Petition — Armstrong v. Armstrong

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Office - Supreme Court, U.S

22 -2139 FILED

No. 82- ee

ALEXANDER L. STEVAS,

In the Supreme Court tefthe=

United States

OCTOBER TERM, 1982

CHARLES B. ARMSTRONG, JR.,

Petitioner,

ELAYNE A. ARMSTRONG,

| Respondent.

vs.

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH E. DEERING, JR.

DEERING, WALTHER & SANDS

and

RUSSELL IUNGERICH

LAW OFFICES OF RUSSELL IUNGERICH

205 South Broadway

Suite 808

Los Angeles, California 90012

Telephone: (213) 625-0387

Attorneys for Petitioner

CHARLES B. ARMSTRONG, JR

Westside Law Publishers Santa Monica, California (213) 450-1965

QUESTIONS PRESENTED

1. Is federal declaratory relief available to a federal

military retiree to resolve federal issues regarding his

property rights in Marine Corps retired pay, or may these

issues only be raised as defenses to state court actions to

enforce a judgment dividing this pay as community

property?

2. Did Colonel Armstrong’s case arise under the

Constitution and laws of the United States so that federal

jurisdiction existed under 28 U.S.C. § 1331?

3. IsMcCarty v. McCarty , 453 U.S.210(1981), fully

or partially retroactive?

LIST OF ALL PARTIES TO THE NINTH CIRCUIT

APPEAL

All parties to the proceedings in the two lower courts are

set forth in the caption of this case.

ili

TABLE OF CONTENTS

Page

Questions Presented i

List of all Parties to the Ninth Circuit Appeal i

Table of Contents iii

Table of Authorities vi

Opinions Below |

Jurisdiction. ery

Constitutional And Statutory Provisions Involved... a

Statement Of The Case | a

A. Summary of Allegations of the Complaint 3

B. The Nature of the Federal Questions

Presented 5

C. Proceedings in the District Court 7

D. The Ninth Circuit’s Actions 7

The Legal Basis For Federal Question Jurisdiction

I seuss nabidensvcees 8

A. In1973, Colonel Armstrong’s Retired Pay

Was Not Property under Federal Law and

Hence Not Divisible As Community Pro-

perty by the California Court... 8

B. AJudgment Is Not Entitled to Res Judicata

Effect Insofar as It Attempts to Adjudicate

Rights in After-Acquired Property... a |

C. The 1973 California Judgment Was Void

for Want of Subject Matter Jurisdiction,

and Resolution of This Jurisdictional Issue

Was Directly Dependent on the Proper

Application of Federal Law... ........... 13

D. The Present Operation of the McCarty

Decision on the 1973 California Interlocu-

tory Judgment Also Presented a Substantial

RS SC ae ee ODN AOD 15

Reasons Why A Writ Of Certiorari Should Be Granted

This Case Raises an Important Question of Law

Regarding Federal Question Jurisdiction in

Federal Declaratory Relief Actions. 18

A. The Federal Questions Presented in this

Case Were Not an Anticipated Defense to

a State Lawsuit. 18

B. There Will Be No Further California Civil

Litigation in Which Colonel Armstrong

Will Have an Opportunity To Raise His

Federal Claims as “Defenses” 20

C. The Ninth Circuit Extends the Application

of the Skelly Rule lo Require Assertion of

Federal Claims as Defenses to State Crim-

inal Contempt Proceedings... 24

D. The Federal Question Is of Critical Import-

ance to Hundreds of Thousands of American

Military and Naval Personnel... aun ae

II.

A Second Important Question of Federal Jurisdiction

Arising under the Laws of the United States Is

IIIS, 5 x. droves tadcele | Ae, NN 27

Il.

A Third Important Question Is Whether McCarty Is

Retroactive Or Partially Retroactive................. 28

IV.

Res Judicata Did Not Foreclose Colonel Arm-

eB ee re 29

SIN 0 savavs ur sctaceuiteaenuinceisinsacceeusieecttaeest 30

Appendicies

Appendix A: Ninth Circuit Opinion... , _A-1

Appendix B: Ninth Circuit Order Denying Petition

ne I ra ee eee A-4

Appendix C: Verified Complaint for Declaratory and

Injunctive Relief A-5

Appendix D: District Court Order Granting Defend-

ant Elayne Armstrong’s MotiontoDismiss __A-18

Appendix E: Constitutional ProvisionsInvolved A-21

Appendix F: Statutes Involved A-22

TABLE OF AUTHORITIES

Cases Page

Alton Box Bd. Co. v. Espirit de Corp, 682 F.2d 1267

(9th Cir. 1982) 18

Armstrong v. Armstrong 15 Cal.3d 942, 126 Cal.

Rptr. 805, 544 P.2d 941 14

Armstrong v. Armstrong, 696 F.2d 1237 (1983) ]

Bank of Italy v. Cadenasso, 206 Cal. 436 (1929)... 20

Becker v. S.P.V. Constr. Co., 27 Cal.3d 489, 165

Cal.Rptr. 825, 612 P.2d 915 (1980) 14

Board of Regents v. Roth, 408 U.S. 564 (1972) 9

Chevron Oil Company v. Huson, 404 U.S.97(1981)... 29

Costello v. United States, 587 F.2d 424 (9th Cir.

1978). | 11

County of Ventura v. Tillett, 133 Cal.App.3d 105,

183 Cal.Rptr. 741 (1982) 14

Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir.

1963) cert. denied, 373 U.S. 911 (1963) 20

Erspan v. Badgitt, 659 F.2d 26(S5thCir. 1981)... 15,16,29

Goodley v. United States, 441 F.2d 1175 (Ct.Cl.

1971). © aed Ric ee AER SD 10

Gully v. First Nat’ Bank, 299 U.S. 109(1936).. 16,17,18

Gunther v. County of Washington, 623 F.2d 1303

(9th Cir. 1979) . 16

Guiterrez v. Waterman Steamship Corp., 373 U. S.

206 (1963). a ae ne

Hicks v. Miranda, 422 U.S. 322 (1975) ................. 29

Hughes Tool Co. v. Trans World Airlines, Inc., 409

U.S. 363 (1973) eee

In re Buckley, 10 Cal.3d 237 (1973) . hee

In re Marriage of Fithian, 74 Cal.App.3d 324, 177

Cal.Rptr. 506 (1977)... 24

In re Marriage of Sheldon, 124 Cal.App. 3d 324, 177

Cal.Rptr. 380 (1981).......... Seder a Sa

vii

Lord v. Garland, 27 Cal.2d 840, 168 P.2d5(1946).... 13

Louisville & Nashville Railroad v. Mottley, 211

U.S. 149 (1908) | 18

McCarty v. McCarty, 453 U.S. 210 (1981)... 4, 7, 10,

| ‘1, 13, 15, 17, 18, 26, 28, 29

McNeil V. McNeil, 78 F.834(C.C.N.C.Cal. 1897),

affirmed 170 F. 289 (9th Cir. 1909) 20

Magruder v. Safe Deposit & Trust Co., 159 F.2d 913

(4th Cir. 1947). sue 12

Misco Leasing Co. v. Vaughn, 450 F. 2d 257 (10th

Cir. 1971). poe 20

Phillips v. Bartolomie, 46 Cal. App. 3d 346, 121

ee eT in a a

Raigoza v. Sperl, 34 Cal.App.3d 560, 110 Cal.Rptr.

296 (1973)... ae eprpaty © ae x

Sheldon v. Sheldon, 456 US. 941 (1982)... <» aie ae

Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S.

667 (1950)............ 18, 19, 20, 22, 23, 24, 25, 27

Smith v. Kansas City Title & Trust Co., 255 U.S.

ns saa cusiekveencoeres 16

Steffel v. Thompson, 415 U.S. 452 (1974)............. 25

Sullivan v. Gage, 145 Cal. 759 (1905)................... 20

Taft v. Donnellan Jerome, Inc., 450 F.2d 257 (10th

ogg oa cspevssvccevesranee 20

United States v. Estate of Donnelly, 397 U.S. 286

ee is sévenncnsaovees 29

United States v. Fallbrook Public Utility Dist., 193

Pa aoe cree Ge. F908)................0........... 20

United States v. Tyler, 105 U.S. 224(1881)......... 10

Verner v. Verner, 77 Cal.App.3d 718, 143 Cal. Rptr.

ees i ocnc supers ivosexvs 24

United States Constitution

Supremacy Clause, art. VI, cl. 2....00000000000......... 2, 26

Vili

Statutes

Federal

10 U.S.C., ch. 571, § § 6321 et seq. 2, 10

10 U.S.C. § 1408(d)(1) 22, 28

ae Ue. | 22h e...... 2

> eee . 2, 8, 16, 27

California

Civil Code § 4800(a)............... 8,9, 14

Code of Civil Procedure § 682... ar

Code of Civil Procedure § 699.510. 22

Books and Treatises

B. Witkin, 5 California Procedure(2ded.1971)... 22,23

W. Freeman, 2 Treatise on the Law of Judgments §

piece) ie: 12,33

1B Moore’s Federal Practice (2d ed.) 4 0.415....... 12

7 Moore’s Federal Practice

ee ne ne ae

Ne acesssadsecieness ae

Re ey 20

M. Redish, Federal Jurisdiction: Tensions in the

Allocation of Judicial Power, (Michie, 1980)... 23

R. Stern & E. Gressman, Supreme Court Practice

PIT ghia da sapsaysyucetcu sana duchies 27

Restatements

Restatement of Judgments § 72 (1942)............ 12, 13

In the Supreme Court of the

United States

OCTOBER TERM, 1982

CHARLES B. ARMSTRONG, JR.,

Petitioner,

vs.

ELAYNE A. ARMSTRONG,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPINIONS BELOW

This case originated in the United States District Court

for the Central District of California. The district court’s

unpublished order dismissing Colonel Armstrong’s

declaratory relief action is attached as Appendix D to this

petition. The opinion of the United States Court of

Appeals for the Ninth Circuit affirming the district court’s

order on grounds not raised by the district court or any of

the parties is reported as Armstrong v. Armstrong, 696

F.2d 1237 (1983). A copy of this opinion is attached as

Appendix A. Thereafter on April 8, 1983, the Court of

Appeals denied petitioner Armstrong’s petition for rehear-

ing with suggestion of appropriateness of rehearing en

banc. A copy of the order denying rehearing is attached as

Appendix B.

JURISDICTION

The Ninth Circuit rendered its decision affirming the

district court on January 18, 1983. (App. A.) Petitioner

Armstrong filed a timely petition for rehearing with

suggestion of appropriateness of a rehearingen banc. . On

April 8, 1983, the petition for rehearing was denied in an

order which stated in part: “‘A majority of the panel as

constituted in the above case has voted to deny the petition

for rehearing and to reject the suggestion for a rehearingen

banc.” (App. B.) This petition was filed within 90 days

from the denial of a rehearing on April 8, 1983.

Petitioner Charles B. Armstrong, Jr., invokes the

jurisdiction of this Court pursuant to 28 U.S.C. §

1257(3).

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED

The constitutional provisions involved in this case are

set forth in Appendix E to this petition. The statutory

provisions involved are set forth in Appendix F to this

petition.

STATEMENT OF THE CASE

This case commenced in the United States District

Court for the Central District of California with the filing

of a complaint seeking declaratory and injunctive relief

and restitution. (App. C.) The complaint invoked federal

jurisdiction pursuant to 28 U.S.C. § 1331 in that the case

arose under the United States Navy and Marine Corps

retirement statutes (10 U.S.C., ch. 571, § § 6321 et seq. )

and the Supremacy Clause of the United States (art. VI,

cl.2).

A. Summary of Allegations of the Complaint

The complaint set forth the following allegations of fact:

On June 12, 1973, the Superior Court of the State of

California for the County of Los Angeles entered an

interlocutory judgment of dissolution of marriage, dis-

solving the marriage of petitioner Charles B. Armstrong,

Jr. [hereinafter Colonel Armstrong] and the respondent

here, Elayne A. Armstrong, The California state court

action was entitled, Jn re the Marriage of Armstrong,

LACSC No. WED 20776. A copy of this judgment was

attached as Exhibit A to the federal district court complaint.

(Exh. A in App. C to this Petition.)

On June 12, 1973, Colonel Armstrong was on active

duty as a Colonel in the United States Marine Corps and

had no property rights, vested or non-vested, in any Navy

or Marine Corps retirement fund. (App. C—Complaint,

16.) Despite Colonel Armstrong’s lack of any then-

present property interest in any Navy or Marine Corps

retirement fund, the Los Angeles County Superior Court

made the following order for the division of future

retirement checks in the interlocutory judgment entered on

June 12, 1973:

‘*Petitioner’s [Colonel Armstrong’s] interest

in the Navy retirement fund is hereby declared

community property to the extent of 90% thereof.

