Henn v. Henn, S.F. 24050

CourtUnited States State Supreme Court (California)
Citation161 Cal.Rptr. 502,605 P.2d 10,26 Cal.3d 323
Docket NumberS.F. 24050
Parties, 605 P.2d 10 Helen HENN, Plaintiff and Appellant, v. Henry HENN, Defendant and Respondent.
Decision Date29 January 1980

Saul M. Weingarten, Dennis M. Hart, Seaside, and Mark P. Leach, Monterey, for plaintiff and appellant.

Joseph Posner, Los Angeles, and Leonard Sacks, Encino, as amici curiae on behalf of plaintiff and appellant.

Arthur Andreas, San Francisco, for defendant and respondent.

BIRD, Chief Justice.

This court must determine whether a former spouse may bring an action to establish her community property interest in her ex-husband's federal military pension which was not adjudicated or distributed in the final decree of dissolution.


Helen and Henry Henn were married in 1945. After 25 years, Henry petitioned for dissolution of their marriage in the Superior Court for the City and County of San Francisco. An interlocutory decree was granted on February 22, 1971, and a final judgment issued on May 19, 1971. The decree incorporated a property settlement which awarded the parties specific items of the marital community as their separate property. The decree also awarded Helen $500 monthly support payments until the death of either party or her remarriage.

Neither the pleadings nor the judgment made mention of the fully matured federal military retirement pension that Henry was receiving at the time of the interlocutory decree. The pension had been partially earned during the marriage, and its existence was known to Helen at the time of the dissolution proceedings. Henry concedes that the court made no determination with respect to the pension.

On October 17, 1973, in response to a motion by Henry in the San Francisco Superior Court to reduce the amount of Helen's spousal support, Helen moved for an order to show cause why Henry's retirement pension should not be divided as community property. In support of this motion, Helen filed a short declaration setting forth the nature of her interest in the pension and alleging that she had never relinquished her community property rights in that asset. Henry opposed Helen's motion. Admitting that at the time of the interlocutory decree his pension was in part community property, he argued that the court lacked jurisdiction to modify the property settlement incorporated in the judgment of dissolution since there was no showing of extrinsic fraud or mistake. Helen's motion was denied without opinion on March 5, 1974.

Approximately two and one half years later, Helen filed the underlying complaint in the Superior Court of San Mateo County. Helen sought (1) a determination that Henry's military pension was community property to the extent earned by Henry during their marriage; (2) a full accounting of all pension payments received by Henry since March 1, 1971; and (3) a division of the community property portion of the pension. In his answer to the complaint, Henry raised the defense of res judicata based on the original decree of dissolution and the 1974 denial of Helen's motion. He also contended that these proceedings, together with Helen's recovery in settlement of a malpractice action against her former attorneys, estopped her from maintaining the present action. 1 After a separate trial on these affirmative defenses, the trial court entered judgment on Henry's behalf. Helen appealed.


Under California law, federal military pensions are community property to the extent they are earned during the marriage. (French v. French (1941) 17 Cal.2d 775, 112 P.2d 235; In re Marriage of Brown (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561.) 2 However, in 1971 the year of the Henns' dissolution the question as to whether federal military pensions could be divided as community property without violating the supremacy clause of the United States Constitution "was clearly an arguable one upon which reasonable lawyers could differ." (Smith v. Lewis (1975) 13 Cal.3d 349, 357, 118 Cal.Rptr. 621, 626, 530 P.2d 589, 594.)

In 1974, this court unanimously held in In re Fithian (1974) 10 Cal.3d 592, 595, 111 Cal.Rptr. 369, 370, 517 P.2d 449, 450, that "federal military retirement pay is properly the subject of California community property law . . . ." 3 It was noted that "the application of California community property law (does not) interfere( ) in any way with the administration or goals of the federal military retirement pay system . . . ." (Id., at p. 604, 111 Cal.Rptr. at p. 377, 517 P.2d at p. 457.)

Although the Henns' dissolution of marriage and property settlement occurred before this court's decision in Fithian, the principles set forth therein apply to Henry's military pension. It is the general rule that a decision of this court, even when overruling a settled rule of law, is fully retroactive in application. (See Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 954, 148 Cal.Rptr. 379, 582 P.2d 970; County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 680-681, 312 P.2d 680. When exceptions to this rule are adopted, theyy are based primarily upon consideration of the extent of public reliance on the prior rule and of the foreseeability of the new rule. (See, e. g., Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 400, 134 Cal.Rptr. 206, 556 P.2d 306; 119 Cal.Rptr. 858, 532 P.2d 1226.)

