Marriage of Castle, In re

• Decision Date: 23 April 1986
• Citation: 225 Cal.Rptr. 382,180 Cal.App.3d 206
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Beryl Geraldine and William Robert CASTLE. Beryl Geraldine CASTLE, Respondent and Cross-Appellant, v. William Robert CASTLE, Appellant and Cross-Respondent. D002869.

Page 382

225 Cal.Rptr. 382

180 Cal.App.3d 206

In re the MARRIAGE OF Beryl Geraldine and William Robert CASTLE Beryl Geraldine CASTLE, Respondent and Cross-Appellant, v. William Robert CASTLE, Appellant and Cross-Respondent.

D002869.

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

April 23, 1986.

As Modified May 12, 1986.

Review Denied July 30, 1986.

Hunter & Ryan and Daniel B. Hunter, San Diego, for appellant and cross-respondent.

Arthur J. Johns, Chula Vista, for respondent and cross-appellant.

JONES, Associate Justice ^*.

In this case involving the division of a military pension, both parties, William Robert Castle (William) and Beryl Geraldine Castle (Beryl), appeal from portions of the trial court order.

A final judgment dissolving this marriage was entered on April 10, 1979. The interlocutory judgment, entered November 30, 1978, formally incorporated certain stipulations of the parties, including William's consent to the retention of jurisdiction over the value, nature and extent of Beryl's right to William's military retirement benefits.

On September 19, 1984, Beryl moved for division of William's Navy retirement benefits. After hearing the matter on December 13, 1984, the trial court made its order finding that William, still on active service with the Navy, was eligible to retire at the time of the hearing as a lieutenant, pay grade 0-3; and that on May 1, 1986, William would become eligible to retire as a lieutenant commander, at pay grade 0-4. The court gave Beryl this option: either (1) to receive her interest in William's pension effective December 1, 1984, as though he had retired then in pay grade 0-3; or (2) to wait until May 1, 1986, "the earliest date available to [William] for retirement in pay grade 0-4." Should Beryl elect to receive the pension effective December 1984, she "must forego any appreciation in the pension's value resulting from [William's] continued service," but can share in benefits such as automatic cost of living adjustments which would normally have accrued had William retired at time of the hearing. Further, the court found Beryl's half of the community share in the pension, based on the "time rule," to be 25.5 percent, or an amount, as at December 1984, of $344.51 monthly.

The court reserved jurisdiction over issues "involving any changes in the law or a mistake of fact relative to the Court's FINDING that if [William] were to retire as of this date, it would be as a Lieutenant (pay grade 0-3)."

Beryl elected in writing to receive her share of the retirement benefit to which William would have been entitled had he retired at the date of the hearing.

William appealed from the portions of the court order which allowed a pre-retirement award of William's pension to Beryl; which ordered present payment to her; and which permitted her to share in automatic cost of living adjustments. Beryl appealed from the order's provisions that found William eligible for a pay grade 0-4 retirement on May 1, 1986; provided Beryl the option of taking the pension at December 1, 1984, at pay grade 0-3, or waiting until May 1, 1986; and ordered Beryl to exercise that option within 30 days.

After the taking of the appeals, Beryl, on April 16, 1985, noticed a motion for reconsideration, contending the court had erred in finding William's earliest eligibility to retire at 0-4 would occur on May 1, 1986, and that in fact he would be eligible to retire at the higher pay grade on May 1, 1985. Further, Beryl asked the court to modify her option to permit her to either take the pension at December 1, 1984, or to wait until May 1, 1985 (instead of 1986) and base her entitlement on the higher pension for which William would then be eligible. The trial court denied the request because it believed it had lost jurisdiction after the taking of the appeals.

William's contentions on appeal are as follows:

(1) Because the judgment of dissolution here was final before the enactment of the Federal Uniformed Services Former Spouses' Protection Act (10 U.S.C. § 1408, hereafter "FUSFSPA," effective Feb. 1, 1983), the trial court originally lacked jurisdiction over William's military retirement pay, which jurisdiction could not be conferred by William's consent to reservation of jurisdiction;

(2) FUSFSPA may not constitutionally be applied retroactively to cases controlled by the decision in McCarty v. McCarty (1981) 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589, because the separation of powers doctrine prevents Congress from overriding final judgments of the federal courts;

(3) A military pension is reduced compensation for current services, not payment for past services, and as such must be characterized as separate property, if received post-separation; (Civ.Code, § 5118)

(4) A military pension cannot be divided before actual retirement because of the particular contingencies which could cause forfeiture of the pension, such as death, resignation, or dishonorable discharge;

(5) Even assuming propriety of dividing the pension under FUSFSPA, the trial court erred in awarding Beryl a portion of the "gross" entitlement, rather than the "net" pension after applicable deductions.