Petitioner is hereby ordered to pay direct to

Respondent | defendant ELAYNE A. ARMSTRONG]

45% of any and all net funds received on said

Naval retirement, commencing immediately

upon receipt thereof, and terminating upon the

death of either Petitioner or Respondent.” Jd. ,

417.

Colonel Armstrong retired from the United States

Marine Corps on July 1, 1974, and received his first

retirement check on August 1, 1974. Commencing with

the August 1, 1974 retirement check and continuing

through the June 1, 1981 check, Colonel Armstrong paid

his ex-wife the California court-ordered percentage of each

such retirement check. (App. C—Complaint, J 8-9.)

On June 26, 1981, this Court decided McCarty v.

McCarty , 453 U.S. 210(1981), which held that Congress

never authorized nor required the community property

division of military retired pay and that such pay continues

to be the personal entitlement of the retiree. Since the

McCarty decision on June 26, 1981, Colonel Armstrong

has not made further payments of any portion of his

Marine Corps retirement checks to his ex-wife pursuant to

the June 12, 1973 interlocutory judgment of the Los

Angeles County Superior Court. (App. C—Complaint,

19 10-11.)

The complaint then alleged that the June 12, 1973

interlocutory judgment dissolving the marriage of the

Armstrongs was void insofar as it purported to divide the

Marine Corps retired pay because the California court

had no jurisdiction to divide property which was not then

in existence. (App. C—Complaint, § 12.)

The complaint further alleged that continued enforce-

ment of the California judgment would interfere with

Colonel Armstrong’s now settled personal entitlement to

his retirement checks from the United States Marine

Corps and that the California judgment had to yield under

the Supremacy Clause of the United States Constitution

to the express intent of Congress that military retirement

not be subject to division as community property. (App.

C—Complaint, | J 13-14.)

The complaint specifically alleged that Colonel

Armstrong had successfully resisted one attempt by his

ex-wife to enforce the California judgment by contempt

proceedings. (App. C—Complaint, 4} 18-19.) The

complaint alleged that at the time of filing, no state court

proceedings were pending to enforce the California judg-

ment by contempt insofar as it divided Colonel Armstrong’s

retired pay as community property. (App. C—Complaint,

20.) It was alleged, however, that such proceedings

were imminent in light of the information furnished by

Colonel Armstrong in an accounting ordered by the

California superior court and in view of his continuing

refusal to remit a portion of his retirement checks to his ex-

wife under the terms of the California judgment. (App.

C—Complaint, J 20.) In fact, no enforcement proceedings

of any type have been brought against Colonel Armstrong

in the California courts since his complaint was filed on

February 12, 1982.

Out of understandable caution, Colonel Armstrong

requested injunctive relief in addition to a declaratory

judgment. The complaint alleged that Colonel Armstrong

was a public school teacher and would suffer irreparable

harm if he was jailed or fined by a California court for

contempt while attempting to vindicate his federal right to

the quiet enjoyment of his personal entitlement to his

entire Marine Corps retirement check. (App. C—

Complaint, §] 21.) Other than the injunctive relief allega-

tions in the complaint, there was no application for a

temporary restraining order nor any motion for a prelim-

inary injunction filed with the district court. The action

was terminated with the granting of a motion to dismiss.

The complaint also sought restitution.

B.The Nature of the Federal Questions Presented

The complaint prayed for ‘1. A declaratory judgment

that (a) plaintiffs Marine Corps retirement checks have

been and continue to be his exclusive personal entitlement

not divisible as community property and (b) the June 12,

1973 California interlocutory judgment is void as it has

purported to divide plaintiff's military retirement checks

as community property under California law... .” (App.

C—Complaint, J 1 of prayer.)

At the core of federal jurisdiction in this case is the basic

fact that any property rights in federal military or naval

retired pay are statutorily created rights. In the absence of

federal statute, there would be no military or naval

retirement program at all.

Colonel Armstrong submits that, in seeking a declaration

that he was personally entitled to the entirety of his retired

pay and that the portion of the California judgment

dividing retired pay, he raised the following federal

questions:

— As a matter of federal law, did Colonel Armstrong’s

mere expectancy in 1973 future retired pay from the

Marine Corps constitute “property” at all because if it

was not property, the California court could not lawfully

divide it as community property in the 1973 divorce

proceedings?

— Insofar as no judgment can lawfully affect after-

acquired property, were all of Colonel Armstrong’s

Marine Corps retirement checks after-acquired property

as to which the 1973 California judgment had no res

judicata or collateral estoppel effect?

— Was the California judgment void for want of subject

matter jurisdiction because, as a matter of federal law,

Colonel Armstrong’s mere expectancy of Marine Corps

retirement pay while on active duty in 1973 was not

property susceptible of division under California statute

creating California jurisdiction to divide such pay as

“community property?”

— Was Colonel Armstrong personally entitled to the

entirety of his Marine Corps retired pay becauseMcCarty

v. McCarty, supra, was fully retroactive or applicable to

all retired service personnel prospectively from the date

that opinion was filed?

Since the legal authority supporting each of these points

is critical to complete understanding of Colonel Armstrong’s

case, the next section of this petition is devoted to an

overview of that authority.

C. Proceedings in the District Court

Colonel Armstrong filed his complaint in the United

States District Court for the Central District of California

on February 12, 1982. (App. C.) Thereafter Mrs.

Armstrong moved to dismiss the complaint on the grounds

that (1) the district court lacked jurisdiction over the

subject matter of the action because it involved domestic

relations and (2) the complaint failed to state a cause of

action because a prior state court decision between the

parties was res judicata. (Ninth Circuit Excerpt, pp. 13-

72.) Colonel Armstrong filed a memorandum in opposition

to the motion to dismiss. (Excerpt, pp. 76-102.) Mrs.

Armstrong filed a reply memorandum, and the case was

ready for hearing. (Excerpt, pp. 105-129.)

On april 19, 1982, the district judge heard oral argument

on Mrs. Armstrong’s motion to dismiss. The argument by

counsel for both parties was addressed to the limited

issues raised in the moving papers, and the judge asked no

questions suggesting that there were other issues that

should be addressed. On April 27, 1982, the district court

filed an order granting Mrs. Armstrong’s motion to

dismiss. This order was based on one of the grounds raised

by Mrs. Armstrong (res judicata ) and five grounds which

were raised by the court on its own. This order was entered

on April 28, 1982. (App. D.)

The appeal was taken from the order dismissing Colonel

Armstrong’s action. The notice of appeal was timely filed

on May 26, 1982. (Excerpt, p. 135.)

D. The Ninth Circuit’s Action

The Ninth Circuit affirmed the district court’s order

dismissing Colonel Armstrong’s action. (App. A.) The

ground for affirmance was a ground not advanced by

counsel for Mrs. Armstrong or the district judge. In

essence, the Ninth Circuit has held that federal declaratory

relief is not available to Colonel Armstrong because he

can assert his federal claims as defenses in state civil or

criminal proceedings to enforce the 1973 California

judgment, if and when any such proceedings may be

instituted by his wife. The Ninth Circuit ignores the basic

right of a plaintiff to choose his forum or to attack a state

judgment directly or collaterally in federal court for

jurisdictional defects based on federal iaw.

THE LEGAL BASIS FOR FEDERAL QUESTION

JURISDICTION UNDER 28 U.S.C. § 1331

To assist the Court in understanding Colonel Armstrong's

asserted basis for federal jurisdiction, it is essential that

the Court comprehend the sophistication of his legal

position in order to understand why he selected a federal

forum with judges skilled in the application of federal law

for adjudication of his federal rights.

A. In 1973, Colonel Armstrong’s Retired Pay

Was Not Property under Federal Law and

Hence Not Divisible As Community Property

by the California Court

California Civil Code section 4800(a) provided the

jurisdictional basis for the purported division of Colonel

Armstrong’s future retired pay while he was on active duty

with the Marine Corps in 1973. Section 4800(a) provides

that the court shall **. . . in its interlocutory judgment of

dissolution of the marriage . . . divide the community

property and the quasi-community property of the parties

... equally.”” (Emphasis added.)

The implicit and fundamental precondition to a division

of community property pursuant to section 4800(a) is that

there must be property in existence before that property

can become community property susceptible of division in

California marital dissolution proceedings held in a state

court. The threshold jurisdictional question then is whether, in

1973, Colonel Armstrong’s expectancy of future Marine

Corps retired pay was “‘property”’ capable of being then

classified as community property and then divided. If

Colonel Armstrong had no property interest in his Marine

Corps retired pay in 1973, then the California court in

1973 had no “property” to divide, and hence no jurisdiction,

when it entered the interlocutory judgment dissolving the

Armstrongs’ marriage.

In 1973 as today, one had to look to federal law to

ascertain whether an expectancy of possible future military

retired pay by a serviceman on active duty was “‘property”’.

In Board of Regents v. Roth, 408 U.S. 564, 577 (1972),

this Court observed:

‘Property interests, of course, are not created

by the Constitution. Rather, they are created

and their dimensions are defined by existing

rules or understandings that stem from an inde-

pendent source such as state law—rules or

understandings that secure and support claims

of entitlement to their benefit.’’ See also Texaco,

Inc. v. Short, 454 U.S. 516, £25 (1982).

The rules that secure and support claims of entitlement

to the benefit of Marine Corps retired pay are the federal

statutes which create the right to such pay—28 U.S.C.

§ § 6321 etseg. The well established legal principle under

federal law has been that “. . . there is no vested or

contractual right to retired pay, which is dependent upon

statutory right rather than upon common law rules

governing private contracts.” Goodley v. United States,

441 F.2d 1175, 1178 (Ct.Cl. 1971).

In McCarty v. McCarty, 453 U.S. 210, 221-222

(1981), this Court interpreted the non-disability military

retirement statutes and concluded that military retired pay

was not a pension in which vested rights susceptible of

division may be obtained—even though the California

courts had treated it as such. McCarty reaffirmed the

vitality of the rule of United States v. Tyler, 105 U.S. 224,

245 (1881), that military retired pay was reduced com-

pensation for reduced current services. Jd. at 221-222.

The basic federal characterization of military retired

pay, such as Colonel Armstrong’s Marine Corps retired

pay, was settled law as of the Tyler decision in 1881. In

1973, military retired pay was “‘reduced compensation for

reduced services.” The significance of this phraseology in

this case is that Colonel Armstrong’s Marine Corps

retired pay was not “property” in 1973. His “reduced

compensation for reduced services,” which is the basic

characteristic of military retired pay, did not commence

until after he actually retired from active duty on July 1,

1974. Since Colonel Armstrong’s reduced services did

not commence until he retired, his entitlement or “property

right” in the reduced compensation for those services did

not commence until that point either.

Unlike private pension plans and most public sector

plans, there is no fund into which the military and naval

employer and employee contribute regular amounts prior

to retirement. Employees acquire “vested rights” in non-

military retirement plans because there is a pool or fund of

money in being prior to retirement which may be viewed

as “‘property”’ and in which such vested rights attach. By

way of contrast, military and naval retired pay is funded

by annual appropriations of Congress just as active duty

salaries are. A member of the armed services cannot

acquire a “‘vested right”’ in such an annual appropriation

prior to retirement—there is simply no property to which

such a “‘vested right” might attach. Furthermore, Costello

v. United States, 587 F.2d 424, 426 (9th Cir. 1978), cert.

denied, 442 U.S. 929 (1979), cited with approval in

McCarty, teaches that, even after retirement, the retiree

has no “‘vested right” in any particular level of compensa-

tion—it is not deferred compensation since the level can

be reduced prospectively.

Since military retired pay is reduced compensation for

reduced current services (and not a pension at all), it is

readily apparent that Colonel Armstrong had no property

rights whatsoever in future retired pay while he was still on

active duty in 1973. Colonel Armstrong submits that

division of his retired pay—his reduced compensation for

reduced services performed after the date of dissolution—

was property acquired after dissolution as a matter of

federal law and was therefore not property in existence in

1973 which the California court had subject matter

jurisdiction to divide as community property.

B. A Judgment Is Not Entitled To Res Judicata

Effect Insofar as It Attempts To Adjudicate

Rights in After-Acquired Property

Proceeding from the principles set forth in the preceding

subsection, one is inescapably led to the conclusion that a

state judgment is not entitled to res judicata effect insofar

as it divides military retired pay as community property

prior to the time when those federally created property

rights come into existence. This conclusion emanates

from the basic principle of the law of judgments that a

court of general jurisdiction, such as the Los Angeles

County Superior Court, cannot divide or adjudicate rights

in after-acquired property. The classic treatise Freeman

on Judgments expresses this well settled principle in the

following terms:

“Under no circumstances will a judgment or

decree take effect upon rights not then existing.”

W. Freeman, 2 Treatise on the Law of Judgments,

§ 712, at 1503 (5th ed., Bancroft-Whitney,

1925) (footnotes omitted).

