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Court of Appeal, Fourth District, Division 1, California.

Billy Gene MILLER, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondents. Mary Louise MILLER, Real Party in Interest.

No. D006198.

Decided: February 24, 1988

Lightner & Castro and Kim W. Cheatum, San Diego, for petitioner. No appearance for respondent. Bauer & Schultz and Jack M. Sleeth, Jr., Bonita, for real party in interest.

Petitioner Billy Gene Miller seeks a writ of mandate to reverse the superior court's order denying his motion to quash service of summons on the ground of lack of personal jurisdiction in a partition action filed by real party in interest, Mary Louise Miller.   On May 21, 1987, we denied Billy's petition for writ of mandate.   He then filed a petition for review in the Supreme Court.   The Supreme Court granted review and transferred the matter to this court with directions to issue an alternative writ to be heard when the proceeding is ordered on calendar.   After issuing the alternative writ and hearing oral argument, we deny the writ.


Billy enlisted in the United States Navy in 1948, listing his home of record as the State of Washington.   Billy and Mary were married in California in 1953.   During Billy's military assignment, he and Mary lived in California and were still living here when they separated in 1969.   When Mary petitioned for dissolution of marriage that year, Billy cross-complained, alleging he was a California resident.   The final judgment of dissolution entered on July 3, 1970, omitted the military pension, but divided the parties' community interest in their California residence and other California real property.

Billy retired from the Navy in 1970 and moved to New Jersey.   On his military discharge papers, he again designated the State of Washington as his home of record.   Billy returned to California in 1972 and stayed for approximately three years.   In 1975 he moved to Washington where he has since continuously resided.

In December 1983, Mary sought declaratory relief to partition the undivided military pension.   Billy appeared specially and moved to quash service of process and dismiss the proceedings.   The trial court granted his motion.

Mary appealed, arguing the trial court may assert personal jurisdiction over Billy under the Federal Uniformed Services Former Spouses' Protection Act (FUSFSPA), 10 United States Code 1 section 1408 or, alternatively, through California's long-arm statute (Code Civ.Proc., § 410.10).   We agreed with Mary, and reversed the trial court.   In a then published opinion, Miller v. Miller (1986) 176 Cal.App.3d 1183, 1189, 222 Cal.Rptr. 652, we held that the relevant date for determining Billy's residence or domicile for purposes of obtaining personal jurisdiction is the date when the parties' right to the property division arose.   Thus, we stated, Billy's residence in California at the time of separation satisfied the requirements of FUSFSPA which limits the manner in which state courts may assert personal jurisdiction over military pensions. (Ibid.)

Billy unsuccessfully petitioned the Supreme Court for review and the United States Supreme Court for certiorari.   Two months after review in Miller was denied, the Court of Appeal for the First District issued an opinion, Tarvin v. Tarvin (1986) 182 Cal.App.3d 721 (later mod. at 187 Cal.App.3d 56, 232 Cal.Rptr. 13), disagreeing with the rationale in Miller.   The court in Tarvin held the trial court lacked jurisdiction over the husband's pension rights under FUSFSPA, stating the requirement of residency or domicile could not be met by looking at the husband's past residency in California.   (Tarvin v. Tarvin, supra, at p. 727.)   When Mrs. Tarvin filed a petition for review, the Supreme Court granted the petition, transferred the case to the Court of Appeal for the First District with directions to delete any reference to Miller, and directed that Miller be depublished.  Tarvin was subsequently modified at 187 Cal.App.3d 56, 232 Cal.Rptr. 13.

In January 1987, Billy filed a second motion to quash in the superior court, arguing Tarvin amounted to a change in the law.   He asserted he was not a resident or domiciliary of California at the time Mary filed her partition action and therefore, under the holding of Tarvin, California has no jurisdiction over him.   The court denied Billy's motion, ruling the decision in Miller (D001585) was final and hence law of the case.   Billy then petitioned this court for a writ of mandate which we denied on the ground there was no showing of an abuse of discretion.   Billy's petition for review of this order in the Supreme Court was granted and the case was transferred to us with directions to issue the alternative writ.   In its order, the Supreme Court cited Tarvin v. Tarvin (1986) 187 Cal.App.3d 56, 232 Cal.Rptr. 13;  England v. Hospital of Good Samaritan (1939) 14 Cal.2d 791, 797, 97 P.2d 813;  and DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 179, 18 Cal.Rptr. 369, 367 P.2d 865.   Having reconsidered Billy's contentions in light of these cases, we conclude law of the case should apply and affirm the court's denial of Billy's petition to quash service of summons on him.


