Majority
Opinion
Defendant Larry B. Irwin appeals from a judgment of the Superior Court of Merced County declaring that plaintiff Marianne T. Irwin, defendant’s former wife, has a 37 Vi percent interest in defendant’s retirement pension. His only contention in this appeal is that under the doctrine of res judicata the instant action brought by plaintiff to establish her interest in defendant’s retirement pension was barred by a prior judgment dissolving the parties’ marriage. We recite the facts briefly.
Plaintiff and defendant were married on January 3, 1953; they separated almost 15 years later, on December 9, 1967. Prior to and during most of the marriage defendant was a member of the United States Air Force; he retired in April 1971 and upon retirement acquired a vested interest in his military retirement pension.
On September 26, 1972, plaintiff, in propria persona, filed a petition in the Superior Court of Merced County seeking a dissolution of her marriage with defendant. The petition was on the printed form prescribed by rule 1281 of the California Rules of Court and contained the statistical information required by section 429.10 of the Code of Civil Procedure.[1] Plaintiff placed an “X” in the box appearing in part 3 of the
1 See appendix for a facsimile of the petition prescribed by rule 1281 of the California Rules of Court, post, at pages 323-324.
On December 6, 1972, the superior court conducted a hearing on plaintiff’s petition to dissolve the marriage; defendant had defaulted, and the court asked plaintiff several questions pertaining to her husband’s income; plaintiff told the court that her husband was receiving a military retirement pension in the amount of $300 per month.
On December 18, 1972, the court entered an interlocutory judgment dissolving the marriage; the final judgment of dissolution of marriage was entered eight months later on August 22, 1973. Neither the interlocutory judgment nor the final judgment mentioned property rights of any kind. Thereafter, on April 25, 1975, plaintiff commenced the present action claiming a community property interest in her former husband’s military retirement pension. As we have indicated, defendant has appealed from the judgment declaring that plaintiff had a 37 Vi percent interest in his pension.
In this state the division of marital property need not be litigated in the proceeding brought to dissolve the marriage. This is true because California adheres to the concept of “divisible divorce” (Lopez v. Lopez (1965) 63 Cal.2d 735 , 737 [ 48 Cal.Rptr. 136 , 408 P.2d 744 ]; Hull v. Superior Court (1960) 54 Cal.2d 139 , 147 [ 5 Cal.Rptr. 1 , 352 P.2d 161 ]), and, hence, controversies over matters collateral to the issue of the dissolution of the marriage, such as the division of marital property, the custody of minor children and under appropriate circumstances, spousal support, may be litigated in a separate action. (Hull v. Superior Court, supra, 54 Cal.2d 139 , 147-148; Hudson v. Hudson (1959) 52 Cal.2d 735 , 744-745 [ 344 P.2d 295 ]; Estate of Williams (1950) 36 Cal.2d 289 , 292-293 [ 223 P.2d 248 , 22 A.L.R.2d 716 ]; In re Marriage of Fink (1976) 54 Cal.App.3d 357 , 362 [ 126 Cal.Rptr. 626 ]; Green v. Green (1944) 66 Cal.App.2d 50 , 59 [ 151 P.2d 679 ]; Callnon v. Callnon (1935) 7 Cal.App.2d 676 , 680 [ 46 P.2d 988 ]; see In re Marriage of Stuart (1972) 27 Cal.App.3d 834 , 837-838 [ 104 Cal.Rptr. 395 ]; cf. See v. Superior Court (1961) 55 Cal.2d 279 , 280-281 [ 10 Cal.Rptr. 634 , 359 P.2d 32 ]; Chichester v. Chichester (1964) 228 Cal.App.2d 491 , 495-496 [ 39 Cal.Rptr. 553 ].) Accordingly, it has long been the general rule that if the property of the marital partners is not mentioned or distributed by the interlocutory or final judgments dissolving the marriage, then the issue of property rights
