In Re Marriage of Doud

Two and one-half years after the entry of a judgment awarding Robert Doud (Robert) a federal military pension as his separate property, Betty Doud (Betty) moved to modify the judgment pursuant to Civil Code section 5124. 1 The judgment had been entered pursuant to a stipulation with Betty to apply the impending ruling in McCarty v. McCarty (1981) 453 U.S. 210 [ 69 L.Ed.2d 589 , 101 S.Ct. 2728 ]. The trial court granted the motion, awarding Betty an interest in the pension. In this appeal Robert challenges the constitutionality of section 5124 as impairing a contract embodied in the stipulation and rights vested in the judgment. Alternatively he contends the trial court erred in failing to grant his motion to set aside the entire stipulated judgment. We will reject the contentions and affirm the judgment.

Preliminary Facts

The judgment dissolving the 13!/2-year marriage of Robert and Betty Doud was entered on September 10, 1980. On June 2, 1981, they stipulated to a judgment dividing their claimed and disputed marital property but reserving a resolution of the status of the military pension pending a decision in McCarty . The stipulated judgment provided that “[t]he…

I dissent. The parties were aware that the case of McCarty v. McCarty (1981) 453 U.S. 210 [ 69 L.Ed.2d 589 , 101 S.Ct. 2728 ] would soon be decided by the U.S. Supreme Court. Referring expressly to that case, they stipulated that if the Supreme Court ruled military retirement pay was not divisible as community property, wife would receive no community interest in husband’s military retirement benefits. The Supreme Court ruled in McCarty that military retirement pay was the separate property of the military spouse (453 U.S. at pp. 232-236 [69 L.Ed.2d at pp. 605-608]). Judgment of dissolution was entered incorporating the stipulation. That judgment has long since become final.

The majority holds that Civil Code section 5124 may be retroactively applied fundamentally to modify that final judgment to the wife’s advantage and the husband’s substantial detriment. In my view section 5124, as applied here, unconstitutionally impairs the obligation of contract and deprives husband of vested property rights without due process of law.

Congress responded to the McCarty decision by enacting Senate Bill No. 1814, which became the Federal Uniformed Services Former Spouses’ Protection Act…

Two and one-half years after the entry of a judgment awarding Robert Doud (Robert) a federal military pension as his separate property, Betty Doud (Betty) moved to modify the judgment pursuant to Civil Code section 5124. [1] The judgment had been entered pursuant to a stipulation with Betty to apply the impending ruling in McCarty v. McCarty (1981) 453 U.S. 210 [ 69 L.Ed.2d 589 , 101 S.Ct. 2728 ]. The trial court granted the motion, awarding Betty an interest in the pension. In this appeal Robert challenges the constitutionality of section 5124 as impairing a contract embodied in the stipulation and rights vested in the judgment. Alternatively he contends the trial court erred in failing to grant his motion to set aside the entire stipulated judgment. We will reject the contentions and affirm the judgment.

The judgment dissolving the 13 1/2-year marriage of Robert and Betty Doud was entered on September 10, 1980. On June 2, 1981, they stipulated to a judgment dividing their claimed and disputed marital property but reserving a resolution of the status of the military pension pending a decision in McCarty . The stipulated judgment provided that "[t]he court…