Petition — Starren v. Starren

- ; APR 16 1979

; germ

[ia Staller

TI CHAAL ROD AK, JR., CLERK

a ee oe ——

Inu Che

Supreme Court of the

United States

October Term, |979

QUINTEN T. STARREN, Petitioner

VS.

Hiipa I. STARREN, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

Norvin L. GRAUF

110 West C St., Suite 1405

San Diego, California 92101

Counsel for Petitioner

April 12, 1979

“a ARTS & CRAFTS PRESS, SAN DIEGO, CALIF.

INDEX

age

QUESTIONS PRESENTED ............... 2° aoa oe ae <a

HOW THE FEDERAL a IS

ea SES -

STATUTORY PROVISIONS INVOLVED Discs Se

STATEMENT OF THE CASE ~.20.000002.cccccceststee a

REASONS FOR GRANTING THE WRIT |... _6

1. The Federal Constitutional Right Against Im-

pairment of Contracts was Violated When the

State Decision (In re Marriage of Brown) was

Given a Retrospective Effect Such That a

Property Settlement Agreement Executed Four

Years Prior to This Decision was (by Court

Decree) Rescinded .................. Ta ansnasrine 6

2. The Decision Below Raises Significant and Re-

curring Problems Concerning the Intent of

Congress that Military Retirement Benefits Re-

main the Separate sise-atiid “A the a

Spouse |

CONCLUSION a OE

ES SEE i Al

Opinion and Judgment of Trial Court ( Appendix A) ... Al

Opinion and Judgment of District Court

of Appeals (Appendix By) o..c.cccccoo- | TIN A7

Portion of Appellant's Opening Brief—District

Court of Appeals (Appendix C) cceccccccctscsercreemeenAd 11

Portion of Petition for Hearing—California

Supreme Court (Appendix Di) o.o.o..cc.cccocccovinesseresneevene A 14

Motion to Recall Remittitur (Appendix E) ..................A16

CASES

CITATIONS

Page

Bensing v. Bensing, (1972) 25 Cal.App.3d 889 0.00000. 10

Bodle v. Bodle, (1978) 76 Cal. App.3d 758 o..ccccnnescneucnenee 7

Bradley v. Superior Court, (1957) 48 C.2d 509 ..nccceeocee 6

Brown-Crummer Inv. Co. v. Town of North Miami,

CSS 5) DART So re

Columbia Railway Gas & Electric Company v. State

of South Carolina, (1923) 261 U.S. 236 orcccccocscuennne 8

Cooley v. Calaveras County, (1898) 121 C. 482 oo. 6

Douglass v. Pike County, Missouri, —

101 U.S. 677 . AECL NE Ne SEE eee ND ee

Ellis v. Ellis, (1976) 552 P.2d 506 on cccnmeenen MA 13

French v. Fremcio, (1941) 17° C.2d TVS nn nccesenenctsmrne 9

Hisquierdo v. Hisquierdo, (1979) No. 77-533,

59 C04 GALI OS 10

In re Marriage of Brown, (1972) 27 Cal.App.3d 188 ........ 10

In re Marriage of Brown, (1976) 15 C.3d 838 oo. 2,5

In re Marriage of Fithian, (1974) 10 C.3d 592 00.10

In re Marriage of Karlin, (1972) 24 Cal.App.3d 25... 10

U.S. ex rel. Vermont Inv. Co. v. City of Cocoa,

(3900) 17 Pie. 20 woo ee

—ili—

MISCELLANEOUS AUTHORITIES

Page

United States Constitution, Article I, $10, Clause 1 ......... ee

Title 10 U.S.C. Chapter 73: Annuities Based on

Retainer Pay; Survivor Benefit Plans ...... Ba

Title 10 U.S.C. $1434: Kinds of Annuities That —

ae Ne caadlionsal

Title 10 U.S.C. $1435: Eligible Beneficiarics Silene

Title 10 U.S.C. $1450: mere of —

thenaBiasanies eed : . nicl

Title 10 U.S.C. §2771: Final Settlement of Acccunts:

I TI ae is a rte 14

Certain Social Security Act Amendment, Title V,

sere), 91 Stat. 160 Peee sere Law

95-30) ... Feta OS 12

S. Rep. No. 1480, 90th Cong. 2d Sess. (1968),

1968 U.S. Code Cong. and Adm. News

(Pubic Law 90-405) . BA

S. Rep. No. 92-1089, 92nd Cong. 2d Sess. (1972)

1972 U.S. Code Cong. and Adm. News

Seen GOW Wee. ayo 11

S. Rep. No. 95-1084, 95th Cong. 2d Sess. (1978),

1978 U.S. Code Cong. and Adm. News

(Public Law 95-366). ............ Dac Gia singin mapnaisagleaee

California Constitution, Article I, $16 ..... WON IS RR

Judge B. Abbott Goldberg, Vol. 48, No. 1, California

State Bar Journal 12, ‘Is Armed Services

Retirement ieee a pser sin) etude ?

(1973) . | 15

| ae eas

In Che

Supreme Court of the

United States

October Term, 1979

QUINTEN T. STARREN, Petitioner

VS.

HiLpA I. STARREN, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPKEME COURT OF CALIFORNIA

The petitioner, QUINTEN T. STARREN, respectfully prays that

a Writ of Certiorari issue to review the order of the Supreme

Court of the State of California in the above-entitled case.

OPINION BELOW

The judgment and opinion of the Court of Appeals of the

State of California, Fourth Appellate District, entered in this

proceeding on October 30, 1978, appears in Appendix B herein.

On January 17, 1979, the Supreme Court of California denied

petitioner's Petition for Hearing.

JURISDICTION

The October 30, 1978, judgment of the Court of Appeals of

the State of California, Fourth Appellate District affirmed the

on, vee

trial court. On November 27, 1978, the same Court of Appeals

filed a denial to petitioner's/appellant’s petition for rehearing.

A timely petition for hearing to the Supreme Court of the State

of California was denied on January 17, 1979, and this petition

for certiorari was filed within 90 days of that date. This Court's

jurisdiction is invoked under 28 U.S.C. $1257(3).

QUESTIONS PRESENTED

1. When a court gives retrospective effect to a court decision

by declaring that a property settlement agreement executed four

years prior to the court decision is deemed rescinded because of

“mutual mistake of fact or law,” has the federal constitutional

right against impairment of contract been violated ?

2. Whether under the Supremacy Clause an award of peti-

tioner’s military retirement benefits to non-service related re-

spondent impermissibly conflicts with the Retired Serviceman's

Family Protection Plan?

