IN RE: MARRIAGE OF Shirley and Lyle FARNER. (1987)

Lyle Farner (“husband”) challenges the trial court's order awarding a share of his military retirement benefits to his former wife, Shirley Farner (“wife”).   The questions presented are:  (1) Was modification of the judgment authorized by Civil Code section 5124?  (2) Did the trial court properly deem a judgment filed “nunc pro tunc” so as to bring it within the statutory “window” provided by section 5124?  (3) Does section 5124 effect an impermissible retroactive divestiture of property so as to violate husband's right to due process of law?

I. LEGAL BACKGROUND

For at least 40 years preceding 1981, California courts treated military retirement benefits earned during marriage as community property subject to division upon termination of the marriage.  (See, e.g., French v. French (1941) 17 Cal.2d 775, 112 P.2d 235, overruled on another point in In re Marriage of Brown (1976) 15 Cal.3d 838, 851, 126 Cal.Rptr. 633, 544 P.2d 561.)   In 1981 the United States Supreme Court held that federal law preempted the application of state marital property laws to military retirement benefits.  (McCarty v. McCarty (1981) 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589.)   Congress reacted to this decision by enacting the Federal Uniformed Services Former Spouses' Protection Act (10 U.S.C. § 1408) (“FUSFSPA”), which expressly empowers state courts to treat military retirement benefits under local marital property laws.

McCarty was rendered on June 26, 1981.   FUSFSPA was not effective until February 1, 1983.  (P.L. 97–252, § 1006, subd. (a).)  Benefits adjudicated between those two dates were left in a sort of legal limbo.   The California Legislature addressed this problem by enacting Civil Code section 5124, which gave trial courts the power to modify judgments and settlements in which, in reliance on McCarty, military retirement pay had been treated as separate property.¹  The remedy was limited to judgments or settlements which became “final” during the period of McCarty 's ascendancy, i.e., between June 26, 1981, and February 1, 1983.

The primary issue presented by this appeal is whether the trial court erred by treating the case as subject to section 5124, when judgment was not in fact entered until February 17, 1983.   We find no error, and affirm.

II. FACTS

Husband retired in 1974 after 20 years in the United States Air Force.   In 1978 wife filed a petition for dissolution.   The petition identified husband's retirement benefits, in effect, as community property, and husband's response, in effect, so admitted.   In June 1981, pursuant to stipulation, the court entered interlocutory and final judgments dissolving the marriage, but reserving all other issues.   At a further hearing in October 1981, the parties apparently stipulated to a disposition of many of the property issues, submitting others—specifically including the status of husband's pension—for the court's determination.

On October 28, 1981, the court issued a “memorandum opinion” reciting the stipulated issues and resolving some three dozen others.   In light of the then-recent decision in McCarty v. McCarty, supra, 453 U.S. 210, 101 S.Ct. 2728, the court determined that husband's military pension was his separate property.   The court directed that wife's attorney prepare a “proposed interlocutory judgment” ² in accordance with the opinion and submit the same to the court after securing the approval of husband's attorney “as to form.”

In January 1982, wife's attorney prepared a proposed judgment which provided, in accordance with the memorandum opinion, that husband would receive his military retirement benefits as separate property.   This document was forwarded to husband's attorney with a self-addressed stamped envelope and a request that the judgment be approved and returned.   For over a year, however, husband's attorney declined to approve the judgment because of disputes over matters apparently unrelated to the form of the judgment (and definitely unrelated to retirement benefits).   Wife's attorney continued to request that the proposed interlocutory judgment be approved and returned, ultimately writing to the judge with a request that judgment be entered without further delay.   Instead, at the instance of husband's attorney, the matter was set for further hearing.   The ultimate result was a further stipulation prepared by wife's attorney, reciting that the proposed “interlocutory judgment” would be filed “forthwith” and that both parties waived any claim to a “dispairity [sic ] payment.”

Wife signed the stipulation on July 20, 1982.   It was then apparently forwarded to husband's attorneys.   Husband signed it on September 10, 1982, but for some reason it was not returned to wife's attorney until January 27, 1983—four days before FUSFSPA took effect and the retroactive “window” of section 5124 closed.   The stipulation and the “interlocutory judgment” were signed by the judge two weeks later, on February 15, and filed on February 17.

