Trial Court: Monterey County Superior Court Superior Court No. DR34210 Trial Judge: Hon. Heidi K. Whilden, Judge Pro Tem
The opinion of the court was delivered by: Premo, Acting P.J.
CERTIFIED FOR PUBLICATION
(Monterey County Super. Ct. No. DR34210)
Steven C. Thorne and Laura L. Raccina entered into a stipulated marital dissolution judgment in 1999 under which Laura*fn1 agreed to accept 16 percent of Steven's military retired pay starting in 2008 based on his rank and pay level at the time of the judgment. In 2010, Laura sought to set aside the judgment because she learned that courts apply the "time rule"*fn2 for apportioning a pension's community and separate property interests. The trial court found that the parties' contractual intention was to enter into an agreement that complied with California law and held that the division of the pension was contrary to law. It therefore modified the judgment to divide Steven's pension according to the "time rule." On Steven's appeal, we conclude that the trial court erred and reject Laura's alternative arguments to uphold the modification, which urge that the pension is a partially omitted asset and extrinsic mistake justifies the modification. We therefore reverse the order granting Laura's set-aside motion and direct the trial court to deny the motion.
The parties married in 1993 and separated in 1999. They sought the assistance of the Judge Advocate General (JAG) officer in their efforts to draft a marital settlement agreement (MSA). Using information from the JAG, Laura typed a marital separation/settlement agreement. Steven offered modifications. The parties negotiated and then signed a final marital separation/settlement agreement. On June 24, 1999, Steven obtained in propria persona an uncontested judgment of dissolution by declaration (Fam. Code, § 2336) to which was attached the agreement.
The judgment/agreement included the following provisions pertaining to Steven's pension: "The parties hereby agree that the nonmilitary spouse is awarded 16% of the military member's retired pay as her separate property, based upon the military member's rank and pay level at the time this agreement is executed. One half of this amount shall be provided on the 1st and 15th of each month starting June 2008. [¶] Should Husband not be entitled to military retirement pay, due to his own actions, an equivalent amount shall be provided based upon the military member's rank and pay level at the time this agreement is executed. One half of this amount shall be provided on the 1st and 15th of each month starting June 2008. [¶] Should Husband not be entitled to military retirement pay, through no fault of his own, 16% of any settlement moneys shall be provided to Wife. [¶] If non-military spouse remarries then the entitlement to the retirement portion is forfeited."
The judgment/agreement also included the following provisions: "Both husband and wife warrant that they have made no promise, agreement, or understanding, except as set forth above, which was relied upon as an inducement to enter into this agreement. [¶] Both parties acknowledge their right to consult with counsel, of the availability of free legal counsel if they could not afford to obtain counsel, and of the desirability of consulting with counsel before executing this agreement because it affects important personal and financial rights. Each party has read and fully understands each and every provision of this agreement. . . . [¶] IN WITNESS WHEREOF, Husband and Wife hereto affix their signatures, both thereby acknowledge the free and voluntary nature of the decision to enter into this agreement. These signatures also acknowledge that Husband and Wife were aware of their right to seek and be advised by an independent attorney in the preparation and review of this agreement."
The judgment/agreement did not reserve jurisdiction over any issue.
On April 8, 2010, Laura, now represented by counsel, filed a motion to modify or set aside the judgment. She specifically sought the following relief: "That Paragraph 5 of the Marital Settlement Agreement attached to the Judgment and made a part thereof relating to Military Retirement Pay, be set-aside or amended to comply with California Law." Her declaration asserted the following: "At the time we entered into the Marital Settlement Agreement I was not represented by counsel and the Marital Settlement Agreement was prepared by [Steven's] Justice Advocate General (JAG) counsel through the Military. I was led to believe by the JAG representative that what was being proposed to me was in fact law, which I now understand is not correct." Her points and authorities asserted that she was entitled to a modification under a mistake-of-law theory because her "community property rights to [Steven's] military retirement was [sic] not correctly adjudicated, the MSA that was incorporated into the judgment incorrectly awarded her with less than her community share of the military pension according to California laws. In addition, it was a serious error that the MSA prepared by the JAG office created an unfair advantage for the military spouse by stating that [Laura's] property rights to the military spouse's retirement benefits ended upon [Laura's] remarriage." She continued that "Under California Family law, the community property interest in retirement benefits is [the 'time rule']." She concluded that she was "entitled to her one-half community share of [Steven's] disposable retirement pay as of the date of his retirement from the military. The court should set-aside the portion of the judgment that divides the military pension so that it can be modified according to California law."
