Kelley v. Kelley

• Decision Date: 21 June 1977
• Citation: 73 Cal.App.3d 672,141 Cal.Rptr. 33
• Court: California Court of Appeals Court of Appeals
• Parties: Marolyn KELLEY, Plaintiff and Appellant, v. Arvie KELLEY, Defendant and Respondent. 4 Civ. 14714.

Page 33

141 Cal.Rptr. 33

73 Cal.App.3d 672

Marolyn KELLEY, Plaintiff and Appellant, v. Arvie KELLEY, Defendant and Respondent.

4 Civ. 14714.

Court of Appeal, Fourth District, Division 1, California.

June 21, 1977.

Gaylord L. Henry, San Diego, for plaintiff and appellant.

Millsberg & Dickstein by Harold D. Dickstein, San Diego, for defendant and respondent.

COLOGNE, Associate Justice.

Plaintiff Marolyn Kelley appeals after the trial court entered a judgment she take nothing by her complaint against her former husband, Arvie Kelley, seeking a declaration military retirement payments Arvie receives are the community property of the parties and thus Marolyn has an interest in the retirement pay.

The parties were married January 10, 1953, ten days before Arvie entered the Marine Corps. With the aid of a do-it-yourself marriage dissolution book Marolyn drafted and typed a marital settlement agreement which Arvie and Marolyn both signed on July 1, 1972. Neither party had counsel although Arvie consulted with a legal officer of the Navy before he signed the agreement. The agreement provided for child custody and support, spousal support, and the equal division of certain items of property and debts. ¹ It did not mention the fact of Arvie's impending retirement from the Marine Corps or any payments in connection with the retirement. The agreement provided it was to be submitted for court approval of its due execution and fairness only, and was not to be made part of any decree except as to child custody and support. It recited each party had made full disclosure to the other of current finances and assets.

During the parties' negotiations of the agreement Marolyn was aware Arvie would soon be retiring and pointed out his retirement income would enable him to pay the $200 per month child support they agreed upon. Marolyn made no demand on Arvie with reference to his retirement as an item of community property. Arvie retired July 31 and began receiving retirement pay.

Marolyn took the agreement to John DeNora, an attorney, and asked him to get the dissolution because she did not know how to act in court. They discussed the agreement and he was angry that she had already executed the agreement without consulting him. Marolyn's attorney filed the petition for dissolution, submitting the agreement to the court for approval. He also prepared a court order which secured the court's approval of the agreement and ordered the parties to carry out all of its terms.

On September 16, 1972 Arvie signed an appearance and waiver with respect to a marriage dissolution proceeding commenced September 19, 1972 when Marolyn, through her attorney, filed the petition (San Diego Sup.Ct. No. D-65985). The financial declaration for the petition described Arvie's occupation as carpenter, acknowledging she knew at that time he was already retired. Marolyn's petition made no mention of the parties' property except to the extent the box was checked next to the printed entry on the petition form reading: "All property otherwise subject to disposition by the court in this proceeding has been disposed of by written agreement of the parties."

The interlocutory judgment of dissolution of marriage was entered October 10, 1972. The decree approved the marital settlement agreement and made provision for child custody and support in accord with the agreement's terms. The final judgment of dissolution was entered March 26, 1973. Neither decree mentioned the military retirement pay.

In reaching its decision the trial court correctly assumed retirement pay is community property (see In re Marriage of Fithian, 10 Cal.3d 592, 596, 111 Cal.Rptr. 369, 517 P.2d 449). In the trial court's memorandum decision dated June 16, 1975 the doctrines of res judicata and estoppel were relied on to reach the conclusion Marolyn could not, in this separate action, obtain an order dividing the retirement pay asset which was in existence at the time of the dissolution action. The court cited Avery v. Avery, 10 Cal.App.3d 525, 529-530, 89 Cal.Rptr. 195 and Sutphin v. Speik, 15 Cal.2d 195, 202, 99 P.2d 652, in concluding res judicata barred relief. On the question of estoppel, the trial court said, in pertinent part "Plaintiff drafted the agreement that both parties executed. It is clear that both parties intended to settle all issues between them. Various items of property were divided and a provision for token spousal support was included. Child support was provided. Plaintiff's petition for dissolution was presented by her attorney. The decree was obtained after a non-contested hearing, the defendant relying on the agreement worked out by plaintiff to which he had assented. There was no fraud, concealment, or misrepresentation by defendant."

Marolyn contends the trial court erred in reaching its conclusion. We are compelled to support the decision of the court below.

The applicable rule is property which is not mentioned in the pleadings as community property and which is left unadjudicated by a decree of divorce or dissolution is subject to future litigation, the parties being tenants in common meanwhile (In re Marriage of Cobb, 68 Cal.App.3d 855, 860, fn. 1, 137 Cal.Rptr. 670 citing In re Marriage of Brown, 15 Cal.3d 838, 850-851, 126 Cal.Rptr. 633, 544 P.2d 561; In re Marriage of Elkins, 28 Cal.App.3d 899, 903, 105 Cal.Rptr. 59; Estate of Williams, 36 Cal.2d 289, 292-293, 223 P.2d 248).

We are concerned with a legislative mandate to divide all community property equally between the parties (Civ.Code § 4800(a) )and the failure to accomplish that objective. Here, there is no mention of military retirement pay, a community property asset, ² in either the petition or any decree pertaining to the parties' marriage dissolution proceeding. The checked square on the form petition speaking of all property subject to court disposition cannot reasonably be viewed as constituting a listing or mention of the community property retirement pay asset. The court did not adjudicate the interests of the parties.

In view of the foregoing, the community property retirement pay was properly the subject of the separate litigation at bar. This does not mean, however, that there are no defenses to such an action.

In Sutphin v. Speik, supra, 15 Cal.2d 195, 202, 99 P.2d 652, 655, the court sets down the rule of res...