On February 2, 1984, wife moved to modify the judgment to grant her a share of the retirement benefits.   For reasons which are not apparent, that motion was never heard.   On December 24 and 31, 1985, wife again filed motions requesting that (1) the existing interlocutory judgment be entered “as of” July 7, 1982, and (2) the military pension be divided pursuant to Civil Code section 5124.   In separate orders the court ruled that (1) equity required that the interlocutory judgment be deemed filed as of September 12, 1982;  and (2) wife was entitled to 43.75% of husband's retirement pay, retroactive to the date of separation.

III. APPLICABILITY OF CIVIL CODE SECTION 5124

A. “Finality” of Judgment for Purposes of Section 5124

 The characterization of a given judgment as “final” or not depends on the legal context in which the issue arises.  (See 7 Witkin, Cal.Procedure (3d ed. 1985) Judgment, §§ 1, 2, pp. 452–454.)   A judgment is final for purposes of appealability if it “terminates the proceeding in the lower court by completely disposing of the matter in controversy.”   (Henneberque v. City of Culver City (1985) 172 Cal.App.3d 837, 841, 218 Cal.Rptr. 704.)   For purposes of res judicata the judgment must be final in this sense and in the further sense of being “free from direct attack,” i.e., appeal.  (7 Witkin, op. cit. supra, §§ 211, 212, pp. 648, 649.)   For purposes of collateral estoppel, it may be enough if the judgment is “sufficiently firm to be accorded conclusive effect.”  (Id. at § 216, p. 653;  Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 936, 190 Cal.Rptr. 29;  Rest.2d, Judgments, § 13;  see Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 911, 226 Cal.Rptr. 558, 718 P.2d 920.)

 The Legislature's reference to a “final” judgment in section 5124 occurs in yet another context—the rule against modification of final judgments.

Once judgment has been entered, the trial court loses the unrestricted power to change it.  (7 Witkin, op. cit. supra, Attack on Judgment in Trial Court, § 66, p. 500.)   The remedies then available to an aggrieved party are limited.   If the judgment is simply claimed to be erroneous, the time to attack it ordinarily runs six months after entry of judgment or even sooner.   (See Code Civ.Proc., §§ 659 [motion for new trial], 663a [motion to vacate];  Cal.Rules of Court, rule 2 [appeal].)   Likewise, relief based on mistake, surprise, or excusable neglect must be sought within six months.  (Code Civ.Proc., § 473.)   Thereafter, unless jurisdiction has been reserved, a judgment can only be set aside or modified if it contains a clerical error, is void on its face, or resulted from extrinsic fraud or mistake.  (Ibid.;  see generally 8 Witkin, op. cit. supra, Attack on Judgment in Trial Court.)

Wife's attempt to modify the judgment came well after the usual time limits had expired.³  There is no claim of clerical error or extrinsic fraud and no assertion that the judgment is void on its face.   Under the general rules, then, the trial court lacked the power to modify the judgment.

 However section 5124 constitutes a further exception to the rule of non-modifiability:  a trial court may modify a judgment which became final while McCarty was law, provided proceedings are instituted before January 1, 1986.   Since the statute is expressly aimed at modification of judgments, its use of the term “final” must be understood in that context.   We therefore conclude that it refers to the date of entry of judgment, which is the triggering date for non-modifiability.   It follows that as a general principle, section 5124 applies to judgments which were entered during the statutory window.

B. Power to Grant Nunc Pro Tunc Relief

The judgment in question was entered approximately three weeks too late to be “final” in the requisite sense during the period prescribed by section 5124.   The trial court, however, deemed the judgment to have been entered within the statutory period—specifically, two days after husband signed the stipulation.   The question therefore becomes whether this action was within the court's power.

The trial court cited Civil Code section 4513, which empowers the court in a proper case to enter a decree of dissolution “as of the date when the same could have been ․ entered originally.” ⁴  Husband contends that section 4513 applies only to a decree dissolving marital status, and not to a judgment disposing of marital property.   We need not resolve this issue because, accepting husband's construction for purposes of argument, it seems to us that the trial court had the power to grant “nunc pro tunc” relief whether or not section 4513 applied.

