Jurisdictional Statement — Yateman v. Yateman

82-646 FILED

— 6-13-1982

NO.

ALEXANDER L. STEVAS,

IN THE SUPREME COURT OF THE UNETEDWSEAS

OCTOBER TERM, 1982

SIDNEY HERSH YATEMAN, APPELLANT

Ve

BARBARA LEE YATEMAN, APPELLEE

ON APPEAL FROM THE COURT OF APPEAL

OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION THREE

JURISDICTIONAL STATEMENT

SIDNEY H. YATEMAN

ATTORNEY AT LAW

1031 PARKWAY DRIVE

PEBBLE BEACH, CA 93953

TELEPHONE: (408)375-4221

IN PROPRIA PERSONA

OCTOBER 11, 1982

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No.

SIDNEY HERSH YATEMAN, Appellant

Ve

BARBARA LEE YATEMAN, Appellee

ON APPEAL FROM

THE COURT OF APPEAL OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION THREE

JURISDICTIONAL STATEMENT

Appellant Sidney Hersh Yateman

appeals from the rinal judgment of the

Court of Appeal of California, First

Appellate District, Division Three,

following the California Supreme Court's

denial of his petition for hearing.

I.

II.

111

QUESTIONS PRESENTED

Whether the Lower Court can assert

res judicata and consider it a "final

judgment" when the State Court

retains jurisdiction over a federal

benefit.

Whether the State Court judgment is

immune from collateral attack when,

as here, the State Court did not have

subject matter jurisdiction to divide

Appellant's Army retired pay because

of Federal pre-emption.

Whether the system of military

retirement benefits established by

Congress as upheld in McCarty v.

McCarty, (subsequently changed by

Congressional Legislation) is

retroactive to those cases pending

appeal prior to McCarty being granted

a hearing by this Honorable Court.

ii

TABLE OF CONTENTS

Questions Presented 11

Table of Contents q ꝓ.O 2.111

Table of Author ttles 1

OpInlons Be 1b0Wddümdi.. 1

Jurtsdie tion.. 1

Statutes and Constitut tone l Provisions

PEs 6066 06666 eee eee eee CON

Statement of the „„

The Questions are Substantial:

A. Anal it gg 6 609

B. Former Spouses Protection Act.. 14

C. Res Judicata Not Applicable.........15

D. Collateral Attack Permitted.........18

E. California Precedents Unpersuasive..29

F. No Voluntary Stipulation Given......38

Dee eee e eee eee

Certificate of Serv icke 45

Appendices:

A. Court of Appeal Opinion Below (49751)45

3. Trial Court Decrees BelooWWWs. 38

C. Court of Appeal Opinion Below (46564)67

D. California Supreme Court Minutes.....77

E. Notice of Appeal...csccccccscesseeseeld

F. Constitutional Provisions & Statutes.80

iii

TABLE OF AUTHORITIES

CASES CITED:

Adam v. Sanger

* * * ae tee eee ee eee

— — Mannex Corp. v. Rozands

>. > F. 9 00 0 000600000

Carter v. Carter

pp. 479 CAST Ad ee ee eee ee coeds

Chevron Oil Co. v. Huson

. . 0 0 % % % % 6 6% %%% 31, 32, 33

Commissioner of Internal Revenue .

unner

333 U.s. 591 CIDAS ccvoccvdveccceelSnsenat

Cromwell v. County of Sacramento

5 0 0 0 0 0 0 0 0 0 0 000% 000000049

Dahnke Walker Milli Co. vs.

Bondurant

257 U.s. 282 (9 ).. . 6 % 0 00 06e 0e ee eee

DiGenova v. State Board of Education

ee eee e eee eee ee ee ee

Durfee v. Duke

7. >. 1969). . . „ 6 %%%

Erspan v. Badgett

rehearing denied,

659 5. 2d 26 (5th Cir. 19881). 29, 31

Ex Parte Buckhanan

* . 8111 . H . + 23,29, 30, 31, 38

Federated Department Stores, Inc. X.

Moitie

73 Ue

„8. (198177. 19,20, 32

Free v. Bland

>. 0 CUSSED eee eee ee eee eee

1

Gibbons v. Ogden

eat. J.. eee ee

5 10,12, 1, 15

In Re Marriage of Fellers

a > pp. 1. 00000600009

In Re Marriage of Fithian

10 Cal. 3d 8925 cert. denied 419 U.S.

825 „

In Re Marriage of Jacanin

al. pp. eee eee ee eee.

In Re Marriage of Mahone

al. pp. erte ee ee ee ee

In Re Marriage of Milhan II

a >. pp. eee eee eee ee

In Re Marriage of Sheldon

a „ pp. 1.000011 29,31

32, 35, 36,37, 38

Jackson v. Desoto Parish School Board ‘

> F. sane eceeeeoen

Kalb v. Feuerstein

* „ 75 23,24, 25, 32, 36

857 v. Wise

* 049 (Sth Cir. BOGS wccccovccshs

Market St. Ry Co. v. R. R. Comm,

eee ee eee eee eee ee eee ee

McCarty v. McCart

53 U. 8 " 101 8. Ct. 2728,

Deere

Moch v. East Baton Rouge Parish School

Board

SUS F. 2d 594 (5th Cir. 1977) cert. den.

