Miller v. Miller

California Court of Appeal Mar 16, 1981 No. Civ. 22421Published

Before: Staniforth

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Holding. The court held that a military pension not adjudicated or divided in a prior dissolution proceeding remains subject to a subsequent partition action, even if the asset was known to the parties at the time of the original decree.

Issues

Whether the doctrine of res judicata bars a subsequent action to partition a military pension not adjudicated in a prior dissolution proceeding.
Whether a reference to a pension in a stipulation regarding support payments constitutes an adjudication of the asset as community property.

Disposition. reversed

Quotations verified verbatim against the opinion

“‘under settled principles of California community property law, “property which is not mentioned in the pleadings as community property is left unadjudicated by decree of divorce, and is subject to future litigation, the parties being tenants in common meanwhile.”’”

“The partition action was properly the mode for determining the wife’s rights.”

[368]

Opinion

STANIFORTH, J.

Plaintiff Evelyn D. Miller’s action sought partition of the United States Navy retirement benefits received by her former husband, defendant Bruce T. Miller, and a declaration that she (Evelyn) had a past, present and future tenancy in the common interest in the navy retirement benefits. The trial judge did not have the benefit of the Supreme Court decision in

Henn

(1980) 26 Cal.3d 323 [161 Cal.Rptr. 502, 605 P.2d 10], followed the reasoning of

Kelley

(1977) 73 Cal.App.3d 672 [141 Cal.Rptr. 33], and granted a motion for nonsuit against Evelyn. The trial court stated “the only real issue here is whether or not the party, or that party’s counsel knew that community property included an interest in the military retirement benefit at the time when some action might have been taken in respect to it.” The issue of Mrs. Miller’s community property rights in the military pension was not raised during the dissolution proceedings, was not a contested matter in the proceedings and was not disposed of by the decree. The trial court concluded the doctrine of res judicata applied to this action for the partition of the military pension and granted the judgment of nonsuit.

Facts

These parties were married in 1952 and separated in April 1971. During the entire period of their marriage until January of 1969, Mr. Miller served on active duty with the United States Navy. He retired in January of 1969, therefore the pension rights vested as that term is used in

In re Marriage of Brown

(1976) 15 Cal.3d 838 [126 Cal.Rptr. 633, 544 P.2d 561, 94 A.L.R.3d 164]. Mr. Miller received and continues to receive military retirement pay on a monthly basis. In June 1971, Mrs. Miller filed a petition for legal separation. In her petition no mention was made of the husband’s military retirement pay. It was not listed as a community or separate property asset of either party. In August 1971 a final decree of separation was obtained and the community property was divided according to the terms of a stipulation and waiver agreed upon by the parties and filed in the court. In this agreement, neither party was awarded the military retirement pay.

Miller v. Miller

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STANIFORTH, J.

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