Parks v. Parks

[348]Opinion

ASHBY, J. Husband appeals from orders after judgment and the denial of his motion to vacate a portion of a judgment.

Final judgment of divorce was entered on December 31,1974. The judgment was pursuant to the stipulation of the parties and awarded to wife, as her share of community property, “One-half of the U.S. Navy Retirement pay of the Respondent husband, together with any increase thereon, to be paid to Petitioner by Respondent as received, from July 29,1974, until further Order of the Court; ...”

On July 20, 1981, wife filed an order to show cause to determine arrearages. She declared that since July 29, 1974, husband had been paying her $137.61 per month as her share of his navy retirement pay. He has never increased the amount paid to her, even though there have been many cost-of-living increases in his retirement pay. Husband has refused to provide, for the years 1975, 1977, and 1980, his W-2P form indicating the taxable navy retirement pay he received in those years. The Secretary of the Navy refuses to release this information to wife without written consent by husband. Wife requested that the court order husband to provide complete records at the hearing so that she may determine the exact amount of the arrearage.

On July 30, 1981, husband filed points and authorities in opposition to the motion to determine arrearages and moved to set aside that portion of the 1974 judgment awarding wife one-half of his retirement pay, contending that the provision was “void” under McCarty v. McCarty (1981) 453 U.S. 210 [69 L.Ed.2d 589, 101 S.Ct. 2728], decided June 26, 1981.

On November 9, 1981, the trial court denied husband’s motion to set aside a portion of the judgment, and ordered husband to furnish wife a copy of his W-2P form concerning his retirement pay for the years 1975, 1977, and 1980, as well as a declaration of his 1981 retirement pay to date, and to pay wife her portion of the retirement pay. Husband appeals.

The United States Supreme Court’s. 1981 McCarty decision did not entitle husband to attack the 1974 judgment of dissolution, long since final. Applying United States Supreme Court standards for determining the retroactivity of that court’s decisions, the California courts have concluded that McCarty does not retroactively affect California judgments which were final before the McCarty decision. (In re Marriage of Sheldon (1981) 124 Cal.App.3d 371, 376-380 [177 Cal.Rptr. 380]; In re Marriage of Fellers (1981) 125 Cal.App.3d