434 U.S. 859 CROTT) chane ceases dseceeuocele

5 0 % % %% %% % % % %%% %% %%% %%% % 077

—.— *. aie

>. pp. Teecoccceseoocccocoocooets

— v. Perini

* pp. 399 . ae

dgway v Wa

„. 1 81). 20, 21, 25, 30, 32, 35, 36

eri X. Slamberger

* Ppp. Fee

a v. Malouf

a 7 pp. d 88 Ah eee eee

Automobile Insurance

4 4) eee eee eee eee eee ee

8 & al Ins, Co. v. Pacific

oyers

* App. 2d 158 . . eee

STATUTES CITED:

37 U.S.C. § 701 ö 4 4 2517,33

Title X Uniformed Services Former Spouses'

Protection Act (Sep. 1982) ..2514

Cal. Civ. Code § 4800 „0 6 06 % 18,

Cal. Civ. Procedure Code § 73 3.67

vi

OPINIONS BELOW

The Court of Appeal issued its second

unreported opinion on May 12, 1982. (App.

A, infra.) The first unreported opinion

was jssued on November 29, 1979. (App. C,

infra.) The California Supreme Court

rendered no opinion when it denied

Appellant's Petition for hearing on July

22, 1982. (App. D, infra.)

JURISDICTION

The California Court of Appeal

entered its judgment on May 12, 1982. The

Supreme Court of California denied

Appellant's petition for hearing on July

22, 1982. A notice of appeal to this

Court was duly filed in the California

Court of Appeal on August 4, 1982.

This appeal is being docketed within

90 days of the California Supreme Court's

denial of Appellant's petition for

hearing.

Appellant has argued below that §

4800(a) of the California Civil Code, as

it purports to characterize federal

military retirement pay as community

property, was repugnant to federal

statutes and had been pre-empted by

federal statutes and therefore was invalid

under the United States Constitution. The

California courts upheld the statute's

validity.

This Court's jurisdiction is invoked

under 28 U.S.C. § 1257(2).

Dahnke Walker Milling Co. v. Bondurant,

257 U.S. 282 (1921); McCarty v. McCarty,

453 U. 8. [41981).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

This case involves the following

statutes:

37 U.S.C. § 701 (a)

California Civil Code § 4800(a)

Title X Uniformed Services Former

Spouses' Protection Act (Sep. 1982)

These statutes, along with Article VI,

clause 2 of the United States

Constitution, appear in Appendix F.

STATEMENT OF THE CASE

The parties were married on June 14,

1959. Appellant commenced active duty in

the U. S. Army on June 3, 1959. On March

13, 1977, Appellee filed for divorce in

the Monterey superior court. The parties

were divorced by interlocutory judgment

entered on November 29, 1978. The

superior court entered final judgment of

divorce on June 13, 1979. Appellant

retired from the army on June 1, 1982,

after twenty-three years of active duty.

Appellant made a motion to the Trial

Court in December, 1979, to set aside that

portion to interlocutory and final decrees

in which jurisdiction was retained over

military retirement benefits by

characterizing them as community property.

At the time, the Appellant was an Army

officer on active duty. The Appellant had

never agreed to divide his retirement

benefits and did not voluntarily or freely

stipulate to it at the time of

interlocutory decree, one year before his

rights vested. In his petition, the

Appellant stated he was a Florida

domiciliary. Although he was in

California by virtue of his military

orders, he had been and still remains a

Plorida domiciliary.

The Appellee claimed a portion of the

husband's right to retirement pay under

community property concepts established by

Section 4800 of the Civil Code although at

the time of her petition for dissolution

on March 13, 1978 she was a registered

voter in Florida and had signed her

California Income Tax Return in January,

1978 that she was a Florida domiciliary.

Appellant waived jurisdiction because of

his military duties.

Appellant claimed his future

military benefits as separate property and

refused to claim them as community

property on the initial financial

declaration on March 24, 1978 filed April

13, 1978 in the trial court. A copy was

not made part of the Clerk's Transcript in

the first appeal in Case #46564 but was

provided to the Court of Appeal, attached

to Appellant's petition for rehearing in

Case #49751. Appellant was required to

Sign a revised financial statement which

listed military benefits as community

property, over objection, because he was

told "it was the Law" and he would have to

do it. Even as Appellant signed the

revised financial declaration, he told

Appellant's previous attorney of record

that he was not in agreement with the law

and would not stipulate voluntarily to

such a law. In fact, he stated he wanted

to take the matter to the U. 8. Supreme

Court for resolution. When other matters

in Case #46564 were appealed (lst Appeal)

Appellant insisted on including the

military benefit issue also but attorney

said it could not be done because the law

required otherwise. Hence no appeal was

made on this issue at that time as noted

by Court of Appeal decision in Case #49751

(2nd Appeal).

After the decision In Re Marriage of

Milhan II (1979) 97 Cal. App. 3d 1,

Appellant became aware that it was not

illegal to claim separate property on

military entitlements. Appellant obtained

briefs from Commander Milhan and cequested

that Appellant's attorney again correct

the matter of stipulation. Attorney

decided to use California Code of Civil

Procedure Section 473 to submit the

material provided to him by Appellant.

