Irwin v. Irwin

Opinion

GARGANO, Acting P. J.

Defendant Larry B. Irwin appeals from a judgment of the Superior Court of Merced County declaring that plaintiff Marianne T. Irwin, defendant’s former wife, has a 37

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percent interest in defendant’s retirement pension. His only contention in this appeal is that under the doctrine of res judicata the instant action brought by plaintiff to establish her interest in defendant’s retirement pension was barred by a prior judgment dissolving the parties’ marriage. We recite the facts briefly.

Plaintiff and defendant were married on January 3, 1953; they separated almost 15 years later, on December 9, 1967. Prior to and during most of the marriage defendant was a member of the United States Air Force; he retired in April 1971 and upon retirement acquired a vested interest in his military retirement pension.

On September 26, 1972, plaintiff, in propria persona, filed a petition in the Superior Court of Merced County seeking a dissolution of her marriage with defendant. The petition was on the printed form prescribed by rule 1281 of the California Rules of Court and contained the statistical information required by section 429.10 of the Code of Civil Procedure.

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Plaintiff placed an “X” in the box appearing in part 3 of the

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petition immediately preceding the words, “There is no property subject to disposition by the court in this proceeding.” She also left box “d” in part 5 of the petition blank indicating that she was not requesting that the property rights of the parties be determined as provided by law.

On December 6, 1972, the superior court conducted a hearing on plaintiff’s petition to dissolve the marriage; defendant had defaulted, and the court asked plaintiff several questions pertaining to her husband’s income; plaintiff told the court that her husband was receiving a military retirement pension in the amount of $300 per month.

On December 18, 1972, the court entered an interlocutory judgment dissolving the marriage; the final judgment of dissolution of marriage was entered eight months later on August 22, 1973. Neither the interlocutory judgment nor the final judgment mentioned property rights of any kind. Thereafter, on April 25, 1975, plaintiff commenced the present action claiming a community property interest in her former husband’s military retirement pension. As we have indicated, defendant has appealed from the judgment declaring that plaintiff had a 37 Vi percent interest in his pension.