“Whenever title is put in issue and adjudicated,

the judgment is res judicata upon this issue in

any subsequent action. The effect of such an

adjudication must, however, be limited to the

title or right as it then stood. It is obviously not

conclusive as to title and rights subsequently

acquired. .. .” Jd, § 714, at 1507. (footnotes

omitted). .

The formulation of the after-acquired property exception

to res judicata thus expressed in Freeman on Judgments

has been cited with approval by the federal courts. See

Magruder v. Safe Deposit & Trust Co., 159 F.2d 913,

914-915 (9% Cir. 1947). Professor Moore’s treatise cites

the Freeman work for the proposition that “. . . no

judgment can affect subsequently arising rights and duties.”

1B Moore’s Federal Practice (2d ed.) § 0.415, at 2054.

Moreover, this principle of denying res judicata effect

to a judgment purporting to adjudicate rights in after-

acquired property has been embodied in section 72 of the

Restatement of Judgments, which states:

‘The decision of a court on a question of fact or law

involving an interest in property is not conclusive

in a subsequent action between the same parties

with reference to other property acquired by one

of the parties subsequently to the judgment.”

Restatement of Judgments, § 72, at 329(1942).

California itself follows Freeman on Judgments and

the Restatement rule generally in civil litigation. In Lord

v. Garland, 27 Cal.2d 840, 849, 168 P.2d 5 (1946), the

California Supreme Court has stated:

‘“*And the rule of res judicata extends only to

the facts and conditions as they existed at the

time the judgment was rendered, or more correctly

speaking, at the time and issues in the first action

were made, and to the legal rights and relations

of the parties as fixed by the facts determined by

that judgment.”

Thus, the 1973 California interlocutory judgment had

no res judicata or collateral estoppel effect in this federal

action for a declaration of Colonel Armstrong’s rights to

his federal retirement precisely because he did not acquire

those rights until he retired at a date subsequent to the

1973 judgment. Precisely because the 1973 California

interlocutory judgment was not entitled to res judicata

effect as a matter of federal law, the district court was

free to enter a declaration that Colonel Armstrong was

presently entitled to the entirety of his Marine Corps

retired pay. This result was in no way dependent on the

retroactivity of the McCarty decision but depended

instead upon federal law regarding the nature of property

rights in military retired pay.

C. The 1973 California Judgment Was Void for

Want of Subject Matter Jurisdiction, and Resolution

of This Jurisdictional Issue Was Directly Dependent

on the Proper Application of Federal Law

For the same reason that the California judgment has no

res judicata effect as to the division of Colonel Armstrong’s

retired pay because such pay is property acquired after the

date of judgment, the California judgment is likewise void

because the California court had no jurisdiction to adjudi-

cate rights in this federally created property because it was

not in existence at the time the interlocutory judgment was

entered. California law provides that “A judgment is void

on its face if the court which rendered the judgment lacked

personal or subject matter jurisdiction or exceeded its

jurisdiction in granting relief which the court had no power

to grant.” County of Ventura v. Tillett, 133 Cal.App.3d

105, 110, 183 Cal.Rptr. 741 (1982) (emphasis added).

Accord: Becker v. S.P.V. Constr. Co., 27 Cal.3d 489,

493, 165 Cal.Rptr. 825,612 P.2d915 (1980); Armstrong

v. Armstrong, 15 Cal.3d 942, 950, 126 Cal.Rptr. 805,

544 P.2d 941 (1976).

When one applies California’s own definition of a void

judgment to the facts alleged in Colonel Armstrong’s

complaint, it is readily apparent that the 1973 interlocutory

judgment was void as a matter of federal law insofar as it

divided the Marine Corps retired pay before Colonel

Armstrong actually retired and his property interest came

into being. Under California law, the California courts

have no inherent power to divide marital property—that

power is statutory. Cal. Civ. Code § 4800.

It should further be noted that whereas California’s

definition of a void judgment purports to have three

categories (lack of personal jurisdiction, lack of subject

matter jurisdiction, and excess of jurisdiction by granting

relief which the court has no power to grant— County of

Ventura v. Tillett, supra), lack of subject matter jurisdiction

and the granting of relief which the court has no power to

grant are really a single category. Ifa court has no power to

grant particular relief, then it appears to lack subject

matter jurisdiction at least to that extent.

Finally, the 1973 California interlocutory judgment

recited that “‘Petitioner’s interest in the Navy retirement

fund is hereby declared to be community property to the

extent of 90% thereof.’ (App. C—Exh. A to Complaint.)

Since there never has been a “retirement fund” of

accumulated contributions for payment of Marine Corps

retirement benefits, there was no property interest in such

a fund in 1973. Retired pay, like active duty pay for the

military, is funded by annual appropriations. Since the

California court wholly misunderstood federal law estab-

lishing the nature of retired pay, it divided as “community

property’ an interest in a fund that did not exist and never

has existed.

D. The Present Operation of the McCarty Decision

on the 1973 California Interiocutory Judgment

Also Presented a Substantial Federal Question

Another aspect of Colonel Armstrong’s prayer for a

declaratory judgment that“. . . plaintiff's Marine Corps

retirement checks have been and continue to be his

exclusive personal entitlement not divisible as community

property” (Excerpt, p. 6, lines 3-5) was a request for a

declaration of his rights under the 1981 McCarty decision,

supra. This prayer was supported by the allegations of the

complaint. (App. C—Complaint, § J 13,14, and17.) Itis

submitted that Colonel Armstrong was entitled to have a

federal district court in this Circuit declare his federal

rights as to whether prospective application of McCarty

would preclude further division of his retired pay after the

date of the decision pursuant to the pre- McCarty judgment.

As was pointed out to the Ninth Circuit, Colonel

Armstrong was urging his circuit to adopt the view

expressed by Judge Ainsworth in his dissent in Erspan v.

Badgitt, 659 F.2d 26, 28-29 (Sth Cir. 1981), cert. denied,

455 U.S. 945 (1982). The fact that the Ainsworth view

had been rejected in the Fifth Circuit did not foreclose

jurisdiction to decide the previously unsettled question of

whether the Ainsworth view would prevail in the Ninth

Circuit. Although the Ninth Circuit may look to the

reasoning of other circuits for guidance, the courts of the

Ninth Circuit are only bound by decisions rendered in the

Ninth Circuit. Gunther v. County of Washington, 623

F.2d 1303, 1319 (9th Cir. 1979), aff'd, 452 F.2d 161

(1981). Also the denial of certiorari in Erspan imported

no expression on the merits of the case by this Court.

Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S.

363, 365 n. 1 (1973).

E. Colonel Armstrong’s Complaint Satisfied the Settled

Tests for Federal Question Jurisdiction

In this case, the complaint dismissed by the district

court invoked federal question jurisdiction under 28

U.S.C. § 1331. A case must “arise under’ federal law to

support jurisdiction under section 1331. Gully v. First

Nat'l Bank, 299 U.S. 109 (1936), states that ““To bring a

case within the statute, a right or immunity created by the

Constitution or laws of the United States must be an

element, and an essential one, of the plaintiff's cause of

action.”” Gully v. First Nat'l Bank, 299 U.S. 109, 112

(1936). It further states that “The right or immunity must

be such that it will be supported if the Constitution or laws

of the United States are given one construction or effect,

and defeated if they receive another.” Jd. This latter test

approved in Gully is a variant of the formulation used in

Smith v. Kansas City Title & Trust Co., 255 U.S. 180,

199 (1921):

“The general rule is that where it appears

from the bill or statement of the plaintiff that the

right to relief depends upon the construction or

application of the Constitution or laws of the

United States, and that such federal claim is not

merely colorable, and rests upon a reasonable

foundation, the District Court has jurisdic-

Applying these tests, one must readily conclude that the

lower courts erred in holding that this case did not arise

under federal law. The questions of whether the 1973

California interlocutory judgment was entitled to res

judicata eftect or void for lack of subject matter

jurisdiction were dependent upon how one resolved the

federal question of whether Colonel Armstrong had any

property interest in 1973 in a Marine Corps retirement

fund or in the retired pay that would be paid as reducecd

compensation for reduced services at some future date.

Thus, the issue of whether Colonel Armstrong had a

present interest in his Marine Corps retired pay in 1973 or

whether his property interests were acquired after the date

of judgment was an “essential element” of his claim for

relief in this case. Insofar as the 1973 California judgment

divided his Marine Corps retired pay as community

property, that portion of the judgment will be denied res

judicata effect under his construction of the Navy and

Marine Corps retirement statutes and will be supported by

a contrary construction. Colonel Armstrong’s right to

relief thus depends upon the construction or application of

the laws of the United States, and for that reason, it arises

“directly” under those laws pursuant to the Gully test.

Colonel Armstrong’s claim that the Ninth Circuit

should adopt Judge Ainsworth’s dissenting view in pre-

ference to the Fifth Circuit majority view on the prospective

operation of McCarty also presented a federal question.

The proper application of a new supreme court decision is

as much a question of federal law as a pure question of

constitutional or statutory construction. Interpretation of

that new decision was an essential element of Colonel

Armstrong’s claim for relief. He prevailed under one con-

- struction or interpretation of the proper prospective applica-

tion of McCarty and lost under the contrary construction or

interpretation. This aspect of his claim, therefore, also

satisfied the requirement of Gully that the claim arise

“directly” under federal law.

The Supremacy Clause is also implicated because the

States, including California, are bound by the proper

construction or interpretation of federal law—either as to

the existence of federally created property interests in

1973 or as to the operative effect of the new decision in the

McCarty case.

REASONS WHY A WRIT OF CERTIORARI

SHOULD BE GRANTED

THIS CASE RAISES AN IMPORTANT QUESTION

OF LAW REGARDING FEDERAL QUES-

TION JURISDICTION IN FEDERAL

DECLARATORY RELIEF ACTIONS

A. The Federal Questions Presented in this Case

Were Not Anticipated Defenses to a State Lawsuit

The Ninth Circuit grounds its decision affirming the

judgment of the district court in this case on an offshoot

of the “well-pleaded complaint’ rule enunciated in

Louisville & Nashville Railroad v. Mottley, 211 U.S.

149 (1908). The cases cited by the Ninth Circuit for lack

of federal question jurisdiction are progeny of the Supreme

Court’s decision in Skelly Oil Co. v. Phillips Petroleum

Co., 339 U.S. 667, 673-674 (1950). See, eg., Alton Box

Bad. Co. v. Espirit de Corp, 682 F.2d 1267, 1274 (9th Cir.

1982).

This case is not a case which falls within the Skelly rule.

Skelly has to do with “artful pleading” to bring a case into

federal court before the declaratory relief defendant can

file a state action as a plaintiff. The present case has nothing to

do with the anticipatory pleading in a federal declaratory relief

action of defenses to state court lawsuits not yet filed. In

the instant case, the California lawsuit had already been

tried through to judgment. All that remained was continued

enforcement of the state court judgment.

Prior to the Ninth Circuit decison in the present case,

Skelly has not been applied to lawsuits already tried. The

crux of the Skelly decision was that the federal plaintiff

presented a complaint positing a state cause of action and

anticipating a federal defense which could be raised in a

state court lawsuit not yet tried. Here Colonel Armstrong

posits no defense to a state cause of action as yet untried.

He asks for a declaration of his current federal rights—is

he presently entitled to the entirety of his Marine Corps

retired pay or not?—a question of federal law which

anticipates no defense in a pending or potential state court

lawsuit because the state court lawsuit has already gone to

judgment.

Furthermore, he seeks a federal declaration grounded in

federal law that his retired pay is after-acquired property

as to which the state court judgment has no res judicata or

collateral estoppel effect and that the state judgment is

void for lack of subject matter jurisdiction. Professor

Moore’s treatise states:

‘

“Although the equitable jurisdiction of a

federal court cannot be invoked for the purpose

of reviewing or correcting judgments or decrees

rendered in state court, it is well settled that

aside from statutory inhibitions federal courts

have the power to enjuin the enforcement of, or

otherwise grant appropriate equitable relief from,

a state judgment when warranted by equitable

principles and the elements of equitable and

federal jurisdiciton are present.” 7 Moore’s

Federal Practice §, 60.39[1], at 652-653 (foot-

notes omitted).

The declaratory judgment sought by Colonel Armstrong

was, in part, in the nature of an independent action in

equity to secure relief from a void judgment. By entertain-

ing such an action a court is not interfering with the

process of another court and vacating the latter’s judgment

but is merely acting upon the holder of the judgment (here

Mrs. Armstrong), who is subject to its jurisdiction; here

the independent action did not seek to vacate or annul the

judgment but merely sought to deny the holder the fruits

thereof. See 7 Moore’s Federal Practice J 60.36 at 605.