HOW THE FEDERAL QUESTION IS PRESENTED

In the instant case the trial court on October 27, 1976, gave

effect to a 1976 California Supreme Court decision (Jn re Mar-

riage of Brown, (1976) 15 C.3d 838) which held that wnvested

retirement benefits were community property. Such effect was

given by a finding that a 1972 property settlement agreement

filed with the trial court did not contract relative to such retire-

ment benefits and was subject to division by the court as a com-

munity assets. (Appendix A, infra, pages A3-AS.)

The Fourth District Court of Appeals reviewed the record for

“substantial evidence” to support the trial court's decision. The

court affirmed the trial court's decision that such benefits were

community property and held that “since neither of the parties

—-3—

knew the unvested pension was a community property asset when

stipulating to the property agreement, the contract was made

while each was laboring under a mutual mistake of fact or law.

This warrants rescission.” (Appendix B, infra, pages A8-A9.)

The same Court of Appeals filed a denial of petitioner's peti-

tion for rehearing. The Supreme Court of the State of California

denied the petition for hearing. Petitioner at both levels, ap-

pellate and supreme, raised the violation of both the state and

federal constitutional rights against impairment of contracts

when the Brown decision (declaring unvested retirement bene-

fits community property) was given retrospective effect. (Ap-

pendix C, infra, pages All-Al3, and Appendix D, infra, page

Al15.)

On February 17, 1979, petitioner's motion to recall remittitur

was denied by the same Court of Appeals. The motion was

based on the ground that military retirement benefits are not

community property, rather the separate property of the military

person who earned them. (Appendix E, infra.)

STATUTORY PROVISIONS INVOLVED

1. United States Code, Title 10:

§1440. Annuities not subject to legal process. “No an-

nuity payable under this subchapter is assignable or subject to

execution, levy, attachment, garnishment, or other legal pro-

cess.”

2. United States Code, Title 42:

§659(a) Enforcement of individual's legal obligations to

provide child support or make alimony payments—United

States and District of Columbia to be subject to legal process.

“Notwithstanding any other provision of law, effective

January 1, 1975, moneys (the entitlement to which is based

i ae

upon remuneration for employment) due from, or payable by,

the United States or the District of Columbia (including any

agency, subdivision, or instrumentality thereof) to any indi-

vidual, including members of the armed services, shall be sub-

ject, in like manner and to the same extent as if the United

States or the District of Columbia were a private person, to

legal process brought for the enforcement, against such indi-

vidual of his legal obligations to provide child support or make

alimony payments.”

3. Certain Social Security Act Amendments, Title V:

§$501(d). Definitions: Section 462 For Purposes of Sec-

tion 459.

ec

(c) The term ‘alimony,’ when used in reference to the

legal obligations of an individual to provide the same, means

periodic payments of funds for the support and maintenance

of the spouse (or former spouse) of such individual, and

(subject to and in accordance with State law) includes but is

not limited to, separate maintenance, alimony pendente lite,

maintenance, and spousal support; such term also includes at-

torney’s fees, interest, and court costs when and to the extent

that the same are expressly made recoverable as such pursuant

to a decree, order, or judgment issued in accordance with ap-

plicable State law by a court of competent jurisdiction. Such

term does not include any payment or transfer of property or

its value by an individual to his spouse or former spouse in

compliance with any community property settlement, equitable

distribution of property, or other division of property between

spouses or former spouses.”

STATEMENT OF THE CASE

The STARRENS were married in 1946 and had been separated

for a full 10 years before petitioner, QUINTEN, filed a petition

for dissolution of marriage on September 10, 1971, to which a

—j5—

response was thereafter filed on September 20, 1971, by respon-

dent, Hitpa. On December 20, 1971, the parties filed a stipula-

tion which provided ‘‘that petitioner be awarded the life insur-

ance, (retirement) and the commercial account.”” On January 6,

1972, the parties filed the identical stipulation filed on Decem-

ber 20, 1971, except that the matter was heard on the response

and the petition was to be withdrawn, and the stipulation con-

tained no comma after the word “insurance” and no parentheses

marks around the word ‘‘retirement.”

In January, 1976 a nonvested retirement like petitioner's was

declared a community asset subject to division in a dissolution

proceeding. (In re Marriage of Brown, 15 C.3d 838.)

Because respondent obtained an improperly entered interlocu-

tory judgment of dissolution of marriage on October 29, 1973,

the case was not heard until September 3, 1976. The trial court

on October 27, 1976, found the wording “life insurance retire-

ment” ambiguous and admitted extrinsic evidence. The court

found petitioner's retirement pay had not been included in the

agreement and divided the pay as a community asset as follows:

Petitioner received as his sole and separate property 76.53% of

his gross monthly Navy retirement, and respondent received as

her sole and separate property 23.47% of petitioner's gross

monthly Navy retirement.

The Court of Appeals of the State of California, Fourth Ap-

pellate District affirmed the trial court’s judgment on October

30, 1978, holding that since neither of the parties knew the un-

vested pension was a community property asset when stipulating

to the property agreement, the contract was made while each was

laboring under a mutual mistake of tact or law and the court

rescinded the contract. On November 27, 1978, the same court

filed a denial to petitioner’s/appellant’s petition for rehearing.

eer a

The California Supreme Court denied a timely petition for hear-

ing on January 17, 1979. On February 19, 1979, petitioner's

motion to recall cemittitur, based upon the fact that military re-

tirement benefits are the separate property of the employee, was

denied by the same Court of Appeals.

REASONS FOR GRANTING THE WRIT

1. THE FEDERAL CONSTITUTIONAL RIGHT AGAINS1

IMPAIRMENT OF CONTRACTS WAS VIOLATED WHEN

THE STATE DECISION (IN RE MARRIAGE OF BROWN)

WAS GIVEN A RETROSPECTIVE EFFECT SUCH THAT A

PROPERTY SETTLEMENT AGREEMENT EXECUTED

FOUR YEARS PRIOR TO THIS DECISION WAS (BY

COURT DECREE) RESCINDED.

Petitioner contends the property settlement agreement filed

January 6, 1972, constituted a valid contract, and that the subse-

quent court rescission of the contract, although not requested by

either petitioner or respondent, impaired the obligation of a valid

contract.

Sanctity of contracts has a long and sacred period of reliance,

so sacred, in fact, that it is enacted in the California Constitu-

tion, Article I, §16. The case of Cooley v. Calaveras County,

(1898) 121 C. 482, holds that the subsequent determination of a

question of law by judicial decision does not create such a mis-

take of law as courts will rectify, nor can it have retroactive

effect to overturn the settlement which was valid when made.