On the cross-appeal, Beryl contends as follows:

(1) The value of William's retirement benefit at the time of the hearing should have been calculated based on pay grade 0-4, the category in which William was actually serving at that time;

(2) The trial court gave Beryl an option based on an erroneous finding of fact that William would be entitled to an 0-4 retirement on May 1, 1986, when instead he would be so entitled May 1, 1985; therefore, the trial court order should be modified to permit her to elect retirement benefits either at 0-3, effective December 1, 1984, or at 0-4, effective May 1, 1985;

(3) Because at the time she made her election, Beryl was under a mistake of fact regarding the date William would be entitled to an 0-4 retirement, she should be permitted to withdraw her decision and make another election based on the true facts.

DISCUSSION

California decisions have resolved all but one of William's arguments against him. The language and the legislative history of FUSFSPA clearly show congressional intent "to abrogate all applications of the McCarty decision." (Mueller v. Walker (1985) 167 Cal.App.3d 600, 605, 213 Cal.Rptr. 442, citing J. Explanatory Statement of the Comm. 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); In re Marriage of Buikema (1983) 139 Cal.App.3d 689, 691, 188 Cal.Rptr. 856; In re Marriage of Ankenman (1983) 142 Cal.App.3d 833, 837, 191 Cal.Rptr. 292; 10 U.S.C. § 1408(c)(1) ["[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."].) The reservation of jurisdiction over the issue is as valid in this context (see In re Marriage of Chambers (1985) 174 Cal.App.3d 1079, 1083, 220 Cal.Rptr. 504) as it is generally to permit later modification of a property award. (Mueller v. Walker, supra, 167 Cal.App.3d at pp. 605-606, 213 Cal.Rptr. 442, citing In re Marriage of Brown (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561; In re Marriage of Fink (1976) 54 Cal.App.3d 357, 126 Cal.Rptr. 626; Civ.Code, § 4800, subd. (a).) "In every case in which jurisdiction over military retirement pay was reserved, California courts have awarded the former spouse a full retroactive share in the retirement payments received subject only to equitable considerations." (In re Marriage of Chambers, supra, at p. 1083, 220 Cal.Rptr. 504.)

FUSFSPA's full retroactivity to the date of McCarty v. McCarty, supra, is likewise well established. "Starting with the last paragraph of the McCarty opinion itself, the judicial and legislative branches, state and federal, cooperated in a massive and largely successful drive to make McCarty disappear--prospectively, presently, and retroactively." (Aloy v. Mash (1985) 38 Cal.3d 413, 421, 212 Cal.Rptr. 162, 696 P.2d 656; see, e.g., Mueller v. Walker, supra, 167 Cal.App.3d 600, 213 Cal.Rptr. 442, applying Civ.Code, § 5124 ¹; In re Marriage of Thomas (1984) 156 Cal.App.3d 631, 637, 203 Cal.Rptr. 58; In re Marriage of Ankenman, supra, 142 Cal.App.3d at pp. 836-837, 191 Cal.Rptr. 292; In re Marriage of Hopkins (1983) 142 Cal.App.3d 350, 353, 191 Cal.Rptr. 70; In re Marriage of Frederick (1983) 141 Cal.App.3d 876, 879, 190 Cal.Rptr. 588; In re Marriage of Buikema, supra, 139 Cal.App.3d at p. 691, 188 Cal.Rptr. 856.)

As we pointed out in In re Marriage of Buikema, supra, FUSFSPA "overrules McCarty, stating '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.' (10 U.S.C. § 1408(c)(1).) California law treating military retirement pensions as community property is no longer preempted. The act's legislative history clearly indicates Congress' intent to abrogate all applications of the McCarty decision (see J. Explanatory Statement of the Com. of Conf. on Pub.L. No. 97-252 from House Conf.Rep. No. 97-749, Aug. 16, 1982, pp. 166-168, 128 Cong.Rec. (1982))." (In re Marriage of Buikema, supra, 139 Cal.App.3d at p. 691, 188 Cal.Rptr. 856.)

The separation of powers argument clearly has no force here, because the decision in McCarty (finding federal law had impliedly preempted the characterization of military retirement pay) rested squarely on its interpretation of Congressional intent, which intent was quickly manifested to the contrary in FUSFSPA, 10 U.S.C. section 1408(c)(1), quoted above, directing each state to follow its own law in the characterization of military retirement pay, and...