In Re Marriage of Smethurst

Opinion

WIENER, J.

The muddy legal waters of missed pension plans in marital dissolution cases are clearing. We now know that res judicata and collateral estoppel do not apply where the omitted pension rights were vested and matured at the time of dissolution of the marriage. (H

enn

v.

Henn

(1980) 26 Cal.3d 323, 329-331 [161 Cal.Rptr. 502, 605 P.2d 10].) Presumably, the same rule would apply where the pension rights were vested only but not matured.

1

We also know where the pension rights were nonvested at dissolution (see fn. 1 below) the limited retroactivity of

In re Marriage of Brown

(1976) 15 Cal.3d 838, 850-851 [126 Cal.Rptr. 633, 544 P.2d 561, 94 A.L.R.3d 164], still applies. (H

enn

v.

Henn, supra,

at pp. 328-329.)

Marion Smethurst filed an independent action in 1976 seeking her share of military retirement benefits paid to her former husband. Their interlocutory judgment, obtained in October 1974, made no mention of the benefits.

To the extent the court sustained defendant’s demurrer without leave to amend on the basis of res judicata relying on

Kelley

v.

Kelley

(1977) 73 Cal.App.3d 672 [141 Cal.Rptr. 33], it prejudicially erred.

Kelley,

on this issue, has been disapproved.

(Henn

v.

Henn, supra,

at p. 331, fn. 6.) If the court relied on the limited retroactivity of

Brown

because defendant’s military pension rights were nonvested within the meaning of