Aloy v. Mash

38 Cal. 3d 413 (1985)

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Nature of the Case

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Facts

P employed D in January 1971 to represent her in the dissolution action. Richard (H) was then on active military service and was therefore not receiving a pension although he had been in the service for over 20 years and was eligible to retire. D failed to claim any community property interest in H's pension, and it was not put in issue in the dissolution action. The final decree of dissolution was entered in December 1971. H retired sometime between 1971 and 1980. In 1971, the California view regarding the characterization of vested federal military retirement pensions as community or separate property was unsettled. In 1974, the courts held that federal preemption did not bar treating such federal military pensions as community property. In 1980, P filed a complaint for malpractice against D in that he negligently failed to assert her community property interest in H's military retirement pension. D moved for summary judgment in that the law regarding the character of federal military retirement pensions was unsettled, and that he had exercised informed judgment and was therefore immune from a claim of professional negligence. D stated that he relied on French v. French, 17 Cal.2d 775 (1941) as authority that a nonmatured military pension, that is, one owned by a person on active military duty, was not subject to division upon dissolution. D also claimed he read the decision In re Marriage of Fithian, 10 Cal.3d 592 (1974) shortly after it was issued in 1974. P submitted evidence that D only reviewed the French case. P submitted a declaration by James J. Simonelli, which stated that he was an attorney with an extensive practice in family law since 1970 and that in 1971 attorneys in the family law field in the San Joaquin Valley uniformly claimed a community property interest in vested military retirement pensions. He would have advised her that she had some community property interest in H's vested military retirement pension and that the only issue as to that interest was whether federal law preempted state enforcement of such an interest. The court granted D’s motion. P appealed.