Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Bert L. Swift, Judge, Super.Ct.No. MFL09918
Riki Olivier, Sr., in pro. per., for Appellant.
No appearance by Respondent.
OPINION
RICHLI, Acting P. J.
Riki and Dwayna Olivier were married on December 11, 1998. Riki filed a petition for dissolution of the marriage on March 21, 2006. After a trial on contested property division issues, the trial court issued a tentative decision, followed by a statement of decision and judgment.
The parties will hereafter be referred to by their given names, not out of any familiarity or disrespect, but rather, because this is the accepted practice in family law cases. (See, e.g., In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2.)
Riki appeals, contending the trial court erred in deciding seven different issues. We will consider the facts relating to each issue separately. We conclude that various ambiguities and errors in the judgment require reversal and remand for reconsideration of the issues.
LACK OF A PROPER STATEMENT OF DECISION
Code of Civil Procedure section 632 provides: “In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision . . . . The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. After a party has requested the statement, any party may make proposals as to the content of the statement of decision.”
Family Code section 2338, subdivision (a), provides: “In a proceeding for dissolution of the marriage or legal separation of the parties, the court shall file its decision and any statement of decision as in other cases.”
All further statutory references will be to the Family Code unless otherwise indicated.
Section 4332 provides: “In a proceeding for dissolution of marriage or for legal separation of the parties, the court shall make specific factual findings with respect to the standard of living during the marriage, and, at the request of either party, the court shall make appropriate factual determinations with respect to other circumstances.”
In this case, Dwayna requested a statement of decision in her response to the petition. At the conclusion of the trial both parties agreed to provide proposed statements of decision based upon their contentions and supported by legal authority. After receipt of these documents, and response documents, the trial court issued its tentative decision. Riki’s counsel then requested a statement of decision and Dwayna’s counsel was ordered to prepare a statement of decision. The statement of decision prepared by Dwayna’s counsel merely repeated most of the tentative opinion with minor changes.
We agree with Riki that the statement of decision failed to address the factual and legal issues raised by the parties in their respective proposed statements of decision, and it failed to explain the court’s reasoning on those issues. “A statement of decision is as much, or more, for the benefit of the Court of Appeal as for the parties. It ‘is our touchstone to determine whether or not the trial court’s decision is supported by the facts and the law. [Citation.]’ [Citation.] The importance of the statement is underscored by the rule that a trial court’s failure to render a statement of decision is reversible error. [Citation.]” (In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1010.)
It is interesting to note that Riki’s proposed statement of decision is 16 pages, Dwayna’s first proposed statement of decision is nine pages, and the trial court’s notice of tentative decision is only five pages.
In this case, the statement of decision is defective. For example, in the tentative decision, the trial court orders payment from the proceeds of the sale of the community home in the amount of “$4257.00 to equalize the community property division” without specifying who receives the funds. The statement of decision merely repeats the statement. But section 2551 requires the trial court to confirm or assign liabilities to the parties.
The court also orders payment of $1,857 to Dwayna to equalize the division of community property without explaining its calculations or reasoning. Without an explanation, we are unable to determine if the payments are proper or not.
The two sums are lumped together in the judgment, which merely states they are to be paid to Dwayna to equalize the division of community property.
In addition, the trial court’s reasoning on key issues such as the date of separation and the jurisdictional basis for the division of the military pension is unexplained. Riki’s brief cites only six cases, and Dwayna has not filed a brief. Since the trial court has not explained its reasoning, and the issues have not been fully briefed, a full review is difficult. Although we explore these issues in this opinion, we find it necessary to reverse the judgment and remand the case for further consideration of the issues, and for further explanation of the trial court’s reasoning.
“The disposition of the community estate, as provided in this division, is subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court.” (§ 2555.)
THE DATE OF SEPARATION
The tentative decision, prepared by the court, states that the court found the date of separation to be September 15, 2005, the date chosen by Riki. The statement of decision does not mention the date of separation at all, and the judgment, prepared by Dwayna’s attorney, contradicts the tentative decision and states that the date of separation was March 21, 2006. That date was the date the petition for dissolution was filed, and the date the summons was issued.
The summons was served on Dwayna on April 12, 2006.
