In Re Marriage of Frederick

Opinion

ZENOVICH, Acting P. J.

In this appeal, we are asked to decide whether the trial court abused its discretion in setting aside that portion of the interlocutory decree stipulated to by the parties dividing the husband’s military pension, on the ground of mistake of law, before subsequently announced federal decisional law ruled that military pensions are not subject to division as community property. We conclude the trial court abused its discretion and reverse.

On October 1, 1980, at a contested dissolution hearing, Daniel Frederick (husband) and Bertha Frederick (wife) entered into a stipulation providing, inter alia, that the community had a vested 91 percent interest in husband’s military retirement pension, and that wife was entitled to a 46 percent portion of said pension. An interlocutory judgment based upon the stipulation of the parties was entered on October 20, 1980.

On November 12, 1980, husband filed a notice of motion to set aside interlocutory judgment and hold in abeyance for ruling on military pension. A hearing was held on the motion and on November 26, 1980, the court granted the motion as to the issue of the retirement pension only.

At the above-mentioned hearing, counsel for husband argued to the court that at the time he had advised his client to enter into a stipulation dividing, as community property, husband’s military retirement pension, he believed that the law in this area was settled. Shortly thereafter, husband’s counsel read in the newspaper that the United States Supreme Court had granted certiorari to review an unpublished California Court of Appeal decision

(McCarty

v.

McCarty

(1981) 453 U.S. 210 [69 L.Ed.2d 589, 101 S.Ct. 2728]), where the community interest in military retirement pensions was at issue. In order to save time and expense of appealing the interlocutory judgment, husband’s counsel decided to keep the issue before the trial court—while the United States Supreme Court decided the issue—by seeking to set aside the interlocutory judgment as to the military retirement pension and “let the thing hang fire” until the high court rendered its decision.

Wife’s counsel argued to the trial court that until some contrary decision of a higher court than the California Supreme Court, the law on community property treatment of militaiy retirement pensions was settled, and that there was no mistake of law upon which to base the granting of relief under Code of Civil Procedure section 473.