Opinion
Review Granted and Transferred to Court of Appeal Sept. 25, 1986.
See 232 Cal.Rptr. 13.
Opinions on pages 709-728 omitted.
[227 Cal.Rptr. 544]Dolly Ares, San Jose, for plaintiff and appellant.
John Ball, David G. Bicknell, Adams, Wenzel, Plank & Bicknell, San Jose, for defendants and respondents.
RACANELLI, Presiding Justice.
In this appeal we consider the question whether the California court has personal jurisdiction over a nonresident husband for purposes of dividing an omitted community property asset--husband's military pension. We conclude under the circumstances shown here that no personal jurisdiction existed.
FACTS
Husband and wife were married in 1948. During their 22-year marriage husband was an officer in the U.S. Air Force, and the couple lived in many places. In 1971, while temporarily stationed in California, husband filed a petition for dissolution of the marriage as a California resident. Neither the petition nor the interlocutory decree made any mention of husband's military retirement pension.
In 1983 wife filed a separate action to partition the omitted asset. Husband made a special appearance to contest the jurisdiction of the California court. Husband declared that he left California in 1973 and had been a resident of Maryland since 1980; that he had no other contact with California; and that his pension is administered in Denver, Colorado, although the pension trust fund itself is located in Washington, D.C.
Wife appeals from the order granting husband's motion to quash service.
DISCUSSION
There is no dispute that federal military pension benefits may constitute divisible community assets. (In re Marriage of Fithian (1974) 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449, cert. den., 419 U.S. 825, 95 S.Ct. 41, 42 L.Ed.2d 48.) And military pension benefits left unadjudicated in a dissolution action are held by the parties as tenants in common subject to partition in a later civil action. (Henn v. Henn (1980) 26 Cal.3d 323, 161 Cal.Rptr. 502, 605 P.2d 10.)
At the time of the parties' 1971 dissolution, retirement benefits attributable to employment during marriage constituted a community asset to the extent they had vested. (Phillipson v. Board of Administration (1970) 3 Cal.3d 32, 89 Cal.Rptr. 61, 473 P.2d 765; Benson v. City of Los Angeles (1963) 60 Cal.2d 355, 33 Cal.Rptr. 257, 384 P.2d 649; see also Waite v. Waite (1972) 6 Cal.3d 461, 99 Cal.Rptr. 325, 492 P.2d 13.) Nonvested pension rights were considered a mere expectancy not subject to division. (French v. French (1941) 17 Cal.2d 775, 778, 112 P.2d 235 [husband needed 14 more years of service to be eligible for retirement pay]; Williamson v. Williamson (1962) 203 Cal.App.2d 8, 11, 21 Cal.Rptr. 164 [husband had not completed the necessary 20 years of service to be eligible to retire].) But a pension was considered vested if the working spouse was eligible for retirement even though he had not yet elected to retire. (Bensing v. Bensing (1972) 25 Cal.App.3d 889, 892-893, 102 Cal.Rptr. 255 [husband with 28 years in the Air Force was fully eligible to retire but chose to continue working]; see also In re Marriage of Martin (1975) 50 Cal.App.3d 581, 584, 123 Cal.Rptr. 634; In re Marriage of Peterson, (1974) 41 Cal.App.3d 642, 647-652, 115 Cal.Rptr. 184.)
Ordinarily, a court has jurisdiction to award title to a husband's pension rights if the court has either personal jurisdiction over him or in rem jurisdiction over the intangible pension rights. (Waite v. Waite, supra, 6 Cal.3d 461, 99 Cal.Rptr. 325, 492 P.2d 13.) But under the Federal Uniformed Services Former Spouses' Protection Act (FUSFSPA, 10 U.S.C. § 1408), jurisdiction to divide federal military pension benefits is now limited: jurisdiction must be acquired on the basis of the military spouse's residence (other than by reason of military assignment), domicile or consent. (10 U.S.C. § 1408(c)(4).)
