Opinion
No. 92-622
Decided September 30, 1993
1. Appeal and Error — Preservation of Questions — Generally Ordinarily, where a plaintiff has not made an argument below, the issue is not preserved for appeal.
2. Appeal and Error — Questions Considered on Appeal — Questions Not Preserved, but Considered Supreme court entertained issue of whether Soldiers' and Sailors' Civil Relief Act (SSCRA)'s tolling provision mandated using different date than one trial court used in calculating military pension divorce award, where issue had not been presented below, since some courts had held that provision allowed a party to raise issue for first time on appeal and plaintiff had argued for use of SSCRA date in calculating award below, although not in context of SSCRA. 50 U.S.C. App. 525
3. United States — Generally — Armed Forces Soldiers' and Sailors' Civil Relief Act suspends various civil Liabilities of persons in military service; one provision operates to toll an otherwise applicable statute of limitations. 50 U.S.C. App. 525; Superior Ct. R. 151.
4. Courts — Court Rules and Procedure — Construction of Court Rules Superior court rule providing that all marital cases which have been pending upon the equity docket for two years shall be dismissed is not a statute of limitations, whose purpose is to eliminate the filing of stale claims; rather, it is a housekeeping rule designed to clear the docket of cases already brought which the parties have not prosecuted. Superior Ct. R. 151.
5. United States — Generally — Armed Forces Trial court's use of 1991 divorce filing date as basis for calculating defendant's share of pension benefits did not violate Soldiers' and Sailors' Civil Relief Act's tolling provision, where provision, where provision, construed literally, tolled time for the bringing of the action in 1991 and had no applicability to the previous divorce action duly filed and served in 1984, especially where plaintiff's decision to bring new action rather than to move to vacate order dismissing first action showed awareness of previous action and acquiescence in order dismissing it. 50 U.S.C. App. 525.
6. Appeal and Error — Findings — Unrecorded Proceedings On appeal, in absence of record of proceedings below, factual findings are presumed to be supported by evidence.
Duffy and Laufer, of Manchester (Peter J. Duffy on the brief and orally), for the plaintiff.
Boynton, Waldron, Doleac, Woodman Scott, P.A., of Portsmouth (Patti Blanchette on the brief and orally), for the defendant.
The plaintiff in this divorce action, Ronald A. Levesque, appeals from an order of the Superior Court (Coffey, J.) approving the recommendation of a Master (Stephanie T. Nute, Esq.) awarding part of his military pension to the defendant, Kathleen M. Levesque. He argues that the court improperly calculated the amount owed based upon the value of his pension at the time he filed his libel for divorce, rather than upon its value on the date of an earlier libel filed by the defendant but subsequently dismissed. According to the plaintiff, the dismissal of the first libel pursuant to Superior Court Rule 151 violated the mandatory tolling provision of the Soldiers' and Sailors' Civil Relief Act (SSCRA), 50 U.S.C. App. § 525. We affirm.
The plaintiff, on active duty in the Air Force until 1991, married the defendant in 1968 while in the service. On October 23, 1984, the defendant filed for divorce in Rockingham County Superior Court. The plaintiff filed a pro se appearance on December 3, 1984, listing his address as Portsmouth, New Hampshire. In 1985, the plaintiff was transferred to England, where he remained for six years. After the initial libel for divorce was filed and while the plaintiff was in England, the parties discussed their divorce and determined that it was in their mutual financial interests to remain married. On March 11, 1987, the defendant's libel was dismissed on the court's own motion pursuant to Superior Court Rule 151 because the file had been inactive for over two years. When the plaintiff returned from England in 1991, he filed his own libel, which is the subject of this appeal. In determining the amount of the plaintiff's military pension benefits to be awarded to the defendant, the court used May 7, 1991, when the plaintiff filed the libel, as the operative date, awarding the defendant fifty percent of all pension benefits acquired by the plaintiff by virtue of his military service from September 21, 1968, until May 7, 1991.
