Marriage of McDonough, In re

• Decision Date: 01 July 1986
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Dawn and James F. McDONOUGH. Dawn McDONOUGH, Appellant, v. James F. McDONOUGH, Respondent. AO29143.

Page 872

227 Cal.Rptr. 872

183 Cal.App.3d 45

In re the MARRIAGE OF Dawn and James F. McDONOUGH Dawn McDONOUGH, Appellant, v. James F. McDONOUGH, Respondent.

AO29143.

Court of Appeal, First District, Division 4, California.

July 1, 1986.

Mathew H. Powell, Carmel, for appellant.

J. Michael Hogan, Reith, Bebermeyer & Weiben, Monterey, for respondent.

SABRAW, Associate Justice.

In this case, we conclude that former Civil Code section 5124, enacted by our Legislature in order to permit the retroactive application of the Federal Uniformed Services Former Spouses Protection Act ("FUSFSPA"; 10 U.S.C. § 1408), was constitutional. ¹

Dawn McDonough ("wife") appeals from a post-judgment order denying her motion to reopen a judgment of dissolution in order to divide the nondisability military retirement benefits accrued by her former husband, James F. McDonough ("husband"), an officer in the United States Army, during their marriage. We reverse, holding that the trial court had the authority to grant wife's motion and divide husband's military retirement benefits as community property.

I. THE HISTORICAL BACKGROUND

For a number of years prior to 1981, California courts treated non-disability military retirement benefits as community property based on In re Marriage of Fithian (1974) 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449 and In re Marriage of Brown (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561. On June 26, 1981, the United States Supreme Court declared that rule contrary to federal law and held in McCarty v. McCarty (1981) 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 that such military retirement benefits belonged exclusively to the military spouse and could not be treated as community property under state law. The public outcry which followed led Congress to enact FUSFSPA. The new act permitted the states to characterize military pension benefits either as property of both spouses or as the sole and separate property of the military spouse, depending on the law of the particular jurisdiction. ²

FUSFSPA became effective February 1, 1983, thereby creating an 18-month "window period" between June 26, 1981, and February 1, 1983, during which McCarty was the supreme law of the land. The result was that marriage dissolution judgments entered during the McCarty window period routinely denied any interest in military retirement benefits to non-military spouses. In order to address this inequity, and pursuant to what it perceived as the intent of the Congress in passing FUSFSPA, our Legislature enacted Civil Code section 5124 ³ in order to allow FUSFSPA to be applied retroactively in California, even as to those judgments which had become final during the McCarty window period.

In two subsequent decisions, courts held that FUSFSPA was retroactive to the date McCarty was issued and could be applied to those judgments which became final after February 1, 1983, the effective date of the federal legislation. (In re Marriage of Hopkins (1983) 142 Cal.App.3d 350, 356-360, 191 Cal.Rptr. 70; In re Marriage of Fairfall (1984) 161 Cal.App.3d 532, 535, 207 Cal.Rptr. 523.) Then, in Mueller v. Walker (1985) 167 Cal.App.3d 600, 213 Cal.Rptr. 442, Division One of the Fourth District Court of Appeal considered the propriety of our Legislature's attempt to allow FUSFSPA to be applied retroactively to judgments which became final during the McCarty window period. Although the Mueller court agreed with the Hopkins and Fairfall decisions to a certain extent, holding that FUSFSPA was not intended by Congress to be automatically retroactive to McCarty window cases (id., at p. 605, 213 Cal.Rptr. 442), it went on to hold that the Legislature was permitted to overcome the judicially created doctrine of res judicata and make FUSFSPA retroactive to such cases by enacting Civil Code section 5124. ⁴ (Id., at pp. 606-609, 213 Cal.Rptr. 442.)

More recently, two other Courts of Appeal have followed Mueller, concluding that the Legislature could properly overcome the res judicata bar by enacting Civil Code section 5124 to allow retroactive application of FUSFSPA to McCarty window final judgments. (In re Marriage of Castle (1986) 180 Cal.App.3d 206, 212-213, 225 Cal.Rptr. 382; In re Marriage of Potter (1986) 179 Cal.App.3d 73, 79-80, 224 Cal.Rptr. 312.)

