In Re Marriage of Davis

Opinion

BROWN (Gerald), J.

Howard L. Davis appeals an order modifying the judgment dissolving his marriage to Lorraine A. Davis. The appeal involves only the portion of the order determining the parties’ interests in Howard’s military pension.

Following the final judgment terminating their marriage in 1973, Lorraine returned to court in 1979 in the same action, seeking an increase in child support and a determination of her interest, if any, in her former husband’s Navy pension, which had not been mentioned in the original pleadings or in the judgment of dissolution. In this proceeding to modify the judgment, the superior court had jurisdiction over child support, but not over the pension rights. Lorraine should have brought an independent action to determine her interest, if any, in them

(Bodle

v.

Bodle

(1978) 76 Cal.App.3d 758, 767 [143 Cal.Rptr. 115];

In re Marriage of Cobb

(1977) 68 Cal.App.3d 855, 860, fn. 1 [137 Cal.Rptr. 670]). The order must be reversed.

Even though the lack of jurisdiction requires reversal, we address two other issues for the guidance of the parties and the court in any future litigation over the pension rights.

First, we consider whether res judicata necessarily bars a new action and the admissibility of extrinsic evidence to establish that de

[488]

fense. Under the circumstances present here, res judicata and collateral estoppel do not bar a new action by Lorraine to determine her interest in the pension, as long as the parties’ pension rights were not in fact adjudicated in the dissolution

(Henn

v.

Henn

(1980) 26 Cal.3d 323, 330-331 [161 Cal.Rptr. 502, 605 P.2d 10]). However, in the new action, the parties may introduce extrinsic evidence to show what disposition, if any, they made of the pension rights at the time of the divorce