Fenn

Rosalyn S. Fenn appeals the order granting summary judgment on the basis of res judicata to William S. Harris. The parties were married in 1947, a marriage which was dissolved in 1969. The community property was divided pursuant to a property settlement agreement incorporated into the dissolution judgment. The parties were aware of but did not include as property: (1) Harris’ vested, matured military pension and (2) Harris’ unvested state retirement benefits. At the time of the dissolution there was substantial uncertainty regarding whether property of either type was community property. With regard to property not included in the settlement the agreement provides: “Each of us hereby warrants to the other that neither of us is now possessed of any property of any kind or description whatever other than the property specifically listed in this agreement, and that neither of us has made, without the knowledge and consent of the other, any gift or transfer of any community property within the period of the Statute of Limitations. If it shall hereafter be determined by a Court of competent jurisdiction that either of us is now possessed of any property not set forth above or…