Enforcement of a void judgment may be enjoined, or the

judgment may be collaterally attacked at any time in any

proceeding, state or federal, in which the effect of the

judgment comes in issue, which means that if the judgment

is void it should be treated as legally ineffective in the

subsequent proceeding. 7 Moore’s Federal Practice, |

60.25[2] at 301. There is no provision or principle of law

requiring a suit for equitable relief from a judgment to be

tried by the court that rendered the judgment. Hence a

federal court has jurisdiction to grant such relief from a

judgment of a state court. McNeil v. McNeil, 78 F. 834,

835 (C.C.N.D. Cal. 1897), affirmed, 170 F. 289 (9th

Cir. 1909); United States v. Fallbrook Public Utility

Dist., 193 F.Supp. 342, 361 (S.D. Cal. 1961), reversed in

part on other grounds, 347 F.2d 48, 59 (9th Cir. 1965)

(expressly holds that res judicata does not apply to bar

equitable relief from a void state court judgment).

Furthermore, even under California law, affirmance of

a void judgment by an appellate court does not bar the

right of an aggrieved party to thereafter attack it on the

ground that it is void. Bank of Italy v. Cadenasso, 206

Cal. 436, 438 (1929). Nor does dismissal of an appeal

from a void judgment bar a later direct or collateral attack

on the judgment as being void. Sullivan v. Gage, 145 Cal.

749, 770-771 (1905). If an affirmance on appeal or a

dismissal of an appeal does not bar a later attack on a void

judgment, it logically follows that a litigant such as

Colonel Armstrong is not barred from attacking a judgment

as void when he did not take an appeal from the original

judgment.

There is no time limit on an attack upon a judgment as

being void; a void judgment cannot acquire validity

because of laches on the part of the judgment debtor.

Misco Leasing Co. v. Vaughn, 450 F.2d 257 (10th Cir.

1971); Taft v. Donnellan Jerome, Inc., 407 F.2d 807,

808 (7th Cir. 1969). Forexample, in Crosby v. Bradstreet

Co., 312 F.2d 483 (2d Cir. 1963), cert. denied, 373 U.S.

911 (1963), ajudgment was vacated as void 30 years after

its entry.

B. There Will Be No Further California Civil Litigation

in Which Colonel Armstrong Will Have an Oppor-

tunity To Raise His Federal Claims as “ Defenses”

In concluding that the Ninth Circuit progeny of Skelly

precluded relief in this case, this Ninth Circuit incorrectly

assumed that there would be some further state court civil

proceeding brought by Elayne Armstrong, at which

Colonel Armstrong can assert a defense in the posture of a

defendant. As was pointed out in the petition for rehearing

below, the Ninth Circuit overlooked the new mechanism

for enforcement under the Uniformed Services Former

Spouses’ Protection Act, which became effective February

1, 1983. Added by this Act was new section 1408 of Title

10 of the United States Code which permits the former

Mrs. Armstrong to collect her judgment simply by sending

a copy of the California judgment to the Secretary of the

Navy, who must then“. . . make payments to the spouse

or former spouse in the amount of the disposable retired or

retainer pay of the member specifically provided for in the

court order.” 10 U.S.C. § 1408(d)(1). When this method

of enforcement is used, Colonel Armstrong has no state

enforcement proceeding at all in which to assert any

federal claims as ‘“‘defenses.”’

Even if Elayne Armstrong sought to enforce her state

court judgment by California writs of execution, California

law does not provide for a hearing on the issuance of a writ

of execution at which Colonel Armstrong could raise a

defense. Under California Code of Civil Procedure section

682, the clerk of the superior court issues the writ of

execution. Issuance of the writ is a ministerial act which is

done ex parte. The clerk of the court has no discretion to

refuse to issue the writ, and the clerk can be compelled to

perform his ministerial duty by a state writ of mandamus.

See generally B. Witkin, 5 California Procedure (2d ed.

1971), § 69, p. 3443. This ex parte procedure will

continue in effect under the new California Enforcement

of Judgments Act, effective July 1, 1983. See Cal. Code

Civ. Proc. § 699.510. The California cases hold that

there is no violation of due process in the ex parte issuance —

of a writ of execution. Phillips v. Bartolomie, 46 Cal. App.3d

346, 349-351, 121 Cal.Rptr. 56 (1975); Raigoza y.

Sperl, 34 Cal.App.3d 560, 564-567, 110 Cal.Rptr. 296

(1973).

Hence an analysis of California law reveals that the

Skelly rationale is simply inapplicable to the present

proceeding. Skelly holds simply that a party about to be

made a defendant in a state court civil action cannot

become a federal court plaintiff by artful pleading of a

State court defense as part of a federal declaratory relief

action. In this case, Colonel Armstrong is not converting

himself from state court defendant status to federal court

plaintiff status. The Phillips and Raigoza cases, supra,

are instructive on the point that, if Colonel Armstrong

wants to raise the points raised in his federal action in state

court, he would have to do so by action which puts him in

the position of a plaintiff, not a defendant. In both Phillips

and Raigoza, the judgment debtors had to bring their

challenges to the writs of execution issued in each case as

state court plaintiffs in actions for declaratory and

injunctive relief. Even if Colonel Armstrong could raise

the issue presented in the present federal action on a non-

Statutory motion to recall or quash a writ of execution (see

Witkin, supra, 5 California Procedure, § § 85-86), the

propriety of such a motion being doubtful, Colonel

Armstrong would have to assume the posture of a plaintiff

(not a defendant) because he, not Elayne Armstrong,

would be the moving party.

When the Ninth Circuit states that “Armstrong’s

federal law issues have vitality only as defenses to

enforcement of the state court judgment,” it overlooks the

“artful pleading” essence of Skelly and its progeny.

Colonel Armstrong has not artfully pleaded himself into

the position of a plaintiff when he should be a defendant.

There is simply no state court civil proceeding in which he

can assert “defenses” as opposed to affirmative claims

brought as a plaintiff or moving party. The sine qua non of

the paradigm case for lack of jurisdiction under Skelly is

such artful pleading.

Recent scholarship questions whether the Skelly doc-

trine has any application beyond the peculiar factual

context of that decision. See M. Redish, Federal Jurisdic-

tion: Tensions in the Allocation of Judicial Power

(Michie, 1980), at 73-77. It is important to keep in mind

that in this case the decision of this Court is denying

Colonel Armstrong a federal forum for the adjudication of

his own federal rights and relegating him to raise his

federal issues as defenses where it is doubtful that there

will be any state civil proceeding in which he can raise a

“defense” as opposed to an affirmative allegation as

plaintiff or moving party. Law school has taught us that the

plaintiff has the right to choose the federal courts, rather

than the state courts, for adjudication of his important

federal rights.

C. The Ninth Circuit Extend the Application of the

Skelly Rule to Require Assertion of Federal

Claims as Defenses to State Criminal Contempt

Proceedings

The Ninth Circuit’s decision may have the effect of

relegating Coionel Armstrong to an adjudication of his

federal rights as a ‘“‘defense”’ to a state quasi-criminal

proceeding rather than as a defense to a state civil action.

Failure to pay a court-ordered portion of military retired

pay to an ex-wife is punishable by criminal contempt in

California. In re Marriage of Fithian, 74 Cal.App.3d

397, 141 Cal.Rptr. 506 (1977); Verner v. Verner, 77

Cal.App.3d 718, 143 Cal.Rptr. 826 (1978). An order

finding a party in contempt is not appealable, but reviewable

only on discretionary writs of certiorari or habeas corpus.

In re Buckley, 10 Cal.3d 327, 110 Cal.Rptr. 121, 514

P.2d 1201 (1973). Skelly surely does not stand for the

proposition that a district court lacks subject matter

jurisdiction because there is the slim possibility that a

declaratory relief plaintiff may be able to raise his federal

issues as potential “defenses” in a potential future contempt

action where he risks imprisonment. Furthermore, it is

uncertain whether Elayne Armstrong will even bring

another contempt action in light of the collection mechanism

in the new Uniformed Services Former Spouses’ Protection

Act.

If the Ninth Circuit decision correctly interprets Skelly,

then retired military and naval personnel will probably

have less access to federal declaratory relief for ascertain-

ment of their federal rights than the average street criminal

or pornographer seeking such relief. In Steffel v. Thompson,

415 U.S. 452, 475 (1974), this Court held that regardless

of whether injunctive relief may be appropriate, “. . .

federal declaratory relief is not precluded when no state

prosecution is pending and a federal plaintiff demonstrates

a genuine threat of enforcement of a disputed state

criminal statute. . . .”’ Here there is a genuine threat of

enforcement of a state judgment alleged to be invalid as a

matter of federal law. There may be a distinction but there

is no real difference.

D. The Federal Question Is Of Critical Importance

to Hundreds of Thousands of American Military

and Naval Personnel

This Court should grant certiorari in this case to

establish that the courts of the United States are open to

the hundreds of thousands of American military and naval

personnel who seek an adjudication of the nature and

extent of their federal created “‘property rights” in retired

pay they currently are receiving or can expect to receive in

the future. A career in the uniformed services requires

great sacrifices, and its pursuit frequently exacts a heavy

price in terms of divorce.

While the federal courts are theoretically supposed to

be open for adjudication of the federal rights of citizens,

decisions such as the lower courts have rendered in this

case send a message to our service personnel that the

federal judiciary has abandoned them to the state court

systems of the community property states of this Nation.

One scholar has recently written:

“A significant function performed by the

federal courts today is the adjudication and

protection of federal rights and interests. Because

the selection process for the appointment of

federal judges generally insures a minimum

degree of competence, because federal judges

are exposed day after day to issues of federal

law, and because federal judges may often be

more sympathetic to federal interests than are

State judges, it is generally conceded that the

adjudication of cases arising under federal law is

an important aspect of the work of the federal

courts.” M. Redish, Federal Jurisdiction: Tensions

in the Allocation of Judicial Power, at 53

(Michie, 1980).

A major reason why Colonel Armstrong seeks a fed-

eral forum to protect his federal rights is that the Cal-

ifornia courts are understandably reluctant to subordin-

ate their community property rules to overriding federal

considerations which are now forced on them by the

requirements of the Supremacy Clause. This point is

demonstrated by the McCarty decision itself which

reversed a longstanding California rule under its community

property laws as being preempted by federal law. An

interpretation of these same retirement statutes is directly

involved in Colonel Armstrong’s claims for declaratory

and injunctive relief in this case, and he has elected to

pursue those claims in a federal forum rather than a hostile

state forum. Since interpretation of federal military retired

pay Statutes and the case law establishing their meaning is

involved, the need for an expert federal tribunal to handle

the issues of federal law is self-evident. Since jurisdiction

under section 1331 is present, Colonel Armstrong and

other service personnel like him should be permitted to

pursue those claims in federal court.

The effect in human terms on the morale of the

personnel in America’s uniformed services of lack of

access to the federal courts for adjudication of their

federal-created rights in their present and future retired

makes this case important from the standpoint of impact.

The Ninth Circuit’s misapplication of the Skelly rule to

emasculate the remedy of declaratory relief in this case is

of sufficient intrinsic importance to federal jurisprudence

that the question itself should incline the Court toward a

grant of certiorari.

A SECOND IMPORTANT QUESTION OF FED-

ERAL JURISDICTION ARISING UNDER

THE LAWS OF THE UNITED STATES IS

PRESENTED

If this Court decides to review the decision of the Ninth

Circuit with respect to its misapplication of the Skelly

decision, then Colonel Armstrong urges this Court also to

consider the question of whether his complaint stated a

basis for federal jurisdiction under 28 U.S.C. § 1331.

Although the Ninth Circuit did not pass upon this issue,

this Court has consistently held that jurisdictional issue

can always be considered, even sua sponte, whether or not

raised below. See, e.g. Guiterrez v. Waterman Steamship

Corp., 373 U.S. 206, 209 (1963), and cases collected in

R. Stern & E. Gressman, Supreme Court Practice (5th

ed. 1978) at 459.

Colonel Armstrong’s basis for invoking federal question

jurisdiction has been set out in the section of this petition

entitled “THE LEGAL BASIS FOR FEDERAL QUESTION

JURISDICTION UNDER 28 U.S.C. § 1331,” supra. The

underlying issue of whether members of the United States

armed forces have “property rights” in anticipated future

retirement pay has importance based on the sheer numbers

of affected individuals. If, as a matter of federal law,

anticipated future retirement pay was not “property”

while a serviceman or woman was on active duty prior to June

26, 1981, then the courts of community property states

had no jurisdiction to divide such expectancies as “commun-

ity property” prior to that date. When received the retired

pay would be after-acquired property as to which an

antedated divorce judgment would have no res judicata

effect. This issue has survived the enactment of the

Uniformed Services Former Spouses Protection Act

because that Act, while purporting to overrule McCarty,

has not altered the fact that property rights in military and

naval retired pay are still federally created rights. 10

U.S.C. § 1408.