FUSFSPA was enacted to abrogate the holding of McCarty v. McCarty (1981) 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589. Subsection (c)(4) was apparently included in the legislation in response to concerns about "forum-shopping" spouses who might seek to divide the military pension in a state lacking substantial contacts with the pensioner. (See Miller v. Miller (1986) 176 Cal.App.3d 1183, 1189, 222 Cal.Rptr. 652; see generally 1982 U.S. Code Cong. & Admin.News, pp. 1571, 1603-1604, 1635, 1639-1640.)
[227 Cal.Rptr. 545]Wife's theory of personal jurisdiction over husband has two parts. First, wife contends the jurisdiction of the California court acquired in the 1971 divorce proceeding continues unabated to the present proceeding. This theory is plainly unsound.
Unquestionably, the California court had personal jurisdiction over husband in the dissolution action. By bringing the action he submitted himself to the jurisdiction of the court for the purposes of that proceeding. (Mikulski v. Mikulski (1969) 2 Cal.App.3d 1047, 1051, 83 Cal.Rptr. 15; Maloney v. Maloney (1944) 67 Cal.App.2d 278, 280, 154 P.2d 426.) In matters of child custody, child support or spousal support, the court does retain continuing jurisdiction to modify the awards even if the other spouse is no longer residing in this state. (Code Civ.Proc., § 410.50, subd. (b); Bergan v. Bergan (1981) 114 Cal.App.3d 567, 570, 170 Cal.Rptr. 751; Leverett v. Superior Court (1963) 222 Cal.App.2d 126, 34 Cal.Rptr. 784.) But once a dissolution decree has become final, the court has no further jurisdiction to modify the terms of judgment regarding property rights. (In re Marriage of Davis (1980) 113 Cal.App.3d 485, 487, 169 Cal.Rptr. 863; Bodle v. Bodle (1978) 76 Cal.App.3d 758, 767; In re Marriage of Cobb (1977) 68 Cal.App.3d 855, 860, fn. 1, 137 Cal.Rptr. 670; see Miller v. Miller (1981) 117 Cal.App.3d 366, 371, 172 Cal.Rptr. 745; see 2 Witkin, Cal.Procedure (3d ed.1985) Jurisdiction, § 336, p. 755.)
Arguing by analogy to cases involving custody and support awards, wife contends that California courts have similar continuing jurisdiction to divide the omitted community property. The analogy is inapt. Property rights are not treated in the same manner as continuing custody and support issues. The underlying lawsuit for division of community property is a wholly separate and independent action, not a subsequent proceeding within the original dissolution action. (Henn v. Henn, supra, 26 Cal.3d 323, 330-332, 161 Cal.Rptr. 502, 605 P.2d 10; In re Marriage of Davis, supra, 113 Cal.App.3d 485, 169 Cal.Rptr. 863.) Consequently, the trial court has no authority to render a personal judgment against defendant-husband unless jurisdiction again attaches. (See Kumar v. Superior Court (1982) 32 Cal.3d 689, 703-704, 186 Cal.Rptr. 772, 652 P.2d 1003 [father's California habeas petition to establish visitation rights did not provide personal jurisdiction in separate action for child support].)
The second part of wife's theory of personal jurisdiction is provided by the recent decision in Miller v. Miller, 176 Cal.App.3d 1183, 222 Cal.Rptr. 652, review denied Apr. 23, 1986. There, on substantially parallel facts, the court held that the FUSFSPA requirement of domicile or residency could be met by looking at the defendant-husband's past residency. Analogizing to personal injury actions, the Miller court held that the time for determining personal jurisdiction contacts is not the date the partition action was filed, but rather "the date when the parties' right to the property division arises" (id., at p. 1186, 222 Cal.Rptr. 652), which the court ultimately concluded was the date of separation. It is at that time, the court reasoned, that the parties' interests in the military pension, including the right to force a division of the asset, became fixed. (Id., at p. 1189, 222 Cal.Rptr. 652.)
With due respect, we cannot subscribe to the Miller rationale. First, a husband and wife have no right to partition their community assets before a dissolution decree is entered. (Code Civ.Proc., § 872.210, subd. (b); Jacquemart v. Jacquemart (1956) 142 Cal.App.2d 794, 299 P.2d 281.) Thus, the date of separation could not be the time the right to divide the pension benefits arose.