However, prior to the adoption of the Family Law Act (Civ. Code, div. 4, pt. 5, § 4000 et seq., eff. Jan. 1, 1970), an exception was made to the general rule. Under this exception, at least as to the party filing the complaint for divorce, the issue of property rights was deemed to have been adjudicated, though not mentioned in the interlocutory or final judgment of divorce, if the divorce complaint alleged that there was “no community property” and if a default judgment was entered against the defendant; under such circumstances, the divorce decree operated as an adjudication that at the time the divorce action was begun there was no community property. (Brown v. Brown (1915) 170 Cal. 1 , 5-6 [ 147 P. 1168 ]; see Estate of Williams, supra, 36 Cal.2d 289 , 293-295; Brown v. Brown (1915) 170 Cal. 8 , 9 [ 147 P. 1171 ].) Defendant fastens upon this exception to argue that plaintiff’s claim to a community property interest in his retirement pension was adjudicated in the marriage dissolution proceeding and that her present lawsuit is barred by the doctrine of res judicata. He insists that by placing an “X” in the first box appearing in part 3 of the petition for dissolution of marriage, immediately preceding the words, “There is no property subject to disposition by the court in this proceeding,” and by neglecting to request the court to determine the property rights of the parties as provided by law, plaintiff alleged in essence that there was no community property.
Arguably, one who petitions for the dissolution of a marriage and who states that there is no property subject to disposition by the court in that proceeding is indicating that there is no community property to be distributed. On the other hand, the phrase, “[t]here is no property subject to disposition by the court in this proceeding,” when viewed in the light of California’s concept of a “divisible divorce” is ambiguous; it is equally plausible to argue that a petitioner who places an “X” in the first box of part 3, and who does not request that property rights be determined as provided by law, merely is reserving the right to have the collateral matter resolved at some later proceeding; if this were so, the doctrine of res judicata would be inapplicable.
We subscribe to the viewpoint that the doctrine of res judicata should not be applicable in a case of this nature. As we have
Because there are conflicting inferences in the evidence as to what plaintiff meant by placing the “X” in the first box appearing in part 3 of the printed form of the petition for dissolution of marriage, we uphold the trial court’s findings in favor of plaintiff. (See generally 4 Witkin, Cal. Procedure (2d ed. 1971) Judgment, § 41, p. 3209; see also Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861 , 865 [ 44 Cal.Rptr. 767 , 402 P.2d 839 ].)
The judgment is affirmed.
Franson, J., and Hopper, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied June 23, 1977.
Cases cited
- Lopez v. Lopez 63 Cal.2d 735 at 737 p. 320
- Hull v. Superior Court 54 Cal.2d 139 at 147, at 147-148 p. 320
- Hudson v. Hudson 52 Cal.2d 735 at 744-745 p. 320
- Williams v. Williams 36 Cal.2d 289 at 292-293, at 293-295 p. 320, p. 321
- Fink v. Fink 54 Cal.App.3d 357 at 362 p. 320
- Green v. Green 66 Cal.App.2d 50 at 59 p. 320
- Callnon v. Callnon 7 Cal.App.2d 676 at 680 p. 320
- Stuart v. Stuart 27 Cal.App.3d 834 at 837-838 p. 320
- See v. Superior Court 55 Cal.2d 279 at 280-281 p. 320
- Chichester v. Chichester 228 Cal.App.2d 491 at 495-496 p. 320
- Tarien v. Katz 216 Cal. 554 at 559 p. 321
- Metropolitan Life Insurance Co. v. Welch 202 Cal. 312 at 318 p. 321
- Brown v. Brown 170 Cal. 1 at 5-6 p. 321
- Brown v. Brown 170 Cal. 8 at 9 p. 321
- Title Guarantee & Trust Co. v. Monson 11 Cal.2d 621 at 632 p. 322
- Beronio v. Ventura County Lumber Co. 129 Cal. 232 at 236 p. 322
- Stout v. Stout 180 Cal.App.2d 211 at 216 p. 322
- Parsons v. Bristol Development Co. 62 Cal.2d 861 at 865 p. 322