 “A nunc pro tunc order ․ is an exercise of inherent power of the court for the purpose of doing justice between the parties.”  (Wexler v. Goldstein (1956) 146 Cal.App.2d 410, 412, 304 P.2d 41, emphasis added;  see 7 Witkin, op. cit. supra, Judgment, § 62, pp. 496–497;  Phillips v. Phillips (1953) 41 Cal.2d 869, 875, 264 P.2d 926;  Douglas v. Douglas (1958) 164 Cal.App.2d 225, 229, 330 P.2d 655;  Corbett v. Corbett (1931) 113 Cal.App. 595, 600, 298 P. 819 [exercise of an “ancient authority”].)   We see no basis for holding that section 4513 was intended to limit or supersede this inherent power.⁵  True, where a remedy is entirely a creature of statute, it “ ‘exists only so far and in favor of such person as the legislative power may declare.’ ”  (Justus v. Atchison (1977) 19 Cal.3d 564, 575, 139 Cal.Rptr. 97, 565 P.2d 122, quoting Pritchard v. Whitney Estate Co. (1913) 164 Cal. 564, 568, 129 P. 989;  disapproved on another point in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 171, 216 Cal.Rptr. 661, 703 P.2d 1.)   However, “[t]here is a presumption that a statute is consistent with the common law, and so a statute creating a new remedy or method of enforcing a right which existed before is regarded as cumulative rather than exclusive of the previous remedies.”  (2A Sutherland, Statutory Construction (Rev. 4th ed. 1984) § 50.05, p. 441.)  “The general rule is that statutes do not supplant the common law unless it appears that the Legislature intended to cover the entire subject or, in other words, to ‘occupy the field.’ ”  (I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285, 216 Cal.Rptr. 438, 702 P.2d 596, quoting Justus v. Atchison, supra, 19 Cal.3d 564, 574–575, 139 Cal.Rptr. 97.)   Nothing in the language of section 4513 suggests an intent to diminish the court's common-law powers.

Indeed, the history of section 4513 strongly suggests that it was intended to supplement, not supersede, the common-law remedy of nunc pro tunc entry.   In 1931 a court held that the inherent power to enter judgment nunc pro tunc did not extend so far as to retroactively validate a marriage entered while an earlier marriage remained technically undissolved.  (Corbett v. Corbett, supra, 113 Cal.App. 595, 298 P. 819.)   In Macedo v. Macedo (1938) 29 Cal.App.2d 387, 84 P.2d 552, the same court reached a contrary result based on the intervening enactment of the predecessor to section 4515.  (Civ.Code, § 133, enacted 1935 Stats. ch. 407, § 1, p. 1459, repealed 1969 Stats. ch. 1608, § 3, p. 3313.)   The court said its earlier holding had been “compelled by the statute as it then stood” (see Civ.Code, § 132, repealed 1969 Stats. ch. 1608, § 3, p. 3313;  see now Civ.Code, § 4514), and that the new statute was enacted “to correct this situation.”  (29 Cal.App.2d at p. 390, 84 P.2d 552.)

In short, the statute is “both remedial and curative in character,” enacted to dispel a perceived limitation on the inherent power of nunc pro tunc entry.   (Macedo v. Macedo, supra, 29 Cal.App.2d at p. 392, 84 P.2d 552;  see Berry v. Berry, supra, 140 Cal.App.2d at p. 56, 294 P.2d 757 [section 133 “was enacted to avoid recurrence of the result in the Corbett case”].)   As such it should be liberally construed.  (Estate of Hughes (1947) 80 Cal.App.2d 550, 554, 182 P.2d 253 [section 133 “seeks to accomplish a beneficient purpose and the court should give it a construction as broad as its purpose appears to be”];  2A Sutherland, op. cit. supra, § 58.04, p. 716 [liberal construction of curative statutes].)   We therefore see no basis for holding that it operates to supersede or restrain the court's preexisting powers.⁶  If the facts bring the case within the scope of those ancient powers, no error can be found in the trial court's exercising them to deem the judgment entered as of an earlier date.

