Irwin v. Irwin

• Decision Date: 25 April 1977
• Citation: 69 Cal.App.3d 317,138 Cal.Rptr. 9
• Court: California Court of Appeals Court of Appeals
• Parties: Marianne T. IRWIN, Plaintiff and Respondent, v. Larry B. IRWIN, Defendant and Appellant. Civ. 2896.

Page 9

138 Cal.Rptr. 9

69 Cal.App.3d 317

Marianne T. IRWIN, Plaintiff and Respondent, v. Larry B. IRWIN, Defendant and Appellant.

Civ. 2896.

Court of Appeal, Fifth District, California.

April 25, 1977.

Hearing Denied June 23, 1977.

[69 Cal.App.3d 319] Allen, Van Winkle & Ivey and William T. Ivey, Jr., Merced, for defendant and appellant.

Kane, Canelo & Walker, Ronald W. Hansen, Merced, for plaintiff and respondent.

OPINION

GARGANO, Acting Presiding Justice.

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 1/2 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. ¹ Plaintiff placed an 'X' in the box appearing in part 3 of the 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 1/2 percent interest in his pension.

In this state the division of marital property need not be litigated in the proceeding brought to dissolve the marriage. This is true because California adheres to the concept of 'divisible divorce' (Lopez v. Lopez (1965) 63 Cal.2d 735, 737, 48 Cal.Rptr. 136, 408 P.2d 744; Hull v. Superior Court (1960) 54 Cal.2d 139, 147, 5 Cal.Rptr. 1, 352 P.2d 161), and, hence, controversies over matters collateral to the issue of the dissolution of the marriage, such as the division of marital property, the custody of minor children and under appropriate circumstances, spousal support, may be litigated in a separate action. (Hull v. Superior Court, supra, 54 Cal.2d 139, 147--148, 5 Cal.Rptr. 1, 352 P.2d 161; Hudson v. Hudson (1959) 52 Cal.2d 735, 744--745, 344 P.2d 295; Estate of Williams (1950) 36 Cal.2d 289, 292--293, 223 P.2d 248; In re Marriage of Fink (1976) 54 Cal.App.3d 357, 362, 126 Cal.Rptr. 626; Green v. Green (1944) 66 Cal.App.2d 50, 59, 151 P.2d 679; Callnon v. Callnon (1935) 7 Cal.App.2d 676, 680, 46 P.2d 988; see In re Marriage of Stuart (1972) 27 Cal.App.3d 834, 837--838, 104 Cal.Rptr. 395; cf. See v. Superior Court (1961) 55 Cal.2d 279, 280--281, 10 Cal.Rptr. 634, 359 P.2d 32; Chichester v. Chichester (1964) 228 Cal.App.2d 491, 495--496, 39 Cal.Rptr. 553.) Accordingly, it has long been the general rule that if the property of the marital partners is not mentioned or distributed by the interlocutory or final judgments dissolving the marriage, then the issue of property rights is not deemed to have been adjudicated in the marriage dissolution proceeding and may be made the subject of an independent action. (Estate of Williams, supra, 36 Cal.2d 289, 292--293, 223 P.2d 248; Tarien v. Katz (1932) 216 Cal. 554, 559, 15 P.2d 493; Metropolitan Life Ins. Co. v. Welch (1927) 202 Cal. 312, 318, 260 P. 545.)

However, prior to the adoption of the Family Law Act (Civ.Code, div. 4, pt. 5, § 4000 et seq., eff. Jan. 1, 1970), an exception was made to the general rule. Under this exception, at least as to the party filing the complaint for divorce, the issue of property rights was deemed to have been adjudicated, though not mentioned in the interlocutory or final judgment of divorce, if the divorce complaint alleged that there was 'no community property' and if a default judgment was entered against the defendant; under such circumstances, the divorce decree operated as an adjudication that at the time the divorce action was begun there was no community property. (Brown v. Brown (1915) 170 Cal. 1, 5--6, 147 P. 1168; see Estate of Williams, supra, 36 Cal.2d 289, 293--295, 223 P.2d 248; Brown v. Brown (1915) 170 Cal. 8, 9, 147 P. 1168.) Defendant fastens upon this exception to argue that plaintiff's claim to a community property interest in his retirement pension was adjudicated in the marriage dissolution proceeding and that her present lawsuit is barred by the doctrine of Res judicata. He insists that by placing an 'X' in the first box appearing in part 3 of the petition for dissolution of marriage, immediately preceding the words, 'There is no property subject to...