Marriage of Ankenman, In re

• Decision Date: 10 May 1983
• Citation: 191 Cal.Rptr. 292,142 Cal.App.3d 833
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Harold D. and Ruth Ann ANKENMAN. Harold D. ANKENMAN, Respondent, v. Ruth Ann ANKENMAN, Appellant. A019563.

Page 292

191 Cal.Rptr. 292

142 Cal.App.3d 833

In re the MARRIAGE OF Harold D. and Ruth Ann ANKENMAN Harold D. ANKENMAN, Respondent, v. Ruth Ann ANKENMAN, Appellant.

A019563.

Court of Appeal, First District, Division 3, California.

May 10, 1983.

Matthew H. Powell, Carmel, for appellant.

Joseph F. Sullivan, Salinas, for respondent.

FEINBERG, Associate Justice.

Ruth Ann Ankenman appeals from the amended interlocutory judgment of dissolution of marriage entered July 26, 1982, and from the order denying her motion pursuant to Code of Civil Procedure section 473 to vacate a portion thereof. She contends that the trial court erred in awarding to respondent Harold D. Ankenman his military retirement as his separate property and that it abused its discretion in denying her motion to set aside the portion of the amended interlocutory judgment awarding the military retirement and to reserve jurisdiction over it. The dates during which most of these proceedings occurred are significant because they fall within the period following the decision in McCarty v. McCarty (1981) 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 decided June 26, 1981, holding that federal law precludes a state court from dividing military retired pay pursuant to state community property laws, and prior to the February 1, 1983, effective date (10 U.S.C. § 1006) of the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1001 et seq., signed by President Reagan on September 8, 1982, which undermined the impact of McCarty in this State.

Respondent filed his petition for dissolution of marriage on March 18, 1981. The matter was set for trial on July 22, 1981. At that time, pursuant to stipulation by counsel, the court ordered the matter bifurcated, and all property and support matters were continued until September 2, 1981. On September 2, the parties' counsel orally stipulated to a division of all property except respondent's military retirement. Although McCarty, supra, had been decided over two months earlier, appellant's counsel did not urge the court to reserve jurisdiction over the retirement, and the court awarded respondent his military retirement as his separate property. Almost 10 months later, through new counsel, appellant moved pursuant to Code of Civil Procedure section 473 to vacate the oral stipulation. After reviewing the transcript of the prior proceedings and hearing testimony from appellant and her former counsel, the court denied the motion to vacate the oral stipulation. The amended interlocutory judgment of dissolution was entered July 26, 1982.

It is perfectly clear that at the time the amended interlocutory judgment was entered, McCarty v. McCarty, supra, precluded the award to appellant of any interest in respondent's military retirement. (See, e.g., In re Marriage of Sheldon (1981) 124 Cal.App.3d 371, 177 Cal.Rptr. 380; In re Marriage of Jacanin (1981) 124 Cal.App.3d 67, 177 Cal.Rptr. 86.) It is also perfectly clear that the change in community property law occasioned by the McCarty decision occurred 15 months prior to appellant's section 473 motion to be relieved of her "surprise" at the change. The court's original award was correct, and its subsequent denial of appellant's motion was not an abuse of discretion. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598, 153 Cal.Rptr. 423, 591 P.2d 911.)

On September 8, 1982, the Uniformed Services Former Spouses Protection Act became law. ¹ On September 21, 1982, through new counsel, appellant again moved (Code Civ.Proc., § 473) to set aside or reserve jurisdiction over that portion of the amended interlocutory judgment dealing with military retirement benefits. After reading the material submitted by the parties and hearing argument by counsel, the court denied the motion. Notice of appeal from the denial of the September 21, 1982, motion and from the amended interlocutory judgment of July 26, 1982, was filed timely.

Title 10 of the United States Code section 1408(c)(1) provides: "... a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." Appellant contends (1) that "law and underlying policy in California is [sic ] best served by application of community property principles to military retired pay"; (2) that the court abused its discretion in denying her motion to reserve jurisdiction; and (3) "this court should apply the law which is in effect at the time it renders its opinion, and should give the Former Spouses Protection Act retroactive application."

Although legislative enactments are generally presumed to operate prospectively and not retroactively (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 587, 128 Cal.Rptr. 427, 546 P.2d 1371; Interinsurance Exchange v. Ohio Cas. Ins. Co. (1962) 58 Cal.2d 142, 149, 23 Cal.Rptr. 592, 373 P.2d 640), the legislative history of the Uniformed Services Former Spouses Protection Act clearly indicates the intent of Congress "to abrogate all applications of the McCarty decision (see J. Explanatory Statement of the Com. on Conf. on Pub.L. No. 97-252 from House Conf.Rep. No. 97-749, Aug. 16, 1982, pp. 166-168, Cong.Rec., vol. 128 (1982) [U.S.Code Cong. & Admin.News, p. 1555] )." (In re Marriage of Buikema (1983) 139 Cal.App.3d 689, 691, 188 Cal.Rptr. 856 [no petition for hearing filed in the Supreme Court].) "[T]he use of the date McCarty was decided as a reference in United States Code section 1408(c)(1) ... evidences a legislative intent that the law relative to community property treatment of military retirement pensions be as though McCarty did not exist, i.e., that such pensions would be subject to division as community property both before and after June 25, 1981." (In re Marriage of Frederick (1983) 141 Cal.App.3d 876, 879, 190 Cal.Rptr. 588. California law treating military retirement pensions as community property is no longer preempted. (In re Marriage of Buikema, supra, 139 Cal.App.3d at p. 691, 188 Cal.Rptr. 856.)

While not raised by the parties, at oral argument this court questioned whether ordering respondent to pay appellant part of the retirement benefits he received prior to the February 1, 1983, effective date of the act impaired respondent's vested rights without due process of law. ² Neither party accepted the invitation to address the issue. A similar due process question was addressed by the court in In re Marriage of Bouquet, supra, with respect to the 1971 amendment to Civil Code section 5118. ³ The court stated: "In determining whether a retroactive law contravenes the due process clause, we consider such factors as the significance of the state interest served by the law, the importance of the retroactive application of the law to the effectuation of that interest, the extent of reliance upon the former law, the legitimacy of that reliance, the extent of actions taken on the basis of that reliance, and the extent to which the retroactive application of the new law would...