Opinion
For Opinion on Hearing, see, 118 Cal.Rptr. 621, 530 P.2d 589.
Opinions on pages 677-701 omitted
Opinion appearing on pages 677 to 692 deleted due to hearing granted.
Opinion appearing on pages 693 to 701 deleted on direction of Supreme Court by order dated May 16, 1973.
[107 Cal.Rptr. 97]Bullen, McKone & McKinley, George W. Bullen, Sacramento, for defendant and appellant.
Edward Freidberg, Sacramento, for plaintiff and respondent.
OPINION
GEO. A. BROWN, Presiding Justice.
Jerome R. Lewis, an attorney, appeals from a judgment entered upon a jury verdict for $100,00 against him in this malpractice action. He had represented the respondent, Rosemary E. Smith, in a prior divorce action. The gravamen of her charges arises out of appellant's failure to have taken into consideration in settling her community property rights in the divorce action her former husband's retirement benefits payable by the State of California under the California National Guard retirement program and from the federal government as a retiree from attendance at reserve drills with the California National Guard.
Respondent, Rosemary E. Smith, married General Clarence D. Smith on February 6, 1943. She filed the underlying suit for divorce through appellant, Jerome R. Lewis, on February 20, 1967-after 24 years of marriage. The interlocutory decree was obtained on March 20, 1967, and entered on March 21, 1967. The final was entered on February 27, 1968. The minimal tangible community assets owned by the parties were amicably divided and the court ordered General Smith to pay respondent $300 per month alimony and $100 per month child support for their 18-year-old son. There was no reference to retirement benefits in the complaint or in the interlocutory decree.
In the summer and early fall of 1968 appellant filed separate motions on behalf of respondent to amend the divorce decree and to set aside that decree on the basis of extrinsic fraud, alleging that General Smith's retirement pay was community property and should have been in the divorce proceedings. Both motions were denied.
Thereafter, and on December 23, 1968, the respondent filed this action for legal malpractice.
The evidence shows that General Smith was employed by the California National Guard as a state civilian employee between the latter part of 1945 and his retirement on December 31, 1966, at the age of 43--a period of over 20 years. All of the retirement benefits herein referred to were earned during the marriage and prior to the divorce in March 1967.
Between 1945 and 1961 he belonged to the State Employees' Retirement System, which was and is a contributory system. Between 1961 and the date of his retirement he belonged to the California National Guard retirement program, a noncontributory system. Concurrently, he was working toward separate retirement benefits from the federal government by attending national guard reserve drills. This was also a noncontributory system. Both programs pay lifetime monthly benefits to eligible retirees. Neither has any widows' benefits, and both cease upon the death of the retiree.
Now known as the Public Employees' Retirement System (Gov.Code, §§ 20000 et seq.).
A contributory system is one where the employee, normally through deductions from his pay, contributes to a fund for retirement. A noncontributory system is one where there are no monetary contributions by the employee.
The State of California commenced paying General Smith $796.26 gross per month on January 1, 1967, under the California National Guard retirement program. He had nothing further to do to become entitled to the federal benefits at the time of his retirement, but payments were deferred until he reaches age 60, a period of some 17 years after his retirement.
Appellant makes interrelated contentions that at the time off his legal services to respondent the law was uncertain and unclear as to whether the retirement benefits under General Smith's two programs were community property; that as a matter of law an attorney is not liable for an error when reasonable doubt is entertained by well-informed lawyers on a question of law; that as a consequence the trial court committed error in refusing to grant appellant's motions for nonsuit and judgment notwithstanding the verdict, in instructing the jury that the retirement benefits under both programs were and will be community property, and in submitting the issue of appellant's negligence to the jury under appropriate instructions.
The instructions read:
The instructions stated:
[107 Cal.Rptr. 99]The resolution of these questions is dependent upon determining the state of the law at the time the legal services were rendered--between February 17, 1967, and February 1968--and at the present time with respect to whether the retirement benefits were community property and in reference to the legal duty owed by an attorney at law to his client.