The date of separation is an important date: “The significance of the determination lies in the fact that it dictates the character of property acquired thereafter. [Citations.] A spouse’s ‘earnings and accumulations . . . while living separate and apart from the other spouse’ are separate property. [Citation.]” (In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, 1158, fn. omitted (Norviel).)
Riki argues that all of the evidence supports a date of separation of September 15, 2005. He testified that he asked his wife for a divorce on that date, that she temporarily left the home, and that there was an irremediable breakdown of the marriage at that point. However, the parties continued to live in the same home in separate quarters.
At several points in his brief he argues for a date of September 15, 2006. Although Riki moved out of the home in September 2006, we assume his argument is intended to support his trial testimony that the parties separated on September 15, 2005.
Dwayna testified that she and her husband argued frequently, and that Riki regularly told her he wanted a divorce. They would eventually get back together. She did not believe that he was serious until she was served with divorce papers on April 12, 2006. They lived apart in the same home until he moved out in September 2006.
Riki relies on section 771, subdivision (a), which states: “The earnings and accumulations of a spouse . . . while living separate and apart from the other spouse, are the separate property of the spouse.”
Riki cites Norviel, supra, 102 Cal.App.4th 1152. In that case, the court held that, under section 771, subdivision (a), “two factors emerge as prerequisites to separation. First, at least one spouse must entertain the subjective intent to end the marriage; second, there must be objective evidence of conduct furthering that intent. [Citations.] ‘Simply stated, the date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship.’ [Citation.]” (Norviel, at pp. 1158-1159.)
In a more controversial passage, the Norveil court said: “[L]iving apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation.” (Norviel, supra, 102 Cal.App.4th at p. 1162.) The court acknowledged that “[i]n any event, our conclusion does not necessarily rule out the possibility of some spouses living apart physically while still occupying the same dwelling. In such cases, however, the evidence would need to demonstrate unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.” (Id. at p. 1164.)
The issue is more persuasively discussed in another case cited by Riki: In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 542: “All factors bearing on either party’s intentions ‘to return or not to return to the other spouse’ are to be considered. [Citation.] No particular facts are per se determinative. The ultimate test is the parties’ subjective intent and all evidence relating to it is to be objectively considered by the court.”
Similarly, In re Marriage of Von Der Nuell (1994) 23 Cal.App.4th 730, applied the principle that “legal separation requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship.” (Id. at p. 736.)
Although Riki urges that all of the evidence presented at trial supports his claim that the date of separation was September 15, 2005, as found in the tentative decision, there is evidence to support a different conclusion. Dwayna testified that she did not believe her husband seriously wanted a divorce until she was served with the petition on April 12, 2006. Her testimony tends to support the trial court’s conclusion, as stated in the Judgment, that March 21, 2006, the date of filing of the petition, was the date of separation.
However, the trial court does not state any reasoning for its decision on this issue. As noted above, the tentative decision states that the date of separation was September 15, 2005, while the statement of decision does not even mention the date of separation. The judgment itself finds the date of separation to be March 21, 2006.
In view of the importance of the date of separation to the issues in this case, the difference in dates between the tentative opinion and the judgment, and the difference in dates between the date of filing of the petition and the date of service, we will give the trial court the opportunity to revisit this issue and explain the basis for its decision upon remand.
REIMBURSEMENTS CLAIMED BY PETITIONER: INTRODUCTION
Section 2626 provides: “The court has jurisdiction to order reimbursement in cases it deems appropriate for debts paid after separation but before trial.” Reimbursement orders may also be made under section 2640 (contributions to acquisition of property) and under its predecessors, Civil Code section 4800.2 and In re Marriage of Epstein (1979) 24 Cal.3d 76 (Epstein). Under Epstein, a spouse who, after separation, spends separate funds on community obligations may be reimbursed. (Id. at pp. 82-85; see generally In re Marriage of Walrath (1998) 17 Cal.4th 907.)
In addition, the community may be reimbursed for the value of one spouse’s exclusive use of community property between the date of separation and the end of the community interest in the property. (In re Marriage of Watts (1985) 171 Cal.App.3d 366, 373-374 (Watts).)
