In Re Marriage of Frederick

In this appeal, we are asked to decide whether the trial court abused its discretion in setting aside that portion of the interlocutory decree stipulated to by the parties dividing the husband’s military pension, on the ground of mistake of law, before subsequently announced federal decisional law ruled that military pensions are not subject to division as community property. We conclude the trial court abused its discretion and reverse.

On October 1, 1980, at a contested dissolution hearing, Daniel Frederick (husband) and Bertha Frederick (wife) entered into a stipulation providing, inter alia, that the community had a vested 91 percent interest in husband’s military retirement pension, and that wife was entitled to a 46 percent portion of said pension. An interlocutory judgment based upon the stipulation of the parties was entered on October 20, 1980.

On November 12, 1980, husband filed a notice of motion to set aside interlocutory judgment and hold in abeyance for ruling on military pension. A hearing was held on the motion and on November 26, 1980, the court granted the motion as to the issue of the retirement pension only.

At the above-mentioned hearing, counsel…