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

 Mary Louise MILLER, Plaintiff and Appellant, v. Billy Gene MILLER, et al., Defendants and Respondents.


Decided: January 28, 1986

 Bauer & Schultz, George J. Schultz and Jack M. Sleeth, Jr., Bonita, for plaintiff and appellant. Lightner & Castro, Kim W. Cheatum, Leslie Cummings and Christopher Schatz, San Diego, for defendants and respondents.

Mary Louise Miller sought partition of her former spouse's military pension, a community asset which was omitted from the final judgment of dissolution of marriage.   When Billy Gene Miller appeared specially, the court held it lacked personal jurisdiction to do so because Billy was neither a California resident, domiciled in this state, nor had consented to the jurisdiction of this court as of the date the partition action was filed.   We hold the date as to which personal jurisdiction contacts are to be evaluated is the date when the parties' right to the property division arises and Billy's severing those contacts at a later time does not defeat out-of-state personal service on a subsequently filed lawsuit to effect that division.   We reverse the order dismissing the proceedings.


When Billy joined the United States Navy in 1948 at age 18, he listed his home of record as the State of Washington.   In 1953 he married Mary in California, where they lived during his military assignment.   The parties were still living in California 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 retirement pension, but divided their 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 since has 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, stating:

“[My decision is] based on the Uniformed Services Former Spouses' Protection Act, 10 U.S. Code 1408.

“The Defendant in this case is not a resident nor domiciliary of California—wasn't at the start of the action and hasn't consented to jurisdiction, and this action is completely separate from the earlier divorce action or dissolution.   This is a separate action in the nature of civil procedure seeking declaratory relief, and therefore there is no basis for jurisdiction, and the motion should be granted.”


On appeal, Mary contends 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 (Cod.Civ.Proc., § 410.10).

FUSFSPA was enacted in the wake of McCarty v. McCarty (1981) 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589, a Supreme Court case holding the federal legislative scheme authorizing military pensions impliedly preempted state community property law.   FUSFSPA was specifically intended to reinvigorate the states' marital property laws affecting military pensions.  (Sen.Rept. No. 97–502, 2nd Sess. (1982), p. 1;  1982 U.S. Code Cong. & Admin. News, pp. 1555, 1596.)  Section 1408(c)(1) provides:  “Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.”

 Two community property principles revitalized by FUSFSPA bear on this case.   The first is a vested military pension is a divisible community asset.  (In re Marriage of Fithian, (1974) 10 Cal.3d 592, 596, 111 Cal.Rptr. 369, 517 P.2d 449, disapproved on other grounds in In re Marriage of Brown, (1976) 15 Cal.3d 838, 851, fn. 14, 126 Cal.Rptr. 633, 544 P.2d 561).   The second is a military pension in which the community has an interest and which is omitted from the final dissolution judgment can be partitioned in a later civil action.  (Henn v. Henn, (1980) 26 Cal.3d 323, 330, 161 Cal.Rptr. 502, 605 P.2d 10).

In Henn, the Supreme Court determined the spouses retained their interests in an unadjudicated asset as tenants in common.  (Ibid.)  “One reason for this rule is that in a legal sense after the rendition of a final judgment of dissolution disposing of the marital property, there can be no such thing as any remaining community property․ [Citations.]  In other words, any property left undisposed by the judgment is either the separate property of one party or the other or the separate property of both parties and is outside the jurisdiction of the family law court.”  (In re Marriage of Dorris, (1984) 160 Cal.App.3d 1208, 1215, 207 Cal.Rptr. 160.)   Thus, a tenant seeking partition cannot assert continuing jurisdiction so as to litigate the matter in the context of the prior dissolution action.  (Code.Civ.Proc., § 410.50;  Bodle v. Bodle, (1978) 76 Cal.App.3d 758, 767, 143 Cal.Rptr. 115).

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 jurisdiction of the court.”


According to the records in the underlying divorce action,2 of which we take judicial notice, the parties were married in 1953 in San Diego, California and separated March 29, 1969.   At the time of filing the complaint in June 1969, Billy was living in bachelor officers' quarters in California.   The parties owned a vacant lot in San Diego and their residence in Chula Vista.   Billy admitted the statistical data in the complaint and declared by way of cross-complaint that he “has been a resident of the State of California for more than one year and of the County of San Diego for more than three months next preceding [June 1969].”


 The trial court stated its belief that Billy was not a resident nor domiciliary “at the start of the action․”  Its reference clearly is to the start of the declaratory relief action in 1983.   However, for the purposes of obtaining personal jurisdiction over an out-of-state defendant, it is the residence or domicile of that person at the time the operative facts which allow plaintiff to file an action converge that is relevant, not whether the defendant has changed residence or domicile before the action is filed.   (Allen v. Superior Court, (1953) 41 Cal.2d 306, 259 P.2d 905;  Myrick v. Superior Court, (1953) 41 Cal.2d 519, 261 P.2d 255;  Owens v. Superior Court, (1959) 52 Cal.2d 822, 345 P.2d 921.)   For instance, in Owens, supra, the issue was whether the out-of-state defendant was a resident of California at the time his dog bit the plaintiff causing the injuries for which suit was later brought.   The fact the defendant changed his residence before suit was filed was deemed irrelevant.

