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

George V. WINTRISS, Petitioner, v. SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent, Christel E. WINTRISS, Real Party in Interest.

Civ. 26537.

Decided: May 19, 1982

Knoll, Corr & Pfeifer, and John Knoll, San Diego, for petitioner. No appearance for respondent. Mitchell, Ashworth, Keeney, Barry & Pike, and Gerald L. Barry, Jr., San Diego, for real party in interest.

George V. Wintriss seeks mandate to compel the San Diego Superior Court to apply the decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 to his military pension on particular facts to be stated.   In the original dissolution action, the trial court characterized the pension payments as community property but reserved jurisdiction to characterize the pension plan if the law changed.   Since McCarty has now declared such pensions to be separate property, we are asked to determine the propriety of such reservation of jurisdiction in this dissolution proceeding.

The record of this dissolution matter shows at the trial level George Wintriss “vigorously” litigated the issue of the characterization of the military retirement pension, but, in accordance with the pre-McCarty decisional law, the trial court ordered the monthly installments of his military pension divided in accordance with the respective community property interests.   A letter ruling of the trial court discussed the issues in this way:

“The Court reserves jurisdiction over all the parties;  properties undiscovered at this time and about which no evidence was received.   Jurisdiction is also reserved over the parties' interests, if any, in each other's social security benefits under U. S. and German law.

“As to the military retirement, I believe it inequitable to evaluate it actuarially.   Jurisdiction thereover is reserved to redetermine the parties' interest therein following final and controlling decision of the federal courts.   Based on present California law, I find that the community interest therein is 65.417%.   Mr. Wintriss is ordered to direct the federal government to pay one-half of that percentage to Mrs. Wintriss by military allotment, the payments to include a like percentage of any future cost-of-living increase.

The Interlocutory Judgment of Dissolution was filed May 2, 1980, and said in relevant part:

“The court finds that the community property interest in the military retired pay of petitioner is 61.71904% and orders petitioner to pay one-half (1/212) of that percentage, including a like percentage of any future cost-of-living increases, directly to respondent by military allotment, commencing April 1, 1980.


“THE COURT ALSO ORDERS that as to the military retired pay of petitioner, the Social Security rights of each party, and the German Federal Benefits of respondent, if any, jurisdiction is reserved to divide or find them to be the separate property of one or the other party in light of later decisional or statutory law.1


George never appealed from this judgment.   He says he relied on the reservation of jurisdiction to preserve his right later to challenge the division if the law changed.   Similarly, Christel Wintriss took no appeal from the judgment.   Specifically, she did not challenge the trial court's reservation of jurisdiction.

After entry of this judgment, the decision in McCarty was filed classifying military pensions as separate property of the serviceperson.   George then moved the superior court to discontinue dividing his military pay between the parties (on a basis proportional to their respective community interests) and instead to treat it as his separate property.   The trial court decided its earlier reservation of jurisdiction was an act in excess of the court's powers which violated the policy favoring finality of judgments.   The court said:

“The Court finds that Paragraph 16 of the Interlocutory Judgment provides as follows:

“ ‘That as to the military retired pay of petitioner, ․ jurisdiction is reserved to divide or find them to be the separate property of one or the other party in light of later decisional or statutory law.’

“The Court further finds that the purpose of the inclusion of Paragraph 16 of the Interlocutory Judgment was to make it unnecessary for petitioner to take immediate appeal from the provisions of such Judgment dividing his military retirement pay as community property.

“The Court now concludes, however, that public policy requires finality of judgments, made in accordance with the law prevailing at the time thereof, and that Paragraph 16 of the Interlocutory Judgment is void as an act in excess of the jurisdiction of the Court.

“WHEREFORE, the Court declines to entertain petitioner's motion to declare his military retirement pay to have been separate property pursuant to McCarty v. McCarty, [453] U.S. [210] [69 L.Ed.2d 589, 101 S.Ct. 2728], and to award the entirety thereof to him.”

No attempt was made by George to appeal the trial court's refusal to consider the pension and neither party has addressed the appealability of the order.   Although the order may be appealable as an order made after judgment (of dissolution) (Code Civ.Proc., § 904.1, subd. (b)), we issued our alternative writ of mandate to provide an early determination of this important issue of first impression concerning the scope of the recent United States Supreme Court decision in McCarty, supra.