The trial court declined to order any charges or reimbursements under Watts. Watts states: “‘Reimbursement should not be ordered if payment was made under circumstances in which it would have been unreasonable to expect reimbursement, for example, where there was an agreement between the parties the payment would not be reimbursed or where the paying spouse truly intended the payment to constitute a gift or, generally, where the payment was made on account of a debt for the acquisition or preservation of an asset the paying spouse was using and the amount paid was not substantially in excess of the value of the use.’ [Citation.]” (Watts, supra, 171 Cal.App.3d at p. 373.)
In this case, Riki asked the court for reimbursements totaling $12,952.72. Several of the requests are lessened or eliminated by a finding that the date of separation was March 21, 2006, rather than September 15, 2005. The trial court declined to make any Epstein reimbursement orders and Riki appeals this decision for several categories of reimbursements.
In addition, the trial court ordered reimbursement to Dwayna for mortgage payments made by Riki and credited against his temporary spousal support obligation. We consider this issue first.
REIMBURSEMENT TO DWAYNA FOR MORTGAGE PAYMENTS PAID BY RIKI AS PART OF SPOUSAL SUPPORT PAYMENTS
Riki challenges the trial court’s order that requires him to repay Dwayna the amount of $7,800 in mortgage payments. Riki made the payments on the mortgage and deducted the amount of the payments from his spousal support payments.
On June 23, 2006, a hearing was held on Dwayna’s request for spousal support and other issues. The trial court ordered temporary spousal support of $1,458 a month beginning June 1, 2006.
At that time, the community home in Twentynine Palms was for sale and both parties were still living there. The mortgage, property taxes and insurance were $787 per month. Commissioner Mahlum said: “I’m not going to order a reduction for spousal support for the mortgage payments.” Since the parties expected that Riki would be moving out of the home on August 1, 2006, the commissioner ordered that Dwayna would be responsible for the mortgage after that date.
Riki actually moved out on September 5, 2006.
On July 28, 2006, the parties stipulated to change the temporary spousal support to $1,168 per month. They also stipulated that Riki would continue to make the mortgage payments, but would be entitled to a dollar for dollar credit against his spousal support for such payments. The mortgage payments were to continue until the home was sold. Dwayna would have exclusive control of the home commencing August 1, 2006.
Trial on contested issues was held commencing December 28, 2006. At trial, Riki requested reimbursement for one-half of mortgage payments, and associated expenses, from October 2005 through July 2006, in the amount of $5,415. The request was based on his contention that the parties separated in September 2005. Applying this contention, his wages would be his separate property after that date. Since his separate property was used to pay the mortgage after that date, he requested reimbursement for half of the mortgage payments.
The exhibit detailing these charges lists a net reimbursement request of $5,115.18. Although the exhibit was not introduced into evidence, the trial court allowed counsel to refer to it in closing argument briefs.
As discussed above, the trial court found the date of separation to be March 21, 2006.
Dwayna did not request reimbursement for the mortgage payments. In response to a question from the trial court, she said that the mortgage payment had continued to be deducted from her spousal support after Riki moved out in September 2006.
As discussed above, the court ordered the parties to submit draft statements of decision following trial, followed by objections to the proposed statements of decision. Dwayna’s proposed statement of decision does not contain any request for a reimbursement of $7,800, or any explanation of the basis for any such reimbursement. In her proposed statement of decision, Dwayna merely complained she had to declare the entire spousal support payment of $1,168 per month as income, while Riki received a double tax deduction for the “alimony payment” and for mortgage interest paid. She argued that Riki should therefore be denied reimbursement for his portion of the mortgage payment.
Likewise, Dwayna’s objections to Riki’s proposed statement of decision do not contain any request for a $7,800 reimbursement. Instead, she argued against the reimbursement requested by Riki, contending that postseparation payments for the mortgage, taxes and insurance should not be credited back to Riki, because such payments after he moved out would be part of his support obligation.
The tentative decision and the judgment merely order reimbursement to Dwayna of the sum of $7,800 “for mortgage payments deducted from her spousal support award.” The only explanation in the tentative opinion is: “[Dwayna] contends, undisputed, that [Riki] deducted from her spousal support $788.00 per month to pay the family mortgage. Petitioner is entitled to the return of those amounts which the court values at $7800.00.” There is no explanation for the amount, but Riki presumes it is the result of multiplying $780 per month times an unspecified 10-month period.