Attorney had argued that since all

military entitlements would go to Appellee

if Appellant became deceased during the

period of interlocutory decree, that it

was the date of final decree which was the

critical date. The motion based on the

California Civil Procedure Section 473 was

timely filed within six (6) months of the

final decree. The Court of Appeal in Case

#49751 stated that the motion pursuant to

California Civil Procedure Section 473 was

not timely filed since it was submitted

more than six (6) months after the

interlocutory decree.

Ten (10) months after the filing of

the Appellant's Opening Brief, the United

States Supreme Court granted a hearing on

direct appeal in McCarty v. McCarty

Before the Court of Appeal,

Appellant argued that various Federal

enactments relating to army retirement pay

justified the conclusion that Federal law

had pre-empted California's community

property scheme insofar as an allocation

of army retirement pay to a non-employee

spouse was concerned.

In this regard, Appellant laid stress

on the significant developments in

applicable case law between the date of

the filing of Appellant's Reply Brief and

the date set for oral argument. Such

developments were documented in the

Supplemental Points and Authorities filed

on April 19, 1982.

The decision of the Court of Appeal

was endered on May 12, 1982. The full

text of the opinion is set forth in

Appendix A. In its decision, the Court

decided the issue of the merits against

the Appellant. As to the stipulation

issue, it held Appellant was subject to

res judicata. With respect to the Federal

pre-emption argument, the Court of Appeal

ignored any reference to it except to say

that McCarty does apply retroactively.

The court neglected to discuss the federal

issue of pre-emption. It never discussed

finality with regard to reservation of

jurisdiction over a federal property

right. It failed to respond to the

involuntary stipulation issue. Lastly, it

denied an application for permission to

file a motion to remand for an evidentiary

hearing on the voluntariness of the

Stipulation and it denied a petition for

rehearing.

The Appellant petitioned for a

hearing in the Supreme Court of

California, reiterating his previous

arguments and pointing out that the Court

of Appeal's decision in the case at bar

conflicted with McCarty v. McCarty, 453

J. 8s. 1981). on July 22, 1982,

hearing was denied in the California

Supreme Court.

THE QUESTIONS ARE SUBSTANTIAL

The questions raised warrant plenary

consideration for six reasons:

A. TECHNICALLY, NO FINAL JUDGMENT HAS

YET BEEN ENTERED IN THIS CASE.

"Pinality" in this sense is purely a

creature of U.S. Supreme Court rules and

practice does not embody any state law

concept pertinent here. See Market St.

Ry. Co. v. R. R. Comm., 324 U.S. 548, 551

(1945).

Here, the situation is compelling for

not applying a mere "rule of procedure“

(see Di Genova uv. State Board of

Education, 57 Cal. 2d 167, 179 (1962) to

evade a determination of this case on the

merits. In the intervening period since

the initial appeal the United States

Supreme Court has decided Hisquierdo and

subsequent to the second appeal, it

decided McCarty. Also, Congress has now

enacted federal statutes which, have

caused a marked change or clarification in

the supreme law of the land (Art. VI, CL.

2, U.S. Const.). To apply res judicata,

as did the court below, in such

circumstances would be as legally

inappropriate as it would be unjust and

therefore, it is in the interest of

expeditious and fair administration of

justice to review the issues presented in

light of McCarty and rather recent federal

statutory enactments. The ends of justice

require recognition of interests other

10

than those of mere "expediency."

In the case before this court,

Appellant made a motion in the trial court

not after appeal was granted to McCarty

but ten (10) months before an appeal was

granted to McCarty. (See In Re Marriage

of Sheldon, 124 Cal. App. 3d 371 (1981).

This timely action reenforces Appellant's

claim that continued enforcement of the

trial court stipulation would be unjust in

light of the U. S. Supreme Court decision

in McCarty.

Sheldon held, in part, that McCarty

should not be applied to cases not final

on appeal unless the military spouse

requested that the trial court "reserve

jurisdiction" on the character of the

property interest in the pension or timely

raised and briefed the Federal pre-emption

issue on appeal.

If the criterion for retroactive

application of McCarty is finality of the

prior judgment, then it should make no

11

difference whether a reservation of

jurisdiction was reserved by Appellant or

Fespondent, or, for that matter, what

issue is specified in the order of

reservation. The emergent fact is that

the judgment is not final. Something

remains to be done. Tt would be

inequitable to conclude that the judgment

Is final as to all other matters. Orten

the terms of a judgment are so

interdependent that amendment or

Substitution of one term, will necessarily

require review of the others. Tf the

judgment is not final for all purposes, it

{is still pending and by its terms, McCarty

is applicable to the judgment in toto.

The Hisquierdo case in 1979 told

California it could no longer divide

Railroad Retirement Act benefits as

community property. The implication was

clear that California might not have the

power to divide military retired pay as

community property.

12

In the case before this court it

should be noted that the Appellant was

never a resident of California, was on

active duty in the military service, and

subject to California jurisdiction only by

virtue of his military assignment within

the state. At the time of the

interlocutory decree on November 15, 1978

Appellant's military retirement benefits

had not even vested (vested June 3, 1979).

Appellant completed active duty military

service on June 1, 1982. Even as of this

date no division of military benefits has

been made. The state court has merely

retained jurisdiction which, in light of

the McCarty case must be void on its face.

