant of
summary judgment is the same as that initially utilized by the
District Court.   McCracken v. City of Chinook (Mont. 1990), 788
P.2d 892, 894, 47 St.Rep. 501, 504.     Summary judgment is proper
when it appears "that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law.'' Rule 56(c), M.R.Civ.P. ; Kelly v. Widner (1989), 236 Mont.
523, 526, 771 P.2d 142, 144; McCracken, 788 P.2d at 894. With this
standard in mind, we review the issue presented to this Court.
     Whether the District Court erred in denying her an
     equitable share of Edwinls military pension?
     In order to determine this issue, we must review the law
surrounding military pensions as an asset of the marital estate.
     Prior to 1981, we treated a military pension as a marital
asset subject to equitable distribution.     In Re the Marriage of
Miller (1980), 187 Mont. 286, 609 P.2d 1185.    In 1981, the United
States Supreme Court, held, in effect, that federal law prevented
state courts from dividing military pensions according to state
community property or equitable distribution laws.       McCarty v.
McCarty (1981), 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589.
Later, this Court followed the McCartv ruling and held that
military retirement pensions were not marital assets subject to
distribution by the District Court.    In Re the Marriage of McGill
(1981), 196 Mont. 40, 41, 637 P.2d 1182.
     In direct response to McCart~,on September 8, 1982, Congress
enacted 10 U.S.C.   5 1408, the Uniform Services Former Spouses'
Protection Act (USFSPA)  .   Pursuant to USFSPA, state courts could
once again include a military pension in the equitable distribution
of the marital estate.   One day after the enactment of the USFSPA,
Donna filed her petition for dissolution.
     The USFSPA took effect in February, 1983.     As the District
Court notes, I1Althoughthe USFSPA took effect on February 1, 1983,
Respondentlsmilitary pension was not considered or distributed as
a marital asset in the Decree of      iss solution entered April 27,
1983.** One year later, after the District Court entered the
parties1 decree of dissolution, this Court re-adopted the federal
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position set forth in the USFSPA, and once again held that a
military pension constitutes a divisible marital asset.      In Re the
Marriage of Kecskes (1984), 210 Mont. 479, 483, 683 P.2d 478,    480.

     Donna, relying on our holding in In Re the Marriage of Waters
(1986), 223 Mont. 183, 724 P.2d 726, argues this Court should
retroactively award her an equitable portion of Edwinls military
pension.   In Waters, we considered 'Ithe narrow question whether the
Uniform Services Former Spouses' Protection Act, 10 U.S.C. 5    1408,

should be applied retroactively to final decrees of dissolution
which were entered subsequent to the United States Supreme Court
decision in McCartv v. McCartv but prior to the aforementioned
federal statute."    Waters, 724 P.2d at 727.
     In Waters, McCartv applied and prohibited the District Court
from dividing the husband's military pension as a marital asset.
Subsequent to the District Court decree entered in Waters, Congress
passed the USFSPA.    In Waters, we stated:
     The legislative history of the USFSPA indicates that the
     Act was meant to apply to those spouses who were divorced
     during the period between McCartv and the Act.       "The
     primary purpose of the bill is to remove the effect of
     the United States Supreme Court decision in McCartv v.
     McCartv  ...      1982 U.S. Code Cong. & Ad. News 1555,
     1596. It is also clear that Congress meant the law to
     apply retroactively.
Waters, 724 P.2d at 730.
     In Waters, we     held   that the USFSPA    should be    applied
retroactively, but we limited our holding to dissolution decrees
that were   final after the McCarty decision, but before the
effective date of the USFSPA.    Waters, 724 P.2d at 730.      In the
present case, the District Court granted the decree of dissolution
on April 27, 1983, well outside of the time limitation set forth
in Waters.
     While our holding in Waters is limited to a specific time
frame, we expounded upon the inequity of denying spouses a share
of military pensions:
     . . .   Those spouses of members of armed forces who
     obtained dissolutions prior to McCartv were entitled to
     share in their spouses' military pension.      Likewise,
     those spouses who obtain dissolutions after Kecskes will
     be entitled to have their spouses' military pension
     treated as a marital asset. However, those spouses who
     were divorced during the period between McCartv and
     Kecskes were denied this right. To forbid those spouses
     who were divorced during this period from obtaining a
     modification of their decrees would create a category of
     people who were denied substantial rights solely because
     of the unfortunate time within which their decrees
     happened to be made final. This fate does not befall
     others similarly situated whose decrees were not or will
     not be final during that period.
Waters, 724 P.2d at 729-30.
     Equity forces this Court to examine Donna's request for a
share of Edwin's pension, despite the fact that the couple's decree
falls outside of the time limitations set forth in Waters.
However, our examination of Donna's request for a share of the
military pension is rather brief, since we agree with the District
Court that Donna's claim is barred by the doctrine of laches.   As
we explained in Hereford v. Hereford (1979), 183 Mont. 104, 108,
598 P.2d 600, 602, w[l]aches means negligence to the assertion of

the right, and exists where there has been a delay of such duration
as to render enforcement of an asserted right inequitable.If
Furthermore, "[a] complainant can be charged with laches if, but
only if he was either actually or presumptively aware of his
rights.    A complainant is presumptively aware of his rights where
the circumstances of which he is cognizant are such as to put a man
of ordinary prudence on inquiry."    Hereford. 598 P.2d at 602; see
also, Clayton v. Atlantic Richfield Company (1986), 221 Mont. 166,
170, 717 P.2d 558, 561; Johnson v. Estate of Shelton (1988), 232
Mont. 85, 90, 754 P.2d 828, 831.
     Donna contends the District Court erred in applying the
doctrine of laches, since there is no reasonable way that she could
have been ttactuallytt ttpresumptivelytt
                     or               aware of her rights by
either the USFSPA or Kecskes.      Under the circumstances here, we
adopt the District Court's rationale for its application of the
doctrine of laches:
     While arguably the USFSPAts enactment and/or effective
     date placed Petitioner on inquiry, certainly, In re the
     Marriase of Kecskes, 210 Mont. 479, 683 P.2d 478 (1984),
     notified Petitioner of her rights regarding the military
     pension. Regardless, however, Petitioner took no action
     for five years. Rather, she waited until April of 1989,
     just   after    Respondent's   maintenance    obligation
     terminated, to seek amendment of the Dissolution Decree.
     As the District Court notes in its finding, it would be
prejudicial to Edwin to award Donna this late in time a share of
the military pension considering that ~dwin: (1) did not conceal
the pension from Donna; (2)     paid maintenance to Donna for six
years so that she could receive education or vocational training;
and, (3)   relied upon his financial obligation to Donna ending in
March, 1989.
     Donna waited on her rights for an unreasonable period of time,
and consequently, her claim to any part of the military pension is
barred by the doctrine of laches.    Accordingly, we affirm the
District Court's summary judgment order.




We Concur:    A

i      Chief Justice