II. THE FACTS AND PROCEDURE

Wife commenced this proceeding by filing a petition for dissolution of marriage on September 10, 1980, several months before McCarty was decided by the United States Supreme Court. Despite his later claim of being domiciled in Texas, when husband filed his response on October 20, 1980, he failed to make a special appearance in order to assert lack of personal jurisdiction. Husband did not list his military pension benefits as a community asset (or at all). However, by checking box 9d on the Judicial Council family law form, husband affirmatively requested that the court determine all of the property rights of the parties. (See form adopted by rule 1282, California Rules of Court, revised effective January 1, 1980.)

The interlocutory dissolution of marriage judgment in this case was entered on June 22, 1981, four days before McCarty was decided by the United States Supreme Court. In August, 1981, husband moved to modify the property disposition in light of McCarty and pursuant to the earlier stipulation of the parties that the court would retain jurisdiction to modify the disposition of the military pension benefits in light of that anticipated decision. On September 30, 1981, while husband's motion was still pending, the final judgment was entered. Husband's motion to modify the judgment was later granted. The order granting modification of the judgment to award husband his military retirement benefits as his sole and separate property was entered in early 1982. There was no appeal from the judgment as modified and, thus, it became final during the McCarty window period.

On February 1, 1983, FUSFSPA became effective. At about the same time, husband was reassigned by the military from California to Kentucky and took up temporary residence in Tennessee. Several months after FUSFSPA became effective, wife moved to reopen the judgment in order to divide husband's military retirement benefits based on the new federal legislation. In September, 1983, the court denied wife's motion based on the principle of res judicata.

Civil Code section 5124 was enacted in May, 1983, before wife brought her initial motion to reopen the final judgment. However, it did not become effective until January 1, 1984, which was after wife's motion had been denied. As a result, in February, 1984, wife filed a new motion for modification based on the explicit retroactivity provision in section 5124(a). The trial court initially denied wife's motion on the ground that section 5124 was unconstitutional because it violated the doctrine of separation of powers in attempting to grant parties the right to reopen judgments that became final during the McCarty window period. On reconsideration, the court again denied the motion on the res judicata ground, but also based its ruling on the additional ground that husband's 1983 move to Tennessee and his claim of being domiciled in Texas meant that personal jurisdiction over husband for purposes of applying FUSFSPA was lacking. ⁵ Wife filed a timely notice of appeal.

III. ANALYSIS

A. The Court had Personal Jurisdiction over Husband and Subject Matter Jurisdiction to Divide Husband's Military Retirement Benefits.

While there might not have been personal jurisdiction over husband in California for purposes of wife instituting a new action against him, such as an independent post-judgment action to divide the military pension benefits (see Henn v. Henn (1980) 26 Cal.3d 323, 332, 161 Cal.Rptr. 502, 605 P.2d 10), here wife simply sought to reopen and modify the existing judgment in light of FUSFSPA pursuant to Civil Code section 5124. The trial court had originally obtained personal jurisdiction over husband for purposes of dividing his military retirement benefits based, inter alia, on his consent, his failure to make a special appearance, and his affirmative request for a determination of the property rights of the parties. Thus, the court still had personal jurisdiction over husband for purposes of modifying the disposition of property which was addressed by the (modified) judgment. ⁶

When Congress enacted FUSFSPA, it limited the subject matter jurisdiction of state courts over military pension benefits to those instances in which personal jurisdiction existed over the military spouse other than by virtue of military assignment. (10 U.S.C. § 1408(c)(4), footnote 5, ante.) "These limits apparently reflect a concern that military pensioners could be substantially disadvantaged by forum-shopping spouses who otherwise might seek to divide property interests in a state never having had substantial contact with the military pension and whose courts are not easily accessible because of distance. (See discussion in Sen.Rep. No. 97-502, 2d Sess. (1982) pp. 8-9; 1982 U.S.Code Cong. & Admin.News, pp. 1603-1604.)" (Miller v. Miller (1986) 176 Cal.App.3d 1183, 1189-1190, 222 Cal.Rptr. 652.) Having previously consented to the personal jurisdiction of the California court for purposes of determining the couple's property rights (which included the military retirement benefits), husband could not later unilaterally withdraw that submission. Because personal jurisdiction still existed by virtue of consent, it follows that the trial court had subject matter jurisdiction to divide husband's military pension benefits pursuant to Civil Code section 5124 and FUSFSPA.

b. Civil Code Section 5124 was Properly made Retroactive.

As noted in Mueller v. Walker, supra, 167 Cal.App.3d 600, 213 Cal.Rptr. 442, in California it is generally the rule that after a trial court has divided the property during a dissolution proceeding and the judgment has become final "the cou...