Furthermore, Appellant requested that

this court in reviewing this case on

appeal as it relates to the community vis-

a-vis separate property nature of military

retired pay consider the following:

The application of the federal

standard;

13

Address the federal issues;

Discuss the federal intent;

Discuss state policy as it conflicts

with the federal standard;

Address the comments of the U. 8.

Supreme Court made in Hisquierdo regarding

California courts ignoring the 1977 Social

Security Legislation.

None of these issues were addressed

except to mention that McCarty was not

deemed retroactive. The decisional basis

upon which the Court of Appeal's decision

rests in this case is palpably inadequate.

B. ONLY THE CONGRESSIONAL LEGISLATION

PASSED IN SEPTEMBER, 1982 (TITLE X

UNIFORMED SERVICES FORMER SPOUSES'

PROTECTION ACT), ENABLES STATES TO

DIVIDE MILITARY RETIREMENT PAY AS OF

FEBRUARY 1, 1983 BUT NOT FOR PRE

McCARTY CASES.

The recent bills passed in Congress

in September, 1982, which permit states to

divide military retirement benefits

14

between both spouses now changes the

Congressional intent. It has been long

recognized that Congress can change the

rules for benefits at its discretion as it

has done before. This matter was

thoroughly discussed in Hisguierdo and

McCarty by the U. S. Supreme Court,

However, until such bills were actually

passed by the Congress, the military

benefits were separate property. The very

fact that such bills were needed to change

the rules only serve to further the

argument that the California Supreme Court

has ignored Congressional legislation

heretofore and therefore its ruling that

military retirement benefits are community

property is void on its face because it

interfered with the objectives and

requirements of the military pay

retirement system.

C. NO RES JUDICATA DEFENSE CAN BE

ASSERTED BY THE COURT, BECAUSE,

PROPERLY VIEWED, APPELLANT IS

15

PURSUING A NEW CAUSE OF ACTION AS A

DEFINITIONAL MATTER.

The defense of res judicata is

properly raised only when the same cause

of action is asserted between the same

parties to a prior argument. If these two

(2) criteria are satisfied, finality may

attach to issues litigated in the prior

action; finality may also attach to

issues which could have and should have

been litigated but were not.

If the same parties are involved ina

dispute, but me cause of action is not

the same, principles relating to

collateral estoppel (but not to res

judicata) apply. Finality will attach to

issues actually litigated in the prior

litigation; but finality will not attach

to issues that were not actually

litigated. Commissioner .. Sunnen, 333

u.s. 591, 68 8. Ct. 715, 92 L. Ed. 898

(1948).

Here, the technical distinction

16

between res judicata and collateral

estoppel appears to be significant. The

issue of federal pre-emption and the

subject matter jurisdiction of the Supreme

Court was neither presented in 1978 to

the Court nor considered by it. The

specific applicability of the anti-

assignment statute applicable to army

retired pay, 37 U.S.C. Section 701 (a) was

not considered by the state court. Nor

did the state court in 1978 consider

whether army retired pay represented

reduced pay for current reduced services.

If as Appellant contends -- and the

host of federal cases have determined --

his retired pay represented reduced pay

for current services, and such pay, as he

receives it from the army, is his separate

property and may not be treated as

community property to the extent that it

is earned after the dissolution of the

marital community.

Since the cause of action is not the

17

same in these proceedings as in the court

proceedings in 1978, only collateral

estoppel should apply. And collateral

estoppel is inadequate to bar a

consideration here of the issues not

litigated in the 1978 action.

D. ASSUMING THE DISPUTE BETWEEN THE

PARTIES TO THE 1978 JUDGMENT PROPERLY

INVOLVES A RES JUDICATA ISSUE, THE

COURT JUDGMENT IS NOT IMMUNE FROM

COLLATERAL ATTACK.

Collateral attack is proper where, as

here, the court did not have subject

matter jurisdiction to divide Appellant's

army retired pay because of federal pre-

emption.

Res judicata is a defense on the

merits to a cause of action; it denotes

that a prior judgment, rendered on the

merits, is a bar to a subsequent action

between the same parties upon the same

claim or demand. Commissioner _v. Sunnen,

18

Cromwell v. County of Sacramento, 94 U.S.

351, 352-353, (1877).

The prior decision cannot be denied

res judicata effect (or immunity from

collateral attack) in subsequent

litigation between the same parties on the

same cause of action, merely because the

first decision may have reached an

erroneous conclusion. So much has been

reaffirmed by the recent decision of the

Supreme Court in Federated Department

Stores, Inc. v. Moitie, 453 U.S. 9

(1981). Moitie rejects the view — which

had enjoyed substantial prior support in

the case law -- that relief from a prior

judgment can be grounded upon strong

equitable grounds alone — i.e., "simple

justice."

Appellant's challenge to the subject

matter jurisdiction of the state court is

based upon federal pre-emption grounds. A

collateral attack based upon such ground

remains a valid method by which to

19

challenge a prior state court judgment.

