In Re Marriage of Buikema

Opinion

BROWN (Gerald), P. J.

Kenneth E. Buikema appeals a judgment dissolving his marriage to Joan E. Buikema, alleging the award of a community interest in his military retirement pension to his ex-wife is improper.

Kenneth and Joan Buikema were married in 1953 and separated in 1977, during which time Kenneth served as an officer in the United States Air Force. As a part of the final judgment entered March 31, 1981, dissolving the marriage, the superior court awarded Joan a one-half community interest in the portion of

[691]

Kenneth’s military retirement pension which accrued during the years of marriage.

Three months after the final judgment of dissolution was entered, the United States Supreme Court decided

McCarty

v.

McCarty

(1981) 453 U.S. 210 [69 L.Ed.2d 589, 101 S.Ct. 2728], holding a federal statute prohibits division of military retirement pensions and preempts state community property law. Kenneth argues on appeal we are compelled to reverse the award of a community interest in his pension to Joan under a retroactive application of McCarty. However, retroactivity is now a moot issue because

McCarty

is no longer the law. On February 1, 1983, the Uniformed Services Former Spouses’ Protection Act (Pub.L. No. 97-252), an amendment to title 10 of the United States Code, became effective. The act overrules

McCarty,

stating “a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” (10 U.S.C. § 1408(c)(1).) California law treating military retirement pensions as community property is no longer preempted. The act’s legislative history clearly indicates Congress’ intent to abrogate all applications of the

McCarty