Retirement benefits, state or federal, if sufficiently matured and certain to be received so as to be classified other than as a mere expectancy, are community property subject to division in a divorce or dissolution proceeding. (Waite v. Waite (1972), 6 Cal.3d 461, 99 Cal.Rptr. 325, 492 P.2d 13; Phillipson v. Board of Administration (1970), 3 Cal.3d 32, 89 Cal.Rptr. 61, 473 P.2d 765; Brown v. Brown (1972), 27 Cal.App.3d 188, 191, 103 Cal.Rptr. 510; Bensing v., Bensing (1972), 25 Cal.App.3d 889, 892-893, 102 Cal.Rptr. 225; In re Marriage of Karlin (1972), 24 Cal.App.3d 25, 29-32, 101 Cal.Rptr. 240.) The same authorities establish that the retirement benefits serve as remuneration for services rendered by the employee, and if those services are performed during the marriage the remuneration must be a community asset. Under these cases, benefits are community property though the plan be denominated contributory or noncontributory, is labeled as a gratuity from the government, contains no widow's benefits, or may be increased, diminished or abolished at the will of the governmental authority.
But see 48 California State Bar Journal, at page 12, January-February 1973, 'Is Armed Services Retirement Pay Really Community Property?' wherein the author argues that while there is no federal law expressly prohibiting the state from freely characterizing the right to a pension under federal law, the field is one over which the United States government has exclusive legislative jurisdiction and state law cannot operate because the state law has never been recognized by the federal government as the governing federal rule. See, however, for a contrary result In re Marriage of Karlin, supra, 24 Cal.App.3d 25, at pates 31-32, 101 Cal.Rptr. 240.
Appellant argues that since General Smith's federal payments will not start until he arrives at age 60 the benefits are conditional upon survival to that date, rendering them so tenuous and unmature as to justify their being characterized as an expectancy only. We do not agree. Upon retirement General Smith's right to receive the federal benefits when he arrives at the age of 60 became absolute, although his right to receive each payment remains contingent upon surviving to that age. Although the period of waiting--some 17 years--renders the contingency of his right to receive each payment more remote, conceptually it is no different than the contingency present in waiting for each monthly payment, the right to receive which depends upon survival to the first of each month. We note further that in calculating the actuarial present value of the future payments the long delay in the commencement of payments is mathematically considered with the result that their value is substantially less than if the delay was not present.
In Williamson v. Williamson (1962), 203 Cal.App.2d 8, 11, 21 Cal.Rptr. 164, 167, the court used language which would seem to compel a different result. That court said:
'The principle established by these cases is that pensions become community property, subject to division in a divorce, when and to the extent that the party is certain to receive some payment or recovery of funds. To the extent that payment is, at the time of the divorce, subject to conditions which may or may not occur, the pension is an expectancy, not subject to division as community property. [Citations.]'
[107 Cal.Rptr. 100]However, in Bensing v. Bensing, supra, 25 Cal.App.3d 889, 102 Cal.Rptr. 255, and Brown v. Brown, supra, 27 Cal.App.3d 188, 103 Cal.Rptr. 510, the court in each instance held that the potential retirement payments were sufficiently matured to be subject to division as community property in dissolution proceedings because at the time of the dissolution the serviceman was eligible for retirement though he had not actually retired. In each case, the time of actual retirement would be at some indefinite time in the future, depending upon the serviceman's choice. Thus the language in Williamson, supra, is necessarily subject to the exception, implied by the facts of those and other cases, that survival to the date of receipt of payment alone is not a circumstance rendering the interest so unmatured as to require its classification as an expectancy.
We conclude that the trial court did not err in instructing the jury that both the state and federal retirement benefits were and will be the community property of respondent and General Smith (see fn. 3). A fortiori, had appellant litigated the issue in the divorce proceedings, the result would have been a determination by the court that these rights were subject to disposition as community property in those proceedings.