In Bradley v. Superior Court, (1957) 48 C.2d 509, the Court at

519 stated:

“Neither the court nor the legislature may impair the obliga-

tion of a valid contract (Cal. Const., Art. I, §$1, 16), and a

a, oe

court cannot lawfuily disregard the provisions of property

settlement agreements or deny to either party his rights there-

under.”

In Bodle v. Bodle, (1978) 76 Cal.App.3d 758, a case also in-

volving a marital settlement agreement, the Court at 766 stated:

“These ‘contractual’ ‘property’ rights of the Bodles may not be

impaired lest a constitutional nerve be touched.”

Such retroactivity of the Brown decision, when there has been

a final disposition of property in a contract between the parties

is violative of the constitutional right against impairment ot ob-

ligations of contract. Although raised by petitioner in the peti-

tion for rehearing, the subsequent denial by the Fourth District

Court of Appeals did not address this constitutional issue. The

District Court in its decision stated:

“Since neither of the parties knew the unvested pension was a

community property asset when stipulating to the property

agreement, the contract was made \.hile each was laboring

under a mutual mistake of fact or law. This warrants rescis-

sion.

The federal constitutional right against impairment of con-

tracts is enacted in the United States Constitution, Article I, $10,

Clause 1. The historical importance of the impairment of con-

tracts is illustrated by the following cases:

In the case of Douglass v. Pike County, Missouri, (1880) 101

U.S. 677, the Supreme Court at 687 stated:

“The true rule is to give a change of judicial construction in

respect to a statute the same effect in its operation on contracts

and existing contract rights that would be given to a legislative

amendment; that is to say, make it prospective, but not retro-

active. After a statute has been settled by judicial construction,

—f—

the construction becomes, so far as contract rights acquired

under it are concerned, as much a part of the statute as the text

itself, and a change of decision is, to all intents and purposes,

the same in its effect on contracts as an amendment of the law

by means of a legislative enactment.”

In Columbia Railway Gas & Electric Company v. State of South

Carolina, (1923) 261 U.S. 236, the Supreme Court at 245 stated:

“But, although the state court may have construed the contract

and placed its decision distinctly upon its own construction, if

it appear, upon examination, that in real substance and effect,

force has been given to the statute complained of our jurisdic-

tion attaches.”

In U.S. ex rel. Vermont Inv. Co. v. City of Cocoa, (1936), 17

F.Supp. 59, the district court in regard to U.S. Constitution,

Article I, § 10, at 60 stated:

..., but I am of the opinion that the spirit of such constitu-

tional prohibition should govern the courts as well as legisla-

tive bodies, and that the court should never put its seal of

judicial approval on any attempt to impair the obligation of

contracts.”

In Brown-Crummer Inv. Co. v. Town of North Miami, (1935)

11 F.Supp. 73, the district court at 76 stated:

“A state judicial decision can no more impair the contract in

question than can a legislative act.”

In comparing the state and federal case law cited above, the

two state cases involved property settlement agreements between

spouses, whereas the federal cases involved land or public/com-

mercial bonds. In the two cited state cases no state statutes were

involved, whereas the federal cases involved state court decisions

—Q—-

of state statutes or legislation. Neither the cited state nor federal

cases involved federal statutes.

Based on these state and federal cases, in the instant

case the state constitutional issue of impairment of contract

is more direct and explicit than the federal issue of impair-

ment of contract. As in the instant case, Bradley and Bodle in-

volved state court decisions regarding the state constitutional

issue of impairment of contracts (that is, impairment of property

settlement agreements) although no state statutes were at issue.

Conversely, in the cited federal cases state court decisions of state

statutes which impaired contracts were at issue. Nevertheless,

the issue of impairment in the instant case at either the state or

federal level cannot and does 1iot arise without the state char-

acterization of military retirement benefits as community prop-

erty. In essence, the federal question of impairment of contract

is not directly at issue (although as in Vermont Inv. Co. the

spirit of federal impairment is in issue), but the state character-

ization of these benefits as community property presents a direct

federal question. It is the characterization of these federal bene-

fits by the state as community property which constitutes the

very reason for this petition. It is petitioner's position that mili-

tary retirement benefits are the separate property of the employee

spouse, absent additional Congressional action or direction.

2. THE DECISION BELOW RAISES SIGNIFICANT AND

RECURRING PROBLEMS CONCERNING THE INTENT OF

CONGRESS THAT MILITARY RETIREMENT BENEFITS

REMAIN THE SEPARATE PROPERTY OF THE EMPLOYEE

SPOUSE.

2.1. Various California cases have held that federal military re-

tirement pay is community property: French v. French, (1941) 17

—=§0—

C.2d 775; In re Marriage of Karlin, (1972) 24 Cal.App.3d 25;

Bensing v. Bensing, (1972) 25 Cal.App.3d 889; In re Marriage of

Brown, (1972) 27 Cal.App.3d 188; Iv re Marriage of Fithian,

(1974) 10 C.3d 592.

2.2. In Hisquierdo v. Hisquierdo, (1979) No. 77-533, 39 CCH

S.Ct.Bull., p. 8860, the United States Supreme Court held that

retirement benefits provided by the Railroad Retirement Act of

1974 may not be divided under the community property law and

are payable only to the person who earned said benefits. Here,

the military retirement pay of petitioner is statutorily similar to

the retirement benefits provided by the Railroad Retirement Act.

In Hisquierdo it was held that ordering petitioner to pay respon-

dent an appropriate portion of his benefits, or its monetary

equivalent, would deprive petitioner of a portion of the benefit

Congress in 45 USC § 231(c) (3) indicated was designed for the

railroad employee alone. Similarly, in the instant case, petit-

ioner’s military retirement benefits have been historically and de-

liberately safeguarded and earmarked by Congress for the military

employee. In various legislative sessions Congress has carefully

avoided defining or characterizing military retirement benefits

as a community asset divisible upon divorce. Congress has ad-

hered to this historical policy as follows:

(1) 10 USC § 1440 prescribes that no annuity payable under

this subchapter (/.e., Retired Serviceman’s Family Protection Plan)

is assignable or subject to execution, levy, attachment, garnish-

ment, or other legal process. The legislative history and Con-

gressional intent of the Armed Forces Retirement Annuities is

presented in S.Rep. No. 1480, 90th Cong. 2d Sess. (.968), 1968

U.S. Code Cong. and Adm. News at 3294 (Public Law 90-485).

Here, Congress at 3300 said: “Historically, military retired pay

aout June

has been a personal entitlement payable to the retired member

himself as long as he lives.”

