Ex Parte Hovermale

¶1OPINION

¶2Relator was confined pursuant to a commitment order issued by the 285th Judicial District Court of Bexar County after sustaining a Motion for Contempt upon a finding that relator had violated a previous order of the court entered on October 30, 1979, in Cause No. 78-CI-13387, styled Elizabeth M. Hovermale v. Chester B. Hover-male, requiring relator to pay to his former wife a portion of his gross monthly military retirement pay, based on a formula set out in the decree of divorce. Relator has filed this original habeas corpus proceeding and this court, acting en banc, ordered his release upon the posting of bail.

¶3Due to a conflict in positions taken by different panels of this Court in Ex parte Buckhanan, 626 S.W.2d 65 (Tex.App.—San Antonio 1981, no writ) and Ex parte Rodriguez, 636 S.W.2d 844 (Tex.App.1981), we *830now act en banc. After exhaustive consideration of relator’s application, we decline his request for relief, and we remand him to the custody of the Sheriff of Bexar County.

¶4Relator and his spouse were divorced on October 30, 1979, and an order partitioning property, including U.S. Postal Service retirement and U.S. Navy military retirement, was entered awarding both parties a portion of each retirement fund based upon a formula incorporated in the decree. In each case relator was constituted a trustee for the benefit of his ex-spouse in all sums received by him for her benefit. Only the military retirement benefits were alleged to be the subject matter of the contempt motion and, accordingly, the U.S. Postal Service retirement benefits are not involved in this case.

¶5On January 6, 1982, the trial court found that relator had violated the order of October 30, 1979, by failing to pay any portion of his military retirement benefits to his ex-spouse for the months of July through December of 1981, in the total amount of $1,400.47. As in Ex parte Buckhanan, supra,and Ex parte Rodriguez, supra,relator contends that the portion of his divorce decree ordering a division of the military retirement benefits is void because of the United States Supreme Court’s holding in McCarty v. McCarty,1and subsequent case law. Reliance is principally placed upon Trahan v. Trahan, 626 S.W.2d 485 (Tex.1981), Ex parte Johnson, 591 S.W.2d 453 (Tex.1979) and Ex parte Buckhanan, supra.

¶6Numerous courts have attempted to resolve the question of retroactive application following the McCarty decision.2 Some have attempted to find consolation in the doctrine of res judicata while others prefer to repose behind a theory of “vanishing” jurisdiction. Most courts recognize that the problem arises from references in the McCarty decision to the preemption doctrine. We believe that the solution lies in the definition ascribed to the term “preemption” and demarcating situations where “preemption” applies.

¶7PREEMPTION AND THE SUPREMACY CLAUSE

¶8There is much confusion surrounding the term “preemption.” Even some opinions of the U.S. Supreme Court contribute to this confusion by using the term to include all situations dealing with the Supremacy Clause. However, a survey of cases by the U.S. Supreme Court dealing with preemption and the Supremacy Clause3 indicates distinct differences in application, reasoning and, presumably, results in subsequent cases.

¶9The term “preemption” has traditionally been reserved to connote those instances in which Congress has expressly issued a peremptory prohibition of the states’ exercise of jurisdiction over certain subject matter, as in bankruptcy, where its power is plenary. See Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940). Consequently, when a federal statute has vested exclusive jurisdiction of a particular type of case in the federal courts, the finding by a state court that it has jurisdiction over such a case will not preclude a collateral attack upon the judgment rendered in the state court. This is so because in speaking out, Congress has expressly stated that state *831courts are not to venture into a prohibited area, and in doing so, they run the risk of having their rulings declared nullities.