This reference appears to be a clerical error, as Riki was the petitioner and the court actually ordered payment be made to Dwayna, as the respondent.
The same language is repeated later in the tentative opinion with the additional statement: “Respondent is entitled to the return of those amounts which convert values [sic] at $7,800.00.”
Riki argues that “[t]here is no conceivable rationale for the trial court’s ruling on this issue and the reimbursement order is completely incomprehensible.”
Secondly, he argues that the reimbursement order overturns the pendente lite order and the stipulation of the parties, and that the stipulation was res judicata on the issue. The legal argument is meritless, as the stipulation specifically contemplated modification by further order of the court. An award of temporary support is, of course, based on different factors than an award of permanent support, and the award of temporary support has no res judicata effect. (§§ 3600, 4300; see generally In re Marriage of Campbell (2006) 125 Cal.App.4th 1075, 1081; In re Marriage of Burlini (1983) 143 Cal.App.3d 65, 68-69.) As Riki himself stated in his objections to Dwayna’s proposed statement of decision, “Respondent’s discussion of the temporary spousal support order [is] irrelevant and inadmissible.”
We can envision a factual rationale for the reimbursement order. In the judgment, the trial court found the date of separation was March 21, 2006. Petitioner paid the mortgage and associated expenses of $787 per month until the property was sold. The property was in escrow at the time of the realtor’s testimony on January 4, 2007. The tentative decision was filed on February 16, 2007, and the 10-month period used by the trial court could have been the period from March 21, 2006, through January 21, 2007. In other words, after separation, Riki continued to pay the mortgage with his separate property.
But, even if we accept this factual rationale as substantial evidence to support the trial court, the legal basis for a reimbursement order to Dwayna is unclear. Generally, reimbursement may be made when, after separation, one party has spent his or her separate property funds on community property obligations such as mortgage payments on the community home. (See, e.g., In re Marriage of Tallman (1994) 22 Cal.App.4th 1697; In re Marriage of Reilley (1987) 196 Cal.App.3d 1119, 1122.) The community home was, of course, a community asset and the fund created by the sale of the community home was also a community asset which should have been equally divided between the parties after payment of community debts.
As noted above, we do not have the benefit of a brief from Dwayna, which would explain her position on this issue.
However, in this case, after the date of separation, Dwayna was awarded spousal support and, as part of the support order, Riki was allowed to directly pay the mortgage on the home Dwayna was living in, for her benefit, as part of the spousal support payment. (Cf. In re Marriage of Garcia (1990) 224 Cal.App.3d 885.)
There is no discernable reason why Dwayna would be entitled to again recover this portion of the spousal support order from the community proceeds of the sale of the family home. Epstein states: “Following separation, the preferred source for payment of support is the separate property of the supporting spouse that would have been community property if the spouses were not separated. [Citation.] Payment of a debt, of course, may constitute payment of spousal or child support. [Citations.] When in fact it does, reimbursement is inappropriate. [Citation.]’ [Citation.]” (Epstein, supra, 24 Cal.3d at page 86, fn. omitted.) Since the payment of the mortgage was part of Riki’s support obligation, he was not able to recover it upon sale of the home. But neither was Dwayna.
The court would have been correct if it had denied reimbursement to Riki, the person who used his separate funds to pay the community debt, because the payments were part of his spousal support obligation. However, the court inexplicably ordered Dwayna, the person who already received the funds as part of her spousal support, to again be paid the funds from the community proceeds of the sale of the home. We agree with Riki that the trial court erred, and we will therefore order this portion of the award stricken.
REIMBURSEMENTS CLAIMED BY PETITIONER: THE NAVY FEDERAL CREDUT UNION (NFCU) CONSOLIDATION LOAN
At trial, Riki testified he and his wife had obtained a debt consolidation loan in March 2005 to pay off her credit card debt. He was repaying that loan at the rate of $328 per month, and the payoff balance was approximately $5,000. He asked that the debt be divided equally, and that he be reimbursed for one-half of the loan payments made from October 2005 through trial in December 2006. Petitioner contended that this was a community debt, incurred before separation, and that it was repaid, in part, from his separate funds after separation.