(2) This Congressional intent of S.Rep. No. 1480 was

further demonstrated in S.Rep. No. 92-1089, 92nd Cong. 2d

Sess. (1972), 1972 U.S. Code Cong. and Adm. News at 3289

(Public Law 92-425). Here Congress eliminated the attach-

ment provision of up to 50 percent of the retired pay of a mem-

ber of the uniformed services to comply with the order of a

court in favor of a spouse, former spouse, or dependent chil-

dren. (This S.Rep. specifically did not cover ex-wives in a sys-

tem of survivor benefits.) Congress thought that it would be

unfair to make an exception of retired military pay by providing

that it alone, among federal pays and annuities, would be sub-

ject to attachment.

(3) Further, S.Rep. No. 95-1084, 95th Cong. 2d Sess.

(1978), 1978 U.S. Code Cong. and Adm. News at 2785 (Public

Law 95-366) authorized the Civil Service Commission to comply

with the terms of a court decree, order, or property settlement

in connection with the divorce, annulment, or legal separation

of a federal employee, who is under the Civil Service Retirement

System. However, no similar attachment of retired military pay

was authorized.

In Hisquierdo the reliance on 45 USC § 231(m) is substan-

tially similar and equivalent to the statutory language of 10 USC

§ 1440 in that § 1440 is a most important part in the statutory

military retirement scheme. The very language and purpose of

§ 1440 is to ensure that the benefits actually reach the bene-

ficiary and thus pre-empts all state law that stands in its way.

Here, the community property interest that respondent seeks

ones Pane

conflicts with § 1440, promises to diminish that portion of the

retirement benefit Congress has said should go to the retired

military employee, and thus causes the kind of diminution to

federal interests that the Supremacy Clause pre-empts. It is not.

for state courts to impair a benefit that Congress has specifically

earmarked for the retiree.

2.3. 42 USC §$659(a) effective January 1, 1975, provided that

moneys payable by the United States to any individual, includ-

ing members of the armed services, shall be subject to legal

process against such individual of his legal obligations to provide

child support or make alimony payments. In 1975, Congress

made an exception in all federal benefit plans whereby Congress

amended the Social Security Act by adding a new provision,

$ 459, to the effect that notwithstanding any contrary law, fed-

eral benefits may be reached to satisfy a legal obligation for

child support or alimony. 88 Stat. 2357, 42 USC § 659. In 1977,

Congress added to the Social Security Act a definitional statute,

§ 462(c), which relates to § 459 and limits “alimony” to its

traditional common-law meaning of spousal support. That

statute states specifically that “alimony”

“. . . does not include any payment or transfer of property or

its value by an individual to his spouse or former spouse in

compliance with any community property settlement, equitable

distribution of property, or other division of property between

spouses or former spouses.” Public Law 95-30, Tit. V, § 501

(d), 91 Stat. 160.

The choice of Congress to exclude a “property” definition

within the “alimony” definition was deliberate. Congress has

spoken with clarity and distinction, and the statutory language

protects the choice to exclude “property” from the definition

within “alimony.” This definitional section shields the distribu-

ow] ome

tion of military retirement benefits from state decisions that

otherwise reverse the flow of retirement payments Congress has

historically intended for the military employee.

The 1977 amendments to the Social Security Act by amending

the existing § 459 and adding the new definitional statute $ 462

(c), expressly override § 1440, and even facilitate attachment

and garnishment for claims based on spousal support, but de-

liberately decline to do so for community property claims. As

Congress has specifically refrained from defining military retire-

ment benefits as ‘‘property,’’ any such division by the states in a

dissolution of marriage creates property rights to these benefits

that do not exist under federal law, and thus conflicts with fed-

eral law.

In support of this separate property argument petitioner offers

the decision in E/lis v. Ellis, (1976) 552 P.2d 506, where the

Supreme Court of Colorado, en banc, held that the fact that

military retirement pay is subject to garnishment does not make

it “property” subject to division in a dissolution of marriage pro-

ceeding. As authority the Colorado Court cited the same Social

Security Act, § 459, and 42 USCA § 659, which is similarly cited

in the instant petition.

2.4. It is petitioner's contention that the Congressional intent

to disregard the community characterization of military retire-

ment benefits and characterize such benefits as separate property

is primarily based on the previous considerations. However,

other considerations indicating a Congressional disregard for a

community property characterization are as follows:

(1) Spouse Ignored. The federal military retirement

statutes (Title 10 USC Chapter 73: Annuities Based on Retainer

a oe

Pay; Survivor Benefit Plans) ignore community property. The

statutes contain no words such as “child,” “wife” or ‘‘adminis-

trator” indicating a family relationship. The statutes provide

for the conditions of retirement, the mode of retirement, and the

methods for calculating retired pay, however, they do not refer

to, let alone provide for the spouse of the retiree.

(2) Right of Testamentary Disposition. In settling the

accounts of pay of a deceased member of the armed services, a

military person, before death, may designate whomever he de-

sires as his beneficiary, (10 USC § 2771). This right gives the

serviceman a power of testamentary disposition similar to that

under the general laws of most states. This right cannot be made

illusory by allowing recovery of said pay by a person other than

the designated beneficiary. If such pay were community prop-

erty, the serviceman could not summarily deprive a spouse, or

ex-spouse, of the interest in such pay. But since it is his personal

entitlement, he can.

(3) Spousal Provisions. The Retired Serviceman’s Fam-

ily Protection Plan, (Title 10 USC Chapter 73, Subchapter I:

Retired Serviceman’s Family Protection Plan, $ 1434-1435) pro-

vides for an annuity to a “widow” (that is, a woman who sur-

vives as his wife, not his surviving ex-wife) of the serviceman

as a ‘qualified beneficiary,” but not to a surviving ex-wife, and

provides for the cessation of reduction from the retired pay if

and when a ‘qualified beneficiary” ceases to be qualified because

of a divorce.

(4) Ex-Wives vs. Widows. In adopting the Survivor

Benefit Plan (Title 10 USC Chapver 73, Subchapter II: Survivor

—__ =

Benefit Plan), Congress was primarily concerned in protecting

the serviceman’s widow. Under the Plan the annuity to the

serviceman’s widow is terminated or suspended by her remarriage

(10 USC § 1450). But if retired pay is community property, the

ex-wife, whom Congress deliberately neglected, is treated better

than the widow, whom Congress for certain purposes expressly

protected. Such a result is not logical and it is therefore more

probable that Congress did not intend that ex-wives were to have

a community property right in the retired pay.

Petitioner in this writ argues the same conclusion reached by

Judge B. Abbott Goldberg in his January-February 1973 article,

Vol. 48, No. 1, California State Bar Journal 12, “Is Armed Serv-

ices Retirement Pay Really Community Property ?"’, which, at page

91, states:

“Nothing has been found to indicate that Congress has ever

considered treating retired military pay as community property

and thereby imposing an obligation on the retiree unlimited by

his ex-wife’s need for support either in duration or amount.

