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California Community Property Keyed to Carrillo, 11th Ed.
Aloy v. Mash
Citation:
38 Cal. 3d 413 (1985)Facts
In January 1971, Marcella Aloy employed defendant Eugene Mash to represent her in dissolution proceedings against her husband Richard. At that time, Richard was on active military duty with over 20 years of service, making him eligible to retire under 10 U.S.C. § 8911, though he had not yet done so and was not receiving pension payments. Defendant Mash failed to claim any community property interest in Richard’s military pension, and the issue was not raised in the dissolution proceedings. The final decree was entered in December 1971. Richard subsequently retired between 1971 and 1980. In 1980, Marcella filed a malpractice complaint against Mash, alleging he negligently failed to assert her community property interest in Richard’s pension. Mash moved for summary judgment, claiming the law was unsettled in 1971 and he had exercised informed judgment. His declaration stated he relied on French v. French (1941) 17 Cal.2d 775, which held nonmatured military pensions were not subject to division. However, his deposition testimony revealed uncertainty about what research he actually conducted and whether he understood the distinction between vested and nonvested pensions.
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