Relying on Lucas v. Hamm (1961), 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685, appellant contends that at the time the legal services were furnished the law on the subject of whether retirement benefits were community property was so unclear and debatable that as a matter of law he cannot be held liable for his failure to have presented the issue in the divorce proceedings. In Lucas v. Hamm, supra, the Supreme Court held that an attorney cannot be held liable for drafting a will provision which violates the rule against perpetuities. In that case, the attorney's only possible negligent act was his mistake in failing to realize that a muddled and complicated doctrine might invalidate the will provision which he prepared. The court described the rule against perpetuite 'as a 'technicality-ridden legal nightmare" (at p. 592, 15 Cal.Rptr. 821, 826, 364 P.2d 685, 690) and stated 'that few, if any, areas of the law have been fraught with more confusion or concealed more traps for unwary draftsman. . . .' (At p. 592, 15 Cal.Rptr. at p. 826, 364 P.2d at p. 690.) The facts and the holding in that case are inapposite to the case at bench.
At the time legal services were rendered the status of retirement benefits was not so obscure as appellant suggests--certainly not analogous to the abstruse permutations of the rule against perpetuities.
There was no case holding such benefits were not community property. On the contrary, French v. French (1941), 17 Cal.2d 775, 777-778, 112 P.2d 235, had held (in the case of a naval reserve officer) that if, at the time of the divorce, military retirement benefits had vested they would be community property. Benson v. City of Los Angeles (1963), 60 Cal.2d 355, 359-360, 33 Cal.Rptr. 257, 384 P.2d 649, and Williamson v. Williamson, supra, 203 Cal.App.2d 8, 11, 21 Cal.Rptr. 164, both recognized that retirement benefits when vested become divisible community property. Other familiar reference works then readily available make like statements. (See 15 Am.Jur.2d § 46, p. 859; 38 Cal.Jur.3d, Pensions, § 12, p. 326, fn. 13; 10 Cal.Jur.2d, Community Property, § 25, p. 692, fn. 6; I The California Family Lawyer (Cont.Ed. Bar, 1962) p. 111.) These and other authorities show that the debate and controversy in the legal profession was not so much over whether retirement benefits were community property but at what point they ceased to be an expectancy and became vested or matured and whether there was any difference between contributory and noncontributory systems. In the case at bench, since General Smith had retired and was receiving payments under the state program at the time of the divorce, with respect to those payments, at least, there could have been little controversy over whether his rights had become vested.
[107 Cal.Rptr. 101]Also, there is evidence from which a legitimate inference can be drawn that appellant actually knew retirement benefits could be community property. He directly testified that benefits payable under the State Employees' Retirement System, a contributory system, would be community property. Further, prior to and at about the same time that he filed the underlying divorce proceedings in this case, he had handled or had in process several divorce actions in which he had pleaded or admitted by answer that military pension benefits under a noncontributory system were community property.
Respondent testified that at the time of her divorce consultation whit appellant she told him in some detail about the retirement benefits and made subsequent inquiries of appellant before the divorce hearing why whese benefits were not included as community property; respondent told her that 'no benefits, no retirement benefits, state or any otherwise, were community property.'
Respondent asserts that appellant's negligent conduct consists of negligently advising her that the retirement benefits were not community property, negligently failing to investigate the nature of the retirement benefits and the law on the subject, failing to disclose that there may have been a community property interest in those benefits, failing to allege in the complaint that the retirement benefits were community property and failing to litigate the issue on her behalf.
The totality of circumstances present here clearly distinguishes the case at bench from Lucas v. Hamm, supra, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685. The legal problem was not nebulous, complex and mysterious as in Lucas. The evidence supports the conclusion that appellant knew it to be likely that the benefits were community property. The issue was squarely placed before the appellant by the respondent. Appellant had the clear duty to research the law on the subject rather than advise his client that the benefits were not community property without such research. Had he done such work, he would have found, without much effort, that there was a clear probability that the benefits were community property. Unlike the situation in Lucas, appellant had alternatives open to him. If after such research he still had a wrong impression or came to a contrary conclusion regarding the status of the law, he had a duty to advise his client that another attorney might reach a different conclusion in order that she might have a choice (Cobbs v. Grant (1972), 8 Cal.3d 229, 241-246, 104 Cal.Rptr. 505, 502 P.2d 1) and, if appellant remained as her attorney, a duty to protect her interest by pleading the benefits were community property and litigating the question. Instead, appellant voluntarily chose the risky path of not researching the problem, misadvising his client and ignoring the question in his pleading and settlement negotiations. (See Rothrock v. Ohio Farmers Ins. Co. (1965), 233 Cal.App.2d 616, 622-623, 43 Cal.Rptr. 716.) We do not believe under the facts here that Lucas and its progeny can be used as an escape hatch to avoid submission of the issue to the jury upon the tenuous assertion that the legal problem involved was the subject of dispute in the legal community.