Congress’ recent action confirms the inferences to be drawn

from the earlier actions and statements, that retired pay is in-

deed a personal entitlement of the retiree, which accrues only

to him, and in which his wife has no rights except as Congress

gives them to her.”

Petitioner in this writ contends that since Congress has given

no property interest to the non-employee spouse in the employee

spouse's military retirement benefits, that she in fact has no prop-

erty rights in these benefits.

—16—

CONCLUSION

For these reasons, a writ of certiorari should issue to review

the judgment and opinion of the Court of Appeals of the State

of California, Fourth Appellate District, and the subsequent de-

nial of petiticn for hearing by the Supreme Court of the State of

California.

Respectfully submitted,

Norvin L. GRAUF

110 West C St., Suite 1405

San Diego, California 92101

Counsel for Petitioner

een eae

APPENDIX A

BRYAN AND JOHNS

Attorneys at Law

652 “H” Street

Chula Vista, California

Telephone: 420-8422

Attorneys for Respondent

ENTERED October 28, 1976

Judgment Book 1068, Pg. 130

Filed North County Branch, October 27, 1976

Robert D. Zumwalt

Clerk

IN THE SUPERIOR COURT OF THE STATE OF

CALIFORNIA IN AND FOR THE COUNTY OF

SAN DIEGO

In re the Marriage of:

QUINTEN T. STARREN, Petitioner

and

HILDA I. STARREN, Respondent

No. D 56045

SUPPLEMENTARY INTERLOCUTORY JUDGMENT

OF DISSOLUTION OF MARRIAGE

This matter came on regularly to be heard in Department 16

of the above entitled Court, the Honorable EDWARD T.

BUTLER, Judge Presiding on September 2, 1976 and again on

September 21, September 30 and October 14, 1976. Hearings

on September 30, 1976 and October 14, 1976 were in Depart-

ment C, North County Branch.

Appearances were as follows:

September 3, 1976: Petitioner not present but appearing by

and through his attorney, NORVIN GRAUF. Respondent pres-

ent and appearing in person and by and through her attorneys,

ARTHUR J. JOHNS and JOHN J. BRYAN.

September 21, 1976: Petitioner present and with his attorney,

NORVIN GRAUF. Respondent present and by and through her

attorneys ARTHUR J. JOHNS and JOHN J. BRYAN.

September 30, 1976: Petitioner not present but appearing by

and through his attorney, NORVIN GRAUF. Respondent pres-

ent and by and through her attorneys ARTHUR J. JOHNS and

JOHN J. BRYAN.

October 14, 1976: Petitioner not present but appearing by and

through his attorney, NORVIN GRAUF. Respondent present

and by and through her attorney ARTHUR J. JOHNS.

Upon a review of the entire file of this case, the opinion of

the Court of Appeal, a review of Appellant's opening brief, Re-

spondent's opening brief and Appellant's reply brief as presented

by the parties to the Court of Appeal (the review of the briefs

by the Court being stipulated and agreed to by the parties here-

to) the testimony presented on the issues to this Court, and for

good cause appearing therefor, the Court does hereby make the

following findings of fact and conclusions of law:

—

1. The marriage of the parties has previously been dissolved

by Interlocutory Judgment entered October 29, 1973 and Final

Judgment entered January 4, 1974. The issues before this Court

now are only the division of community property, spousal sup-

port and attorneys fees.

2. The original Petition filed by Petitioner for Dissolution of

his marriage does not contain as a community asset subject to

division by the Court the Navy Retirement benefits of Petitioner.

Further, the Response initially filed by Respondent similarly does

not contain the Navy retirement benefit of Petitioner as a com-

munity asset subject to division by the Court.

3. The stipulation entered into by the parties and filed herein

on January 6, 1972 is ambiguous in regard to paragraph 4 in that

Petitioner's Navy retirement was not contemplated by the parties

as a community asset, said retirement is not incorporated in para-

graph 4, and paragraph 4 does not award to Petitioner his Navy

retirement as his sole and separate property.

4. Inasmuch as paragraph 4 of said stipulation fails because

it is ambiguous the remainder of the stipulation cannot, in order

to achieve an equitable result, be enforced as against either party.

5. Said Stipulation in its entirety must be disregarded because

Petitioner believed the Stipulation assigned to him the Navy re-

tizement and he would not have contracted with respect to spousal

support as he did had he not so believed.

6. Petitioner served in the U. S. Navy and retired after 30

years (360 months) of Naval service on December 1, 1972.

From the date of marriage until the date of separation of the

parties, the marital status was for a duration of 14 years one

month (169 months) during all of which period the Petitioner

— vo

was on active duty in the U. S. Navy. The community property

interest in Petitioner's Navy retirement is, therefore, 46.94%, to

one-half of which Respondent is entitled as her sole and separate

property, namely, 23.47% of the gross monthly retirement bene-

fit received by Petitioner.

7. Respondent's entitlement to 23.47% of Petitioner's gross

monthly retirement accrues on and after January 1, 1973 and Re-

spondent is entitled to this percentage from that date. As of

October 1, 1976, the amount due to Respondent is 46 (months)

times 23.47% of the gross amount received by Petitioner.

8. In order to determine the exact monetary amount set forth

above, Petitioner's attorney must furnish Respondent's attorney

with appropriate documentation showing Petitioner's gross

monthly retirement receipts from on and after January 1, 1973.

9. Upon the determination of the monetary amount due and

owing to Respondent, a judgment shall be entered in favor of

Respondent in that amount.

10. In order to insure compliance by the parties to the orders

made herein, the court shall retain jurisdiction in the matter of

spousal support and the Navy retirement and shall order an ap-

propriate assignment of wages for collection thereof.

11. The parties have previously disposed of all other com-

munity assets in this case.

12. Respondent’s attorney is entitled to fees as and for the

additional services performed in this matter, and in addition to

amounts previously paid.

Accordingly, and for good cause appearing therefor, the Court,

does hereby: ORDER, ADJUDGE AND DECREE:

tinihisie

1. The marriage of the parties has previously been dissolved.

2. The stipulation of the parties, filed herein on January 6,

1972, is invalid and unenforceable and the terms of said stipula-

tion are unfair and inequitable as against Respondent and it is,

therefore, dissapproved.

3. Petitioner is awarded as his sole and separate property

76.53% of his gross monthly Navy retirement from on and after

January 1, 1973.

4. Respondent is awarded as her sole and separate property

23.47% of Petitioner's gross monthly Navy retirement from on

and after January 1, 1973.

