Flack v. Flack

Opinion

BENKE, J. On June 29, 1982, an interlocutory judgment dissolved Gerald and Keiko Flack’s marriage of nearly 14 years. Pursuant to a property settlement agreement Gerald’s military pension was declared to be his separate property. On December 31, 1985, Keiko filed a motion to modify the dissolution judgment so as to equitably divide the military pension. On April 14, 1986, the trial court granted the motion. Gerald appeals.

On June 26 1981, the United States Supreme Court held, in McCarty v. McCarty (1981) 453 U.S. 210 [69 L.Ed.2d 589, 101 S.Ct. 2728], military retirement benefits are the nondivisible property of the service member. In response, Congress enacted the Federal Uniformed Services Former Spouses’ Protection Act (FUSFSPA), 10 U.S.C. 1408 (effective Feb. 1, 1983). Under FUSFSPA, a state court may treat military retirement pay as either separate or community property in accordance with the law of the jurisdiction. Prior to McCarty, California courts treated non-disability military retirement benefits as community property.

When FUSFSPA became effective February 1, 1983, there existed an 18-month “window period” between June 26, 1981, and February 1, 1983, when McCarty was the supreme law of the land. Marriage dissolution judgments entered during the McCarty “window period” had routinely denied any interest in military retirement benefits to nonmilitary spouses. To remedy this inequity, the California Legislature enacted Civil Code1 section 5124 allowing FUSFSPA to be applied retroactively in California, [20]even as to those judgments which had become final during the McCarty window period. (See In re Marriage of Deryck (1987) 190 Cal.App.3d 293 [235 Cal.Rptr. 381].) Gerald was awarded his military pension during this period. Section 5124 provides: “(a) Community property settlements, judgments, or decrees that become final on or after June 25, 1981, and before February 1, 1983, may be modified to include a division of military retirement benefits payable on or after February 1, 1983, in a manner consistent with federal law and the law of this state as it existed before June 26, 1981, and as it has existed since February 1, 1983.”

“(b) Modification of community property settlements, judgments, or decrees under this section may be granted whether or not the property settlement, judgment, or decree expressly reserved the pension issue for further determination, omitted any reference to a military pension, or assumed in any manner, implicitly or otherwise, that a pension divisible as community property before June 25, 1981, and on or after February 1, 1983, was not, as of the date the property settlement, judgment, or decree became final, divisible community property.