¶10The term “preemption” has likewise been used in connection with instances in which Congress enters into an area of law not expressly reserved unto it and which is, perhaps, already occupied by state legislation as interpreted by long-standing state jurisprudence. It is not unusual for the U.S. Supreme Court to characterize this problem as falling under the mantle of the Supremacy Clause and often express the opinion that Congress has preempted the field. While the use of the term preemption in this context may be technically correct, the Court has often elected to refer to Congress’ actions as “overriding” and “superseding” action by a State, and state regulation in the area is said to “give way” and “become inoperative.” Thus preemption occurs through judicial interpretation and application of the Supremacy Clause.4

¶11In the final analysis, it seems clear that the term “preemption” does not always imply a prohibition and, therefore, a withholding of jurisdiction or authority to act.

¶12A third type of preemption has been recognized, and perhaps it is in this area that the greatest difficulties have arisen. Our attention must focus upon this type of preemption because it is from this area that McCarty derives its vitality.

¶13In 1962 the U.S. Supreme Court, in the case of Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180, was called upon to decide whether treasury regulations preempted inconsistent Texas community property law by virtue of the Supremacy Clause of the U.S. Constitution. The Court held that the survivorship provision of the regulations conflicted with state law. In doing so the Court recognized two types of preemption. The first arises where the federal statute’s language expressly or implicitly reflects the command of Congress. 369 U.S., at 670, 82 S.Ct., at 1094, 8 L.Ed.2d, at 185. The second arises where state law and federal laws are so inconsistent that the state law must give way because it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. 369 U.S., at 666, 82 S.Ct., at 1092, 8 L.Ed.2d, at 183.

¶14At the next term, the Court in Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), with all nine justices adopting the Hines v. Davidowitz test,5 spoke in similar terms. See also Yiatchos v. Yiatchos, 376 U.S. 306, 84 S.Ct. 742, 11 L.Ed.2d 724 (1964). More recently in DeCanas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976), the Court considered whether a state statute was unconstitutional because it stood as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the federal statute. 424 U.S., at 363, 96 S.Ct., at 940, 47 L.Ed.2d, at 53.

¶15Again, in Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977), the Court considered whether Congress, pursuant to its powers granted by the U.S. Constitution, has prohibited the states from further operation in a field traditionally occupied by the states. Although the term “preempted” was again used by the Court, it is clear that the meaning ascribed to the term is one of “superseding” when the Court held

But when Congress has “unmistakably .. . ordained,” [citation omitted] that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall .... Congressional enactments that do not exclude all state legislation in the same field nevertheless override state laws with which they conflict, (citations omitted) (emphasis added).

¶16430 U.S., at 525-526, 97 S.Ct., at 1309-1310, 51 L.Ed.2d, at 614.

¶17*832In Jones, the Court recognized that even though federal law may not preempt state law in the traditional sense, state law may, nevertheless, have to yield because it stands as an obstacle to the accomplishment and execution of the full purposes of Congress. 430 U.S., at 540, 97 S.Ct., at 1317, 51 L.Ed.2d, at 623. See also New York Tel. Co. v. New York Labor Dept., 440 U.S. 519, 99 S.Ct. 1328, 59 L.Ed.2d 553 (1979). As in Free v. Bland, supra,the Court stated, “Our task is to determine whether, under the circumstances of this particular ease, [the State’s] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (citations omitted) 430 U.S., at 526, 97 S.Ct., at 1310, 51 L.Ed.2d, at 614.

¶18The determination to be made in these cases is whether preemption occurs by virtue of decisional law and statutory construction as opposed to preemption by prohibition of Congress. Jones v. Rath Packing Co., supra, thus stands for the proposition that state interests may have to “give way” to federal interests even though preemption6 in the usual sense has not taken place. Perhaps it is unfortunate that the Court continues to cling to the notion of preemption in its opinions instead of simply referring to an “overriding,” “giving way” or “superseding” of state interests by federal law by virtue of the Supremacy Clause.7

¶19We now turn our attention to Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) and McCarty v. McCarty, supra. In Hisquierdothe Court held that Railroad Retirement Act benefits accrued during marriage are not community property subject to division upon divorce. In so doing, the Court stated the test to be applied as “whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition.” (emphasis added) 439 U.S., at 583, 99 S.Ct., at 809, 59 L.Ed.2d, at 12. In holding as it did, the Court noted that the language in the Retirement Act positively required, by direct enactment, that state law be preempted and that the type of injury the Supremacy Clause seeks to prevent was threatened by community property interests in conflict with the Act. Thus, in Hisquierdo, there were both types of preemption. So here preemption occurred by virtue of both types alluded to in Free v. Bland, supra. See also Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950).