The vitality of this doctrine has not been

diminished or affected by Moitie. The

doctrine — given its clear articulation

in Kalb v. Feuerstein, 308 U.S. 433,

(1940) — has been reaffirmed by the

Supreme Court, in a family law context in

a post-McCarty case, Ridgway v. Ridgway,

453 U. 8s. (1981).

A determination by a state court that

it has jurisdiction of the case presented

to it is generally conclusive, at least

when the jurisdictional question has been

fully litigated. In Durfee v. Duke, 375

U.S. 106, (1963), "the Court stated the

‘general rule! that (a) judgment is

entitled to full faith and credit — even

as to questions of jurisdiction — when

the (second) court's inquiry discloses

that those questions have been fully and

fairly litigated and finally decided in

the court which rendered the original

judgment'." 375 U.S. at 111, as quoted in

20

Key v. Wise, 629 F 2d 1049, 1056 (5th cir.

1980). The Durfee court conceded,

however, that this general rule of

finality of jurisdictional determination

is subject to an exception: the

"(doctrines of federal pre-emption...may

in some contexts be controlling." 375

U.S. at 114.

With a collateral attack on the state

court judgment on the ground that the

state court did not have jurisdiction over

the subject matter by virtue of federal

pre-emption, that overriding consideration

must engage the attention of the court

before giving finality to the prior state

court decision.

In its analysis, this Honorable Court

in the Ridgway case gave much attention to

an anti-attachment statute that applied to

servicemen's life insurance proceeds.

Using this provision to support the

federal pre-emption argument, the court

swept away the earlier injunction

21

requiring the husband to retain the

insurance policies in favor of the

children. The court even disregarded the

stipulated property settlement reached by

the parties which had been the basis of

the Maine divorce decree:

We find nothing to indicate

that Congress intended to

exempt claims based on

property settlement agree-

ments from the strong

language of the anti-attach-

ment provision.

-453 U.S. at > 102 8. Ct.

at 58, 70 L. Ed. 2d at 32

(footnote omitted).

McCarty v. McCarty arose as a direct

attack upon the judgment of a California

divorce court; the Supreme Court did not

deal with any question concerning the res

judicata effect to be given to a prior

judgment. The McCarty court found a

sufficient threat of "grave harm to ‘clear

and substantial' federal interests" to

require that conflicting state laws giving

effect to state public policy concerns

based upon community property principles

22

must give way. "State courts are not free

to reduce the amounts that Congress has

determined are necessary for the retired

member."

McCarty has been applied re-

troactively in an intelligent analysis and

application based upon the federal pre-

emption principles set out in

Kalb v. Feuerstein, supra. A Texas Court

of Appeals in Ex Parte Buckhanan, 626 S.W.

2d 654 (1981), considered a collateral

attack on a 1977 Texas divorce judgment

dividing Air Force retired pay in

accordance with Texas community property

law. After discussing the McCarty

decision, the Court noted as follows:

In determining how

McCarty affects the judgment

under collateral attack

before us, it is essential to

focus upon what the court

said. McCarty pre-empted

nothing: only considered,

determined and announced what

Congress had already done.

23

this Court.

principles set down in McCarty;

Respondent argues that

the judgment under attack in

the case before us is at

worst erroneous, and not

void, and that the relief

sought by relator is thus

barred by the doctrine of res

— We cannot agree.

e court pointed out in

McCarty that when Congress

enacted the military

retirement system, it acted

pursuant to its express

constitutional power over the

armed forces; and the court

observed further that "in no

area had the court accorded

Congress greater deference

than in the conduct and

control of military affairs."

— U.S. at > 101 8. Ct.

at 2743, 69 L. Ed. 2d at 608.

When Congress has exercised

its plenary power to a

particular subject, judgments

of state courts purporting to

exercise jurisdiction over

the pre-empted subject are

"nullities and vulnerable

collaterally." Kalb Ve

Fuerstein, 308 U.S.

343, 344, 84 a Ed.

370 (1949).

The analysis and decision in this Texas

court opinion should commend itself to

logical application of federal pre-emption

sustain a collateral attack of the prior

24

This analysis is but the

it will

state court judgment in this case in a

manner made necessary by Kalb Vv.

Feuerstein, supra. and Ridgway v. Ridgway,

Supra.

Additionally, collateral attack is

proper on à permanent injunction where

changed circumstances exist since the

prior judgment. Appellee will soon bring

a Petition to Compel compliance with the

1978 state court judgment. The 1978

judgment was in the form of a permanent

injunction against Appellant directing

him, at a point in the future when he

would retire from the Army, to pay to

petitioner a portion of each monthly pay

of Army retirement pay in a stated

percentage.

The injunctive command directed by

the state court to Appellant was not and

could not have been set out as a simple

money judgment. The amount Appellant

might secure in the future from the Army

as retired pay was conjectural: Appellant

25

might not live long enough to secure any

Army retired pay or he might have left the

Army before his benefits vested. Further,

the amount may be altered from time to

time, since retired pay derives from

statutory provisions alone and is not

based upon contract principles. Finally,

the dollar amount of retired pay changes

because of the application of ost of

living increases which affect the amount

of retired pay the Appellant is to

receive.

In Jackson v. DeSoto Parish School

Board, 585 F. 2d 726 (5th cir. 1978), a

prior permanent injunction reapportioning

the school board was challenged.