5. Petitioner's attorney shall deliver to Respondent's attorney

on or before December 1, 1976 such documentation regarding the

monetary amounts received monthly by Petitioner from on and

after January 1, 1973, from the U. S. Navy as his gross retirement

to determine arrearages due to Respondent.

6. A judgment in favor of Respondent in the amount due and

owing to Respondent as her share of the Navy retirement shall

be entered against Petitioner as a Supplemental Judgment herein.

7. Petitioner is ordered to pay forthwith 23.47% of his gross

monthly Navy retirement to Respondent and is further ordered

to execute an assignment, as an assignment of wages, in favor of

Respondent of this percentage.

8. The Court retains jurisdiction regarding performance of

the orders set forth in paragraphs 5, 6, and 7, above.

9. Petitioner shall pay to Respondent, as and for her spousal

support the sum of one ($1.00) Dollar per year until further order

of the court.

won ae

10. The other community assets, as set forth in the Petition

and Response, have been divided by the parties and each party

shall retain, as their respective sole and separate property, those

assets in their possession.

11. Petitioner shall pay to Respondent's attorney, as and for

additional attorney's fees, the sum of $750.00 forthwith.

DATED: October 27, 1976.

JUDGE OF THE SUPERIOR COURT

EDWARD T. BUTLER

— )

APPENDIX B

COURT OF APPEAL—FOURTH DIST.

FILED October 30, 1978

Robert L. Ford, Clerk

Gale Ondler, Deputy Clerk

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN .THE COURT OF APPEAL,

FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re: MARRIAGE OF STARREN

QUINTEN T. STARREN, Appellant,

v.

HILDA I. STARREN, Respondent.

4 Civ. No. 16339

(Superior Court No. D-56045)

APPEALS from orders and a judgment of the Superior Court

of San Diego County. Edward T. Butler, Pau! Eugene Overton

and Wesley B. Buttermore, Jr., Judges. Affirmed in part; vacated

in part.

=

Quinten T. Starren appeals the judgment dividing his military

retirement pay and the orders awarding his formed wife, Hilda,

temporary spousal support of $250 per month during the appeal

and allowing assignment of his wages to fulfill the temporary

support order.

Cn January 6, 1972 the Starrens filed a stipulated property

settlement which included the provision:

“4, That Petitioner [Quinten} be awarded the life insurance

retirement and the commercial account.

Four years later Quinten’s unvested military pension was declared

to be community property (Jn re Marriage of Brown, 15 Cal. 3d

838.) Hilda claims this asset was omitted from the property set-

tlement and should now be divided between them; Quinten argues

his pension was awarded to him under clause 4 of the stipulation.

The trial court properly found the wording “life insurance retire-

ment” ambiguous, it being unclear what kind of benefit this re-

ferred to, and admitted extrinsic evidence. Where, as here, this

evidence is conflicting the appellate court reviews the record for

substantial evidence to support the trial court's decision. (6 Wit-

kin, California Procedure, Appeal, §258.) The trial court found

Quinten’s retirement pay had not been included in the agreement

and divided it equally between the parties (Civ. Code §4800).'

Quinten testified he did not list his Navy retirement on the peti-

tion for dissolution because it was not yet an asset. At the time

the support agreement was drawn up, unvested retirement bene-

fits were not considered to be property and it is reasonable to

FOOTNOTE 1: Not really equally since only 46.94% of the

pension accrued during the marriage so Hilda's

ownership interest is 23.47%.

¢..

—

infer they would not be included in a property settlement. Hilda's

counsel said he never discussed the Navy pension. This is sub-

stantial evidence to support the trial court's conclusion the parties

did not include the pension in the settlement agreement.

Since neither of the parties knew the unvested pension was a

community property asset when stipulating to the property agree-

ment, the contract was made while each was laboring under a

mutual mistake of fact or law. This warrants rescission. Hilda

owns one-half of the retirement benefits accrued during marriage

and is entitled to 23.47% of the monthly payments from January

1, 1973 on. In equity, any support payments made after that

date under the separation agreement and the temporary support

order should be offset against the retirement benefits due her.

Future payments can be made directly to Hilda from the pension

fund (Johns v. Retirement Fund Trust of the Plumbing, Heating

& Piping Industry of Southern California. ....... Cal. App. 3d .....).

In addition, we award spousal support of $1 a year (see In re

Marriage of Morrison, 20 Cal. 3d 437).

In view of this it is unnecessary to consider the propriety of the

support order and the assignment of wages.

The judgment is affirmed; the orders are vacated.

Brown

PJ.

WE CONCUR:

Cologne

5.

Staniforth

J.

fii

COURT OF APPEAL—STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION ONE

FILED November 27, 1978

Robert L. Ford, Clerk

R. J. Smith

Deputy Clerk

IN RE: MARRIAGE OF QUINTEN T.

and HILDA I. STARREN.

4 Civil No. 16339

SUPERIOR COURT NO. D 56045

BY THE COURT:

The petition for rehearing is denied.

Copies to: Norvin L. Grauf, Esq.-SD

Bryan & Johns-Chula Vista

Superior Court-SD

Brown

Presiding Justice

—All—

APPENDIX C

PORTION OF APPELLANT'S OPENING BRIEF TO THE

DISTRICT COURT OF APPEALS

The only relevant case decided prior to the date of their prop-

erty settlement agreement was ['rench v. French (1941) 17 Cal.2d

775. In that case the court held that retired pay was community

property, but the same was not divisible before the serviceman

was eligible to retire because not yet ‘vested’ and still an ‘‘ex-

pectancy.”” Appellant was in the U. S. Navy and had been in that

service for 28 plus years prior to the time the action was filed,

and was still in that service when the action was filed and the

agreement was negotiated. (R.T. Vol. II 16 lines 8-16; 17 lines

1-16.) Therefore, unlike the French case, supra, the parties

negotiated a retirement benefit already vested as to a 20-year

retirement, (R.T. Vol. II 14 lines 1-5; 17 lines 19-21) and an

expectancy of a 30-year retirement (R.T. Vol. II 21 lines 4-8).

Appellant, after retirement on December 1, 1972, drew retirement

benefits. (R.T. Vol. II 16 lines 15 and 16; 14 lines 14-21; 15 lines

16-18.) Court decisions holding that military retirement pay is

community property should not be given retroactive effect such

that property settlement agreements fairly negotiated prior to the

decisions could be disapproved. Such retroactive effect was given

by the Trial Court when the property settlement agreement was

disapproved and set aside insofar as the same pertained to retire-

ment pay. Such retroactive effect is itself unfair.