C. Propriety of Nunc Pro Tunc Relief

 In our view the case falls squarely within the pattern which has traditionally justified nunc pro tunc entry.   The largest group of non-statutory cases involves the death of a party after a decision is rendered but before formal entry of judgment.  (See 7 Witkin, op. cit. supra, Judgment, § 64, pp. 498–499.)   Here the case was largely if not entirely decided when the court rendered its memorandum decision in October 1981—some 16 months before the cutoff date for relief under section 5124.   Wife's attorney prepared a proposed judgment but husband's attorney declined to approve it as to form.   There ensued some nine months of litigation skirmishes culminating in a stipulation which was signed by husband in September 1982, still well within the “window.”   For reasons which have yet to be explained, the stipulated judgment was retained by husband's attorneys until January 27, 1983—four days before the cutoff date for relief under section 5124.⁷

The case was “decided,” at the latest, when husband signed the stipulation.   By the same token, the judgment was then ready for entry.   The only apparent reason it was not entered within the statutory “window” is the failure of husband's attorneys to return it.   This unexplained and unexcused lapse conferred no rights on husband.   In September 1982 he expressly agreed to entry of the judgment “forthwith.”   The conduct of his attorneys violated this undertaking.   Far from producing an “unconscionable” result, as husband asserts, the trial court's action gave effect to the fundamental maxims that no one should profit by his own wrong, and that courts will deem done that which should have been done.⁸

 The purpose of nunc pro tunc entry is to preserve the legitimate fruits of litigation.  (7 Witkin, op. cit. supra, Judgment, § 63, p. 497.)   Wife was legitimately entitled to a judgment no later than September 10, 1982.   That she did not get one was due to no fault of her own.   The trial court did not err in deeming the judgment entered as of September 12, 1982.

D. Effectiveness of Nunc Pro Tunc Relief to Bring the Case Within Section 5124.

 Husband further appears to contend that even if nunc pro tunc relief was otherwise available it had the impermissible effect here of circumventing section 5124 which, according to husband, contemplates a judgment actually filed within the stated period.

The statute refers to the date of finality, not to the date of filing.   Like section 4513 it is both remedial and curative and should be construed broadly in accordance with its purpose.   Presumably the reason for the cutoff was the Legislature's expectation that judgments rendered after the effective date of FUSFSPA would not require any modification since attorneys would by then discover that military pensions were once again subject to treatment as community property.   Had the pension issue in the present case not already been determined by the court, that legislative expectation might well have been fulfilled here.   Since the case had already long since been adjudicated, however, nunc pro tunc entry did violence to neither the letter nor the spirit of the statute.

Of course, we do not endorse the whimsical use of nunc pro tunc relief to circumvent procedural time limits.   The power to effect such relief poses a serious risk;  taken to its outer limits it could destroy the objectives of certainty and repose which underlie much of our law of procedure.   Were we not satisfied that this case presents extraordinary facts well within the traditional confines of the trial court's discretion, we would reverse the judgment however harsh the result.   Under the peculiar legal circumstances, however, we are persuaded that the court had the power to grant nunc pro tunc relief.   Accordingly there was no error in holding section 5124 applicable to the judgment.

IV. CONSTITUTIONALITY

 Husband offers several incomplete and fragmentary contentions concerning the constitutionality of the order under review.   The gist of his argument appears to be that section 5124 deprived him of a vested right without due process.   We address this argument as presented.⁹

The cases dealing with the constitutionality of section 5124 are comprehensively reviewed in In re Marriage of Carpenter (1986) 188 Cal.App.3d 604, 613–617, 231 Cal.Rptr. 783.   The court there held that on the facts before it the statute did not work an unconstitutional impairment of contract, a deprivation of a vested right without due process, or a denial of equal protection.   Nothing brought to our attention distinguishes husband's position from those rejected in Carpenter and the other cases upholding the statute.  (E.g. In re Marriage of Doud (1986) 181 Cal.App.3d 510, 226 Cal.Rptr. 423;  In re Marriage of Potter (1986) 179 Cal.App.3d 73(4, 5, 9), 224 Cal.Rptr. 312;  Mueller v. Walker (1985) 167 Cal.App.3d 600, 213 Cal.Rptr. 442.)