¶20In McCarty v. McCarty, supra, the Court, in holding that military retirement benefits may not be divided by state courts pursuant to community property laws, premised its holding upon the same considerations discussed in Hisquierdo. Unlike Hisquierdo, however, the Court in McCarty concluded that a mere conflict between federal and state interests did not invoke preemption under the Supremacy Clause, particularly where the conflict is only one of words. Reliance was then had upon the second type of preemption recognized in Free v. Bland, supra,to determine that continued recognition of the assailed state interest threatened grave harm to clear and substantial federal interests, 453 U.S. 231, 101 S.Ct., at 2741, 69 L.Ed.2d, at 606, potentially frustrated Congressional objectives, 453 U.S. 231, 101 S.Ct., at 2741, 69 L.Ed.2d, at 606, and interfered with a legitimate exercise of the power of the Federal Government. 453 U.S. 233, 101 S.Ct., at 2742, 69 L.Ed.2d, at 607. The same approach had been taken in the earlier case of Farmers Ed. & Coop Union of America v. W Day, Inc., 360 U.S. 525, 79 S.Ct. 1302, 3 L.Ed.2d 1407 (1959).

¶21Thus we may note that the decision in McCarty does not rest upon traditional eon-*833cepts of preemption but rather upon that species of preemption calling for the “giving way,” “overriding,” “yielding to,” and “superseding of” state interests because they stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Hisquierdo v. Hisquierdo, supra, Jones v. Rath Packing Co., supra; DeCanas v. Bica, supra; Florida Lime and Avocado Growers, Inc. v. Paul, supra; Free v. Bland, supra.Since state action in the face of clear prohibitory language is void,8 only those judicial acts exercised by state courts when the courts possessed jurisdiction, in the absence of Congressional or constitutional prohibition, and those judicial acts taken by state courts prior to Congressional overriding by judicial interpretation need concern themselves with the question of prospective or retroactive application.

¶22The majority in Ex parte Buckhanan, supra,while recognizing that a final judgment, that is only erroneous and not beyond the power of the court to enter, cannot be collaterally attacked, citing Humble Oil & Refining Co. v. Fisher, 152 Tex. 29, 253 S.W.2d 656 (1952) and Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876 (1895), nevertheless concludes that preemption under McCarty and Hisquierdorenders a judgment, otherwise final, void ab initio. The defect in the majority opinion in Buckhanan lies in its failure to recognize the different types of preemption under consideration in the various cases relied upon and, in lumping them together without distinction. By doing so, the opinion places all cases on an identical footing and creates an inappropriate measuring device, thereby condemning all cases touched by the McCarty decision to a death and burial without benefit of autopsy.9

¶23Ex parte Johnson, 591 S.W.2d 453 (Tex.1979), also cited in Buckhanan, relies upon Hisquierdotype preemption. If Ex parte Johnson indeed calls for retroactive application,10 it is so only because of the type of preemption involved and upon which it relies and which by the very language of the statute involved declares a prohibition against state intervention. 591 S.W.2d, at 456.

¶24Because state law was so firmly entrenched before the Court sounded the warning in McCarty that state interests must yield to Congressional objectives, there can be no contention that a clear prohibition existed rendering state intervention into a heretofore exclusive federal area a nullity. In declaring that Congress, by characterizing military retirement benefits as being the sole property of the retiree, preempted any state law characterization to the contrary, the Buckhanan majority disregards the core considerations in issue in McCarty.11So viewing the premise of the Buckhanan majority, it is easy to see how they erroneously concluded that the judgment was void ab initio. See Kalb v. Feuerstein, supra.