Nor do we think that an action for division of an omitted community asset can be logically equated with personal injury actions [227 Cal.Rptr. 546] for purposes of in personam jurisdiction. The actionable injury which occurs in those cases does not exist in a partition action. Upon dissolution of a marriage, the parties hold title to any undivided community assets as tenants in common, and that cotenancy continues until terminated by future litigation or agreement. (Henn v. Henn, supra, 26 Cal.3d at p. 330, 161 Cal.Rptr. 502, 605 P.2d 10.) An action to divide an asset held in cotenancy merely ascertains and allocates to the parties their respective shares; it does not return or restore anything lost. After partition, both tenants have exactly the same proportionate interest in the property they had before. (48 Cal.Jur.3d, Partition, § 2, pp. 239-240; 16 Cal.Jur.3d, Part 1 (rev.) Cotenancy and Joint Ownership, § 20, pp. 207-208.) Thus, unlike a personal injury claim, the right of action for partition does not arise from an "operative" event. By the very nature of cotenancy, the mere filing of an action by one cotenant is all that is needed to dissolve the cotenancy. (See Bradley v. Harkness (1864) 26 Cal. 69, 77 [mere desire of one tenant is sufficient to justify partition].) And that action may be filed at any time. There is no limitations period for a partition action. (Elbert, Ltd. v. Nolan (1948) 32 Cal.2d 610, 616, 197 P.2d 537.)
The cases relied upon by the Miller court involved activity by the defendant while domiciled in California. Both Allen v. Superior Court (1953) 41 Cal.2d 306, 259 P.2d 905 and Myrich v. Superior Court (1953) 41 Cal.2d 519, 261 P.2d 255, involved auto injury actions arising from defendants' intrastate activities and commenced while defendants were still domiciled in California. In Owens v. Superior Court (1959) 52 Cal.2d 822, 345 P.2d 921 (a dog bite case), personal jurisdiction over the nonresident defendant was upheld on the basis of the dog owner's California domicile when the cause of action arose.
Thus, we think the Miller court intuits too generously in determining that the right to divide the parties' unadjudicated property "vested" when the parties separated. (176 Cal.App.3d at p. 1189, 222 Cal.Rptr. 652.) As we view it, no right of action for division of an omitted community asset could mature until such time as one of the former spouses actually institutes an action seeking to partition their cotenancy interests. Due process concerns dictate that the time for evaluation of jurisdictional contacts should be the time that the partition action is filed.
Moreover, although the Miller analysis acknowledges the settled principle that jurisdiction to divide property rights ends once the dissolution decree becomes final (176 Cal.App.3d at p. 1187, 222 Cal.Rptr. 652), the rule seemingly evanesces in the court's ultimate conclusion. By focusing on husband's past residency in the state, the Miller court failed to recognize that the partition action is a separate and independent action for which personal jurisdiction must be acquired. Indeed, as our high court in Owens (upon which Miller relied) cautioned: "the mere fact of past domicile in the state would not subject [the defendant] to its jurisdiction indefinitely, for a past domicile having no relationship to the litigation at hand would not afford a reasonable basis for an assertion of jurisdiction." (52 Cal.2d at p. 829, 345 P.2d 921.) Here, unlike Owens, the underlying cause of action did not arise out of husband's activity in California. Although husband failed to list his military pension as an asset in the California dissolution action, wife also omitted the asset. Moreover, husband's "vested" pension rights had not matured during his brief California residency. Husband's past residency in California bears only a remote connection to the pending partition action.
In summary, wife's present action is a separate and independent action for which jurisdiction must be newly acquired. None of the jurisdictional grounds specified in FUSFSPA apply here: at the time the partition action was filed, husband--who denied jurisdiction--neither resided in California nor had any other contacts with the state. We conclude that the order quashing service was properly granted.
The order appealed from is affirmed.
NEWSOM and HOLMDAHL, JJ., concur.
In the present case, husband had 22 years of service in the Air Force at the time of the dissolution decree. His retirement benefits were vested and a community asset subject to division.