In Re Marriage of Fellers

The question presented on this appeal is whether McCarty v. McCarty (1981) 453 U.S. 210 [ 69 L.Ed.2d 589 , 101 S.Ct. 2728 ] may be applied retroactively to judgments which were final when McCarty was decided. An interlocutory judgment of dissolution was entered in January 1976, awarding wife certain community assets, includ ing 40 percent of husband’s military retirement. Husband was awarded the remainder of his military retirement pay as well as other community property. A final judgment of dissolution incorporating the property disposition set out in the interlocutory judgment was entered in October of 1976.

In November 1979 husband made a motion for an order modifying, the judgment of dissolution to declare his military pension and retirement rights his sole and separate property. Husband appeals from the order denying his motion for modification.

On appeal husband contends that California’s marital property law cannot be constitutionally applied to federal military retirement pay and that the trial court erred in denying his modification motion. After the briefs were filed in this appeal, the United States Supreme Court decided McCarty v. McCarty, supra, 453 U.S.…