In his objection to Dwayna’s proposed statement of decision, petitioner states that he “provided at trial a letter from the creditor verifying that the loan was initiated during the marriage prior to separation and showing the slight modification in 2006 following the separation.” We find no reference to the letter in the testimony and any such letter was not admitted as an exhibit.
Dwayna did not testify on this subject.
The trial court found that “petitioner has not met his burden of showing that the ‘consolidation loan’ was for the community and further the court does not accept as true, petitioner’s position that he would be charged an early payoff penalty by the credit union and fixes the amount of said debt to be $4,000.00 as testified to by petitioner. Thus the court concludes the loan known as the NFCU consolidation loan was not a community debt and orders petitioner to be responsible for same.”
The basis for the trial court’s decision on this point is not explained further. The only testimony on the subject was that the loan was obtained during marriage and was used to pay Dwayna’s credit card debts. The loan was therefore a community debt and we find no substantial evidence to support the trial court’s decision that it was the separate debt of Riki. There is no explanation in the statement of decision for the trial court’s order that Riki be solely responsible for this debt.
Since Riki used his separate funds after the date of separation for repayment of this debt, it appears that the balance should have been repaid from the proceeds of the sale of the family home. It also appears that Riki would be entitled to some reimbursement. The trial court is directed to reconsider this issue on remand.
REIMBURSEMENTS CLAIMED BY PETITIONER: DENIAL OF REIMBURSEMENT FOR LEASED CAR PAYMENTS
In a two-sentence argument, Riki contends the trial court failed to address his request for reimbursement of one-half of the postseparation lease payments on a Mercedes Benz automobile.
Riki testified that in early 2005 the couple leased a Mercedes Benz. He stopped Dwayna from driving the car in July 2006. He explained that he found a dent in the car, and he was concerned that other people had been driving it. He was the principal driver of the car after July 2006. Riki made the payments on the lease, and he paid for the insurance.
Dwayna testified that she drove the car regularly from May 2005 to May 2006. In August 2006 she released the car to Riki and she had not driven it after that time.
Riki sought reimbursement for one-half of the lease payments from October 2005 to July 2006. The trial court confirmed the car and the lease to Riki but did not rule on his request for reimbursement. It is apparent, however, that Riki’s claim for reimbursement rests in large part upon his contention that the separation date was September 15, 2005. Since that argument was apparently rejected by the trial court, the claim for reimbursement fails, except for a short period from March 21, 2006, to July 2006.
On remand, the court should reconsider this issue if it finds that the date of separation was September 15, 2005, or if it confirms that the date of separation was March 21, 2006.
DENIAL OF OTHER REIMBURSEMENTS DUE TO THE PRESENCE OF A RENT-FREE GUEST
Riki also sought reimbursement for half of the utility bills (electricity, cable, telephone/internet) from October 2005 to August 2006 in the total sum of $1,430. His request was apparently based on his theory that the date of separation was September 15, 2005, and that payments of utility bills after that were from his separate funds. If the trial court upholds its finding in the judgment that the date of separation was March 21, 2006, the amount of the requested reimbursement would be greatly reduced.
The trial court denied any reimbursement. It found “that petitioner granted to another (friend) the use of the family residence, including water, electric, cable and telephone without [requesting] rent. Thus he deprived the community of a reasonable return against that which he paid to preserve the community asset. . . . The court finds that a reasonable rental value of the family residence is to be $1,100.00 per month. Thus petitioner has received 10 months of use at a rental value of $1100.00 per month, totaling $11,000.” The court therefore denied reimbursement for the utility payments.
The court’s reasoning on this issue supports our conclusion, discussed above, that the trial court applied the 10-month period between separation and trial in calculating the mortgage payment reimbursement of $7,800.
Riki now contends that: “The court’s holding is unsupported by the facts, logic or any legal basis. There was no evidence roommate Johnny was in the house for 10 months and no evidence that such a boarder would be willing to pay $1100 per month in rent to live in that type of arrangement.”
Riki testified on cross-examination that he allowed a friend who was having marital difficulties to stay in the home without paying rent for two and one-half months. The exact time this occurred was not specified, but Riki testified that his friend had moved out by June 2006. In a responsive declaration filed June 9, 2006, Riki stated that the friend had moved out.
Dwayna testified that Riki’s friend lived at house from three to six months. She guessed that this was from May to July 2006.