We hold that the court properly denied the motion for nonsuit and for judgment notwithstanding the verdict and that it properly submitted the question of appellant's negligence to the jury under the instructions given. (See fn. 4, supra.) (Ishmael v. Millington (1966), 241 Cal.App.2d 520, 523, 525-526 50 Cal.Rptr. 592.)
What has been said makes apparent that the trial court was correct in refusing to instruct at appellant's request that 'he is not liable for being in error as to a question of law on which reasonable doubt may be entertained by well informed lawyers.' For the reasons hereinabove stated, this statement, which was properly stricken from the instructions by the court, is an [107 Cal.Rptr. 102] incorrect statement of the law applicable to this case.
Professor Gutowsky, an economist, testified to the actuarial present value of the benefits payable under the state and federal pension plans based upon General Smith's life expectancy, the amount of the monthly payment, and an assumed average rate of return of 3 1/2 percent. He testified the 'present value' of the state benefits was $272,954 and the federal benefits $49,078 or a total of $322,032, one-half of which is $161,016. The jury returned a verdict for $100,000.
Appellant contends that the amount of the verdict is not supported by the evidence and because the divorce court could only have ordered General Smith to pay one-half of the monthly pension payments to respondent as they are received, the court in this tort action for negligence is restricted to the same measure of damage. Neither contention has merit.
Appellant presented no evidence on the issue of damages. Professor Gutowsky's testimony constituted substantial evidence of the 'present value' of the pension payments. The matter of General Smith's physical condition and whether taxes should be included in the calculations and other facts about which he was cross-examined go to the weight to be accorded to his conclusions but do not destroy the efficacy of his testimony to support the verdict. As noted, the verdict was about $61,000 less than one-half the 'present value' of the benefits to which he had testified. Valuation is a question of fact for the trial court and our power is limited to the determination of whether there is any substantial evidence which supports that court's finding. (Nestle v. City of Santa Monica (1972), 6 Cal.3d 920, 925-926, 101 Cal.Rptr. 568, P.2d 480; Primm v. Primm (1956), 46 Cal.2d 690, 693, 299 P.2d 231.)
Though the court in a divorce or dissolution proceeding normally would award an interest in each retirement benefit as it falls due, in such proceedings it is not restricted to that disposition but may award the actuarial equivalent of the value of the benefits either in a lump sum judgment or as an offset judgment against other community assets. In an effort to equalize distribution of community property, the court in a dissolution proceeding deals with values and is not required to divide specific assets.
In Phillipson v. Board of Administration, supra, 3 Cal.3d 32, at pages 46-47, 89 Cal.Rptr. 61, at pages 70, 71, 473 P.2d 765 at pages 774, 775, the Supreme Court said:
'As we noted previously, the court in Crossan v. Crossan, supra, 35 Cal.App.2d 39, 40, 94 P.2d 609, awarded all pension rights to the employee and gave community property of equal value to his wife. All parties agree, and we concur, that if the community musters sufficient assets to do so, the preferable mode of division would be to award the pension rights to the employee and property of equal value to the spouse. Yet defendant's thesis would require an equal division of pension rights in all divorce cases involving state employee, thus barring the division adopted in Crossan, and there urged by plaintiff, defendant, and amicus curiae.
