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Berry v. Berry - 216 Cal. App. 3d 1155, 265 Cal. Rptr. 338 (1989)

Rule:

When a community property claim is left unmentioned in a final dissolution judgment, the parties own the property as tenants in common and it may be divided in a separate partition action.

Facts:

A former wife brought a partition action to divide her former husband's military retirement pension. The couple had dissolved their marriage by an out-of-state judgment entered July 7, 1982, and the judgment omitted any reference to the husband's military pension. At that time, under a United States Supreme Court case, states were not allowed to treat such pensions as community property. The trial court in the partition action entered a judgment dividing the pension. The husband sought review, alleging the court's action was improper because the wife brought the action after the expiration of the time period required under law.

Issue:

Was it proper for the trial court to partition the husband's pension?

Answer:

Yes

Conclusion:

The court held that the wife was entitled to a share of the community property, which arose at the time that the property was acquired, and that interest was not alterable except by judicial decree or agreement between the parties. It held that the wife, whose interest in the pension was not adjudicated in the original dissolution judgment, could not seek relief through modification of the original judgment after the January 1986 expiration date of § 5124. However, she was not precluded from bringing a separate partition action because the pension was omitted in the original decree of dissolution and property settlement. The doctrine of res judicata did not bar the division of omitted pensions in separate actions, because the spouse's interest in omitted community property was independent of and predated the original decree of dissolution and property settlement.

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