Judicial efficiency militates in favor of considering this

issue together with the first question presented in this

petition. Since the issue is purely legal, preliminary

consideration of the point by the Ninth Circuit is not likely

to produce a more favorable record for review.

A THIRD IMPORTANT QUESTION IS

WHETHER McCARTY IS RETROACTIVE

OR PARTIALLY RETROACTIVE

This Court has noi previously considered whether its

decision in McCarty v. McCarty is retroactive. This

question can only be addressed by this Court because of

dismissal of the appeal Jn re Marriage of Sheldon, 124

Cal.App.3d 324, 177 Cal.Rptr. 380 (1981) appeal

dismissed sub nom., Sheldon v. Sheldon, 456 U.S. 941

(1982). The California Court of Appeal in Sheldon

expressly held that McCarty was not retroactive to

judgments rendered in California prior to June 26, 1981.

Since the retroactivity issue is foreclosed by Sheldon in

any court but this [see Hicks v. Miranda, 422 U.S. 322,

344-345 (1975)], and since the issue has been raised at all

levels in this case, Colonel Armstrong urges that this issue

be considered here.

The Sheldon decision in California erroneously based

its holding of non-retroactivity on three factor test of

Chevron Oil Company v. Huson, 404 U.S. 97, 106-107

(1981). Sheldon, supra, 124 Cal.App.3d at 376-377.

Since McCarty was a statutory construction case, the

proper test was that laid down by this Court in United

States v. Estate of Donnelly, 397 U.S. 286 (1970). The

applicable principle there established was that “‘Acts of

Congress are generally to be applied uniformly throughout

the country from the date of their effectiveness onward.”

397 U.S. at 294. Sheldon overlooked the Donnelly rule

and mistakenly used the Huson test applicable to retro-

activity of new judge-made (non-statutory) rules.

Furthermore, Judge Ainsworth of the Fifth Circuit has

made a persuasive argument for at least limited retroactivity

in his dissent in Erspan v. Badgitt, supra, 659 F.2d at 28-

29.

Resolution of the retroactivity issue still affects countless

numbers of retired military and naval personnel who are

involuntarily paying each month substantial percentages

of their retired pay to ex-spouses, despite this Court’s

conclusion in McCarty that Congress intended such pay

to be their personal entitlement and not divisible as

community property.

RES JUDICATA DID NOT FORECLOSE COLONEL

ARMSTRONG’S FEDERAL CLAIMS

It is anticipated that res judicata will be urged as a basis

for denying this petition. The claim of res judicata in this

case is spurious. First of all, a void judgment is not entitled

to res judicata effect. 7 Moore’s Federal Practice | 60.25[2],

at 300. The issue of whether the 1973 judgment was

entitled res judicata effect was an issue that could only be

raised in a proceeding subsequent to the 1973 California

divorce case. A jurisdictional defect may be raised at any

time. Finally, the issue of res judicata is essentially a

factual issue. Hence it was not properly before the district

court on a motion to dismiss.

CONCLUSION

For the foregoing reasons, Colonel Armstrong urges

that this Court issue a writ of certiorari to the United

States Court of Appeals for the Ninth Circuit in this case

and for such other relief as is just and proper.

Respectfully submitted,

JOSEPH E. DEERING, JR.

DEERING, WALTHER & SANDS

and

RUSSELL IUNGERICH

LAW OFFICES OF RUSSELL IUNGERICH

By.

Russell Iungerich

Attorneys for Petitioner

CHARLES B. ARMSTRONG, JR.

In the Supreme Court of the

United States

CHARLES B. ARMSTRONG

Petitioner,

ELAYNE A. ARMSTRONG,

Respondent.

CERTIFICATE OF SERVICE

I hereby certify that on this 28th day of June, 1983,

three (3) copies of the Petition for Writ of Certiorari were

mailed postage-prepaid, to Paul J. Nestor, Esq., 2107

North Broadway, Suite 306, Santa Ana, California 95125,

counsel for the respondent. I further certify that all parties

required to be served have been served.

RUSSELL IUNGERICH

205 S. Broadway, Suite 808

Los Angeles, CA 90012

Counsel for Petitioner

CHARLES B. ARMSTRONG, JR.

APPENDIX

A-1

APPENDIX A

NINTH CIRCUIT OPINION

PYLE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT Jah Tot

PHILLIP S Wir ary

CME 1S Is gore

CHARLES B. ARMSTRONG, JR. ee =e

na AGU, CA NO. 82-5518

VS.

ELAYNE A. ARMSTRONG, D.C. NO. CV 82-714 CHH

Defendant- Appellee. OPINION

Appeal from the United States District Court

For the Central District of California

The Honorable Cynthia H. Hall, District Judge, Presiding

Argued and Submitted January 3, 1983

Before SKOPIL, NELSON and CANBY, Circuit Judges

PER CURIAM

The district court dismissed Armstrong’s declaratory

judgment action for lack of subject matter jurisdiction. We

affirm.

Armstrong’s marriage was dissolved by a California

court in 1973. At that time, Armstrong was on active duty

in the United States Marine Corps. The court awarded

45% of Armstrong’s future military retired pay to his ex-

wife as part of the community property settlement In

1981, the Supreme Court held that congressional intent

precluded the states from treating military retired pay as

community property. McCarty v. McCarty, 453 U.S. 20

(1981).! Armstrong sought a declaratory judgment in

federal district court that the 1973 judgment was no longer

enforceable.

The only asserted ground of subject matter jurisdiction

is 28 U.S.C. § 1331, which confers jurisdiction in cases

A-2

“arising under’ federal law. Armstrong argues that his

case depends upon interpretation of military retirement

statutes, 10 U.S.C. ch. 571, § § 6321, et seqg., and

preemption of state law under the Supremacy Clause,

U.S. Const, art. VI. A case does not arise under federal

law, however, when the federal question is merely an

anticipated defense to a state lawsuit. Alton Box Board

Co. v. Esprit de Corp., 682 F.2d 1267, 1273-74 (9th Cir.

1982); Rath Packing Co. v. Becker, 530 F.2d 1295, 1304

(9th Cir. 1975), affd, 430 U.S. 519 (1977). Nor is a

federal defense transformed into a federal cause of action

by assertion of a claim for defensive declaratory relief.

Miller-Wohl Co. v. Commissioner of Labor & Industry,

685 F.2d 1088, 1090 (9th Cir. 1982). Armstrong’s

federal law issues have vitality only as defenses to

enforcement of the state court judgment. Federal question

jurisdiction is thus lacking here. Chandler v. O’Bryan,

445 F.2d 1045, 1055-56 (10th Cir. 1971), cert. denied,

405 U.S. 964 (1972).

Because of our resolution of the jurisdictional question,

we need not reach the other issues presented in this case.

We note, however, that the argument that McCarty

rendered contrary state court judgments void for lack of

subject matter jurisdiction was foreclosed when the United

States Supreme Court dismissed the appeal of Jn re

Marriage of Sheldon, 124 Cal. App. 3d 371, 177 Cal.

Rptr. 380 (1981) for want of a substantial federal

question. Sheldon v. Sheldon, ___. U.S, 102

S.Ct. 2002 (1982) (the issue on apeal is reported in 50

U.S.L.W. 3869). See Mandel v. Bradley, 432 U.S. 173,

176 (1977) (per curiam); Carpenter's Pension Trust v.

Kronschnabel, 632 F.2d 745, 747 (9th Cir. 1980).

The decision of the district court is accordingly

AFFIRMED.

A-3

‘In September 1982, Congress enacted the Uniformed Services

Former Spouses’ Protection Act, 10 U.S.C. § 1408 (published in 51

U.S.L.W. 131). That Act permits state courts to treat retired pay for

pay periods beginning after June 25, 1981, either as property of the

member of the armed forces “or as property of the member and his

spouse in accordance with the law of the jurisdiction."’ § 1408 (c)(1).

The effective date of the Act is February 1, 1983.

A-4

APPENDIX B

NINTH CIRCUIT ORDER DENYING PETITION

FOR REHEARING

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES B. ARMSTRONG, JR., F | L F D

Appellant,

-vs- APR 08 1983

ee ee PHILLIP B. WINBERRY

Appellee. CLERK, U.S. COURT OF APPEALS

NO. CA 82-5518

DC NO. CV 82-714 CHH

ORDER

BEFORE: SKOPIL, NELSON and CANBY, Circuit Judges

A majority of the panel as constituted in the above case

has voted to deny the petition for rehearing and to reject

the suggestion for a rehearing en banc.

The full court has been advised of the suggestion for an

en banc rehearing, and no judge of the court has requested

a vote on the suggestion for rehearing en banc. Fed. R.

App. P. 35(b).

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

A-5

APPENDIX C

VERIFIED COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF

RUSSELL IUNGERICH

LAW OFFICES OF RUSSELL IUNGERICH

205 S. Broadway, Suite 808

Los Angeles, CA 90012

Telephone: (213) 625-0387

aa FILED

JOSEPH E. DEERING, JR

DEERING, WALTHER & SANDS FEB 121982

2444 Wilshire Blvd., Suite 301 CLERK, U. S. DISTRICT COURT

Santa Monica, CA 90403 CENTRAL DISTRICT OF CALIFORNIA

Telephone: (213) 453-1941 BY DEPUTY

Attorneys For Plaintiff

CHARLES B. ARMSTRONG, JR.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

2 ("74.

CHARLES B. ARMSTRONG, JR, ) ; “THH

) Civil Action Ne

Plaintiff, ) yERIFIED COMPLAINT FOR

) DECLARATORY AND INJUNCTIVE

v. ) RELIEF AND FOR RESTITUTION

) (Enforcement of Federal Right

ELAYNE A. ARMSTRONG, ) to Quiet Enjoyment of Personal

) Entitlement to Marine Corps

Defendant ) Retired Pay)

Plaintiff CHARLES B. ARMSTRONG, JR. alleges:

1. This action seeks a declaratory judgment that

plaintiff CHARLES B. ARMSTRONG, JR. has the exclusive

right to the entirety of his retirement checks from the

United States Marine Corps and that a California inter-

locutory judgment of dissolution of marriage is void

insofar as it attempts to divide such retirement checks as

A-6

community property between plaintiff and his ex-wife.

This action also seeks a temporary restraining order and

preliminary and permanent injunctions against defendant

ex-wife to prevent her imminent enforcement of the void

California judgment by contempt, wage garnishment, or

otherwise. This action further seeks restitution of all

payments of portions of these retirement checks made to

defendant ex-wife under the void California judgment.

2. Jurisdiction is conferred upon this Court by 28

U.S.C. § 1331 in that this case arises under the Constitu-

tion and laws of the United States. This action arises

under 10 U.S.C., ch. 571, § § 6321 et seq. (the United

States Navy and Marine Corps retirement statutes) and

under the Supremacy Clause (Art. VI, cl. 2) of the United

States Constitution. The remedy of declaratory relief has

been established in 28 U.S.C. § § 2201-2202.

3. Plaintiff CHARLES B. ARMSTRONG, JR is a retired

Colonel in the United States Marine Corps.

4. Defendant ELAYNE A. ARMSTRONG is plaintiff's

former wife.

5. On June 12, 1973, the Superior Court of the State

of California for the County of Los Angeles entered an

interlocutory judgment of dissolution of marriage, dissolving

the marriage of plaintiff and defendant. The California

State court action was entitled, Jn re the Marriage of

Armstrong, LACSC No. WED 20776. A copy of this

interlocutory judgment is attached as Exhibit A to this

complaint.

6. On June 12, 1973, plaintiff CHARLES B. ARMSTRONG,

JR. was on active duty as a Colonel in the United States

Marine Corps and had no property rights, vested or non-

vested, in any Navy or Marine Corps retirement fund.

7. Despite plaintiff s lack of any then-present property

interest in any Navy or Marine Corps retirement fund, the

A-7

Los Angeles County Superior Court made the following

order for the division of future retirement checks in the

interlocutory judgment entered on June 12, 1973: “*Peti-

tioner’s [plaintiff CHARLES B. ARMSTRONG, JR.’s] interest

in the Navy retirement fund is hereby declared community

property to the extent of 90% thereof. Petitioner is hereby

ordered to pay direct to Respondent [defendant ELAYNE

A. ARMSTRONG] 45% of any and all net funds received on

said Naval retirement, commencing immediately upon

receipt thereof, and terminating upon the death of either

Petitioner or Respondent.”

8. Plaintiff CHARLES B. ARMSTRONG, JR. retired

from the United States Marine Corps on July 1, 1974, and

received his first retirement check on August 1, 1974.

9. Commencing with the August 1, 1974 retirement

check and continuing through the June 1, 1981 check,

plaintiff CHARLES B. ARMSTRONG, JR. paid defendant

ELAYNE A. ARMSTRONG the court-ordered percentage of

each such retirement check.