'Although the spouses enjoy equal interests in community property under Civil Code section 161a (now § 5105), former section 146 empowered the court to award the entirety of any asset to one spouse. Even in cases in which the court must divide the community property equally, it has never been supposed that each asset must be cleaved in twain, without regard to the wishes of the parties or the justice of the matter. We conclude that the possibility that upon divorce an asset may be awarded entirely to one spouse is one of the incidents of community property and, in a sense, a qualification of the equal interests of each spouse in each community asset.'
(See also Waite v. Waite, supra, 6 Cal.3d 461, 473-474, 99 Cal.Rptr. 325, 492 P.2d 13; Bensing v. Bensing, supra, 25 Cal.App.3d 889, 894, 102 Cal.Rptr. 255.)
[107 Cal.Rptr. 103]Since a lump sum award could have been made in the divorce proceedings, the trial court did not err in permitting a lump sum award based upon actuarial calculations in this tort action.
Quite aside from the propriety of a lump sum award, it is doubtful that the court in this legal action for money damages based upon a tort theory would have any authority to make other than a lump sum award. Appellant cites no authority that the court has such power and we are aware of none.
The possibility of unjust enrichment to the respondent in the event of the premature death of the respondent or of General Smith is not unique in Lump sum damage awards. For example, such possibility is likewise inherent in lump sum personal injury awards predicated upon similar actuarial calculations and assumptions regarding life expectancy and earning power, yet they have been repeatedly upheld against attacks that they are speculative and uncertain.
Appellant next argues that the trial court committed prejudicial error in denying admission into evidence of a petition by the State of California for a hearing in the California Supreme Court in Phillipson v. Board of Administration, supra, 3 Cal.3d 32, 89 Cal.Rptr. 61, 473 P.2d 765, which case had been decided by the Court of Appeal on September 2, 1969. In his brief the appellant urges:
'The petition, therefore, was germane to the issue of whether or not the law was in fact still unclear at the very time of trial. . . . [T]he petition was not being offered into evidence for the truth of the matter asserted therein, but rather was being offered into evidence to establish the fact that there was currently a dispute on the very issue being contested before the Court.'
The court excluded the petition as hearsay. The principal issue raised by the petition was whether the divorce court had the power to assign to the nonemployee spouse of a public employee all of his contributions in the retirement fund in alleged violation of Government Code section 21201--a matter of only tangential relationship to the issues in the case at bench. Further, insofar as the petition may have borne upon appellant's reasonable reliance upon such dispute, there is no showing that he in fact was aware of the opinions in the petition and relied upon them. (Dussault v. Condon (1959), 170 Cal.App.2d 693, 339 P.2d 896.)
In the face of these considerations and the voluminous expert testimony and other evidence in the record on the subject of the existence of a dispute, the court was well within the ambit of its discretion in excluding the evidence under Evidence Code section 352.
In the divorce proceedings appellant had filed a declaration under penalty of perjury in support of the motion to modify the final decree of divorce to include the pension payments as community property. In that declaration he stated in substance that through his mistake, inadvertence or excusable neglect the retirement benefits were excluded from the complaint; that they were community property and respondent was entitled to one-half of them. The declaration was admitted into evidence over the objection of appellant and he asserts that ruling was error. There was no error.
The prior statements of appellant were admissible in evidence as admissions (Evid.Code, § 1220; Witkin, Cal.Evidence (2d ed. 1966) § 496, pp. 467-468). They were also admissible as prior inconsistent statements for the purpose of impeaching his testimony at the trial that at time of the divorce proceedings he did not believe the benefits were community property. (Evid. Code, § 780, subd. (h).)
Inasmuch as appellant is a lawyer, the fact that the declaration in part was an expression of opinion and legal conclusion within the area of his competence did not render the statements therein inadmissible as admissions and for impeachment. (State of Cal. ex rel. State Pub. Wks. Bd. v. Stevenson (1970), 5 Cal.App.3d 60, 65, [107 Cal.Rptr. 104] 84 Cal.Rptr. 742; Witkin, Cal.Evidence (2d ed. 1966) § 499, subd. (b), pp. 470-471.)
