Smith v. Lewis

530 P.2d 589 (1975)

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Nature of the Case

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Facts

In 1943 P married General Clarence D. Smith. General Smith was employed by the California National Guard. The General belonged to the State Employees' Retirement System, a contributory plan. Between 1961 and the date of his retirement he belonged to the California National Guard retirement program, a noncontributory plan. In addition, by attending National Guard reserve drills, he qualified for separate retirement benefits from the federal government, also through a noncontributory plan. The state and federal retirement programs each provide lifetime monthly benefits which terminate upon the death of the retiree. The programs make no allowance for the retiree's widow. On January 1, 1967, the State of California began to pay General Smith gross retirement benefits of $796.26 per month. Payments under the federal program, however, will not begin until 1983. All benefits which General Smith is entitled to receive were earned during the time he was married to P. On February 17, 1967, P retained D to represent her in a divorce action against General Smith. P claims that D advised her that her husband's retirement benefits were not community property. General Smith's retirement benefits were not pleaded as items of community property, and therefore were not considered in the litigation or apportioned by the trial court. The divorce was uncontested, and the interlocutory decree divided the minimal described community property and awarded Mrs. Smith $400 per month in alimony and child support. The final decree was entered on February 27, 1968. On July 17, 1968, pursuant to a request by P, D filed a motion to amend the decree, alleging under oath that because of his mistake, inadvertence, and excusable neglect the retirement benefits of General Smith had been omitted from the list of community assets owned by the parties, and that such benefits were community property. The motion was denied on the ground of untimeliness. P sued D in malpractice. The jury was instructed on malpractice and D was found guilty and appealed.