Marriage of Jacobson, In re

• Decision Date: 31 October 1984
• Docket Number: B-004200
• Citation: 207 Cal.Rptr. 512,161 Cal.App.3d 465
• Parties: In re the MARRIAGE OF Marilyn J. and Herbert A. JACOBSON. Marilyn Jane JACOBSON, Respondent, v. Herbert Adolph JACOBSON, Appellant. Civ.
• Court: California Court of Appeals Court of Appeals

Page 512

207 Cal.Rptr. 512

161 Cal.App.3d 465

In re the MARRIAGE OF Marilyn J. and Herbert A. JACOBSON.

Marilyn Jane JACOBSON, Respondent, v. Herbert Adolph JACOBSON, Appellant.

Civ. B-004200.

Court of Appeal, Second District, Division 6, California.

Oct. 31, 1984.

Hearing Denied Jan. 16, 1985.

Cohen, Alexander & Clayton and Leonard Alexander, Thousand Oaks, for appellant.

Nordman, Cormany, Hair & Compton and Michael C. O'Brien, Oxnard, for respondent.

STONE, Presiding Justice.

Herbert Adolph Jacobson (husband) appeals from a judgment on two issues bifurcated from the dissolution of marriage trial-his military retirement benefits and Marilyn Jane Jacobson's (wife) personal injury award. The judgment awarded wife $602.71 per month from January 27, 1983, as her interest in husband's Navy retirement benefits and further awarded her the Husband contends that: (1) the trial court did not have jurisdiction to apply California law to military retirement benefits; (2) the military retirement plan should retain its character as separate property under Iowa state law; (3) the federal Uniformed Services Former Spouse's Protection Act (FUSFSPA) specifically prohibits application of principles enunciated in In re Marriage of Gillmore (1981) 29 Cal.3d 418, 174 Cal.Rptr. 493, 629 P.2d 1 to a service member eligible to retire but still on active duty; (4) California law mandates distribution of the military retirement benefits to husband to equalize distribution of personal injury award to wife; and (5) the trial court's calculation of wife's community interest in husband's pension was incorrect. We find no error and affirm the judgment.

major portion of proceeds from a medical malpractice judgment.

PROCEDURAL HISTORY

June 11, 1980, wife filed Petition for Legal Separation and Order to Show Cause for Temporary Spousal, Child Support and Injunctive Relief. The parties, married fifteen years, had two minor children.

June 30, 1980, husband filed a responsive declaration to Order to Show Cause and also Notice of Motion to Dismiss the California Proceeding based on forum non conveniens and lack of consent to request for legal separation. (Civ.Code, § 4508, subd. (b).)

July 1, 1980, the parties signed a handwritten stipulation and order on Order to Show Cause, signed by a commissioner and filed that date, which provided: "Petitioner agrees to accept her % interest in Respondent's Pension, as opposed to a cash out, when Respondent first becomes eligible to retire from U.S. Navy [20 years] in exchange Respondent will forthwith dismiss with Prejudice Iowa dissolution proceeding and further agrees to have case resolved under Calif(ornia) law & here." Husband's response to request for legal separation listed his United States Navy pension to be divided by the court. November 24, 1980, at trial on the dissolution of marriage, husband, through different counsel, moved that the court terminate the action and find that Iowa has subject matter jurisdiction. The court denied the motion. Upon stipulation by the parties, the court amended the petition from legal separation to dissolution of marriage.

November 25, 1980, prior to conclusion of trial the parties stipulated in writing as follows: "The court to reserve jurisdiction over petitioner's personal injury claim and respondent's retirement rights through U.S. Navy, reservation to include all aspects, including whether assets are separate or community, their value and parties' rights to distribution thereof." Said stipulation was accepted by the court and incorporated into the interlocutory judgment. The court entered final judgment of dissolution December 10, 1981.

December 6, 1982, wife recovered judgment of $231,627 (net was $151,859.18) against the United States Government because of medical malpractice by Naval physicians. Wife incurred the personal injuries as a result of breast augmentation surgery 36 days before the parties separated.