Defendants contended that the prior

injunction was immune from attack. The

Court Disagreed:

A challenge to the

constitutionality of a court-

ordered reapportionment plan

is not, in either case,

precluded by principles of

res judicata or collateral

estoppel. It has long been

established that res judicata

26

is no defence where, between

the first and second suits,

there has been an intervening

change in the law or

modification of significant

facts creating new legal

conditions. See, e.g., Len-

missoner > Tu, Revenue

U.S.

State Farm Mutual Automobile

Insurance Co. v. Duel, 1945,

324 U.S. 151 182 65 8. Ct.

573, 577, 89 L. Ed. 812, 819.

In these cases, the operation

of the preclusion doctrines

would result in unequal

treatment of similarly

situated individuals, some of

whom have the misfortune to

have sought legal redress at

an earlier phase of legal

developments.

Such inequity becomes

particularly intolerable

when, as here, constitutional

rights are involved. This

court has thus been unwilling

to bar subsequent challenges

to apportionment schemes,

seemingly constitutional when

instituted by the court, but

apparently inadequate under

the rapidly changing

jurisprudence in this area.

(citations omitted). As

Judge Wisdom wrote in

Parnell v. Rapides Parish

School Board, supra, 563 F.

2d at 185, aced with

changing law, courts hearing

questions of constitutional

right cannot be limited by

27

res judicata. If they were,

the Constitution would be

applied differently in

different locations.

See also, Moch X: East Baton Rouge Parish

School Board, 548 F. 2d 594 (5th cir.

1977) cert. den. 434 U.S. 859 (1977).

Appellant should not be barred by

preclusion principles from showing that an

injunction should be modified or dissolved

in light of changing circumstances,

unexpected burdens or the injunction's

failure to achieve the intended benefits.

The application of McCarty to these

principles is manifest. An injunction,

permanent in nature, requiring Appellant

in this case to make payments to

petitioner of his Army retired pay, long

after the Supreme Court has declared on

constitutional grounds that federal

statutes bar such a result, is just such a

changed condition adequate to modify the

state court's permanent injunction.

28

E. CALIFORNIA CASE PRECEDENTS AGAINST

COLLATERAL ATTACK ARE WEAK,

DISTINGUISHABLE AND UNPERSUASIVE.

The California courts provide cases

to Support its position

In Re Marriage of Sheldon, 124 Cal. App.

3d 371, (1981); In Re Marriage of Mahone,

123 Cal. App. 3d 17, (1981) and In Re

Marriage of Fellers, 125 Cal. App. 3d

254, (1981).

Appellant is also aware of Ers *.

Badgett, 657 F. 2d 550, rehearing denial,

659 F. 2d 26 (5th Cir. 1981) decisions

which consider the possible retroactive

application of McCarty. Unlike Ex Parte

Buckhanan, supra,all four (4) reject the

power of McCarty to disturb the finality

of prior state court dissolution decrees

dividing military retired pay benefits.

Each of these four (4) decisions

considers the collateral attack on res

judicata solely (or largely) as a state

law issue. None considers the doctrine of

29

federal pre-emption as a possible

justification for a collateral attack on

the prior state court judgment. No case

among these four (4) even remotely pursues

the analysis followed in Ex parte

Buckhanan, supra, none even mentions Kalb,

Ridgway, or the Restatement of Judgments.

It is clear that this court must

consider the retroactive application of

McCarty as a matter governed by federal

law. The extent to which a federal court

must attach conclusive effect to prior

state court proceedings is a federal

question.Adam v. Sanger, 303 U.S. 59, 64;

(1938); American Mannex Corp. v. Rosands,

462 PF. 2d 688, 689 (5th Cir. 1972).

Indeed, since McCarty is a case involving

federal pre-emption °f state law, it is

surprising that the four (4) cases

considering McCarty do not apply federal

law in determining whether conclusive

effect should be given to prior, pre-

McCarty, state court proceedings dividing

30

military retired pay.

But further: If Erspan presumes to

follow Texas state law, the authoritative

statement o Texas law is found in Ex

Parte Buckhanan, supra, which Appellant

now commends to the attention of this

court. Moreover, Texas cases adopted the

federal pre-emption rationale without

having been bludgeoned by McCarty to do

so.

By far the most interesting of the

four (4) cases considering McCarty is In

Re Marriage of Sheldon, supra.

The Sheldon Court considered the

retroactivity issue within the context of

Supreme Court decisions, most

particularly, Chevron Oil Co. v. Huson,

404 U.S. 97, (1971).

Huson is not, however, a federal pre-

emption case, nor are any of the other

Supreme Court cases cited by the Sheldor

Court.

31

It is peculiar that Sheldon chose

Huson at all as the applicable test, since

Kalb would have been more appropriate.

(Ridgway, argued before the Supreme Court

on October 7, 1981, was decided one (1)

month after Sheldon). Huson is in any

event largely superseded by Federated

Department Stores, Inc. v. Moitie, supra,

decided in June, 1981. Moitie appears to

limit Huson substantially; if the Sheldon

Court had considered Moitie, it would, no

doubt, have relied upon it without even

considering Huson.

Sheldon looks. to California cases

that hold a military pension constitutes

community property; Sheldon makes no

effort to look at relevant federal law to

determine whether the decision in McCarty

had been foreshadowed by federal law. In

fact, it had:

1. The Supreme Court of the United

States has considered the conflict between

federal law and state community property

32

principles six (6) times this century, and

in each such confrontation federal law has

been held to pre-empt the application of

state community property principles.