In Chicot County Drainage Dist. v. Baxter State Bank (1939)

308 U.S. 371, the United States Supreme Court stated as follows:

—Al2—

“The courts below have proceeded on the theory that the

Act of Congress, having been found to be unconstitutional, was

not a law; that it was inoperative, conferring no rights and im-

posing no duties, and hence affording no basis for the chal-

lenged decree. Norton v. Shelby County, 118 U.S. 425, 442;

Chicago 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is

quite clear, however, that such broad statements as to the

effect of a determination of unconstitutionality must be taken

with qualifications. The actual existence of a statute, prior to

such determination, is an operative fact and may have conse-

quences which cannot justly be ignored. The past cannot always

be erased by a new judicial declaration. The effect of the sub-

sequent ruling as to invalidity may have to be considered in

various aspects—with respect to particular relations, individual

and corporate, and | meseney conduct, private and official.

Questions of rights claimed to have become vested, of status,

of prior determinations deemed to have j:nality and acted upon

accordingly, of public policy in the light of the nature both of

the statute and of its previous application, demand examination.

These questions are among the most difficult of those which

have engaged the attention of courts, state and federal, and it

is manifest from numerous decisions that an all-inclusive state-

ment of a principle of absolute retroactive invalidity cannot be

justified.” (Emphasis mine.)

It has been held that parties who have entered into contracts

relying upon a previous decision of the State Supreme Court are

not relieved of their obligations because of a subsequent decision

by the same court in another case, overruling the former one and

declaring a different rule on the same subject. Allen v. Allen

(1892) 95 C. 184.

As stated in 13 Cal.Jur.3d §295 at page 546:

“A Court cannot legislate, and any attempt on its part to do

so is an individual infringement upon the legislative function.

This limitation applies with peculiar force where by so doing

the action of the court operates to deprive citizens of their

vested rights, or impairs the obligation of contracts. Beckman

v. Skaggs, 59 C. 541; Lux v. Haggin, 69 C. 255.”

—A13—

From the foregoing it is apparent that the decisions of this state

hold that in the absence of fraud or compulsion the trial court

must approve property settlement agreements as the same pertain

to division of property. Further, if the stipulation awarded the

Navy retirement to appellant, it is apparent that, even if these

cases were not controlling, the trial court's failure to approve the

property settlement agreement because of court decisions on mili-

tary retirernent pay decided subsequent to the contract is, in ef-

fect, an abridgement of freedom of contract and an attempt to

impair the obligation of contracts. If the courts consistently de-

termined fairness of a contract based on every court decision

subsequently rendered, no contract negotiated in this state is or

will be safe from the claim of unfairness.

ay

APPENDIX D

PORTION OF APPELLANT'S PETITION FOR HEARING

TO THE CALIFORNIA SUPREME COURT

IN THE SUPREME COURT

OF THE

STATE OF CALIFORNIA

In re: Marriage of QUINTEN T.

and HILDA I. STARREN

QUINTEN T. STARREN, Petitioner and Appellant,

vs.

HILDA I. STARREN, Respondent and Respondent.

PETITION FOR HEARING

To the Honorable ROSE BYRD, Chief Justice, and the Honor-

able Associate Justices of the Supreme Court of the State of Cali-

fornia:

Appellant hereby petitions for a hearing to consider the de-

cision of the Court of Appeals of the State of California, Fourth

Appellate District, filed in this action on October 30, 1978, affirm-

ing the judgment of the Trial Court. A copy of the decision of

the Court of Appeals is set forth herein as Appendix Pas

—A15—

Hearing by this Court is necessary on the ground that an im-

portant question of law is at issue herein which requires settle-

ment by this Court. In support thereof, the following points are

submitted:

POINT ONE

Constitutional rights (both federal and state) are violated when

the Court decision of In re Marriage of Brown, (1976) 15 Cal.

3d 838, is given retrospective effect such that a property settle-

ment agreement fairly negotiated 5 years prior to that decision is

deemed (by court decree) rescinded because of a ‘mutual mistake

of fact or law.”

CLERK’S OFFICE, SUPREME COURT

4250 State Building

San Francisco, California 94102

January 17, 1979

I have this day filed O17 ep ...o...occcoreneve

HEARING DENIED

In re: 4 Civ. No. 16339

Marriage of Starren

Respectfully,

G. E. BISHEL

Clerk

Recd. 1-22-79

—A16— —A17—

APPENDIX E To correct a mistake of fact, which mistake both the Trial and

Appellate Courts made in rendering their respective decisions.

IN THE COURT OF APPEAL, Said mistake of fact was and is that military retirement benefits

FOURTH APPELLATE DISTRICT afforded by federal statutes are community property, whereas in

truth and fact said military retirement benefits are the separate

wibiinacesishas 0 property of the military person who earned them.

STATE OF CALIFORNIA This motion is made on the declaration of NORVIN L.

GRAUF, and the memorandum of points and authorities filed

and d with this motion, and on the record on appeal.

No. 4 Civ 16339 and served wi i ppe

Dated: February 2, 1979.

MOTION TO RECALL REMITTITUR

Norvin L. Grauf, Attorney for

COURT OF APPEAL—FOURTH DIST.

Appellant

FILED February 2, 1979

Robert L. Ford, Clerk

Inre: Marriage of QUINTEN T.

and HILDA I. STARREN

QUINTIN T. STARREN, Appellant,

vs.

HILDA I. STARREN, Respondent.

To respondent, HILDA I. STARREN, and ARTHUR J. JOHNS,

her attorney of record in this action.

PLEASE TAKE NOTICE that appellant QUINTEN T.

STARREN, hereby moves the above-entitled Court to recall the

remittitur issued in this case on the following ground:

—A18—

IN THE COURT OF APPEAL,

FOURTH APPELLATE DISTRICT

DIVISION ONE .

STATE OF CALIFORNIA

No. 4 CIV 16339

DECLARATION IN SUPPORT OF MOTION

TO RECALL REMITTITUR

In re: Marriage of QUINTEN T.

and HILDA I. STARREN

QUINTEN T. STARREN, Appellant,

vs.

HILDA I. STARREN, Respondent.

I, NORVIN L. GRAUF, say that:

1. I am the attorney for the appellant, and I make this dec-

laration in support of the motion for an order recalling the re-

mittitur.