10. On June 26, 1981, The United States Supreme

Court decided McCarty v. McCarty, 453 U.S. 69

L.Ed.2d 101 S.Ct. 2728 (1981), which held that

Congress never authorized nor required the community

property division of military retired pay and that such pay

continues to be the personal entitlement of the retiree.

11. Since the McCarty decision on June 26, 1981,

plaintiff CHARLES B. ARMSTRONG, JR. has steadfastly

refused, and intends to continue to refuse, to make further

payments of any portion of his Marine Corps retirement

checks to defendant ELAYNE A. ARMSTRONG as ordered

by the June 12, 1973 interlocutory judgment of the Los

Angeles County Superior Court.

A-8

12. The June 12, 1973 interlocutory judgment dissolving

the marriage of plaintiff CHARLES B. ARMSTRONG, JR.

and defendant ELAYNE A. ARMSTRONG is void because

the California court had no jurisdiction to divide property

which was not then in existence.

13. Continued enforcement of the California judgment

will interfere with plaintiff CHARLES B. ARMSTRONG,

JR.’s now settled personal entitlement to his retirement

checks from the United States Marine Corps.

14. The California judgment must yield under the

Supremacy Clause of the United States Constitution to

the express intent of Congress that military retirement not

be subject to division as community property.

15. Plaintiff CHARLES B. ARMSTRONG, JR. has paid

defendant ELAYNE A. ARMSTRONG the sum of approxi-

mately $55,875.98 under the void interlocutory judgment

of June 12, 1973, andis entitled to restitution in this action

of that sum or such lesser sum as may not be barred by the

applicable statute of limitations.

16. Even if the McCarty decision were to be given

prospective effect only, such prospective effect should

preclude plaintiff CHARLES B. ARMSTRONG, JR.’s having

to pay any portion of retirement checks received after June

26, 1981, to his ex-wife and defendant ELAYNE A.

ARMSTRONG.

17. Under California law, the June 12, 1973 inter-

locutory judgment dividing plaintiff's military retirement

checks may be enforced by contempt as well as the

traditional methods of execution, including wage garnish-

ment.

18. Plaintiff CHARLES B. ARMSTRONG, JR. successfully

resisted on December 21, 1981, one order to show cause

re contempt to enforce the June 12, 1973.

A-9

19. While the California superior court denied the

contempt sought on December 21, 1981, that court did

order plaintiff CHARLES B. ARMSTRONG, JR. to make an

accounting to his ex-wife of the amounts received by him

in Marine Corps retirement checks since he stopped

paying his ex-wife after the McCarty decision.

20. Although no state court proceedings are currently

pending to enforce the California judgment by contempt

insofar as it divides plaintiff's military retirement checks

as community property, such proceedings are imminent in

light of the information furnished by him in the accounting

and in view of his continuing refusal to remit a portion of

his retirement checks to his ex-wife under the terms of the

California judgment.

21. Plaintiff CHARLES B. ARMSTRONG, JR. will suffer

irreparable harm if he may be jailed or fined by a

California court at the behest of his ex-wife while

attempting to vindicate his federal right to the quiet

enjoyment of his personal entitlement to his entire Marine

Corps retirement check. Since he is a public school

teacher, he will suffer irreparable harm to his reputation

even if the mechanism of wage garnishment is used to

collect sums under the void California judgment from his

present employer.

22. Plaintiff CHARLES B. ARMSTRONG, JR. has suffered

and will continue to suffer deprivation of his personal

entitlement to the entirety of his military retirement unless

granted the relief prayed for in this complaint.

23. Plaintiff CHARLES B. ARMSTRONG, JR. has no

plain, adequate or complete remedy at law against

enforcement of that portion of the California interlocutory

judgment purporting to divide his military retirement

checks as community property under California law.

A-10

WHEREFORE, plaintiff CHARLES B. ARMSTRONG, JR.

respectfully prays that this Court grant the following

relief:

1. A declaratory judgment that (a) plaintiffs Marine

Corps retirement checks have been and continue to be his

exclusive personal entitlement not divisible as community

property and (b) the June 12, 1973 California interlocutory

judgment is void insofar as it has purported to divide

plaintiff's military retirement checks as community property

under California law;

2. A temporary restraining order and preliminary and

permanent injunctions restraining defendant ELAYNE A.

ARMSTRONG, her attorneys, agents and all persons acting

in concert with them who have knowledge of the injunction,

from enforcing or attempting to enforce in any way that

portion of the June 12, 1973 interlocutory judgment of the

Los Angeles County Superior Court dissolving the marriage

of plaintiff and defendant which divides plaintiffs Marine

Corps retirement as community property and orders

plaintiff to pay 45% of the net retirement to defendant

ELAYNE A. ARMSTRONG;

3. Ajudgment ordering restitution to plaintiff CHARLES

B. ARMSTRONG, JR. from defendant ELAYNE A.

ARMSTRONG of all sums paid to defendant by plaintiff

under the void California judgment entered on June 12,

1973, or such sums whose restitution is not presently

barred by any applicable statute of limitations;

4. Plaintiff's costs and attorneys’ fees in this action;

and

5. Such other and further relief as this Court deems just

and proper.

Dated: February 10, 1982

A-1]

RUSSELL IUNGERICH

LAW OFFICES OF RUSSELL IUNGERICH

and

JOSEPH E. DEERING, JR.

DEERING, WALTHER & SANDS

al Worries

Russell Iungerich

Attorneys for Plaintiff

CHARLES B. ARMSTRONG, JR.

VERIFICATION

State of California $5.

County of Los Angeles

CHARLES B. ARMSTRONG, JR, being duly sworn

deposes and says:

He is the plaintiff in the above entitled matter.

He has read the foregoing complaint for declaratory and

injunctive relief and for restitution and knows the contents

thereof.

The same is true of his own knowledge, except as to

those matters which are stated on his information and

belief, and, as to those matters, he believes it to be true.

= 7 ‘ee fj

Si f0 :

( Sib f_ Ae, te

Subscribed and sworn to before =

on February 10, 1982. ae Sy Se

| Seal]

: : OFFICIAL SEAL

= MAAIIOR® HAMEDANI

c WOlSL* ®um 4 CALIFORNIA

otary Public for the State of LOS ANGELES COUNTY

alifornia, County of Los Angeles

My comm expires AUG 14, 1982

ENITTED = Al?

a) ¥ 7

CLAFENCE £ CABELL, County Clerk tu fs i, iv 5

MAR - 7 1974 NAR- 71974

SEO Re 3067 CLARENCE £. CABELL County Gy

We / 7 G. a su see tH

- 4 7 pug BY & K. NOZAWA, DEPUTY

Fe K NO7E\ZA

Grayson & Gross, Inc.

10880 Wilshire Blvd., Ste. 2121

Los Angeles, Calif. 90024

272-9786

Attorney(s) for Petitioner

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF LOS ANGELES

CASE NUMBER

In re the marriage of WED 20776

a: FINAL JUDGMENT

Petitioner. CHARLES B. ARMSTRONG, JR. (MARRIAGE) OF

DISSOLUTION

and

(LEGAL SEPARATION/

Respondent!) ELAYNE W. ARMSTRONG NULLITY/

DISSOLUTION)

9/1702

The court ocquired jurisdiction of the respondent on( 9/2 2/72 ) by:

appeared within the time permitted by law.

& Service of process on that date and respondent having

appeared.

©) Respondent on that date having appeared.

The court orders that:

C) Pursuant to CD) Civil Code Section 4506( 1) or 0 Civil

Code Section 4506(2), a Judgment of Legal Separation

and such other orders as are set out below to be

entered.

EXHIBIT “A”

A-13

Section 4401, or DO Civil Code Section 4425( ), a

Judgment of Nullity and such other orders as are set

out below be entered, and that the parties be restored

to the status of unmarried persons.

& Pursuant to ¥ Civil Code Section 4506(1) or C) Civil

Code Section 4506(2), a Final Judgment of Dissolution

be entered, and that all of the provisions of the

interlocutory judgment, which was entered on June 12,

1973, except as otherwise set out below, be made

binding the same as if set forth in full, and that the

parties be restored to the status of unmarried persons.

Dated O

Judge of the Superior Court

. en 40 ACE 5!

GOUNTY —: =2K BY JT BUTE DEPUTY

GRAYSON & GROSS, INC.

10889 Wilshire Blvd., Ste. 340

Los Angeles, California 90024

272-9786

Attorney(s) for Petitioner

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF LOS ANGELES

In re the marriage of CASE NUMBER

WED 20776

Petitioner. CHARLES B. ARMSTRONG INTERLOCUTORY

and JUDGMENT OF

DISSOLUTION

Respondent: ELAYNE W. ARMSTRONG OF MARRIAGE

This proceeding was heard on Jan. 3, 1973 before the Honorable

Jacqueline L. Weiss, Department No. West J.

The coun acquired jurisdiction of the respondent on.. :

(Dare)

C) Service of process on that date, respondent not having

appeared within the time permitted by law.

©) Service of process on that date and respondent having

appeared.

C) Respondent on that date having appeared.

A-15

The court orders that an interlocutory judgment be

entered declaring that the parties are entitled to have their

marriage dissolved. This interlocutory judgment does not

constitute a final dissolution of marriage and the parties

are still married and will be, and neither party may

remarry, until a final judgment of dissolution is entered.

The court also orders that, unless both parties file their

consent to a dismissal of this proceeding, a final judgment

of dissolution be entered upon proper application of either

party or on the court’s own motion after the expiration of

at least six months from the date the court acquired

jurisdiction of the respondent. The final judgment shall

include such other and further relief as may be necessary

to a complete disposition of this proceeding, but entry of

the final judgment shall not deprive this court of its

jurisdiction over any matter expressly reserved to it in this

or the final judgment until a final disposition is made of

each such matter.

Custody of the minor child, Andrea L. Armstrong, born

March 26, 1956 is awarded to the Respondent, subject to

reasonable visitation in Petitioner. Petitioner is ordered to

pay direct to Respondent for support of said child, the sum

of $150.00 per month, payable one-half on the Ist and

15th days of each month, commencing February 1, 1973

and continuing until further order of Court.

Petitioner is ordered to pay direct to Respondent for her

support and maintenance the amiount of $550.00 per

month, payable one-half on the | st and 1 Sth days of each

month, commencing February 1, 1973, and continuing

until May 15, 1973, at which time spousal support shall be

reduced to the sum of $500.00 per month, payable one-

half on the I st and 15th days of each month, commencing

June 1, 1973 and continuing until Respondent remarries

or dies, further order of Court, or until such time as

Petitioner retires, which ever event shall occur first.

A-16

The following is awarded to the Respondent as her sole

and separate property:

1. Marital residence, commonly known as 18002

Lassen Drive, Santa Ana, California, legally described as

follows:

Lot 40 of Tract No. 1605, as shown on a map

recorded in Book 47, pages 31 and 32 of Miscellaneous

Maps, records of Orange County, California

2. 1970 Ford automobile, license number 244 BZU

3. Common stock, T Rowe Price Growth Fund.

4. All monies in the First National Bank account,

Orange County.

5. All monies in her name in the Navy Federal Credit

Union bank account, Washington, D.C., number051659-31

6. One-half of the books, furniture and furnishings and

tools located at the marital residence.

7. All other personal property and personal effects in

her possession.

The following is awarded to the Petitioner as his sole

and separate property:

1. Real property in the State of Virginia, legally

described as follows:

Being part of the same land conveyed to the party of

the first part by deed from Albert Small and Shirley

S. Small, his wife, and others, dated November 8,

1960 and recorded November 15, 1960 in Deed

Book 1951 at Page 368.

2. 1965 Mustang Automobile, license number 161 CXX.

3. All life insurance policies on his life.

4. Four Hemet Notes and Trust Deeds, W.W. Morley,

O. Ruth, W.C. Morris, and C.C. Havlik, payors.

A-17

5. Security First National bank account in his name.

6. Navy Federal Credit Union bank account in his

name, number 051659-07.

Petitioner's interest in the Navy retirement fund is

hereby declared community property to the extent of 90%

thereof. Petitioner is hereby ordered to pay direct to

Respondent 45% of any and all net funds received on said

Naval retirement, commencing immediately upon receipt

thereof, and terminating upon the death of either Petitioner

or Respondent.

Petitioner is further ordered to pay direct to Respondent

to equalize the distribution of the community assets, the

sum of $2,000.00 cash, payable within thirty days.

All cash in the Navy Federal Credit Union Bank

account, standing in the name of Andrea L. Armstrong,

shall be held in trust by Petitioner to be delivered to

Andrea L. Armstrong on her 1 8th birthday.

DATED: June 11, 1973

TALE WLE WEISS

Judge of the Superior Court

APPROVED:

MEW al F. cOHen!