¶25In Kalb, relied upon by the Buck-hanan majority, the Court reaffirmed the general rule that a judgment by a court of competent jurisdiction bears a presumption *834of regularity and is not thereafter subject to collateral attack.12 In doing so, the Court also recognized that judicial acts may be rendered nullities and vulnerable collaterally when a state court acts in an area peremptorily prohibited by Congress. In Kalb, a state court attempted to exercise jurisdiction in an area set aside to the bankruptcy courts by the U.S. Constitution through an act of Congress. Where state courts attempt to exercise jurisdiction where it has been expressly prohibited, their acts are without authority of law. This is not to say that jurisdiction once possessed and later superseded renders all prior acts void.

¶26JURISDICTION, FINALITY OF JUDGMENTS AND RES JUDICATA

¶27On the subject of jurisdiction, a most respected legal writer has stated:

A court has jurisdiction of any subject-matter, if, by the law of its organization, it has authority to take cognizance of, try, and determine cases of that description. If it assumes to act in a case over which the law does not give it authority, the proceeding and judgment will be altogether void, and rights of property cannot be divested by means of them.

Accordingly, where a court of law has no jurisdiction of the subject-matter of a controversy, a party whose rights are sought to be affected by it is at liberty to repudiate its proceedings and refuse to be bound by them, notwithstanding he may once have consented to its action, either by voluntarily commencing the proceedings as plaintiff, or as defendant by appearing and pleading to the merits, or by any other formal or informal action.

... [T]o render the jurisdiction of a court effectual in any case, it is necessary that the thing in controversy, or the parties interested, be subjected to the process of the court.

When it is once made to appear that a court has jurisdiction both of the subject matter and of the parties, the judgment which it pronounces must be held conclusive and binding upon the parties thereto and their privies, notwithstanding the court may have proceeded irregularly, or erred in its application of the law to the case before it. It is a general rule that irregularities in the course of judicial proceedings do not render them void.

¶28W. Carrington, Cooley’s Constitutional Limitations, Vol. II at 846, 851, 861 (8th ed. 1926) (footnotes omitted); see also White v. Crow, 110 U.S. 183, 4 S.Ct. 71, 28 L.Ed. 113 (1884).

¶29In Federated Department Stores v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981), decided barely eleven days before McCarty, the U. S. Supreme Court, without specifically referring to it, reaffirmed the holding in White v. Crow, supra,by stating:

A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Nor are the res judicata consequences of a final, unappealed judgment on the merits altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case, [citations omitted].... [A]n “erroneous conclusion” reached by the court in the first suit does not deprive the defendants in the second action “of their right to rely upon the plea of res judica-ta. ... A judgment merely voidable because based upon an erroneous view of the law is not open to collateral attack, but can be corrected only by a direct review and not by bringing another action upon the same cause of action.” We have observed that “the indulgence of a contrary view would result in creating elements of uncertainty and confusion and in undermining the conclusive char-*835aeter of judgments, consequences which it was the very purpose of the doctrine of res judicata to avert. Reed v. Allen, 286 U.S. 191, 201, 52 S.Ct. 532, 534, 76 L.Ed. 1054 (1932).

¶30452 U.S., at 396-398, 101 S.Ct., at 2427-2428, 69 L.Ed.2d, at 108-109. Still further the court stated:

This court has long recognized that “[pjublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.” Baldwin v. Traveling Men's Association, 283 U.S. 522, 525, 51 S.Ct. 517, 518, 75 L.Ed. 1244 (1931).

¶31452 U.S. at 400, 101 S.Ct., at 2429, 69 L.Ed.2d, at 110-111.