2. In several of these

confrontations, a decisive — or at least

important — element for decision was the

existence of a federal anti-assignment or

anti-attachment statute which was held to

pre-empt the application of state

community property principles.

Army and Air Force retired pay is

also subject to an anti-assignment statute

— 37 U.S.C. Section 701 (a) and (e).

This section had already been interpreted

by two (2) federal courts of appeal and

one (1) state Supreme Court as voiding all

assignment of interests in military pay.

The McCarty Court had little difficulty in

extending the anti-assignment views of its

prior pre-emption decisions to me Section

701. See McCarty at 101 S. Ct. 2739-2740,

69 L. Ed. 2d 603-604.

33

3. Sheldon considers the "well-

settled California precedent holding a

military pension constitutes community

property" to be antediluvian in origin.

But that is not so. The application of

community property law to military retired

pay to be received by the servicemen is a

fairly recent state law development. In

Re Marriage of Fithian, (1974) 10 Cal. 30

592.

4, Finally, in terms of federal

law, the decision in McCarty was clearly

foreshadowed by the very long line of

federal cases holding that military

retired pay is but reduced payment for

reduced services. Although McCarty pulls

back from resting its holding on this

ground, 453 U.S. , the McCarty Court

points out that state courts were on

notice that this doctrine may of itself

defeat a state court's application of

community property principles.

34

But Sheldon sees the universe only

through California eyes. The cardinal

error in Sheldon is that the Court fails

to note that "(t)he relative importance to

the State of its own law is not material

when there is a conflict with a valid

federal law, for the Framers of our

Constitution provided that the federal law

must prevail." Ridgway v. Ridgway, supra,

at 102 S. Ct. 55, 70 L. Ed. 2d at 48-49,

quoting from Hisquierdo, 439 U.S. 572, at

581. See also, to same effect, Free v.

Bland, 369 U.S. 633, 666 (1962); Gibbons

v. Ogden, 9 Wheat. 1, 210-211 (1824).

It is clear therefore that the

Sheldon Court had littie reason to

conclude that the first test set out in

Huson, as to whether McCarty's resolution

concerning military pay was foreshadowed

by appropriate law (i.e., by federal law),

could be answered in the negative.

The second test in Huson is also

answered inappropriately by Sheldon. The

35

"history...purpose and effect" of the rule

in McCarty clearly mandates retrospective

operation. A finding of federal pre-

emption forces state law to give way, ata

necessary consequence of the Supremacy

Clause of the national Constitution. If

in McCarty federal pre-emption was

required because grave damage is caused to

federal interests, the state court never

had jurisdiction to take away from the

military retiree his future retired pay.

That alone should end the inquiry. That

is the teaching of Kalb and Ridgway. But

the Sheldon Court falls back upon

California law -- which was (and which

remains) hostile to McCarty -- for a

contrary conclusion. The hostility of the

state courts to the McCarty decision can

be discerned in In Re Marriage of Jacanin,

(1981) 124 Cal. App. 3d. 67. There, the

Court of Appeal reluctantly reversed a

trial court decision which divided a Navy

pension as community property. The bulk

36

of the decision attacks the majority

opinion in McCarty and commends the views

of the minority. It is difficult to

imagine a more reluctant acquiescence in a

Supreme Court decision than the opinion in

Jacanin.

As for the "substantial and equitable

results" test, the Sheldon Court perceives

inequity through reverse telescopic

vision. It finds little inequity for the

military member; it has but solicitude for

the non-service member spouse. The

Sheldon Court also exaggerates

difficulties which might ensue through a

retroactive application of McCarty. It is

not necessary in this regard to rebut the

Sheldon Court in each such particular. It

is sufficient to point out that divorce

courts uniformly retain jurisdiction over

alimony awards and do not find it onerous

to re-open alimony considerations upon

motion of either party based upon changed

circumstances. Divorce courts could here

37

do as much. Indeed, if the non-military

spouse could make a showing of need

(unlike the facts in the present dispute)

modification of the award to allow the

military member to retain the entirety of

his retired pay should allow the ex-spouse

to claim support based upon need. Divorce

courts are skilled at making such

determinations, and these determinations

would pose no unusual difficulties.

Sheldon is not persuasive and should

not be followed in this case. Ex Parte

Buckhanan, supra, is persuasive: it

follows the correct federal pre-emption

analysis and should serve as a guide to a

uniform rule concerning the availability

of collateral attack on pre-McCarty

decisions dividing military retired pay.

F. APPELLANT REFUSED TO ENTER A

STIPULATION WHICH WAS PRESENTED

WITHOUT HIS APPROVAL AND OVER HIS

OBJECTIONS WHERE, AT MOST, IT IS AN

38

INADVERTANCE, AND, AT WORST, IT WAS A

CLEAR CUT IMPROPER ACTION.

Appellant's Petition for rehearing

and modification of the judgment was made

to the Court below in light of factual

errors in its opinion. These errors were

brought about by Appellant's previous

attorney of record withholding essential

facts from the court which would have

revealed that Appellant made no voluntary

stipulation. Accordingly, it was

appropriate that modifications should be

made before the decision became final.