Here, the essential facts regarding this property division dispute and the parties' respective legal interests became fixed when the parties separated.   In this case, that date is no later than March 1969, the day of actual separation.   Thus, Mary's interests, her entitlements and those of Billy arose at  a time when Billy's cross-complaint declares under penalty of perjury he was a resident of California for the purposes of divorce jurisdiction.


In the context of a family law action, the court can both characterize and dispose of community property, but is limited only to characterizing separate property interests.  (Civ.Code, § 4800.)   However, the nature and extent of the property interest itself does not differ between a spouse holding a community property interest and that same person holding that interest as a tenant-in-common.   Nor, is there any practical difference to the parties between dividing community property and partitioning separate property.   In each case it is the characterization and physical division of the identical property, whether characterized as community or as held in common tenancy.   Here, the date on which the respective interests have to be measured is the date Mary and Billy separated, because that is the date after which any further accruals to the property became the separate property of the person whose earnings or efforts created that accrual.

 Moreover, under California law a spouse's entitlement to a share of the community property arises at the time the property is acquired.   (Henn v. Henn, supra, 26 Cal.3d 323, 330, 161 Cal.Rptr. 502, 605 P.2d 10.)   The extent of that interest, once obtained, is not altered except by judicial degree or agreement.   Thus, property not mentioned in pleadings as community property is left unadjudicated by decree of divorce and is subject to future litigation, the parties being deemed tenants in common meanwhile.  (Henn v. Henn, supra, 26 Cal.3d 323, 330, 161 Cal.Rptr. 502, 605 P.2d 10;  In re Marriage of Elkins, (1972) 28 Cal.App.3d 899, 903, 105 Cal.Rptr. 59).   Billy and the trial court erred in assuming Mary's right to have the parties' property interests in the military retirement divided only arose after the final judgment of dissolution.   That right vested no later than the separation in 1969.   Although the partition action is filed postdissolution, the respective interests in the property rights upon which it is based, including the right to force a division, were fixed when the parties separated.


However, the critical issue here is whether Billy's substantial California contacts are of the type FUSFSPA requires (i.e., residency other than because of military assignment, domicile or consent).   These limits apparently reflect a concern that military pensioners could be substantially disadvantaged by forum-shopping spouses who otherwise might seek to divide these property interests in a state never having had substantial contact with the military pension, and whose courts are not easily accessible  because of distance.  (See discussion in Sen.Rept. No. 97–502, 2d Sess. (1982) pp. 8–9;  1982 U.S. Code Cong. & Admin. News, pp. 1603–1604.)

This is not a case where there is any lack of substantial contacts, both personal and subject matter, or where deficiency of notice is suggested.   Due process for jurisdictional purposes, both subject matter and personal, is amply satisfied.

 Here, we have determined the date, as to which the contacts should be evaluated, is 1969.   As of that date, Billy declared himself a California resident for the purpose of the jurisdictional requirements of obtaining a divorce from Mary.   Although termed “residency,” the legal requirements for California divorce jurisdiction are synonymous with “domicile.”  (Smith v. Smith, (1955) 45 Cal.2d 235, 239, 288 P.2d 497;  Ungemach v. Ungemach, (1943) 61 Cal.App.2d 29, 36, 142 P.2d 99;  In re Marriage of Thornton, (1982) 135 Cal.App.3d 500, 507, 185 Cal.Rptr. 388.) 3  Thus, for the purposes of personal jurisdiction, Billy conclusively declared he was domiciled in California for more than one year prior to June 1969.4

The order quashing service is reversed and the matter is remanded for further proceedings.


FN1. All statutory references are to the United States Code unless otherwise specified..  FN1. All statutory references are to the United States Code unless otherwise specified.

2.   San Diego County Superior Court No. D–36159.

3.   See also Whealton v. Whealton, (1967) 67 Cal.2d 656, 660, 63 Cal.Rptr. 291, 432 P.2d 979, to this effect, but suggesting that residential contacts less than domicile would satisfy due process, noting other states do not require domicile.

4.   Although some portions of the prior dissolution record were considered, the record does not suggest the trial court was apprised of Billy's declaration in the cross-complaint.   Because the trial court's ruling was based on its finding of no residence, domicile or consent on the date the partition action was filed, Billy's admitted domicile in 1969 was irrelevant to its holding.   Further, because Billy is now estopped from denying his California domicile as of 1969, there is no need to remand to reconsider this issue.

WORK, Associate Justice.

STANIFORTH, Acting P.J., and WIENER, J., concur.

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