¶32The United States Court of Appeals for the Fifth Circuit, in a per curiam opinion, recently considered the holding in Federated Department Stores, Inc. v. Moitie, supra,as it applied to a McCarty situation. Finding nothing in McCarty suggesting that the Supreme Court intended to invalidate or otherwise render unenforceable prior valid and subsisting state court judgments, the appeals court declined to do so. See Erspan v. Badgett, 647 F.2d 550 (5th Cir.1981) reh. en banc denied with opinion, 659 F.2d 26, 28.13

¶33In Wilson v. Wilson, 667 F.2d 497 (5th Cir.1982), the same court once again considered the question of retroactive application of McCarty and, considering itself bound by the holding in Erspan v. Badgett, supra,14 applied the doctrine of res judicata to the final judgment being assailed. We, likewise, find nothing in the language of McCarty, nor in the reasons for preemption, nor in any of the opinions of our Supreme Court,15 which mandates a retroactive application of McCarty or a holding of voidness ab initio.

¶34RETROACTIVITY

¶35In the absence of direction by the Court in McCarty, we are obliged to resolve the issue of retroactivity under appropriate guidelines. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); see also Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); Annot., 65 L.Ed.2d 1219 (1981); Annot., 22 L.Ed.2d 821 (1970); Annot., 14 L.Ed.2d 992 (1966); Annot., 10 A.L.R.3d 1371 (1966).

¶36Whether and to what extent an overruling case will be applied retroactively is a matter of judicial attitude, depending on the circumstances of the particular overruling decision involved. Linkletter v. Walker, supra.Where a decision could produce substantial inequitable results if applied retroactively, there is ample support in case law for avoiding the injustice or hardship by holding application of the law non-retroactive. Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932). Insofar as the general principles of retroactive or prospective application of an overruling decision are concerned, no distinction is to be drawn between civil and criminal eases. Linkletter v. Walker, supra.

¶37In Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940) the United States Supreme Court, recognizing the problems of retroactive application stated:

The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot *836justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.

¶38308 U.S., at 374, 60 S.Ct., at 318-319, 84 L.Ed., at 332-333.

¶39Among the factors or circumstances to which the courts have adverted in deciding whether and to what extent a judicially changed rule of law should be given retroactive operation are (1) the degree to which the prior rule may have been justifiably relied on, especially where matters of property or contract law are involved, (2) the degree to which the newly announced rule can be effectuated without being applied retroactively, and (3) the likelihood that retroactive operation of the overruling decision may substantially burden the administration of justice.16 In determining to what extent, if any, an overruling decision is to be given retroactive effect, the crucial date is generally the date of the overruling decision. Linkletter v. Walker, supra.

¶40The obvious and substantial inequitable results that would derive from a retroactive application of McCarty have been documented by numerous courts.17 Little would be gained by repeating them at length again. We agree with our brethen of the 3rd Court of Appeals and the 11th Court of Appeals in their recent opinions, Ex parte Gaudion, 628 S.W.2d 500 (Tex.App.—Austin, 1982) and Ex parte Welch, 633 S.W.2d 691 (Tex.App.—Eastland, 1982) respectively, holding that a retroactive application would affect the objectives of Congress only minimally, compared to the potentially destructive effect upon the settled jurisprudence of our State. In addition, the principles of res judicata and finality of judgments would become little more than historical fact, and the relatively settled areas of jurisdiction and family law would be rendered incomprehensible.

¶41We can perceive no area of law requiring more stability and finality than family law. Public policy demands finality of litigation in this area to preserve surviving family structure. A retroactive application would reopen old wounds and rekindle animosities long since extinguished.18 The results would be devastating to the litigants and to the judiciary in terms of expense, time and number of cases. In many instances it would be impossible for a court to arrive at a just and equitable redistribution of assets.

¶42Considering the nature of preemption involved in McCarty, the law’s concern in preventing uncertainty and confusion which could undermine the conclusive character of *837judgments, strong policy considerations for the preservation of stability in family law matters, together with the substantial burden on the administration of justice inherent in a retroactive application of McCarty, we decline to so apply it.

¶43The holding in Ex parte Buckhanan, supra,is expressly disapproved, and the relator is remanded to the custody of the Sheriff of Bexar County.