Davis v. Damrell

Opinion

RACANELLI, P. J. Appellant challenges the summary judgment entered on her complaint for legal malpractice, contending that the issue of negligence concerning the implications of an unsettled proposition of law presented triable questions of fact. However, in light of the record and governing precedents, the contention is proven meritless. Accordingly, we affirm the judgment for the reasons which follow.

The record reveals the following salient facts and circumstances: In 1970 appellant retained respondent Frank C. Damrell, Sr.,1 a former California superior court judge, to represent her in a dissolution proceeding. Appellant’s husband, David K. McMillin, a career Army officer, then possessed a vested right to a federal pension upon retirement from active duty. In response to appellant’s inquiry whether a community interest attached to her husband’s federal military “retirement pay,” respondent advised her that such federal military pension did not constitute divisible community property. A property settlement agreement subsequently executed by the parties contained no provision for the allocation or distribution of community property interests in the military pension. In 1973 Mr. McMillin retired from active duty and apparently has been receiving regular military pension payments ever since.

In 1974 the California Supreme Court determined that vested retirement benefits, including federal military pensions, constituted community property subject to equal division between the spouses in the [886]event of dissolution. (In re Marriage of Fithian (1974) 10 Cal.3d 592, 596 [111 Cal.Rptr. 369, 517 P.2d 449], cert. den. 419 U.S. 825 [42 L.Ed.2d 48, 95 S.Ct. 41].)

Respondent, who was admitted to the bar in 1935, had recently resumed the practice of law following his retirement after 15 years of judicial service. During that time, he had maintained a close familiarity with the developing law in the field of pension rights and benefits. His personal interest in this particular area, which predated his judicial service, led to his closely monitoring the leading decision of Wissner v. Wissner (1950) 338 U.S. 655 [94 L.Ed. 424, 70 S.Ct. 398] (establishing the supremacy of a federal statute governing disposition of the proceeds of a military service life insurance policy).2

Following the Supreme Court’s clarification of the “error-in-judgment” rule to require the exercise of an informed judgment in order to avoid a charge of professional negligence (see Smith v. Lewis (1975) 13 Cal.3d 349 [118 Cal.Rptr. 621, 530 P.2d 589, 78 A.L.R.3d 231]), appellant instituted suit claiming, inter alia, that respondent’s failure to advise her of the unsettled state of the relevant law deprived her of the opportunity to actively litigate and pursue such unsettled points of law and thus amounted to professional negligence. Appellant submitted the counterdeclaration of Lawrence W. Thorpe, an attorney experienced in domestic relations litigation, which stated in essence that respondent had failed to meet the minimum standards of professional practice by inaccurately advising appellant that the community property character of military retirement benefits was fully settled.