Melvin, F. Cohen, Attorney for

Respondent

A-18

APPENDIX D

DISTRICT COURT ORDER GRANTING

DEFENDANT ELAYNE ARMSTRONG'S

MOTION TO DISMISS

PAS-le

FILED ENTERED

APR 2 7 1982 APR 28 1982

CLERK, U.S. DISTRICT COURT CLERK, U.S DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA CENTRAL DISTRICT OF “ALIFORNIA

DEPUTY BY rere

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CHARLES B. ARMSTRONG, JR.,

)

Plaintiff, No. CV 82-0714-CHH

, ?

ELAYNE A. ARMSTRONG, ) | ORDER GRANTING

) DEFENDANT'S

Defendant.

) MOTION TO DISMISS

Defendant’s motion to dismiss came before this Court

for hearing on April 19, 1982. The parties appeared

through counsel. The Court has considered the evidentiary

matters and the points and authorities submitted in

support of and in opposition to the motion and the oral

argument.

IT IS HEREBY ORDERED that defendant’s motion to

dismiss is granted. This Order is based on the following

considerations:

1. Plaintiff's claims do not arise under Federal law and

the Court therefore lacks Federal question jurisdiction

under 28 U.S.C. § 1331(a). Plaintiff alleges that this

action arises under the United States Navy and Marine

Corps retirement statute, 28 U.S.C. § 6321 er seq., and

the Supremacy Clause of the United States Constitution,

Art. VI, § 2. The Court disagrees.

A-19

For an action to raise a Federal question, Federal law

must be a direct and essential element of the plaintiff's

cause of action and the Federal question must be substantial.

Smith v. Grimm, 534 F.2d 1346, 1350 (9th Cir.), cert.

denied, 429 U.S. 980 (1976); see also Keaukaha-

Panaewa Community Association v. Hawaiian Homes

Commission, 588 F.2d 1216, 1225-1227 & n.11 (9th

Cir. 1978), cert. denied, 444 U.S. 826 (1979); League to

Save Lake Tahoe v. B.J.K. Corporation, 547 F.2d 1072,

1074 (9th Cir. 1976). The Court finds that the military

retirement statute is not directly in issue and that the

complaint does not raise a supremacy clause issue. The

Court therefore lacks subject matter jurisdiction over this

action.

2. Even assuming plaintiffs claims arise under Federal

law, this Court has no jurisdiction to sit in direct review of

a State court judgment. Atlantic Coast Line Railroad Co.

v. Brotherhood of Locomotive Engineers, 398 U.S. 281,

296 (1970); see also Francisco Enterprises, Inc. v. Kirby,

482 F.2d 481, 484-485 (9th Cir. 1973), cert. denied, 415

U.S. 916 (1974).

3. This Court’s jurisdiction to enjoin a state court

proceeding is strictly limited by the Anti-Injunction Act,

28 U.S.C. § 2283. Plaintiff has not alleged that any of the

three exceptions to the limitations of that Act are present

here and the Court finds that none is applicable. See

Atlantic Coast Line Railroad Company, supra, 398 U.S.

281 (1970); H.J. Heinz Co. v. Owens, 189 F.2d 505 (9th

Cir. 1951), cert. denied, 342 U.S. 675 (1952).

4. Declaratory relief is inappropriate in this case. The

Declaratory Judgment Act does not confer an independent

jurisdictional basis. Skelly Oil Co. v. Phillips Petroleum

Co., 339 U.S. 667 (1950). But even if the Court did have

jurisdiction, it would be inappropriate to exercise that

A-20

discretionary jurisdiction in this case. See H.J. Heinz Co.

v. Owens, supra, 189 F.2d 50S.

5. Plaintiff's action is barred by res judicata. Erspan v.

Badgett, 659 F.2d 26 (Sth Cir. 1981), cert. denied, 50

U.S.L.W. 3669 (Feb. 22, 1982). See also Francisco

Enterprises, Inc. v. Kirby, supra, 482 F.2d at 485; Flynn

v. State Board of Chiropractic Examiners, 418 F.2d 668

(9th Cir. 1969). Plaintiff could have appealed the 1973

State court judgment but failed to do so. In addition,

plaintiff could have appealed the December 28, 1981

order.

6. Plaintiffs argument that the 1973 interlocutory

judgment is void is meritless, see Jn re Marriage of Brown,

15 Cal.App.3d 838, 844 126 Cal.Rptr. 633, 636 (1976);

Bensing v. Bensing, 25 Cal.App. 3d 889, 102 Cal. Rptr.

225 (1972), and, in any event, does not negate the fact that

plaintiff could have appealed the 1973 judgment on that

ground.

IT IS SO ORDERED.

Dated: April 26, 1982.

SEO” Me FOG

C¥nthia Holcomb Hall

United States District Judge

A-21

APPENDIX E

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution

Supremacy Clause, art. VI, cl. 2:

“This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all Treaties

made, or which shall be made, under the Authority of the

United States, shall be the supreme Law of the Land; and

the Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.”

Amendment 5:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger ; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law, nor shall private property be taken for public use,

without just compensation.

Amendment 14, section |:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; and deny

to any person within its jurisdiction the equal protection of

the laws.

Federal

A-22

APPENDIX F

STATUTES INVOLVED

10 U.S.C. § 1408:

(a) In this section:

(1) “Court” means—

(A) any court of competent jurisdiction

of any State, the District of Columbia, the

Commonwealth of Puerto Rico, Guam,

American Samoa, the Virgin Islands, the

Northern Mariana Islands, and the Trust

Territory of the Pacific Islands;

(B) any court of the United States (as

defined in section 451 of title 28) having

competent jurisdiction; and

a foreign country with which the United

States has an agreement requiring the United

States to honor any court order of such

country.

(2) ‘Court order” means a final decree of

divorce, dissolution, annulment, or legal separation

issued by a court, or a court ordered, ratified, or

approved property settlement incident to such a

decree (including a final decree modifying the terms

of a previously issued decree of divorce, dissolution,

annulment, or legal separation, or a court ordered,

ratified, or approved property settlement incident to

such previously issued decree), which —

(A) is issued in accordance with the laws

of the jurisdiction of that court,

(B) provides for—

(i) payment of child support (as

defined in section 462(b) of the Social

Security Act (42 U.S.C. 662(b)));

A-23

(ii) payment of alimony (as defined

in section 462(c) of the Social Security Act

(42 U.S.C. 662(c))); or

(iii) division of property (including a

division of community property); and

of an amount, expressed in dollars or as a

percentage of disposable retired or retainer

pay, from the disposable retired or retainer

pay of a member to the spouse or former

spouse of that member.

(3) ‘‘Final decree’”’ means a decree from which

no appeal may be taken or from which no appeal has

been taken within the time allowed for taking such

appeals under the laws applicable to such appeals, or

a decree from whichtimely appeal has been taken and

such appeal has been finally decided under the laws

applicable to such appeals.

(4) ‘Disposable retired or retainer pay’’ means

the total monthly retired or retainer pay to which a

member is entitled (other than the retired pay of a

member retired for disability under chapter 61 of this

title) less amounts which —

(A) are owed by that member tothe United

States;

(B) are required by law to be and are

deducted from the retired or retainer pay of such

member, including fines and forfeitures ordered

by courts-martial, Federal employment taxes,

and amounts waived in order to receive compen-

sation under title 5 or title 38;

or local income tax purposes, if the withholding

of such amounts is authorized or required by law

and to the extent such amounts withheld are not

A-24

greater that would be authorized if such member

claimed all dependents to which he was entitled;

(D) are withheld under section 3402(i) of

the Internal Revenue Code of 1954 (26 U.S.C.

3402(i) if such member presents evidence of a

tax obligation which supports such withholding;

(E) are deducted as Government life

insurance premiums (not including amounts

deducted for supplemental coverage);

(F) are deducted because of an election

under chapter 73 of this title to provide an

annuity to a spouse or former spouse to whom

payment of a portion of such member’s retired or

retainer pay is being made pursuant to a court

order under this section.

(5) ““Member” includes a former member.

(6) “‘Spouse or former spouse” means the

husband or wife, or former husband or wife, re-

spectively, of a member who, on or before the date of

a court order, was married to that member.

(b) For the purposes of this section—

(1) service of a court order is effective if —

(A) an appropriate agent of the Secretary

concerned designated for receipt of service of court

orders under regulations prescribed pursuant to sub-

section (h) or, ifno agent has been so designated,

the Secretary concerned, is personally served or

is served by certified or registered mail, return

receipt requested;

(B) the court is regular on its face;

served with the court order identify the member

concerned and include the social security number

of such member; and

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(D) the court order or other documents

served with the court order certify that the rights

of the member under the Soldiers’ and Sailors’

Civil Relief Act of 1940(50 U.S.C.App. 501 et

seq.) were observed; and

(2) a court order is regular on its face if the

order—

(A) is issued by a court of competent

jurisdiction;

(B) is legal in form; and

vides reasonable notice that it is issued without

authority of law.

(c)(1) Subject to the limitations of this section, a

court may treat disposable retired or retainer pay payable

to a member for pay periods beginning after June 25,

1981, either as property solely of the member or as

property of the member and his spouse in accordance with

the law of the jurisdiction of such court.

(2) Notwithstanding any other provision of law, this

section does not create any right, title, or interest which

can be sold, assigned, transferred, or otherwise disposed

of (including by inheritance) by a spouse or former spouse.

(3) This section does not authorize any court to order

a member to apply for retirement or retire at a particular

time in order to effectuate any payment under this section.

(4) A court may not treat the disposable retired or

retainer pay of a member in the manner described in

paragraph (1) unless the court has jurisdiction over the

member by reason of (A) his residence, other than

because of military assignment, in the territorial juris-

diction of the court, (B) his domicile in the territorial

jurisdiction of the court, or (C) his consent to the

jurisdiction of the court.

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(d)(1) After effective service on the Secretary con-

cerned of a court order with respect to the payment of a

portion of the retired or retainer pay of a member to the

spouse or a former spouse of the member, the Secretary

shall, subject to the limitations of this section, make

payments to the spouse or former spouse in the amount of

the disposable retired or retainer pay of the member

specifically provided for in the court order. In the case of a

member entitled to receive retired or retainer pay on the

date of the effective service of the court order, such

payments shall begin not later than 90 days after the date

of effective service. In the case of amember not entitled to

receive retired or retainer pay on the date of the effective

service of the court order, such payments shall begin not

later than 90 days after the date on which the member first

becomes entitled to receive retired or retainer pay.

(2) Ifthe spouse or former spouse to whom payments

are to be made under this section was not married to the

member for a period of 10 years or more during which the

member performed at least 10 years of service creditable

in determining the member’s eligibility for retired or

retainer pay, payments may not be made under this

section to the extent that they include an amount resulting

from the treatment by the court under subsection (c) of

disposable retired or retainer pay of the member as

property of the member or property of the member and his

spouse.

(3) Paymenis under this section shall not be made

more frequently that once each month, and the Secretary

concerned shall not be required to vary normal pay and

disbursement cycles for retired or retainer pay in order to

comply with a court order.

(4) Payments from the disposable retired to retainer

pay of a member pursuant to this section shali terminate in

acordance with the terms of the applicable court order, but

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not later than the date of the death of the member or the

date of the death of the spouse or former spouse to whom

payments are being made, whichever occurs first.

(S) If a court order described in paragraph (1)

provides for a division of property (including a division of

community property) in addition to an amount of dis-

posable retired or retainer pay, the Secretary concerned

shall, subject to the limitations of this section, pay to the

spouse or former spouse of the member, from the dis-

posable retired or retainer pay of the member, any part of

the amount payable to the spouse or former spouse under

the division of property upon effective service of a final

court order of garnishment of such amount from such

retired or retainer pay.

(e)(1) The total amount of the disposable retired or

retainer pay of a member payable under subsection (d)

may not exceed 50 percent of such disposable retired or

retainer pay.

(2) In the event of effective service of more than one

court order which provide for payment to a spouse and one

or more former spouses or to more than one former spouse

from the disposable retired or retainer pay of a member,

such pay shall be used to satisfy (subject to the limitations

of paragraph (1)) such court orders on a first-come, first

served basis. Such court orders shall be satisified (subject

to the limitations of paragraph (1)) out of that amount of

disposable retired or retainer pay which remains after the

satisfaction of all court orders which have been previously

served.