Billy contends in a partition action to divide a military pension omitted from a divorce judgment, the trial court acquires personal jurisdiction under section 1408(c)(4) when the partition action is filed, not when the parties' right to the property division arises.   He further contends law of the case should not apply here to deprive him of the benefits of a change or clarification in the law.

FUSFSPA, while validating omitted pension partition actions, delimits the manner in which state courts may assert personal jurisdiction over military pensioners.  (In re Marriage of Jacobson (1984) 161 Cal.App.3d 465, 469–471, 207 Cal.Rptr. 512.)  Section 1408(c)(4) specifically provides:

“A court may not treat the disposable retired or retainer pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.”

In Tarvin v. Tarvin, supra, 187 Cal.App.3d 56, 232 Cal.Rptr. 13, husband and wife separated after 22 years of marriage.   Husband filed a petition for dissolution of marriage in California while he was temporarily stationed there as an officer of the Air Force.   No mention of husband's military pension was made in the petition or interlocutory decree.   Twelve years later, wife filed a separate action to partition the omitted asset.   Husband appeared specially, declaring he had not lived in California for ten years and was presently a resident of Maryland.   The court granted husband's motion to quash service and wife appealed. (Id. at p. 59, 232 Cal.Rptr. 13.)

On appeal, the court affirmed, holding wife's partition action is a separate and independent action for which jurisdiction must be newly acquired.   The court stated:

“Nor can the FUSFSPA requirement of domicile or residency be met by looking at the defendant-husband's past residency.   As our high court cautioned:  ‘the mere fact of past domicile in the state would not subject [the defendant] to its jurisdiction indefinitely, for a past domicile having no relationship to the litigation at hand would not afford a reasonable basis for an assertion of jurisdiction.’  [Citation.]”  (Id. at p. 61, 232 Cal.Rptr. 13.)

The Tarvin court noted the only connection between husband's past residency in California and the pending partition action was remote and indirect:  failure to list his military pension as a community asset in the California dissolution action.   Thus, the court reasoned, “[h]usband's past domicile cannot subject him to California's jurisdiction now.”  (Ibid.)

 Mary asserts Tarvin stands for the proposition there must be sufficient minimum contacts with the state to satisfy the limited jurisdictional basis of FUSFSPA at the time the action is filed, as evidenced by the Tarvin court's reliance on Owens v. Superior Court (1959) 52 Cal.2d 822, 829, 345 P.2d 921.   We agree this is one reasonable interpretation of Tarvin.   However, Owens has no application to FUSFSPA which does not include the minimum contacts approach in its jurisdictional requirements.   Thus, in determining whether the trial court here has jurisdiction over Billy, we are constrained to limit our analysis to the three possible bases for jurisdiction under FUSFSPA and not minimum contacts.   Because Billy did not consent to jurisdiction in the partition action and California was Billy's residence by military assignment, only domicile can give rise to the court's statutory jurisdiction of him.

 To the extent Tarvin stands for the proposition past domicile cannot satisfy FUSFSPA's jurisdictional requirements, we are in agreement as expressed in our opinion in In re Marriage of Hattis (1987) 196 Cal.App.3d 1162, 242 Cal.Rptr. 410.   Here, Billy is a past domiciliary of California.   He had been living in Washington for eight years when Mary brought the present action.   Therefore, under section 1408(c)(4), the court has no jurisdiction over him and the motion to quash should have been granted.

The Supreme Court directs us in its order to issue the alternative writ in this proceeding and consider such in light of Tarvin, England and DiGenova.   The latter cases concern the doctrine of law of the case and exceptions to that rule.   We now determine whether the decision in our earlier depublished Miller case constitutes the law of the case and bars our reconsideration on this writ proceeding of the jurisdiction issue.

“The doctrine of the law of the case is this:  That where, upon an appeal, the supreme court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.  [Citations.]  Indeed, it is only when the former rule is deemed erroneous that the doctrine of the law of the case becomes at all important.”  (Tally v. Ganahl (1907) 151 Cal. 418, 421, 90 P. 1049.)

Witkin notes:

“If a case is first tried, and the judgment rendered is reversed on appeal, it will ordinarily be tried again (except where the reversal is with directions to enter judgment).  (See supra, § 626.)   And after such retrial (and in some situations after a judgment is entered pursuant to directions), another appeal may be taken.   The doctrine of ‘law of the case’ deals with the effect of the first appellate decision on the subsequent retrial or appeal :  The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.”  (9 Witkin, Cal.Procedure, Appeal (3rd ed. 1985) § 737, p. 705.)