We agree with Riki that this ruling is unsupportable. There was no evidence that Riki’s friend actually stayed in the home for more than six months. If Johnny moved into the home in May 2006 he would have certainly left by the time Riki moved out in early September 2006, a period of about four months.
More importantly, there is no support in the record for the trial court’s conclusion that the rental value of a room was $1,100 a month. Dwayna testified that an apartment could be rented for $600 a month and an entire comparable home for at least a $1,000 a month. A realtor testified the rental price of a comparable home was $1,000 to $1,100 a month.
Under the evidence, therefore, any lost rental value was far less than $11,000. If Riki’s friend rented an apartment for four months at $600 per month, the total would be $2,400. There was no testimony to establish that the parties could have rented a room in their home, while they were still living there, for anywhere near $11,000 over a 10-month period.
We therefore conclude that the trial court’s reasoning was inadequate on this issue. The trial court is directed to reconsider this issue on remand.
AWARD OF A PORTION OF RIKI’S MILITARY PENSION TO DWAYNA
Riki is enlisted in the United States Marine Corps, and had been so for over 19 years. At the time of trial, he had not reenlisted and he would therefore retire after 20 years of service. Riki would be entitled to a Marine Corps pension after 20 years of service, and Dwayna considered the unvested portion of the military pension to be community property which is subject to division in the California court as an asset of the marriage.
After discussing a jurisdictional issue, the trial court stated, in its tentative decision: “The court finds that respondent has 87 months invested in petitioner’s military pension benefits which would first be available after 20 years active duty (240 months) or .3625 percent, one-half of which is .1812 percent. Thus the court awards to respondent 18.12 percent of petitioner[’]s military pension benefits commencing on his 20th year of service. The court orders petitioner to make out an allotment to respondent equaling 18.12 percent of his base pay and orders this allotment to be in place by the first of the month in which he could first retire.” The statement of decision merely repeats this statement, as does the judgment.
Riki challenges this portion of the judgment on grounds that (1) the court has no jurisdiction to divide the community property that has not been listed in section 5 of either the petition or the response; (2) the court has no jurisdiction to divide a military pension except under certain circumstances not present here; (3) the court erred in dividing the pension on the assumption that it would be based on the minimum of 20 years of service, and ordering payment on that basis; and (4) the court erred in requiring an allotment to be made for direct payment of the pension amounts due.
In his initial argument, Riki points out that his petition does not list the military pension as community property to be divided, and the response of Dwayna did not list it either. However, Riki cites no authority for the proposition that any such listing is jurisdictional. In any event, we find that Riki’s request that the court determine that his military pension was his separate property, and the broad language of Dwayna’s response was sufficient to invoke the court’s general authority to determine the community assets and debt, and to divide them equally. (§ 2550.)
The response filed by Dwayna merely states: “The exact nature and extent of the parties remaining community property and quasi-community assets and obligations are unknown to the respondent at this time. Respondent will seek leave of this court to amend this response when said assets and obligations are ascertained.”
Riki’s second argument raises the question of the applicability of the Uniformed Services Former Spouses’ Protection Act (“USFSPA” or the “Act”). (10 U.S.C.A. § 1408.) Under the Act, a court which seeks to divide a military pension must have “jurisdiction over the [military] member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.” (10 U.S.C.A. § 1408(c)(4); see generally Mansell v. Mansell (1989) 490 U.S. 581.)
The trial court found that “Petitioner elected the Superior Court . . . as his forum at the time he filed his Petition and by the Property Declaration, the determination of the military pension benefits as well as other property division. Petitioner has consented to jurisdiction of the Court by his pleadings, the purchase of a family residence in California and his contacts with this state for the duration of his military service in California. The Court thus finds that Petitioner has produced no testimony that the Court could conclude that New York was his state of domicile.”
The trial court’s decision conflates the three separate jurisdictional requirements of the USFSPA and includes at least one improper factor, Riki’s minimum contacts with California. (In re Marriage of Hattis (1987) 196 Cal.App.3d 1162, 1167.)
Even before passage of the Act, “merely purchasing a home near a military base, by a serviceman, is not sufficient to demonstrate intent to acquire a domicile if contradicted by other substantial evidence of intent. [Citation.]” (In re Marriage of Thornton (1982) 135 Cal.App.3d 509, 509-510.)
