Wall v. Donovan

• Decision Date: 11 December 1980
• Citation: 169 Cal.Rptr. 644,113 Cal.App.3d 122
• Court: California Court of Appeals Court of Appeals
• Parties: Francis P. WALL, Plaintiff and Appellant, v. John Kevin DONOVAN, Defendant and Respondent. Civ. 45618.

Page 644

169 Cal.Rptr. 644

113 Cal.App.3d 122

Francis P. WALL, Plaintiff and Appellant, v. John Kevin DONOVAN, Defendant and Respondent.

Civ. 45618.

Court of Appeal, First District, Division 2, California.

Dec. 11, 1980.

Rehearing Denied Jan. 9, 1981.

Hearing Denied Feb. 5, 1981.

Stephen Adams, Law Offices of Stephen Adams, San Francisco, for plaintiff and appellant.

John B. Marchant, Sedgwick, Detert, Moran & Arnold, San Francisco, for defendant and respondent.

TAYLOR, Presiding Justice.

Husband (F. P. Wall) appeals from an order ¹ granting a summary judgment to his former counsel (J. K. Donovan) in an action for malpractice in the marital dissolution proceedings. Husband argues that: 1) he was damaged by his lawyer's failure to raise the domicile issue in the dissolution proceeding, which resulted in the erroneous distribution of one-half of his military pension to his former wife; and 2) the trial court erred in holding that he was collaterally estopped from raising the domicile issue in the malpractice action. For the reasons set forth below, we have concluded that the order must be affirmed.

The record reveals the following pertinent facts: On June 29, 1972, the wife filed a petition for legal separation. On September 5, 1972, husband filed a response requesting dissolution of the marriage. His response admitted that he had been a resident of this state for at least six months and that the wife's characterization of his vested Air Force retirement pension as community property was correct.

After a hearing, the stipulated interlocutory decree entered on December 15, 1972, included a division of the husband's Air Force pension as community property. ² No appeal was taken from the interlocutory decree. After a hearing, the final decree entered on March 19, 1973, affirmed the division of community property. No appeal was taken. On April 10, 1973, Donovan withdrew as attorney of record in the dissolution proceedings pursuant to Code of Civil Procedure section 285.1.

On September 17, 1973, the husband (represented by his present counsel) filed a motion pursuant to Code of Civil Procedure section 473, to set aside the characterization and division of the community property, as set forth in the decree of dissolution, on grounds that he had never been a resident of California.

The court made findings of fact and conclusions of law. In doing so, the court weighed the conflicting declarations of the parties on the issue of the husband's domicile. The court noted that, prior to his petition for dissolution, the husband had obtained a California driver's license and had intended to remain in California because of the availability of programs for his educationally handicapped daughter; that after the separation the husband retired in California, obtained employment in Novato, and remarried a California resident. ³

The court then concluded that: 1) the motion was not timely filed as nine months had elapsed after entry of the interlocutory decree; 2) even if the husband were entitled to relief, there was no reasonable likelihood that he could prevail as at all times relevant he had been domiciled in California, and his Air Force pension benefits were properly characterized and divided as community property or quasi-community property; 3) even if the husband was not domiciled in California, he was estopped from contesting the issue of domicile as he originally failed to raise the issue in his response requesting dissolution, and he also had invoked the jurisdiction of the California court in the dissolution proceedings. The court entered its order denying the husband's motion on January 28, 1974. No appeal was taken from that order.

On June 17, 1974, the husband commenced the instant action against Donovan, his former attorney in the dissolution proceedings, alleging malpractice and negligent failure to raise the domicile issue at the time of the dissolution. Subsequently, Donovan filed a motion for summary judgment, alleging that there was no triable issue of fact, as the husband was domiciled in California at all times relevant and also was collaterally estopped from relitigating the issue.

Husband contends that collateral estoppel is not applicable here, as the issue of domicile in the dissolution proceeding was a broader one than in the instant case, and in any event, the issue of domicile was not necessary to the dissolution. As indicated above, the disputed factual question of the husband's domicile was initially determined in the uncontested dissolution proceedings and subsequently fully litigated in the contested proceedings on the husband's motion. The doctrine of collateral estoppel means that once an issue is litigated and determined, it is binding in a subsequent action (Carroll v. Puritan Leasing Co., 77 Cal.App.3d 481, 490, 143 Cal.Rptr. 772).

The husband's argument is based on the alternative findings made by the court in its findings and conclusions on his motion. Husband argues that the alternative findings are inconsistent as applied to the malpractice action. We see no inconsistency. Furthermore, the rule, as set forth in Restatement of the Law (1942) Judgments, section 68, comment n, at page 307, states: "Where the judgment is based upon the matters litigated as alternative grounds, the judgment is determinative on both grounds, although either alone would have been sufficient to support the judgment." This rule is followed in this state (Evans v. Horton, 115 Cal.App.2d 281, 251 P.2d 1013; Bank of America v. McLaughlin etc. Co., 40 Cal.App.2d 620, 105 P.2d 607). In McLaughlin, this court, at page 628, noted that " 'If the questions involved in a suit are tried and decided, no matter how numerous they may be, the estoppel of the judgment will apply to each point so settled, in the same degree as if it were the sole issue in the case." The rationale behind the rules quoted above is that if a party has an opportunity and motivation to fully litigate an issue, then he can anticipate the potential barring effect of an adverse judgment.

Here, as indicated above, the domicile issue was fully litigated and clearly necessary to the determination of both the dissolution and the husband's subsequent motion. In the instant case, where both parties have energetically litigated the issue of domicile, it was necessary for the trial court to rule upon the matter. Winters v. Lavine, 574 F.2d 46, noted at page 67: "(A)n alternative ground upon which a decision is based should be regarded as 'necessary' for purposes of determining whether the plaintiff is precluded by the principles of res judicata or collateral estoppel from relitigating in a subsequent lawsuit any of those alternative grounds."

Next, the husband points out that the issue of federal preemption as to military pensions was not settled at the time of the dissolution in 1972. However, since French v. French, 17 Cal.2d 775, 112 P.2d 235, the courts of this state uniformly held that vested military pensions were community property. In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561, eliminated the distinction made by French between vested and nonvested pensions (Henn v. Henn, 26 Cal.3d 323, fn.2[113 Cal.App.3d 127] at p. 328, 161 Cal.Rptr. 502, 605 P.2d 10). Although there may have been some room for a preemption argument as to nonvested pensions in 1971 and 1972 (see Smith v. Lewis, 13 Cal.3d 349, 357, 118 Cal.Rptr. 621, 530 P.2d 589), the matter was laid to rest in 1974. In In re Marriage of Fithian, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449, the court held at page 604: "Congress' purpose in creating the retirement pay system was to enhance the morale of the serviceman and to encourage him to remain in the military The conclusion is inescapable that retirement pay is awarded in return for services previously rendered and therefore is divisible as community property " The court concluded that Congress had not preempted the application of California community property law to federal military pensions.

The husband also argues about the retroactive effect of Fithian, supra, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449. As indicated above, the...