Notably absent is any showing of legitimate reliance or a settled expectation that the pension would be husband's separate property.  (See In re Marriage of Bouquet (1976) 16 Cal.3d 583, 592, 128 Cal.Rptr. 427, 546 P.2d 1371.)   When husband first appeared in the action the governing law made the pension a community asset;  his pleadings impliedly conceded that it was such an asset;  and his pretrial statement assumed that wife would be awarded a share of the benefits.   It is not suggested that some other portion of the property disposition was dependent on or affected by the court's initial decision to award the benefits entirely to husband.   Under the circumstances, McCarty simply afforded husband an unexpected windfall which Congress and the Legislature acted promptly to take away.   Husband has offered no coherent basis for holding that this was a violation of due process and similar legislation has been consistently upheld.  (See Slawson, Constitutional and Legislative Considerations in Retroactive Lawmaking (1960) 48 Cal.Law Rev. 216, 238–243, and cases cited.)

 Moreover, we follow In re Marriage of Potter, supra, 179 Cal.App.3d 73, 84, 224 Cal.Rptr. 312, in rejecting the idea that FUSFSPA preempts section 5124.  Section 5124 simply provides a local procedure for exercising the power conferred by FUSFSPA.   Congress did not purport to regulate such procedures and it would seem patently unreasonable to attribute to Congress an implied intent to preempt them when the manifest purpose of the statute was to foreswear preemption of local law.   The sister-state cases cited by husband have no bearing on the question.  (E.g., Allison v. Allison (Tex.App.1985) 690 S.W.2d 340, 345 [expressly noting the absence of a “procedural mechanism” for reopening judgments final under Texas law];  Breen v. Breen (Tex.App.1985) 693 S.W.2d 495, 496 [FUSFSPA did not empower court to reopen final judgment].)   They merely apply their own law of the finality of judgments.   They do not purport to hold that a state legislature is powerless to alter that law as it affects military pension rights.

The judgment is affirmed.¹⁰

FOOTNOTES

1.   Civil Code section 5124 provided:  “(a) Community property settlements, judgments, or decrees that became final on or after June 25, 1981, and before February 1, 1983, may be modified to include a division of military retirement benefits payable on or after February 1, 1983, in a manner consistent with federal law and the law of this state as it existed before June 26, 1981, and as it has existed since February 1, 1983.“(b) Modification of community property settlements, judgments, or decrees under this section may be granted whether or not the property settlement, judgment, or decree expressly reserved the pension issue for further determination, omitted any reference to a military pension, or assumed in any manner, implicitly or otherwise, that a pension divisible as community property before June 25, 1981, and on or after February 1, 1983, was not, as of the date the property settlement, judgment, or decree became final, divisible community property.“(c) Any proceeding brought pursuant to this section shall be brought before January 1, 1986.“(d) This section shall remain in effect only until January 1, 1986, and on that date is repealed unless a later enacted statute which is chaptered before that date deletes or extends that date.”

2.   The term “interlocutory judgment” is an evident misnomer since the judgment was apparently intended to resolve all remaining issues in the case.   Were it otherwise we would lack jurisdiction over this appeal.   (Code Civ.Proc., § 904.1, subd. (a)(1);  see 7 Witkin, Cal.Procedure (3d ed. 1985) Judgment, § 8, p. 457 [appealability governed by effect, not label].)

3.   Unless and until the judgment was entered, it was not effectual for any purpose, and remained subject to modification without regard to the foregoing limitations.  (Code Civ.Proc., § 664;  Phillips v. Phillips (1953) 41 Cal.2d 869, 874, 264 P.2d 926.)   The record copy of the judgment bears no notation indicating entry.   However, the clerk was required by law to enter the judgment immediately upon filing.  (Code Civ.Proc., § 664.)   We presume this duty was performed.  (Evid.Code, § 664.)   Neither party has suggested otherwise;  and the clerk of this court has been informed by the clerk of the superior court that judgment was in fact entered on February 17, 1983.