The primary issue here is whether there was jurisdiction under the USFSPA by consent. Riki filed the petition for dissolution on March 21, 2006. As discussed above, it requested that any pension of Riki be confirmed to him as his separate property. This was a general appearance and, at that time, Riki clearly intended that all issues be resolved in the action.
It also requests that any pension of Riki be confirmed to Dwayna. We assume this was a clerical error.
In the typical case, the non-military spouse files the action and the military spouse opposes division of the military pension on jurisdictional grounds. For example, in In re Marriage of Tucker (1991) 226 Cal.App.3d 1249 (Tucker), the court discussed the question of whether the military spouse had consented to the jurisdiction of the court under USFSPA. The court held that the military spouse could consent to the disposition of other issues in the dissolution action, while still making an objection to the disposition of his military retirement benefits. (Tucker, at p. 1256.) The court held that it was not necessary to make a motion to quash to assert the objection, and his assertion of the objection in his response was sufficient to raise the issue. (Id. at p. 1258.)
Since Riki asked the trial court to confirm that his military retirement benefits were his separate property when he filed the action, the question is whether his later protestations were sufficient to show his lack of consent.
On June 9, 2006, in a responsive declaration, Riki states: “Petitioner contends that neither party was domiciled in California at the time this dissolution was commenced and that this court has no jurisdiction to proceed in this action. Petitioner intends to file a motion to quash these proceedings if the Respondent disputes this contention . . . .”
Rather than simply dismissing his action, or asserting a lack of consent under the Act, Riki filed a motion to quash his own action “based on a failure of either party to meet the residency requirements of California at the time this petition was filed.” He stated that he was only a California resident because of his military assignment, that his home state was New York, and that he would be returning there in three months.
At the time of trial, Riki was stationed in New York. He had been living in New York at the time he joined the Marines, and he intended to stay there after he left the Marines. He did not intend to return to California.
In the accompanying points and authorities, Riki argued a lack of jurisdiction because neither party was domiciled in California. Dwayna then filed points and authorities, accompanied by a declaration stating that she was domiciled in California.
The motion to quash was heard on July 14, 2006. At the hearing, Riki denied that he had consented to have the court review and divide his military retirement. He said: “I was just stating [that the military pension was] my separate property.” After hearing testimony and argument, the court ruled that Dwayna was domiciled in California, and it denied the motion.
The trial court erred. In order for the court to assume jurisdiction over division of a military pension, the court must have jurisdiction over the member of the military on at least one of the grounds stated above. (10 U.S.C.A. § 1408(c)(4).) The fact that the court found that Dwayna, the non-military spouse, was domiciled in California is an insufficient basis for the assumption of jurisdiction over Riki’s retirement benefits under the Act.
We find that, by filing the motion to quash, Riki raised a sufficient objection to the treatment of his military benefits as community property, and to their division by the California court. Thus, even though he filed the dissolution action in a California court, he did not consent to an adjudication of the military retirement benefits in California.
There was no evidence that Riki was a resident of California except as a result of his military assignment. Actually, by the time of trial, he was no longer a resident of California at all. Although he testified at the hearing on the motion to quash that he was not domiciled in California, the trial court made no determination of the issue. However, the trial court did take judicial notice of the motion. Accordingly, there was no basis for a finding that he was domiciled in California.
It has been held that the Act’s reference to domicile means present domicile, i.e., domicile at the time the military pension division is litigated. (In re Marriage of Hattis, supra, 196 Cal.App.3d at p. 1169; Tarvin v. Tarvin (1986) 187 Cal.App.3d 56, 61.) There would have been a potential issue as to whether this rule would apply if the court had found that Riki was domiciled in California when the action is filed because domicile was clearly lacking by the time the issue was litigated and decided in January 2007.
We therefore conclude that the trial court lacked jurisdiction to treat Riki’s military retirement benefits as community property under the USFSPA. The portion of the judgment which allocates a portion of those benefits to Dwayna is therefore reversed.
DISPOSITION
The judgment is reversed; the case is remanded for further proceedings in accordance with the views expressed in this opinion. Each party is to bear their own costs on appeal.
We concur: KING, J., MILLER, J.