 Once a military retirement pension has been classified as community property, it cannot be reclassified as separate if (1) the judgment became final before McCarty or (2) was then pending on an appeal which did not challenge the characterization (In re Marriage of Sheldon, 124 Cal.App.3d 371, 177 Cal.Rptr. 380), or (3) if the parties stipulated to the community property characterization in the trial court (In re Marriage of Mahone, 123 Cal.App.3d 17, 176 Cal.Rptr. 274).   Here the parties did not stipulate the pension was community property, and the court did not “finally” characterize the pension as community.   The letter ruling of the court did not specifically characterize the pension as community nor did the interlocutory judgment.   It spoke only of the interests in the payments.   Construing the order as a whole, taking into consideration the reservation of jurisdiction specifically stated, the judgment can only be interpreted as not intending any final characterization of the pension plan, as opposed to the payments made in the interim before final determination.   Use of the word “redetermination” in the letter ruling is unfortunate but must be construed to mean “redetermine the division of payments ” when the character of the pension plan is determined.   The judgment provides for reservation of jurisdiction as to the character of the pension plan should the law change, and that part of the judgment was known to both parties when they chose not to appeal.   Had George appealed as McCarty did, he might have taken advantage of the law provided by McCarty (In re Marriage of Sheldon, supra, 124 Cal.App.3d 371, 177 Cal.Rptr. 380.)   Had Christel appealed, she might have had a “final” determination of her interest at that time which also might have preceded McCarty and given her a community interest.

 As a general principle, a trial judge cannot make a judgment which also provides for its own nonfinality should decisional law on a given point later change.2  The parties can, however, make an agreement that they will permit a distribution of benefits as though the pension is community and if later a certain decisional change occurs, then the issue will be reopened for further litigation.   We would enforce such an agreement.   Similarly, if the court makes such an order certainly it too would be upheld under the authority of In re Marriage of Brown, 15 Cal.3d 838, 851, 126 Cal.Rptr. 633, 544 P.2d 561.

In the recent case of In re Marriage of Bennett, (131 Cal.App.3d 299, 182 Cal.Rptr. 283) the trial court did exactly that and the court of appeal upheld the procedure after the military pension was put in issue at the dissolution proceeding.   The interlocutory judgment in Bennett made the following statement in reference to the military retirement:

“Respondent shall pay to Petitioner, monthly, .4494 [sic] percent of his retirement pay accruing to him as a result of his service with the United States Navy.   The Court reserves jurisdiction of the military retirement plan and its disposition in order to determine whether Respondent must pay to Petitioner 44.94 percent of his net or gross retirement pay and to determine any tax adjustments to be made by the parties at the end of each calendar year and to determine whether or not Petitioner's interest is assignable or inheritable and to determine whether prospective payments under the plan are in their entirety the separate property of Respondent or in part the community property of Petitioner and Respondent․”

 The judgment here similarly is not a present characterization of this plan as community property but seeks instead to achieve the same result as the trial judge sought in Bennett.  In re Marriage of Brown, supra, 15 Cal.3d 838, 851, 126 Cal.Rptr. 633, 544 P.2d 561 and In re Marriage of Carl, 67 Cal.App.3d 542, 545–546, 136 Cal.Rptr. 703, and Civil Code section 4800 provide authority for such a procedure.

Authorities on family law have suggested the procedure as a means of postponing the effects of California community property law until the Supreme Court has finally ruled on this matter.3

Thus it follows the trial court was not correct in refusing further proceedings in the original family law matter;  the interlocutory judgment properly left undecided the character of George's pension plan and the reservation of jurisdiction provided in this judgment gives the court the authority to characterize it now.

We conclude George Wintriss is entitled to have his pension classified in the dissolution action and the petition for writ of mandate is granted to require the superior court to conduct further proceedings in this family law proceeding and to determine the character of the pension plan.4


1.   The court also reserved jurisdiction over undiscovered assets or European bank accounts.

2.   Witkin says reservations of jurisdiction to modify a judgment are rare and are confined principally to procedural modifications (4 Witkin, Cal.Procedure (2d ed. 1971) Judgment, §§ 77–78, pp. 3238–3239;  see also Day v. Sharp, 50 Cal.App.3d 904, 911, 123 Cal.Rptr. 918 et seq.;   1 Witkin, Cal.Procedure (2d ed. 1971) Jurisdiction, § 286, p. 827).   That principle was reaffirmed in Henn v. Henn, 26 Cal.3d 323, 332, fn. 7, 161 Cal.Rptr. 502, 605 P.2d 10.  (“The Legislature has not provided courts of dissolution with continuing jurisdiction to modify a judgment dividing community property after it has become final.   Nor did the original judgment in this case reserve such power to the court.”)   Note the language in Henn admits of a power to reserve jurisdiction to divide property, but not necessarily to recharacterize it.   Witkin at the above cited places lists a number of statutory instances of power to reserve jurisdiction, which include several family law situations such as changing amounts of support or dividing after-acquired assets.   However, none of these instances involve recharacterizing or redividing property.

3.   1979 California Family Law Reporter, page 1038.

4.   Christel's change in income from this source does not alter the spousal support order contained in the judgment because the record reveals “the respondent waived spousal support forever in consideration of $21,600 she would otherwise have had to pay petitioner to even out the distribution of community property by this judgment [not including the pension].”

 COLOGNE, Acting Presiding Justice.

WIENER and WORK, JJ., concur. Hearing denied;  BIRD, C. J., and MOSK, KAUS, JJ., dissenting.

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