James Willburn White v. Barbara White and Superior Court of the State of California, County of Merced, Honorable George G. Murry, Judge

In 1978, Judge George G. Murry of the Superior Court of California, County of Merced, entered an interlocutory judgment dissolving the marriage of James Willburn White (James) and Barbara White (Barbara). The order distributing their community property provided in pertinent part that “[James’] United States Air Force Retirement is eighty percent (80%) community property and [Barbara] is awarded one-half or forty percent (40%) of said retirement benefits.” James did not appeal the interlocutory judgment or the final judgment entered in March 1979, nor did James challenge the state court’s jurisdiction.

In 1978 it was well established California law that military retirement benefits were community property subject to division in a dissolution proceeding. In re Marriage of Fithian, 10 Cal.3d 592 , 517 P.2d 449 , 111 Cal.Rptr. 369 (1974). However, in June 1981, the Supreme Court announced its decision in McCarty v. McCarty, 453 U.S. 210 , 101 S.Ct. 2728 , 69 L.Ed.2d 589 (1981), holding that federal law precluded state courts from dividing military retirement pay pursuant to state community property laws. James immediately stopped paying Barbara her share of the benefits. Barbara, in…