Steven filed a responsive declaration in propria persona that pointed out that "Neither [Steven] nor [Laura] [was] represented by [the JAG]," the JAG "had no stake in providing any advantage to either side," and the JAG's "role is to provide information and awareness, not counsel." He added that the JAG provides a handout guide to give "an overview of the legal process, which will help you do your own uncontested dissolution or separation." He offered that Laura drafted the agreement from a JAG template. He essentially argued that the judgment was unambiguous in defining Laura's rights in his pension: "[Laura] was not awarded a percentage of [Steven's] retired pay, but in . . . fact a percentage of a fixed dollar amount, based on the grade and years of service at the time of Judgment." And he argued that the judgment was final and not subject to attack for mistake of law under Code of Civil Procedure section 473 (relief must be sought within six month of judgment) or Family Code section 2122, subdivision (e) (relief must be sought from stipulated or uncontested judgments within one year of judgment). At the hearing in response to the trial court's question, he stated that he had not been aware of the "time rule."
Laura filed a reply in which she asked the trial court "to provide for the error in this judgment to be ruled as an omitted asset, since the pension division was not according to the time rule and did not provide for my community share of the military pay according to California law and rule that the section that terminates my property rights upon remarriage is contrary to both federal and California law and cannot be enforced." She added that her "belief was that the JAG attorney was supposed to be an impartial party specifically there to preclude this violation of the law" but that he "was not 'providing information and awareness' when he failed to mention to us that the document did not comply with both [federal] and California Family Law. I would have never signed any of the documents if he had informed me the MSA did not comply with the law." She argued, without specifics, that the trial court could grant relief under Family Code section 2122, subdivision (a), because she was kept in ignorance or fraudulently prevented from fully participating in the proceeding (relief must be sought within one year of discovery of the fraud), or under Family Code section 2556 (omitted asset) because the retirement benefit was a partially omitted asset "in that the true value of the asset was not disclosed nor divided according to established California community property laws." Her theory was "that by not providing [Laura] her total community property share of the military retirement, the asset has been partially omitted and, therefore, the Court has jurisdiction to set aside that part that is incorrect and provide a fair and equitable judgment." She claimed that "the Court has a duty to make sure that there are not judgments [sic] or orders that are contrary to the law and, therefore, this was contrary to the law and void on its face as a contract. And so, therefore, it cannot be adjudicated. It's actually void and therefore unenforceable."
The trial court reasoned that the issue was one of contract interpretation governed by Family Code section 2610, subdivision (a), which provides that a court "shall make whatever orders are necessary or appropriate to ensure that each party receives the party's full community property share in any retirement plan." It then found the following: "There exists credible evidence before the Court contained in the pleadings and documents filed in this matter, together with the oral evidence presented at the hearing, that the parties intended to enter into a legally binding agreement which complied with California law. They sought and obtained assistance from the Judge Advocate General officer, and relied on his recommendations. The officer did not suggest that the division set forth in the Agreement was contrary to law, and in fact, [Steven] stated that the parties were unaware of the 'time rule' at the time they entered into the Agreement. The Court thus interprets the Agreement, in accord with the parties' intention, as one which complies with the law." It ordered that the judgment/agreement be amended to divide Steven's pension according to the "time rule." It also noted that the forfeiture-upon-remarriage provision was void under Civil Code section 1669 and ordered that the amended judgment clarify that Laura's pension share not be forfeited upon remarriage.
Generally, once a marital dissolution judgment has become final, the court loses jurisdiction to modify or alter it. (In re Marriage of McDonough (1986) 183 Cal.App.3d 45, 53; Mueller v. Walker (1985) 167 Cal.App.3d 600, 605.) Under the doctrine of res judicata, " '[i]f a property settlement is incorporated in the divorce decree, the settlement is merged with the decree and becomes the final judicial determination of the property rights of the parties.' " (Giovannoni v. Giovannoni (1981) 122 Cal.App.3d 666, 669.) In short, ...