Whittington v. Whittington

• Decision Date: 24 May 1984
• Docket Number: No. 82-6008,82-6008
• Citation: 733 F.2d 620
• Parties: William J. WHITTINGTON, Plaintiff-Appellant, v. Patricia M. WHITTINGTON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 620

733 F.2d 620

William J. WHITTINGTON, Plaintiff-Appellant, v. Patricia M. WHITTINGTON, Defendant-Appellee.

No. 82-6008.

United States Court of Appeals, Ninth Circuit.

Argued Dec. 7, 1983.

Submitted Jan. 23, 1984.

Decided March 28, 1984.

Rehearing and Rehearing En Banc Denied May 24, 1984.

Russell Iungerich, Los Angeles, Cal., for plaintiff-appellant.

Roberta Brown, Allred, Maroko, Goldberg & Ribakoff, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, WALLACE, and TANG, Circuit Judges.

WALLACE, Circuit Judge:

The district court dismissed Whittington's declaratory judgment action for lack of subject matter jurisdiction. The issue before us involves the rule which requires federal jurisdiction to be demonstrated in a well-pleaded complaint. We affirm.

I

In 1976, Whittington retired from active duty in the United States Navy. On March 3, 1981, a California court dissolved the Whittingtons' marriage. The state court awarded 42.8% of Whittington's military retirement pay to his ex-wife as part of a community property settlement. Although Whittington never questioned the state court's jurisdiction during the divorce proceedings, in February of 1982 he sought federal declaratory and injunctive relief from its judgment on grounds that a California court lacked jurisdiction to divide his retirement pay. He argued that Cal.Civ.Code Sec. 4800(a) provides jurisdiction only over "property" and, as a matter of federal law, he had no property rights in future retirement paychecks. Whittington alleged federal jurisdiction under 28 U.S.C. Sec. 1331. His ex-wife responded with a motion to dismiss the complaint for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1).

The district court granted the motion by dismissing Whittington's complaint without leave to amend. Although there was a failure to dismiss the action, the district judge clearly determined Whittington could not save his suit by any amendment. Under these circumstances, we treat the order of dismissal as final and appealable, see, e.g., Marshall v. Sawyer, 301 F.2d 639, 643 (9th Cir.1962), and review it de novo, taking a favorable view of the facts alleged to support jurisdiction, see A. Cherney Disposal Co. v. Chicago & Suburban Refuse Disposal Association, 484 F.2d 751, 759-60 (7th Cir.1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974).

II

Whittington agrees that McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) (McCarty ), which held the states could not treat military retirement pay as community property, does not apply to his case. The Supreme Court decided McCarty after the Whittingtons' decree became final, and McCarty does not apply retroactively, e.g., In re Marriage of Sheldon, 124 Cal.App.3d 371, 177 Cal.Rptr. 380 (1981), appeal dismissed for want of a substantial federal question sub nom. Sheldon v. Sheldon, 456 U.S. 941, 102 S.Ct. 202, 72 L.Ed.2d 462 (1982). Whittington observes, correctly, that the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. Sec. 1408, does not preclude his arguments. The Act applies to judgments after June 25, 1981, see 10 U.S.C. Sec. 1408(c)(1), and the Whittingtons' decree issued on March 3, 1981.

The disposition of this case turns on Whittington's contention that Armstrong v. Armstrong, 696 F.2d 1237 (9th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 337, 78 L.Ed.2d 306 (1983) (Armstrong ), does not control his case, or, if it does, it was wrongly decided. In Armstrong, we adhered to the well-pleaded complaint rule. We held, on facts almost identical to those in Whittington's case and prosecuted by the same lawyer, that the federal issues raised under 28 U.S.C. Sec. 1331 by a declaratory judgment attack on a California court's community property division of military retirement pay "have vitality only as defenses to the state court judgment. Federal question jurisdiction is thus lacking ...." 696 F.2d at 1238. Whittington seeks to distinguish Armstrong by claiming he lacked an opportunity to use his federal law defense. In Armstrong, however, we did not rely on the existence of any certain post-judgment opportunity for raising...