The doctrine applies to writ proceedings (op.cit. supra, § 739, p. 708).   Earlier cases declared the doctrine in terms of a binding and inflexible rule (op.cit. supra, § 740, pp. 709–710).   Later decisions reject this view.

England concerned a third appeal of proceedings involving a patient who suffered injuries while hospitalized in an institution which claimed exemption from tort liability as it was operated for charitable purposes.   The decision on the second appeal affirmed an order granting a new trial on grounds including error in failing to instruct the jury the nonliability defense was not available if the patient did not know the hospital was a charitable institution and paid regular rates from which the hospital derived profits.   On the third appeal, the hospital claimed these statements in the decision in the second appeal characterized the hospital as a charitable institution and constituted law of the case.   While the Supreme Court concluded these arguably equivocal statements constituted law of the case, the court made reference to Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762, 97 P.2d 798, considered by it concurrently with England, and noted that decision abrogated charitable immunity as to a paying patient injured by its negligence.

“The doctrine of the law of the case is recognized as a harsh one (2 Cal.Jur. 947) and the modern view is that it should not be adhered to when the application of it results in a manifestly unjust decision.  [Citation.]  However, it is generally followed in this state.   But a court is not absolutely precluded by the law of the case from reconsidering questions decided upon a former appeal.   Procedure and not jurisdiction is involved.   Where there are exceptional circumstances, a court which is looking to a just determination of the rights of the parties to the litigation and not merely to rules of practice, may and should decide the case without regard to what has gone before.  [Citations.]

“In the present appeal, rigid adherence to the law of the case would compel a most unjust decision.   It is conceded that Mr. England was seriously injured while a patient in the hospital.   His case has been tried three times with an appeal following each judgment.   On the occasions when it was before the District Court of Appeal, the law concerning the liability of a charitable organization for tort, as declared by the courts of California was, to say the least, most unsatisfactory in its statement.   Following the dicta of Thomas v. German Gen. etc. Soc. [1914], 168 Cal. 183 [141 P. 1186] ․ and Stewart v. California Medical etc. Assn. [1918], 178 Cal. 418 [176 P. 46] ․ such institutions had been exempted from that liability in suits brought by patrons.   On the other hand, the reasoning of Phoenix Assur. Co. v. Salvation Army [1927], 83 Cal.App. 455 [256 P. 1106] ․ would logically compel a contrary conclusion.

“The District Court of Appeal in deciding Mr. England's case upon the first appeal took a position somewhat between these two views.   It recognized the rule but to a limited extent only, refusing to apply it to the cause of action of paying patient.   This court has now decided that charitable organizations are not exempt from liability for wrongs negligently committed by their employees.  [Citation.]  In the meantime Mr. England has passed on.   To now say that his cause of action may not be determined upon the principles stated in the Silva case, notwithstanding the fact that it is decisive of all points raised by the hospital with the exception of those relating to the law of the case, would exalt form far above substance.”  (England v. Hospital of Good Samaritan, supra, 14 Cal.2d 791, 795–796, 97 P.2d 813.)

In DiGenova, the principal question presented on the appeal was whether legislation prohibiting employment as teachers of persons convicted of sex offenses applied to a teacher whose conviction occurred prior to enactment of the legislation.  (DiGenova v. State Board of Equalization, supra, 57 Cal.2d 167, 177–178, 18 Cal.Rptr. 369, 367 P.2d 865.)   Declining to give retroactive effect to the legislation, the court held its earlier decision on a prior appeal did not constitute law of the case as the question of retroactivity was not considered in that opinion.  (Id. at p. 179, 18 Cal.Rptr. 369, 367 P.2d 865.)   While not necessary to the decision, the court went on to characterize the doctrine as a rule of procedure not going “to the power of the court,” as being harsh, and will not be adhered to where its application would result in an unjust decision.  (Ibid.)

 People v. Shuey (1975) 13 Cal.3d 835, 120 Cal.Rptr. 83, 533 P.2d 211 points out the doctrine of the law of the case was inapplicable in DiGenova (id. at p. 844, 120 Cal.Rptr. 83, 533 P.2d 211) and considers the “unjust decision” result as barring application of the doctrine.  (Id. at pp. 845–847, 120 Cal.Rptr. 83, 533 P.2d 211.)   There, one division of a Court of Appeal held police conduct constituted an illegal seizure of the contents of an entire apartment and remanded for trial court determination of whether evidence sought to be suppressed was the fruit of the illegality.   The trial court so held, suppressed the evidence and dismissed the complaint.   The People appealed and another division of the Court of Appeal concluded the finding of the first division to the effect the People conceded illegality of the arrest before the seizure was erroneous and reinstated the complaint.   The Supreme Court held law of the case barred the second division from reconsideration of the illegality of the arrest and affirmed dismissal of the complaint.   While recognizing the rule as one of procedure from which departure may be justified in the interests of justice, the court said:

