Miller v. Miller

Plaintiff Evelyn D. Miller’s action sought partition of the United States Navy retirement benefits received by her former husband, defendant Bruce T. Miller, and a declaration that she (Evelyn) had a past, present and future tenancy in the common interest in the navy retirement benefits. The trial judge did not have the benefit of the Supreme Court decision in Henn v. Henn (1980) 26 Cal.3d 323 [ 161 Cal.Rptr. 502 , 605 P.2d 10 ], followed the reasoning of Kelley v. Kelley (1977) 73 Cal.App.3d 672 [ 141 Cal.Rptr. 33 ], and granted a motion for nonsuit against Evelyn. The trial court stated “the only real issue here is whether or not the party, or that party’s counsel knew that community property included an interest in the military retirement benefit at the time when some action might have been taken in respect to it.” The issue of Mrs. Miller’s community property rights in the military pension was not raised during the dissolution proceedings, was not a contested matter in the proceedings and was not disposed of by the decree. The trial court concluded the doctrine of res judicata applied to this action for the partition of the military pension and granted the judgment of…