Fithian did not overturn a settled rule of law. Neither this court nor any California Court of Appeal had ever held that the supremacy clause of the United States Constitution precluded the division of federal military retirement pay as community property under state law. (See Fithian, supra, 10 Cal.3d at pp. 596-597, 111 Cal.Rptr. 369, 517 P.2d 449.) Since it was never the law that the supremacy clause requires federal military retirement pay to be excepted from treatment as community property under the California Civil Code, it would be anomalous for this court to now establish this erroneous proposition as the rule governing pensions accruing prior to Fithian. To do so would deprive individuals of their valid rights under California law.

It is clear that Henry's entitlement to his federal military pension was fully vested and matured in 1971 at the time of the dissolution of the Henns' marriage. To the extent earned during the marriage, it was part of their community property. However, Henry argues that Helen is prevented from seeking a judicial division of her community property interest in this asset under the principles of res judicata and collateral estoppel. These defenses are grounded on the original decree of dissolution and property settlement and the subsequent denial of Helen's motion to modify the original decree to divide the military pension.

The doctrine of res judicata has long been recognized to have a dual aspect. (See Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 604, 25 Cal.Rptr. 559, 375 P.2d 439; Todhunter v. Smith (1934) 219 Cal. 690, 695, 28 P.2d 916. See also 4 Witkin, Cal.Procedure (2d ed. 1971) Judgment, § 148, p. 3293.) "In its primary aspect the doctrine of res judicata operates as a bar to the maintenance of a second suit between the same parties on the same cause of action." (Clark v. Lesher (1956) 46 Cal.2d 874, 880, 229 P.2d 865, 868.) Also, the doctrine comes into play in situations involving a second suit, not necessarily between the same parties, which is based upon a different cause of action. There "(t)he prior judgment is not a complete bar, but it 'operates (against the party against whom it was obtained) as an estoppel ( 4 ) or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first section.' " (Id., citations omitted.) Neither aspect is applicable to the original judgment of dissolution and property settlement in this case.

Under California law, a spouse's entitlement to a share of the community property arises at the time that the property is acquired. (Civ.Code, §§ 5107, 5108, 5110.) That interest is not altered except by judicial decree or an agreement between the parties. Hence "under settled principles of California community property law, 'property which is not mentioned in the pleadings as community property is left unadjudicated by decree of divorce, and is subject to future litigation, the parties being tenants in common meanwhile.' " (In re Marriage of Brown, supra, 15 Cal.3d at pp. 850-851, 126 Cal.Rptr. at p. 641, 544 P.2d at p. 569, quoting In re Marriage of Elkins (1972) 28 Cal.App.3d 899, 903, 105 Cal.Rptr. 59. Accord Estate of Williams (1950) 36 Cal.2d 289, 292-293, 223 P.2d 248; Lewis v. Superior Court (1978) 77 Cal.App.3d 844, 847-850, 144 Cal.Rptr. 1; Irwin v. Irwin (1977) 69 Cal.App.3d 317, 320-321, 138 Cal.Rptr. 9; Kelley v. Kelley (1977) 73 Cal.App.3d 672, 676, 141 Cal.Rptr. 33.) This rule applies to partial divisions of community property as well as divorces unaccompanied by any property adjudication whatsoever.

Helen's interest in Henry's military pension arose independent of and predates the original decree of dissolution and property settlement. This interest was separate and distinct from her interest in the items of community property which were divided at the time of the dissolution. Since it is conceded that the issue of Henry's military pension was not before the court which issued the final decree, the judgment of that court cannot be said to have extinguished Helen's putative interest in that asset.

Further, Helen cannot be collaterally estopped from litigating her community property right in that pension. Henry has not asserted that Helen is relying upon some factual or legal theory which was adjudicated in the prior litigation or which would have had to have been adjudicated if it had been raised at the time. (E. g., Sutphin v. Speik (1940) 15 Cal.2d 195, 202-205, 99 P.2d 652, 101 P.2d 497.) Rather, Henry argues that Helen's failure to assert her community property right in the pension, when there was an...

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