In Re Marriage of Castle

In this case involving the division of a military pension, both parties, William Robert Castle (William) and Beryl Geraldine Castle (Beryl), appeal from portions of the trial court order.

A final judgment dissolving this marriage was entered on April 10, 1979. The interlocutory judgment, entered November 30, 1978, formally incorporated certain stipulations of the parties, including William’s consent to the retention of jurisdiction over the value, nature and extent of Beryl’s right to William’s military retirement benefits.

On September 19, 1984, Beryl moved for division of William’s Navy retirement benefits. After hearing the matter on December 13, 1984, the trial court made its order finding that William, still on active service with the Navy, was eligible to retire at the time of the hearing as a lieutenant, pay grade 0-3; and that on May 1, 1986, William would become eligible to retire as a lieutenant commander, at pay grade 0-4. The court gave Beryl this option; either (1) to receive her interest in William’s pension effective December 1, 1984, as though he had retired then in pay grade 0-3; or (2) to wait until May 1, 1986, “the earliest date available to…

I respectfully dissent.

Recognizing that the critical issues here are already before the California Supreme Court and I have already expressed my views on most of them in some of those pending cases, I will here only briefly summarize the reasons for my inability to agree with the majority.

This judgment was final in 1979. It did not award Mrs. Castle any interest in the then nonvested pension. The parties stipulated the court could reserve jurisdiction over that issue, but of course subject matter jurisdiction cannot be conferred by stipulation if it does not exist. (Taylor v. Taylor (1923) 192 Cal. 71, 78 [ 218 P. 756 , 51 A.L.R. 1074 ].) California courts thought they had jurisdiction; but as it turns out, they were wrong, and the people who had been arguing for years that the subject of military pensions was preempted from state court jurisdiction had been right all along. The United *218 States Supreme Court said so in McCarty v. McCarty (1981) 453 U.S. 210 [ 69 L.Ed.2d 589 , 101 S.Ct. 2728 ]. The United States Supreme Court having told us what the federal statutes meant, the discussion as to that issue is over. Their word is final and the only one that counts. The current…

In this case involving the division of a military pension, both parties, William Robert Castle (William) and Beryl Geraldine Castle (Beryl), appeal from portions of the trial court order.

A final judgment dissolving this marriage was entered on April 10, 1979. The interlocutory judgment, entered November 30, 1978, formally incorporated certain stipulations of the parties, including William's consent to the retention of jurisdiction over the value, nature and extent of Beryl's right to William's military retirement benefits.

On September 19, 1984, Beryl moved for division of William's Navy retirement benefits. After hearing the matter on December 13, 1984, the trial court made its order finding that William, still on active service with the Navy, was eligible to retire at the time of the hearing as a lieutenant, pay grade 0-3; and that on May 1, 1986, William would become eligible to retire as a lieutenant commander, at pay grade 0-4. The court gave Beryl this option: either (1) to receive her interest in William's pension effective December 1, 1984, as though he had retired then in pay grade 0-3; or (2) to wait until May 1, 1986, "the earliest date…