Ruchti v. Goldfein
Decision Date | 23 December 1980 |
Citation | 170 Cal.Rptr. 375,113 Cal.App.3d 928 |
Court | California Court of Appeals Court of Appeals |
Parties | Sharolyn Ann RUCHTI, etc., Plaintiff and Appellant, v. Jerome D. GOLDFEIN, Defendant and Respondent. Civ. 22301. |
Turney & Turney and Margaret V. Turney, National City, for plaintiff and appellant.
Feinberg, Zybelman & Paluso, Michael J. Feinberg and George V. Paluso, San Diego, for defendant and respondent.
Sharolyn Ann Ruchti brought this action in April 1979, against Ronald Clarence Ruchti, her former husband, for determination of her community property interest in, and partition of, the military retirement benefits deriving from Ronald's navy career, and in the second and third causes of action against Jerome D. Goldfein and Thomas D. Kelly, her attorneys in the divorce action for negligence in failing to have the interest determined earlier. Goldfein demurred to the second and third causes of action on the ground the action is barred by the statute of limitations. The demurrer was sustained without leave to amend.
Accepting as true all of the allegations of the complaint, we make the following recitation of the facts:
Sharolyn and Ronald were married on July 7, 1962, and separated on January 15, 1973. Sharolyn hired Goldfein and later hired Kelly to represent her in her action for dissolution of marriage. The action was filed and the court issued an interlocutory decree of dissolution on August 2, 1974. The final decree of dissolution was entered August 12, 1974. Neither the interlocutory nor the final judgment of dissolution contained any reference to military retirement benefits. 1 In Sharolyn's April 5, 1979, action she alleges her entitlement to an award of at least a one-fourth interest in Ronald's pension accruing during the eleven-and-one-half-year marriage.
The developing law relative to the community property character of military pensions has been a matter of considerable concern to the courts as well as the profession (see In re Marriage of Smithurst, 102 Cal.App.3d 494, 496, 162 Cal.Rptr. 300). In 1941, the right to receive a nonvested 2 military pension was held to be a mere "expectancy which is not subject to division as community property" (French v. French, 17 Cal.2d 775, 778, 112 P.2d 235).
In January 1974, about eight months before the entry of judgment in Ruchti, the California Supreme Court restated the law in this area most succinctly, stating:
.... (In re Marriage of Fithian, 10 Cal.3d 592, at 596, 111 Cal.Rptr. 369, 517 P.2d 449; italics added.)
The court's understanding of the distinction between vested and nonvested pensions was underscored by footnote 2 which states:
(Ibid.)
There is no doubt the courts intended to assign community property character only to the case of a vested pension. The pleadings indicate here, and the parties do not dispute, Ruchti's pension rights were not vested at the time of the dissolution judgment since he had not completed the necessary time in the navy. Had his duty been terminated or had he left the navy voluntarily, he would have received nothing. The law was clear in 1974 that Sharolyn had no right in the pension; nor did the attorney have any reason to appeal the judgment. Since Sharolyn then had no legal right to a division of the pension, she had no legal right to sue her attorney for not dividing it.
In January 1976, In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561, the California Supreme Court presented us a case dealing with nonvested rights and it altered the state of the law making both vested and nonvested pensions subject to community property claim. Brown overruled not only French v. French, supra, 17 Cal.2d 775, 112 P.2d 235, but also expressly disapproved statements to the effect nonvested pension rights are not community property that were contained in such cases as In re Marriage of Fithian, supra, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449 (Jan. 1974), Smith v. Lewis, 13 Cal.3d 349, 118 Cal.Rptr. 621, 530 P.2d 589 (Jan. 1975), and In re Marriage of Jones, 13 Cal.3d 457, 119 Cal.Rptr. 108, 531 P.2d 420 (Feb. 1975) (15 Cal.3d 838, 851, fn. 14, 126 Cal.Rptr. 633, 544 P.2d 561). Brown made it clear, however, there would be only limited retroactive application of its holding.
