Brunson v. Brunson

California Court of Appeal May 24, 1985 No. Civ. 28912Published

Before: Brown (Gerald)

AI Brief

AI-generated · verify before citing

Holding. The court held that a military pension not previously adjudicated in a divorce proceeding constitutes a missed asset subject to partition, and that federal law no longer preempts the division of such pensions as community property.

Issues

Whether a military pension mentioned in a divorce proceeding but not disposed of constitutes a missed asset subject to partition.
Whether the Uniformed Services Former Spouses’ Protection Act permits the division of military pensions as community property.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“the court found the retainer pay was a missed asset and Mary was entitled to 45 percent of it.”

“mere mention of a military pension is not an adjudication of property rights; therefore, the trial court properly determined those rights in accordance with California community property law”

Opinion

BROWN (Gerald), P. J.

James Brunson appeals a judgment awarding Mary Brunson, as her share of community property, a 45 percent interest in his military pension.

James joined the United States Navy in 1942. He married Mary in 1944. He retired from the service in 1963 and began receiving retainer pay. The Brunsons divorced in 1971. The pleadings in their divorce action made no mention of James’ retainer pay as community property, and the court did not dispose of the retainer pay in the divorce proceedings. In September 1980 Mary sued for a partition of the retainer pay on the ground it was a missed asset under

Henn

(1980) 26 Cal.3d 323 [161 Cal.Rptr. 502, 605 P.2d 10]. After hearing testimony of the Brunsons and their divorce attorneys, and judicially noticing the divorce file, the court found the retainer pay was a missed asset and Mary was entitled to 45 percent of it. On April 18, 1983, the court entered judgment according to its findings.

On June 26, 1981, the United States Supreme Court decided

McCarty

(1981) 453 U.S. 210 [69 L.Ed.2d 589, 101 S.Ct. 2728], holding a federal statute prohibits division of military pensions and preempts state community property law.

McCarty

is no longer the law. The Uniformed Services Former Spouses’ Protection Act (Pub.L. No. 97-252) overrules

McCarty.

California law treating military retirement pensions as com

[788]

munity property is no longer preempted. The act’s legislative history clearly shows Congress’ intent to abrogate all applications of the

McCarty

decision

Brunson v. Brunson

AI Brief

More from California Court of Appeal

Related research

AI Brief