January 26, 1983, husband became eligible to but did not retire from the Navy. His pension as of that date was $1,579.85 per month.

March 11, 1983, wife filed notice of motion to divide husband's pension rights and to determine distribution of her personal injury award. The instant appeal follows the trial court's August 19, 1983 judgment.

DISCUSSION

I JURISDICTION

It is undisputed that husband is a domiciliary of Iowa, and a resident of California only through military assignment. 10 U.S.C. 1408, subdivision (c)(4) sets forth the jurisdictional bases for a California court to apply California law to military retirement benefits: "(4) A court may not treat the disposable retired or retainer pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court."

The trial court found husband consented to the court's jurisdiction by signing the July 1980 stipulation and by filing a response to the Petition for Legal Separation in which he listed the Naval pension as community or quasi-community property. Husband contends that the trial court erred because the November 25, 1980 stipulation superseded and abrogated that of July 1, the effect of which, was to leave open for later determination whether the property was separate or community and the question of which state's substantive law should be applied. According to husband, FUSFSPA creates a "new express protection for the service member"--the right to have his military retirement benefits determined by his home or domiciliary state--and California, although it has in personam jurisdiction to hear the matter, must apply the law of Iowa.

Husband's interpretation of FUSFSPA is broader than ours. We find nothing in the statutory scheme to indicate that it means other than what it says, e.g., that a court may treat disposable retired pay 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, subd. (c)(1)) and that a court may have jurisdiction over the member by his consent to that court's jurisdiction. (10 U.S.C. § 1408, subd. (c)(4)(C).) Even if the November 25, 1980 stipulation abrogated the July 1, 1980 stipulation, husband, by his election to respond to the petition and forego his motion to dismiss on forum non conveniens grounds, made a general appearance and thereby consented to the jurisdiction of the court and the application of the substantive law of California. (1 Witkin, Cal.Procedure (2d ed. 1970) Jurisdiction, § 118, pp. 646-647.) Consequently, California's jurisdiction under FUSFSPA was clear. ( § 1408(c)(4)(C).) "Once a party has generally consented to a court's jurisdiction, it may not be attacked later." (In re Marriage of Sarles (1983) 143 Cal.App.3d 24, 29, 191 Cal.Rptr. 514.)

Husband further argues that since the two bases of consent found by the trial court preceded the existence of FUSFSPA, he could not waive a right he did not know he had. His analysis is based upon a faulty premise--that FUSFSPA created a new right to have the serviceman select the law which will be applied to his military retirement plan. Not so. June 26, 1981, the United States Supreme Court decided McCarty v. McCarty (1981) 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589, holding, inter alia, that military pensions were not subject to division as community property upon dissolution of marriage. Congress' answer to that decision was the enactment of FUSFSPA, which in pertinent part provided: "Subject to the limitations of this section, 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); Emphasis added.)

"The selection of the period after June 25, 1981, as that addressed by the above statute can only be taken as an oblique reference to the McCarty decision and appears intended to repair the seamless web of pre-McCarty law as though never torn asunder. [p] ... Although effective February 1, 1983, and containing certain provisions which were not operative until that date, the use of the date McCarty was decided as a reference in 10 United States Code section 1408(c)(1), in our opinion, 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, fns. omitted.)

FUSFSPA, in effect, placed husband exactly where he was prior to McCarty. It gave him no greater rights than he had before. As a non-domiciliary he could have moved to dismiss proceedings on forum non conveniens grounds or consent to the jurisdiction. He chose the latter.

Nor was there "failure of consideration" in the July 1, 1980 stipulation due to wife's failure to continue agreed-upon counseling. Husband's agreement to dismiss with prejudice his Iowa dissolution proceedings and to have the case resolved under California law was expressly in exchange for wife's agreement to accept her interest in his pension when he became eligible to retire, as opposed to an immediate cash-out.

II CALIFORNIA LAW PROPERLY APPLIED

Husband next contends that even if he consented to California's jurisdiction, the military retirement plan should retain its character as separate property under Iowa law because the interest of the State of California is insufficient to justify its reclassification without violating the Due Process Clause of the Fourteenth...