The plaintiff contends that the superior court erred in not calculating the pension award from the date of the 1984 divorce libel, arguing that the tolling provision of section 525 of the SSCRA rendered ineffective the dismissal of the initial libel filed by the defendant. The defendant counters that the SSCRA does not apply in this case, and that, as the plaintiff did not make this argument below, it is not preserved for appeal.
[1, 2] The record shows that no argument based on the SSCRA was made by the plaintiff in superior court. While ordinarily such a lapse would foreclose consideration of an issue on appeal, other courts have held that the mandatory language of section 525 permits a party to raise the issue of the statute's application for the first time on appeal. See, e.g., Ricard v. Birch, 529 F.2d 214, 216 (4th Cir. 1975). The plaintiff in superior court sought to have his pension divided with reference to the date of the initial libel, albeit not on the ground of the SSCRA tolling provision. We hold that the issue is properly before us.
The Soldiers' and Sailors' Civil Relief Act "suspends various civil liabilities of persons in military service." Conroy v. Aniskoff, 113 S.Ct. 1562, 1563-64 (1993). Section 525 of the Act provides in pertinent part:
"The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action or the right or privilege to institute such action or proceeding shall have accrued prior to or during the period of such service . . . ."
50 U.S.C. App. § 525. This provision operates to toll an otherwise applicable statute of limitations. See T. Folk, Soldiers' and Sailors' Civil Relief Act: Tolling of Statutes of Limitations under [section 525] of the SSCRA, 102 Mil. L. R. 157 (1985).
Superior Court Rule 151 provides: "All marital cases, which shall have been pending upon the equity docket for two years, shall be dismissed." Rather than a statute of limitations, whose purpose is to eliminate the filing of stale claims, Keeton v. Hustler Magazine, Inc., 131 N.H. 6, 14, 549 A.2d 1187, 1192 (1988), Rule 151 is on its face addressed to actions already brought. It is a housekeeping rule designed to clear the docket of cases that parties have failed to prosecute.
The United States Supreme Court, construing other language in section 525, has held that Congress intended a literal interpretation of that section. Conroy v. Aniskoff, 113 S.Ct. at 1565-66. We conclude, therefore, that the statute's directive to toll the time "for the bringing of any action," 50 U.S.C. App. § 525 (emphasis added), means precisely what it says, "and has no applicability to an action duly filed and served . . . ." Zitomer v. Holdsworth, 449 F.2d 724, 726 (3d Cir. 1971). This interpretation has been adopted by other courts considering similar questions. See Ricard v. Birch, 529 F.2d at 217; Zitomer v. Holdsworth, 449 F.2d at 726; Zarlinsky v. Laudenslager, 402 Pa. 290, 296, 167 A.2d 317, 320 (1961). But see Buttler v. City of Los Angeles, 153 Cal.App.3d 520, 200 Cal.Rptr. 372 , cert. denied, 469 U.S. 883 (1984); Cahill v. Northeast Airlines, Inc., 42 A.D.2d 564, 344 N.Y.S.2d 372 (1973).
The master found that "the Plaintiff had full knowledge of the [original] divorce action, that he and the Defendant discussed it from time to time through the years but that, for whatever reason but by mutual agreement, both parties decided not to pursue the action at that time." In the absence of a record of the proceedings below, this finding is presumed to be supported by the evidence. See Dombrowski v. Dombrowski, 131 N.H. 654, 663, 559 A.2d 828, 833 (1989). The plaintiff's subsequent filing of a libel for divorce in 1991 indicates his awareness of the dismissal of the prior action; his proceeding anew instead of moving to vacate the dismissal order indicates his acquiescence in it. We hold that the trial court's use of the 1991 filing date as the basis for calculating the defendant's share of the pension benefits did not violate 50 U.S.C. App. § 525.
Affirmed.
All concurred.