Thus, even after Brown, Sharolyn had no right in the military pension since, as she concedes, it was nonvested at the date of the judgment of dissolution (Aug. 1974) from which no appeal was taken (see Shaver v. Shaver, 107 Cal.App.3d 788, 793-794, 165 Cal.Rptr. 672). It follows under the limited retroactivity rule of Brown that since the Ruchtis' property was presently divided and there was no appeal or reservation of jurisdiction to divide property later, the decree became a final and conclusive adjudication of the parties' property rights (see ante, p. 377, fn. 3). We note, too, Sharolyn admits in her supplemental brief Shaver, supra, effectively ends any cause of action against her former husband.
She asserts, however, this does not end the cause of action against her attorneys in the dissolution proceeding and, relying on Smith v. Lewis, supra, 13 Cal.3d 349, 118 Cal.Rptr. 621, 530 P.2d 589, asserts the attorney should have been aware of the direction the court was moving and was negligent in not so advising her.
(Smith v. Lewis, supra, 13 Cal.3d 349, 359, 118 Cal.Rptr. 621, 530 P.2d 589.)
We do not believe any attorney should be held to have foreseen the 180o shift in the law in this area. 4 However, even if we were to concede for the purpose of argument that (1) had the trial attorney appealed this case, the Supreme Court would have made "In re Marriage of Ruchti" the precedent rather than In re Marriage of Brown, supra, and Sharolyn would have received the benefits Gloria Brown obtained; (2) the attorney had a duty to anticipate the direction of the developing law; and (3) the attorney breached the duty by failing to adequately research and advise his client of the "uncertain" nature of this law, Sharolyn's cause of action arose when the attorney's negligence terminated her rights in the pension benefits, i. e., when the judgment was entered, or at least when the attorney allowed the judgment to become final. At that point, any possibility of acquiring an interest in the pension was terminated. That is real damage. This damage occurred more than four years before the filing of this action and the action is, therefore, barred by the statute of limitations.
Section 340.6 of the Code of Civil Procedure reads:
To continue reading
Request your trial-
Casas v. Thompson
...pension in In re Marriage of Brown (1976), 15 Cal.3d 838, 842, 126 Cal.Rptr. 633, 544 P.2d 561; see also Ruchti v. Goldfein (1980), 113 Cal.App.3d 928, 931, fn. 1, 170 Cal.Rptr. 375; Aloy v. Mash, supra, 38 Cal.3d 413, 415, fn. 1, 212 Cal.Rptr. 162, 696 P.2d 656.) Moreover, the fact that Ma......
-
Casas v. Thompson
...255, cited as a vested pension in In re Marriage of Brown (1976) 15 Cal.3d 838, 842; see also Ruchti v. Goldfein (1980) 113 Cal.App.3d 928, 931, fn. 1, 126 Cal.Rptr. 633, 544 P.2d 561; Aloy v. Mash, supra, 38 Cal.3d at p. 415, fn. 1, 212 Cal.Rptr. 162, 696 P.2d 656.) Moreover, the fact that......
-
Adams v. Paul, S041623
...Cal.App.4th 1165, 1175, 16 Cal.Rptr.2d 837; Sirott v. Latts (1992) 6 Cal.App.4th 923, 929, 8 Cal.Rptr.2d 206; Ruchti v. Goldfein (1991) 113 Cal.App.3d 928, 935, 170 Cal.Rptr. 375; Jensen v. Sprigg (1927) 84 Cal.App. 519, 525, 258 P. 683, disapproved on another point in Neel v. Magana, Olney......
-
Watkiss & Saperstein v. Williams
...clairvoyant and foresee future changes in the law." Vande Kop v. McGill, 528 N.W.2d 609, 613 (Iowa 1995); see Ruchti v. Goldfein, 113 Cal.App.3d 928, 170 Cal.Rptr. 375, 378 (1980); Stake v. Harlan, 529 So.2d 1183, 1185 (Fla.Dist.Ct.App.1988); Procanik v. Cillo, 226 N.J.Super. 132, 543 A.2d ......