“Yet if the rule is to be other than an empty formalism more must be shown than that a court on a subsequent appeal disagrees with a prior appellate determination.   Otherwise the doctrine would lose all vitality and the holding of Medina [People v. Medina (1972) 6 Cal.3d 484, 99 Cal.Rptr. 630, 492 P.2d 686] would be reduced to a vapid academic exercise, since an unsuccessful petitioner for pretrial writ review could always maintain on subsequent appeal that the prior adjudication resulted in an ‘unjust decision.’

“We do not propose to catalogue or to attempt to conjure up all possible circumstances under which the ‘unjust decision’ exception might validly operate, but judicial order demands there must at least be demonstrated a manifest misapplication of existing principles resulting in substantial injustice before an appellate court is free to disregard the legal determination made in a prior appellate proceeding.   No such showing can be made here.   On the basis of the record before it the court in Shuey I [Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 106 Cal.Rptr. 452] concluded that the arrest issue had not been raised—indeed, had been expressly waived—and hence could not be raised for the first time on appeal.   This ruling comports with existing law.  [Citations.]”  (People v. Shuey, supra, 13 Cal.3d 835, 846, 120 Cal.Rptr. 83, 533 P.2d 211.)

We apply the principles enunciated in the cases to this writ.   In our view there is certainly nothing unjust about our earlier decision in which we held the California court had personal jurisdiction over the defendant-petitioner to permit a division of a community asset, i.e., a military pension.   The notion that a California plaintiff is able to use the courts of this state for the purpose of dividing a community interest acquired while the parties were living here is hardly a result which is unjust.   Virtually every time the doctrine of the law of the case is applied the result can be labeled as harsh since the court must repeat its earlier decision which necessarily inures to the detriment of at least one of the parties.

The law, however, eschews collateral attack on final judgments.   The concept of finality of judgments is a well established and fundamental principle of law.  (See, e.g., Kachig v. Boothe (1971) 22 Cal.App.3d 626, 632, 99 Cal.Rptr. 393.)   Deviations from that rule will sometimes be required but only in exceptional cases on the basis of principled decisions.   One need only look to the exceptional facts in England to appreciate why the California Supreme Court rejected the law of the case on those facts.   Unlike England the only injustice in applying the law of the case here is that Miller will be treated differently than Tarvin and other military retirees who will receive the benefit of the Tarvin decision.   But disparity in treatment of litigants is a product of the development of the common law.   A dramatic illustration of the impact of decision-making on parties to earlier litigation is In re Marriage of Brown (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561, which changed the rule that nonvested pension rights were not divisible.   After Brown the expectancy of such property rights became a contingency subject to division upon dissolution of the marriage.   Although concerned with the potential unfairness to those litigants whose cases had been decided earlier, Brown was careful in making its holding nonretroactive (Brown at pp. 850–852, 126 Cal.Rptr. 633, 544 P.2d 561).   Compared to Brown which changed the law, and other cases which emphasize the important policy purposes served by the concept of finality, there is nothing unfair here if we were to reach the same result as our earlier decision.

Shuey admonishes we must find more to disregard the doctrine other than Tarvin 's disagreement with our first Miller opinion.   While the Supreme Court ordered Tarvin transferred with directions to delete references to Miller, ordered Miller depublished and remanded the case to us with directions to consider Tarvin, England and DiGenova, we do not characterize those procedures as constituting an opinion we are compelled to follow under Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.   To declare the doctrine inapplicable here would tidy up this case.   Billy would be treated as are other military retirees whose pensions may not be partitioned here for lack of jurisdiction and he would not suffer the consequences, harsh to him, of division of his pension.

We do not reduce the rule to “an empty formalism” by finding here an “unjust decision.”   Our first Miller opinion is long since final.   The Supreme Court has not opined on the subject of jurisdiction of military pension division under FUSFSPA.   We do not find a manifest misapplication of legal principles in Miller and we are not free to disregard the finality of the judgment we made in that prior appellate proceeding.

Writ denied.   Each party to bear his or her own costs.


FN1. All statutory references are to 10 United States Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”.  FN1. All statutory references are to 10 United States Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”

BUTLER, Associate Justice.

KREMER, P.J., and WIENER, J., concur.

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