New matter was submitted to the court and

should have been considered as good cause

and grounds for a rehearing. Traders and

General Insurance Company v. Pacific

Employers Insurance Company (1955) 130

Cal. App. 2d 158, 159; Sime v. Malouf

(1949) 95 cal. App. 2d 88.

Appellant in his petition for hearing

stated that no stipulation on military

entitlements was entered into by him. The

39

entire testimony referencing the

stipulation was fraudulently presented to

the court by a previous attorney of

record. Appellant's statement to the court

in one motion was altered by the same

attorney and duress was applied on

Appellant. ‘very attempt by Appellant to

claim military entitlements as separate

property by Appellant was thwarted by his

previous attorney of record, and timely

attempts to appeal the improperly

procured and entered stipulation were not

honored by the same attorney.

Attorney of record acknowledged to

the Court of Appeal in both Supplemental

Points and Authorities submitted on April

19, 1982 and in oral argument that

Appellant did not voluntarily stipulate to

the paragraph 10 of the interlocutory

decree. However, attorney's discussion is

a faint effort and barely touches on the

totality of the events which led to the

stipulation fraudulently made by attorney.

40

Relief from a judgment under limited

circumstances are applicable where a party

seeks to vacate and set aside a

stipulation which was not voluntarily

given. Carter v Carter (1971, 19 C.A. 3d

479.

Appellant's previous attorney of

record stated in the above mentioned

Supplemental Points and Authorities:

"The stipulation classifying

future military benefits as

community property was not

voluntarily and freely given

by appellant. No agreement,

no offset, and no trade off

of property rights was made.

When respondent filed for

divorce in California,

appellant was told that

"settled law" in California

was that military retired pay

was community property.

However, Appellant remained

adamant that he would take

the case to the U.S. Supreme

Court for resolution of that

issue. The court, in effect,

never received an agreement

voluntarily or freely given.

It was not until September

1979 when the Second District

Court of Appeal rendered a

decision in favor of separate

property for Milhan did

Appellant realize that his

position could be supported.

The motion in the trial court

41

to set aside the

characterization of community

property was filed by

Appellant on December 12,

1979 immediately after the

Milhan District Court of

Appeal decision and long

before McCarty was known.”

Relief from a stipulation may be

granted in discretion of trial court in

cases where facts stipulated have changed,

there is fraud, wistake of fact, or other

special circumstances rendering it unjust

to enforce the stipulation. Sanserino v.

Shamberger, (1966), 245 C.A. 2d 630.

In this case the stipulation was

fraudulently made at trial by attorney of

record and it would be unjust to enforce

its terms against the Appellant. All

subsequent actions by attorney concealed

the true facts of Appellant's case wherein

he never agreed to a division of his

military entitlements.

Grounds upon which trial court may

exercise its discretion to relieve party

from binding effect of stipulation are

that the stipulation was entered into as

42

the result of fraud, misrepresentation,

mistake of fact, excusable neglect, or

change of facts or some other special

circumstances rendering it unjust to

enforce the stipulation. People ve

Trujillo, 136 Cal. Rptr. 672, 67 C.A. 3d

547.

Additionally, in this case the trial

andappellate courts abused their

discretion by not permitting an

evidentiary hearing to establish the

voluntariness of the stipulation.

If judgment is only partially void,

and the void part is severable, that part

alone may be collaterally attacked and the

balance will remain effective, but if the

judgment is not severable the whole may be

attacked despite its partial validity.

Perini v. Perini, (1964) 225 C.A. 2d 399.

In this case, the Trial Court divided

all available property between Appellant

and appellee equally, and separately dealt

with the issue of the future Army retired

43

pay by retaining jurisdiction. To set

aside that jurisdiction is now appropriate

and does not affect the remainder of the

dissolution decree.

CONCLUSION

A decision by this Court on the

enumerated issues is required to assure

consistent and fair interpretation of the

relevant statutes and decisions.

Por these reasons, the Court should

note probable jurisdiction of this appeal.

Respectfully submitted,

SIDNEY H. YATEMAN

1031 PARKWAY DRIVE

PEBBLE BEACH, CA 93953

In Propria Persona

October 11, 1982

A copy of this Jurisdictional

Statement shall be served upon the

Attorney General of California, as 28

U.S.C. § 2403 (b) applies to this appeal.

44

DECLARATION OF MAILING

‘I, the undersigned, declare:

I am a citizen of the United States,

employed in Monterey County, State of

California, over the age of 18 years, and

not a party to the above-entitled cause. My

address is Box 2318, Carmel, CA 93921. I

served the foregoing document by depositing

a true copy thereof in the United States

mails in Carmel, State of California, on

October 12, 1982, enclosed in a sealed

envelope with the postage thereon fully

prepaid, addressed as follows:

Clerk of the First Appellate District

Division Three

350 McAllister Street

San Francisco, CA 94102

Attorney General (3)

State of California

6000 State Building

San Francisco, California 94102

Honorable Nat A. Agliano

Judge of the Superior Court

Monterey County Courthouse

Post Office Box 1819

Salinas, California 93902

William B. Daniels Esq.,

Attorney at Law

563 Figuero Street

Monterey, California 93940

Executed on October 12, 1982 at

Carmel, California.

I declare under penalty of perjury that

the foregoing is true and correct.

~ DEANNA PARAVICINI ~~

15