Lewis v. Superior Court

• Citation: 77 Cal.App.3d 844,144 Cal.Rptr. 1
• Court: California Court of Appeals Court of Appeals
• Decision Date: 23 January 1978
• Parties: Jerome R. LEWIS, Individually and as co-partner of the co- partnership of Lewis & Hendry, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SACRAMENTO, Respondent, Virginia A. SULLIVAN, Real Party in Interest. Civ. 17031.

Page 1

144 Cal.Rptr. 1

77 Cal.App.3d 844

Jerome R. LEWIS, Individually and as co-partner of the co- partnership of Lewis & Hendry, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SACRAMENTO, Respondent Virginia A. SULLIVAN, Real Party in Interest.

Civ. 17031.

Court of Appeal, Third District, California.

Jan. 23, 1978.

As Modified Feb. 22, 1978.

Hearing Denied April 13, 1978.

Bolling, Pothoven, Walter & Gawthrop, Sacramento, for petitioner.

Laurence B. Dashiell, Russell, Jarvis, Estabrook & Dashiell, Freidberg & Mart, Sacramento, for real party in interest.

REYNOSO, Associate Justice.

Petitioner Jerome R. Lewis, an attorney, is a defendant in a legal malpractice suit brought against him by real party in interest Virginia A. Sullivan. For convenience and consistency we shall refer to the parties as defendant and plaintiff respectively. ¹

Defendant seeks a writ of mandate after the Sacramento Superior Court denied his motion for summary judgment. He contends that as a matter of law plaintiff cannot establish damages as the result of his failure to claim her husband's military pension as community property in her dissolution action. Defendant asserts that since the pension was not divided as a community asset and not set aside as separate property of the husband, plaintiff is a tenant in common as to that asset and can belatedly assert her interest against her former husband. We agree with defendant's analysis of the law, but hold that this does not establish his right to summary judgment. We thus deny the petition.

In November 1968, plaintiff retained defendant to represent her in a divorce action against her then husband. A complaint for divorce has filed on December 2, 1968. The complaint listed certain property as community. Mr. Sullivan filed an appearance, stipulation, and waiver of further notice, and his default was entered.

On February 27, 1969, an amended interlocutory decree of divorce was entered incorporating a marital settlement agreement entered into by the parties. The final decree of divorce was entered January 19, 1970, and incorporated all the provisions of the amended interlocutory decree.

Mr. Sullivan's Air Force retirement benefits were not listed as community property or separate property in the pleadings, decrees or settlement agreement of the parties.

Plaintiff filed a complaint stating four causes of action. Essentially, she alleged that due to defendant's failure to claim such benefits as community property, she was damaged in the amount of $200,000.00. In addition, she seeks punitive damages in the amount of $400,000.00.

I

Defendant contends that plaintiff may assert an interest in her husband's Air Force retirement benefits as a tenant in common, in a separate action brought after the final judgment of divorce, and thus she has suffered no damages.

We review several Supreme Court cases from Brown v. Brown (1915) 170 Cal. 1, 147 P. 1168, to Estate of Williams (1950) 36 Cal.2d 289, 223 P.2d 248, and one court of appeal decision. The teaching of those cases is that a decree of divorce which does not adjudicate or dispose of property interests does not bar a subsequent suit. On the other hand, a decree which does adjudicate property rights and makes a division is final as to the property which is actually divided.

Brown v. Brown, supra, 170 Cal. 1, 147 P. 1168, involved a default judgment of divorce. The complaint in the divorce alleged "there is no community property," and the interlocutory judgment found the allegations of the complaint to be true. (Id. at pp. 4-5, 147 P. 1168.) The Court reasoned that a default judgment is a complete adjudication of all facts well pleaded in the complaint, and thus the interlocutory judgment adjudged that there was no community property at the time the complaint was filed. (Id. at [77 Cal.App.3d 848] pp. 5-6, 147 P. 1168.) The wife sought to assert an interest in property acquired by the husband after the interlocutory judgment but before the final judgment. The court allowed her to do this in a separate action, holding that the after-acquired property was not included in the complaint, no issue had been tendered as to that property, and the litigation was final only to that which had been included in the pleadings. (Id. at p. 7, 147 P. 1168.) In a companion appeal the wife was not allowed to assert an interest in property held at the time of the interlocutory judgment, since the title to that property was adjudicated in the statement that no community property existed. (See Brown v. Brown, supra, 170 Cal. at pp. 8, 9, 147 P. 1168.)