4.   Section 4513 provides:  “In cases in which the court has determined that a decree of dissolution ought to be granted, but by mistake, negligence or inadvertence, the judgment has not been signed, filed and entered, the court may cause the judgment to be signed, dated, filed and entered therein as of the date when the same could have been signed, dated, filed and entered originally, if it appears to the satisfaction of the court that no appeal is to be taken in the action or motion made for a new trial, to annul or set aside the judgment or for relief under Chapter 8 (commencing with Section 469) of Title 6 of Part 2 of the Code of Civil Procedure․  The court may cause the judgment to be entered nunc pro tunc as aforesaid, even though the judgment may have been previously entered, where mistake [sic —read “through mistake”], negligence or inadvertence the judgment was not entered as soon as it could have been entered under the law if applied for.   Upon the entry of the judgment, the parties shall have the same rights with regard to the dissolution of marriage becoming final on the date that it would have become final, had the judgment been entered upon the date when it could have been originally entered.  [Sic.]”

5.   Wife's papers below contained the statement that section 4513 was the sole authority for retroactive entry of the judgment, followed by a citation to Berry v. Berry (1956) 140 Cal.App.2d 50, 294 P.2d 757.   This is somewhat puzzling since the Berry court expressly refrained from deciding whether the statutory remedy was exclusive.  (140 Cal.App.2d at p. 54, 59, 294 P.2d 757.)   Nonetheless, had the trial court ruled against wife her erroneous concession might be fatal to her cause.  (See 9 Witkin, op. cit. supra, Appeal, § 316, p. 327 [“theory of trial” limitation on cognizable error.] )   However, we do not believe wife's erroneous concession should operate to impeach an otherwise correct decision.  (See Witkin, supra, § 322, pp. 332–333 [“the doctrine of theory of trial will often be disregarded in order to affirm, not reverse, the judgment”];  Escobedo v. Travelers Ins. Co. (1961) 197 Cal.App.2d 118, 127, 17 Cal.Rptr. 219 [“a reviewing court is never bound by concessions of counsel as to the law”].)

6.   It was held in a somewhat similar legal context that the enactment of statutes permitting entry of judgment after the death of a party did not do away with the common law rule authorizing nunc pro tunc relief in such situations.  (Norton v. City of Pomona (1935) 5 Cal.2d 54, 63, 53 P.2d 952.)

7.   Section 5124 had not yet been enacted when all this occurred.   The enacting bill became law on September 14, 1983.  (1983 Stats., ch. 775, p. 2852;  Cal. Const., art. IV, § 10.)

8.   “No one can take advantage of his own wrong.”  (Civ.Code, § 3517.)“That which ought to have been done is to be regarded as done, in favor of him to whom, and against him from whom, performance is due.”  (Civ.Code, § 3529.)

9.   Husband does not contend that section 5124 as applied to him effected an unconstitutional impairment of contract.  (See In re Marriage of Carpenter, infra, 188 Cal.App.3d 604, 231 Cal.Rptr. 783.   Indeed he affirmatively asserts that there is no contract governing the pension benefits.Nor do we address the suggestion in some federal cases that legislative power may not extend to the invalidation of judgments which have become immune from direct attack.  (See Hodges v. Snyder (1923) 261 U.S. 600, 603, 43 S.Ct. 435, 436, 67 L.Ed. 819 [“the private rights of parties which have been vested by the judgment of a court cannot be taken away by subsequent legislation”];  McCullough v. Virginia (1898) 172 U.S. 102, 123–124, 19 S.Ct. 134, 142, 43 L.Ed. 382 [“It is not within the power of a legislature to take away rights which have been once vested by a judgment”];  Mirabal v. General Motors Acceptance Corp. (7th Cir.1976) 537 F.2d 871, 875–876 [rights conferred by legislation may be likewise revoked if they have not yet ripened into a judgment from which no further appeal may be taken];  de Rodulfa v. United States (D.C.Cir.1972) 461 F.2d 1240, 1252–1253 [rule inapplicable where statutory change occurred while appeal pending];  I.A.M. National Pension Fund v. Wakefield Industries, Inc. (D.D.C.1985) 612 F.Supp. 643, 646 [indicating that limitation derives from doctrine of separation of powers].)   Such suggestions pose difficult issues which appellant has not seen fit to raise and which we decline to attempt to resolve in a vacuum.

10.   Husband has not singled out for attack the portion of the judgment which awards wife a share of benefits already paid to husband, and we express no view as to the propriety of that portion.

SABRAW, Associate Justice.

ANDERSON, P.J., and POCHÉ, J., concur.