Smith v. Smith

We consider whether the trial court erred in ruling that plaintiff’s action to determine her interest in her former husband’s military retirement benefits is barred by the doctrine of res judicata. We hold that the binding effect of the divorce decree on such interests was conclusively determined against her in an intervening action and may not be relitigated. We affirm the judgment.

Facts

This is the fourth action in a prolonged dispute concerning plaintiffs interest in defendant’s military retirement benefits. Plaintiff seeks in this action a partition of the benefits which she claims are held by the parties as tenants in common.

The first action commenced in February of 1967 when plaintiff filed a complaint for divorce. Although defendant was receiving military retirement benefits at that time, the retirement benefits were not pleaded as items of community property and were not considered in the litigation or apportioned by the trial court. The divorce was uncontested and the interlocutory decree divided the listed community property. The final decree incorporated the interlocutory decree.

On July 17, 1968, plaintiff moved to amend the final judgment of divorce on…