2. On January 17, 1979, the California Supreme Court denied

appellant's petition for hearing to consider the decision of this

Court filed in this action on October 30, 1978. A remittitur

issuing from this Court was received by the Superior Court of San

Diego County and entered on January 22, 1979, in Book 1199,

Page 274. On the same date, January 22, 1979, the United States

Supreme Court decided Jess H. Hisquierdo, Petitioner, v. Angela

Hisquierdo, No. 77-533, 39 CCH S.Ct.Bull. P. B860, which de-

cision held that retirement benefits provided by The Railroad Re-

—A19—

tirement Act of 1974 may not be divided under the community

property law and are payable only to the person who earned said

benefits. The military retirement pay of appellant in analogous

to the retirement benefits provided by the Railroad Retirement

Act of 1974, and based upon the reasoning of said Hisquierdo

case may not be divided under the community property law, and

is payable only to the person who earned said pay. In this case,

. the appellant is the person who earned said pay. On the dates

when the trial Court and this Court rendered their respective

decisions, the United States Supreme Court had not determined

the Hisguierdo case. The rationale of both the Trial Court and

this Court in rendering their respective decisions was that a mis-

take of fact or law had been made by the appellant and respon-

dent when entering into and executing their property settlement

agreement in this case, that mistake of fact and law being that

military retirement pay of appellant was the separate property

of the appellant. The Hzsguierdo case indicates by strong anal-

ogy, that there was no mistake of fact or law. Since a remittitur

can be recalled “to correct a mistake of fact’ and/or when an

order was ‘“improvidently made,” this Court has the power to

review “judicial” matters. A recall of the remittitur and a re-

view of this case in light of Hisguierdo case would serve the ends

of justice as well as economize the time and expense to appellant

by requiring its review by the United States Supreme Court.

Executed on February 2, 1979, at Sau Diego, California.

I declare under penalty of perjury that the above is true and

correct.

Norvin L. Grauf, Attorney for

Appellant

—A20—

IN THE COURT OF APPEAL,

FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

No. 4 CIV 16339

POINTS AND AUTHORITIES IN SUPPORT OF

MOTION TO RECALL REMITTITUR

In re: Marriage of QUINTEN T.

and HILDA I. STARREN

QUINTEN T. STARREN, Appellant,

vs.

HILDA I. STARREN, Respondent.

RECALL OF REMITTITUR OPERATES AS A

PETITION FOR REHEARING ON SPECIAL

GROUNDS WITHOUT TIME LIMITATIONS

If a remittitur issues by mistake, the Appellate Court has an

inherent power to recall it and thereby reassert its jurisdiction

over the cause. (See 6 Witkin, California Procedure, Appeal,

$521, and the cases cited therein. )

—A21—

MISTAKE OF FACT OR “IMPROVIDENT ORDER”

ARE GROUNDS FOR RECALL OF REMITTITUR

If an Appellant Court determines that a judgment was ren-

dered unintentionally and inadvertently by reason of the Court's

own mistake of fact, the remittitur may be recalled. (See 6 Wit-

kin, California Procedure, Appeal, §524, and the cases cited

therein. )

THE INTENT OF CONGRESS IS THAT RAILROAD

RETIREMENT BENEFITS REMAIN THE SEPARATE

PROPERTY OF THE EMPLOYEE

In Hisquierdo v. Hisguierdo (1979) 39 CCH St.Ct.Bull. p.

B860, the United States Supreme Court held benefits payable

under the Railroad Retirement Act may not be divided under the

community property law of the State of California. The judg-

ment of the California Supreme Court In re Marriage of Hisquier-

do (1977) 19 C 3d 613, was reversed and the case was remanded

for further proceeding not inconsistent with the United States

Supreme Court opinion. The United States Supreme Court held

that ordering the employee to pay his wife an appropriate portion

of his retirement benefits under the Act, or its monetary equivalent,

would deprive the employee of the benefit Congress intended for

the employee alone. The Court said 45 U.S.C. §231 was designed

to protect the benefits from legal process “notwithstanding any

other law . . . of any State,” and ensured that the benefits would

reach the beneficiary. The Court held section 231m goes far

beyond garnishment and makes no exception for a spouse. The

Court further held that an offsetting award to the wife for the

—A22—

expected value of the employee's statutory benefits would like-

wise defeat the purpose of barring the anticipation of payments

under $231m of the Act.

The California Supreme Court in its opinion on the Hisquierdo

case at page 616 recognized that military annuities had similar pro-

visions to section 231m, that is, 45 U.S.C. §231m was similar to

10 U.S.C. $1440. The California Court indicated that the plain-

tiff wife was not a creditor, but an owner. However, the United

States Supreme Court does not agree.

A review of the federal law dealing with military retirements

indicates Congress has spoken more forcefully in regard to mili-

tary retirement {to the effect that retired pay is separate property}

than in the Railroad Retirement Act. An analysis of such federal

law is dealt with in an excellent article by Judge B. Abbott Gold.

berg entitled “Is Armed Services Retirement Pay Really Com-

munity Property?’ found in the January-February 1973 issue of

the California State Bar Journal, Volume 48,-No. 1, page 12.

Judge Goldberg finds Congressional intent to disregard com-

munity property and hold such pay as separate property in the

fcllowing: (1) federal statutes on retired pay contain no words

such as “child,” ‘wife’ or ‘administrator’ indicating family re-

lationship; (2) no part of the retirement pay (with the possible

exception of arrears in pay) passes to the family when a military

person dies; (3) the right of the serviceman to designate the

beneficiary of any unpaid or unreceived retired pay upon his death;

(4) the statutory right of the serviceman to waive all retired pay

to receive a pension from the Veterans’ Administration; (5) the

adoption of the Retired Serviceman’s Family Protection Plan

which provides for an annuity to a “widow” of the serviceman

as a “qualified beneficiary,” but not to a surviving ex-wife, and

for the cessation of reduction in the retired pay if and when a

“qualified beneficiary” ceases to be qualified because of divorce;

and (6) the adoption of the Survivor's Benefit Plan in which the

annuity elected to be given a serviceman’s widow is terminated

by her remarriage. Remarriage should not terminate the retired

pay, if such retired pay is, in fact, community property.

In 42 U.S.C. $659 the United States consented to garnishment

and similar proceedings for enforcement of child support and

alimony obligations. There is no such provision for enforcement

of rights in and to community property rights.

Respectfully submitted,

Norvin L. Grauf, Attorney

for Appellant

tl —A24—

COURT OF APPEAL—STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION ONE

FILED February 16, 1979

Robert L. Ford, Clerk

R. J. Smith, Deputy Clerk

4 Civil No. 16339

SUPERIOR COURT NO. D 56045

IN RE: MARRIAGE OF QUINTEN T.

and HILDA I. STARREN.

BY THE COURT:

Appellant’s motion to recall remittitur is denied.

Cologne

Acting Presiding Justice

Copies to: Norvin L. Grauf, Esq.-SD

Bryan & Johns-Chula Vista

Superior Court-SD