In 1919 the California Supreme Court stated that if a divorce is granted without any disposition of the community property, the former wife becomes owner of one-half of the community property as a tenant in common with the former husband. (Estate of Brix (1919) 181 Cal. 667, 676, 186 P. 135.)

The major case relied upon by plaintiff in contesting defendant's petition is Metropolitan Life Ins. Co. v. Welch (1927) 202 Cal. 312, 260 P. 545. In that case the default divorce decree awarded the wife the household furniture as community property, as well as " 'all of the community property of plaintiff and defendant.' " (Id. at p. 314, 260 P. at p. 546.) The complaint had listed the furniture as the community property of the marriage and had sought the award of such community property. (Id. at p. 314, 260 P. 545.) The Supreme Court held that the portion of the judgment awarding "all of the community property" was void, being in excess of the relief sought in the complaint. (Id. at p. 315, 260 P. 545.) Relying on Brown v. Brown, supra, the Court further held that the decree operated as an adjudication that at the time of the complaint there was no community property other than that listed. (Id. at p. 317, 260 P. 545.) The wife therefore could not assert an interest in an insurance policy insuring husband's life in a subsequent suit, since the divorce decree settled the husband's ownership of the policy. (Id. at p. 317, 260 P. 545.) The Court restated the rule of Brix, supra, that where the decree makes no disposition a subsequent suit is appropriate to establish a wife's interest. (Id. at p. 318, 260 P. 545.)

Five years later in Tarien v. Katz (1932) 216 Cal. 554, 15 P.2d 493, the Supreme Court ruled that where a decree finds that there is community property but does not dispose of the property, the parties remain tenants in common and a subsequent suit is available to secure rights thereto. (Id. at p. 559, 15 P.2d 493.)

In 1936 the court of appeal held that when a final decree of divorce did not adjudicate the rights of the parties to a certificate of insurance and did not attempt to dispose of the certificate, the parties remained tenants in common and a subsequent suit was available to the parties. (McBride v. McBride (1936) 11 Cal.App.2d 521, 523, 54 P.2d 480.) The court did not state whether the divorce decree had divided or disposed of any other community property. (Id. at p. 523, 54 P.2d 480.)

The question was again before the Supreme Court in Estate of Williams (1950) 36 Cal.2d 289, 223 P.2d 248. That case involved a default judgment without division of any property on a complaint alleging that there was no community property. (Id. at p. 291, 223 P.2d 248.) The Court ruled that a determination of the property rights is proper but not essential to a divorce action, and if it does not appear that property rights were determined in a divorce action they are not deemed to have been adjudicated and may be subject to an independent action. (Id. at pp. 292-293, 223 P.2d 248.) The Court noted the provisions of Code of Civil Procedure section 1911: "That only is deemed to have been adjudged in a former judgment which appears on its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto." (Id. at p. 292, 223 P.2d at p. 251.)

The cases we have reviewed do not clarify what result follows when the court considers a portion of the community property which it divides, but does not determine rights to other property. However, more recent cases indicate there when the court divides some community property but fails to consider other property, the property not considered is subject to a subsequent suit and the parties remain tenants in common as to that property.

In re Marriage of Karlin (1972) 24 Cal.App.3d 25, 101 Cal.Rptr. 240, involved an appeal from a dissolution decree dividing the community property, which failed to divide certain property. The court stated that the property not divided may be litigated in further proceedings. (Id. at p. 34, 101 Cal.Rptr. 240.) This was dictum, however, since the court was modifying the dissolution decree to include a division of the property left unadjudicated. (Ibid.)

Shortly thereafter, In re Marriage of Elkins (1972) 28 Cal.App.3d 899, 105 Cal.Rptr. 59, was decided. It involved an oral agreement, undisclosed to the trial court, dividing certain property. (Id. at p. 903, 105 Cal.Rptr. 59.) The court ruled such agreements contrary to public policy and stated that the agreement creates no rights in either party. (Id. at p. 903, 105 Cal.Rptr. at p. 61.) The court stated: "Indeed, it has long been the rule that property which is not mentioned in the pleadings as community property is left unadjudicated by the decree of divorce, and is subject to future litigation, the parties being tenants in common meanwhile." (Ibid.) This again was dictum. The court held that the trial court should divide the property in the dissolution decree since the time for reopening the judgment under Code of Civil Procedure section 437c had not expired.

In a major Supreme Court community property opinion (In re Marriage of Brown (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561), the Court clarified the law holding that nonvested pension rights are community property. In discussing whether to accord full...