(3)(A) In the event of effective service of conflicting

court orders under this section which assert to direct that

different amounts be paid during a month to the same

spouse or former spouse from the disposable retired or

retainer pay of the same member, the Secretary concerned

shall—

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(i) pay to that spouse the least amount of

disposable retired or retainer pay directed to be

paid during that month by any such conflicting

court order, but not more than the amount of

disposable retired or retainer pay which remains

available for payment of such court orders based

on when such court orders were effectively

served and the limitations of paragraph (1) and

subparagraph (B) of paragraph (4));

(ii) retain an amount of disposable retired or

retainer pay that is equal to the lesser of—

(1) the difference between the largest

amount of retired or retainer pay required

by any conflicting court order to be paid to

the spouse or former spouse and the amount

payable to the spouse or former spouse and

the amount payable to the spouse or former

spouse under clause (i); and

(II) the amount of disposable retired or

retainer pay which remains available for

payment of any conflicting court order

based on when such court order was effec-

tively served and the limitations of para-

graph (1) and subparagraph (B) of para-

graph (4); and

(iii) pay to that member the amount which is

equal to the amount of that member’s disposable

retired or retainer pay (less any amount paid

during such month pursuant to legal process

served under section 459 of the Social Security

Act (42 U.S.C. 659) and any amount paid

during such month pursuant to court orders

effectively served under this section, other than

such conflicting court orders) minus—

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(I) the amount of disposable retired or

retainer pay paid under clause (i); and

(II) the amount of disposable retired or

retainer pay retained under clause (ii).

(b) The Secretary concerned shall hold the amount

retained under clause (ii) of subparagraph (A) until such

time as that Secretary is provided with a court order which

has been certified by the member and the spouse or former

spouse to be valid and applicable to the retained amount.

Upon being provided with such an order, the Secretary

shall pay the retained amount in accordance with the

order.

(4)(A) In the event of effective service of a court

order under this section and the service of legal process

pursuant to section 459 of the Social Security Act (42

U.S.C. 659), both of which provide for payments during a

month from the retired or retainer pay of the same

member, such court orders and legal process shall be

satisfied on a first-come, first-serve basis. Such court

orders and legal process shall be satisfied out of moneys

which are subject to such orders and legal process and

which remain available in accordance with the limitations

of paragraph (1) and subparagraph (B) of this paragraph

during such month after the satisfaction of all court orders

or legal process which have been previously served.

(B) Notwithstanding any other provision of law, the

total amount of the disposable retired or retainer pay of a

member payable by the Secretary concerned under all

court orders pursuant to this section and all legal processes

pursuant to section 459 of the Social Security Act (42

U.S.C. 659) with respect to a member may not exceed 65

percent of the disposable retired or retainer pay payable to

such member.

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(5) A court order which itself or because of previously

served court orders provides for the payment of an amount

of disposable retired or retainer pay which exceeds the

amount of such pay available for payment because of the

limit set forth in paragraph (1), or which, because of

previously served court orders or legal process previously

served under section 459 of the Social Security Act (42

U.S.C. 659), provides for payment of an amount of

disposable retired or retainer pay that exceeds the maximum

amount permitted under paragraph (1) or subparagraph

(B) of paragraph (4), shall not be considered to be

irregular on its face solely for that reason. However, such

order shall be considered to be fully satisfied for purposes

of this section by the payment to the spouse or former

spouse of the maximum amount of disposable retired or

retainer pay permitted under paragraph (1) and sub-

paragraph (B) of paragraph (4).

(6) Nothing in this section shall be construed to

relieve a member of liability for the payment of alimony,

child support, or other payments required by a court order

on the grounds that payments made out on disposable

retired or retainer pay under this section have been made

in the maximum amount permitted under paragraph (1) or

subparagraph (B) of paragraph (4). Any such unsatisfied

obligation of a member may be enforced by any means

available under law other than the means provided under

this section in any case in which the maximum amount

permitted under paragraph (1) has been paid and under

section 459 of the Social Security Act (42 U.S.C. 659) in

any case in which the maximum amount permitted under

subparagraph (B) of paragraph (4) has been paid.

(f({1) The United States and any officer or

employee of the United States shall not be liable with

respect to any payment made from retired or retainer pay

to any member, spouse, or former spouse pursuant to a

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court order that is regular on its face if such payment is

made in accordance with this section and the regulations

prescribed pursuant to subsection (h).

(2) An officer or employee of the United States

who, under regulations prescribed pursuant to subsection

(h), has the duty to respond to interrogatories shall not be

subject under any law to any disciplinary action or civil or

criminal liability or penalty for, or because of, any

disclosure of information made by him in carrying out any

of his duties which directly or indirectly pertain to

answering such interrogatories.

(g) A person receiving effective service of a court

order under this section shall, as soon as possible, but not

later than 30 days after the date on which effective service

is made, send a written notice of such court order (together

with a copy of such order) to the member affected by the

court order at his last known address.

(h) The Secretaries concerned shall prescribe uniform

regulations for the administration of this section.

10 U.S.C. § 6149:

“Except for officers whose retired pay is computed

under the Pay Readjustment Act of 1942 (56 Stat. 359),

the retired pay of each retired officer of the Navy or the

Marine Corps shall be computed on the basis of rates of

pay provided by law, at the time of his retirement, for

officers on the active list. If after the retirement of any such

officer the rates of pay for officers on the active list are

changed, the retired pay to which the officer is entitled

shall be recomputed on the basis of the new rates.”

10 U.S.C. § 6322:

“(a) An officer of the Regular Navy or the Regular

Marine Corps holding a permanent appointment in the

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grade of warant officer, W-1, or above who applies for

retirement after completing 30 or more years of active

service may, in the discretion of the Secretary of the Navy,

be retired.

‘*(b) For the purpose of this section, an officer’s years of

active service are computed by adding all his active

service in the armed forces.

**(c) Each officer who is retired under this section is

entitled to retired pay —

**(1) in the case of an officer who first became a

member of a uniformed service (as defined in section

1407(a)(2) of this title) before September 8, 1980, at

the rate of 75 percent of the highest basic pay of the

grade in which retired; or

**(2) in the case of an officer who first became a

member of a unifromed service (as defined in section

1407(a)(2) of this title) on or after September 8,

1980, at the rate of 75 percent of the monthly retired

pay base computed under section 1407(d) of this

title.”

10 U.S.C. § 6325:

““(a) Except as provided in subsection (b) or section

1370 of this title, each officer who is retired under section

6321 or 6322 of this title —

**(1) unless otherwise entitled to a higher grade,

shall be retired in the grade in which he was serving at

the time of retirement; and

(2) unless otherwise entitled to higher pay, is

entitled to retired pay —

‘*( A) in the case of an officer who first became

a member of a uniformed service (as defined in

section 1407(a){2) of this title) before September

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8, 1980, at the rate of 2': percent of the basic pay

of the grade in which he retired: or

‘(B) in the case of an officer who first

became a member of a uniformed service (as

defined in section 1407(a)(2) of this title) on or

after September 8, 1980, at the rate of 2%

percent of the monthly retired pay base coniputed

under section 1407(d) of this title:

multiplied by the number of years of service that may be

credited to him under section 1405 of this title, but the

retired pay so computed may not be more than 75 percent

of the basic pay or monthly retired pay base upon which

the computation of retired pay is based.

‘**(b) Each officer who is retired while serving in the

grade of admiral, vice admiral, general, or lieutenant

general by virtue of an appointment under section 601 of

this title or who is retired while serving in a grade to which

he was appointed or promoted under section 603 of this

title or promoted under section 602 or 5721 of this title —

(1) unless otherwise entitled to a higher grade,

shall be retired in the grade he would hold if he had

not received such an appointment; and

(2) unless otherwise entitled to higher pay, is

entitled to retired pay —

**(A) in the case of an officer who first became

a member of a uniformed service (as defined in

section 1407(a)(2) of this title) before September

8, 1980, at the rate of 2'2 percent of the basic pay

of the grade he would hold if he had not received

such an appointment; or

**(B) in the case of an officer who first became

a member of a uniformed service (as defined in

section 1407(a)(2) of this title) on or after

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September 8, 1980, at the rate of 2% percent of

the monthly retired pay base computed under

section 1407(d), of this title;

multiplied by the number of years of service that may be

credited to him under section 1405 of this title, but the

retired pay so computed may not be more than 75 percent

of the basic pay or monthly retired pay base upon which

the computation of retired pay is based.

“(c) A warrant officer who retires under section 6321,

6322, or 6323 of this title may elect to be placed on the

retired list in the highest grade and with the highest retired

pay to which he is entitled under any provision of this title.

If the pay of that highest grade is less then the pay of any

warrant grade satisfactorily held by him on active duty, his

retired pay shall be based on the higher pay.”

28 U.S.C. §1331:

(A) The district courts shall have original jurisdiction

of all civil actions arising under the Constitution, laws, or

treaties of the United States.”’

28 U.S.C. § 2201:

“In a case of actual controversy within its jurisdiction,

except with respect to Federal taxes other than actions

brought under section 7428 of the Internal Revenue Code

of 1954 or a proceeding under section 505 or 1146 of title

11, any court of the United States, upon the filing of an

appropriate pleading, may declare the rights and other

legal relations of any interested party seeking such

declaration, whether or not further relief is or could be

sought. Any such declaration shall have the force and

effect of a final judgment or decree and shall be reviewable

as such.”

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28 U.S.C. § 2202:

‘Further necessary or proper relief based on a declar-

atory judgment or decree may be granted, after reasonable

notice and hearing, against any adverse party whose rights

have been determined by such judgment.”

28 U.S.C. § 2283:

“A court of the United States may not grant an

injunction to stay proceedings in a State court except as

expressly authorized by Act of Congress, or where

necassary in aid of its jurisdiction, or to protect or

effectuate its judgments.”

California

Civil Code § 4800(a):

(a) Except upon the written agreement of the parties,

or on oral stipulation of the parties in open court, the court

shall, either in its interlocutory judgment of dissolution of

the marriage, in its judgment decreeing the legal separation

of the parties, or at a later time if it expressly reserves

jurisdiction to make such a property division, divide the

community property and the quasi-community property

of the parties, including any such property from which a

homestead has been selected, equally.”

Code of Civil Procedure § 682

(Effective until July 1, 1983):

The writ of execution must be issued in the name of the

people, sealed with the seal of the court, and subscribed by

the clerk or judge, and be directed to the sheriff, constable,

or marshal, or registered process server, and it must

intelligibly refer to the judgment, stating the court, the

county, and in municipal and justice courts, the judicial

district, where the judgment is entered, and if it be for

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money, the amount therof, and the amount actually due

thereon, and if made payable in a specified kind of money

or currency, as provided in Section 667, the execution

must also state the kind of money or currency in which the

judgment is payable, and must require the officer to whom

it is directed to proceed substantially as follows:

1. If it be against the property of the judgment debtor, it

must require such officer to satisfy the judgment, with

interest, out of the personal property of such debtor, and if

sufficient personal property cannot be found, then out of

his real property; or if the judgment be a lien upon real

property, then out of the real property belonging to him on

the day when the abstract of judgment was filed as

provided in Section 674 of this code, or at any time

thereafter.

2. If it be against real or personal property in the hands

of the personal representatives, heirs, devisees, legatees,

tenants, or trustees, it must require such officer to satisfy

the judgment, with interest, out of such property.

3. If it be issued on a judgment made payable in a

specified kind of money or currency, as provided in

Section 667, it must also require such officer to satisfy the

same in the kind of money or currency in which the

judgment is made payable, and such officer must refuse

payment in any other kind of money or currency; and in

case of levy and sale of the property of the judgment

debtor, he must refuse payment from any purchaser at

such sale in any other kind of money or currency than that

specified in the execution. Any such officer collecting

money or currency in the manner required by this chapter,

must pay to the plaintiff or party entitled to recover the

same, the same kind of money or currency received by

him, and in case of neglect or refusal to do so, he shall be

liable on his official bond to the judgment creditor in three

times the amount of money so collected. |

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4. If it be for the delivery of the possession of real or

personal property, it must require such officer to deliver

the possession of the same, describing it, to the party

entitled thereto, and may at the same time require such

officer to satisfy any cost, damages, rents, or profits

recovered by the same judgment, out of the personal

property of the person against whom it was rendered, and

the value of the property for which the judgment was

rendered to be specified therein if a delivery cannot be

had; and if sufficient personal property cannot be found,

then out of the real property, as provided in the first

subdivision of this section.

Code of Civil Procedure § 699.510

(Operative July 1, 1983):

(a) Subject to subdivision (b), after entry of a money

judgment, a writ of execution shall be issued by the clerk of

the court upon application of the judgment creditor and

shall be directed to the levying officer in the county where

the levy is to be made and to any registered process server.

A separate writ shall be issued for each county where a

levy is to be made. Writs may be issued successively until

the money judgment is satisfied, except that a new writ

may not be issued for a county until the expiration of 180

days after the issuance of a prior writ for that county unless

the prior writ is first returned.

(b) If the judgment creditor seeks a writ of execution to

enforce a judgment made, entered, or enforceable pursuant

to Family Law Act, Part 5 (commencing with Section

4000) of Division 4 of the Civil Code, in addition to the

requirements of this article, the judgment creditor shall

satisfy the requirements of any applicable provisions of

Sections 4380 to 4384, inclusive, of the Civil Code.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.