In Re Marriage of Graves

Married in 1954, Harold Clifton Graves and Bonnie Bell Graves separated in 1970. Harold was in the Navy at the time of the marriage and retired in 1967 with 20 years of service. His retirement pension was used in the support of the family. The interlocutory and final decrees and a stipulated modification of the final did not refer to the military pension which was not included in the final or later modifications as a community asset. Both parties remarried. Harold continued to be paid the entirety of the pension.

December 5, 1986, some 16 years after the entry of the final decree, Bonnie filed a motion for an order to show cause to divide the pension, citing Civil Code section 4800.4 as authority for the division in the family court instead of filing a separate action in partition under Henn v. Henn (1980) 26 Cal.3d 323 [ 161 Cal.Rptr. 502 , 605 P.2d 10 ]. Harold filed a “Special Appearance Opposing Motion to Divide Military Pension” as well as a responsive declaration to the show cause order contending inapplicability of section 4800.4 with resultant inability to plead affirmative equitable defenses including laches, equitable estoppel and unjust enrichment available in…