Witness Joan Spaulding had been represented by appellant in an unrelated divorce action in 1965. Her husband was under the State Employee' Retirement System. She was called by respondent. In sum, she testified that she gave appellant certain documents furnished to her by the State of California to make claim against her husband's retirement benefits. Among other matters, the letter of transmittal from the state referred to her interest in the benefits as a community interest and advised what steps she should take to protect her rights in them. She further stated that the appellant told her that the retirement fund and benefits were not community property, even though contributory. She disagreed and argued, but he insisted upon that position in order to obtain the divorce decree without a contest and lengthy or future postponement. She said she was finally forced by appellant into the settlement.
Appellant conceded at the trial that the testimony regarding the documents being given to appellant was admissible on the issue of his knowledge and awareness that the State of California considered the retirement interest to be community property. As to the balance of the testimony, appellant preserved his objection thereto both by his objection in chambers and by a continuing objection to the testimony in court.
Appellant had testified during the trial that a contributory retirement fund is clearly community property. He also testified that he conceived his duty as a lawyer to be to get the best possible result for his client under any possible theory no matter how tenuous or thin it might be, and that if he had any doubt that an asset was community property he would seek to obtain a community property interest in the asset if he had the slightest hope of gaining some advantage for his client. It is legitimate impeachment to rebut and counter the effect of such broad statements by showing that on other occasions appellant made contradictory statements or conducted himself in a different manner (Evid.Code, § 780, subds. (h), (i); Laird v. W. T. Mather, Inc. (1958), 51 Cal.2d 210, 219, 331 P.2d 617), even though such conduct and statements may pertain to a collateral matter (Evid.Code, § 780; People v. Pierce (1969), 269 Cal.App.2d 193, 199, 75 Cal.Rptr. 257; Witkin, Cal.Evidence (2d ed. 1966) § 1259, p.1163).
When the appellant took the position in Mrs. Spaulding's former divorce action that the contributory fund involved in that litigation was not community property, that posture is obviously impeaching of his testimony in the present trial that such a fund is always community property. As to the testimony regarding appellant's insistence upon a settlement without considering the retirement benefits, and inference may be reasonably drawn therefrom that the appellant will deliberately misstate the law to a client to expedite the settlement of a lawsuit so as to avoid a trial; such an inference is impeaching of his present testimony regarding his duty to a client and his fidelity to a client's interests.
Having decided that the testimony was admissible for impeachment purposes, it is unnecessary to reach the question as to whether Joan Spaulding's testimony was also admissible under the provisions of Evidence Code section 1101, subdivision (b).
Evidence Code section 1101, subdivision (b), provides:
Appellant devotes five lines in his brief, without citation of authority or argument, to the statement that plaintiff's counsel should not have been allowed to argue taxes and attorney's fees to the jury. A point raised without supporting argument or authority will be deemed by an appellate court to be without substantial [107 Cal.Rptr. 105] foundation. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1968), 263 Cal.App.2d 531, 540, 69 Cal.Rptr. 373.)
The court refused to instruct on contributory negligence; we have concluded that the refusal was proper.
An attorney is employed because of his expertise in and superior knowledge of the law. A client has a right to rely upon an attorney's advice within the range of the expertise which he holds himself out to have, even though as a layman the client may disagree therewith. (Theobold v. Byers (1961), 193 Cal.App.2d 147, 151-152, 13 Cal.Rptr. 864.) An attorney impliedly represents that he possesses the requisite degree of learning, skill and ability necessary to the practice of the profession and it is not contributory negligence to place reasonable reliance upon an attorney's duty of care.
In some cases wherein the conduct of the client has been given some weight in absolving the attorney from liability, it appears the client has failed to either cooperate with the attorney or the client has undertaken affirmative action, one or both of which has contributed to the loss of the litigation. (45 A.L.R.2d 5, 17-18, attorney's liability for negligence in preparing or conducting litigation.)
Respondent cannot be held to be contributively negligent because she relied upon her attorney's advice. It is true that she discussed the matter with another attorney she had met at a social event; he advised her he thought the benefits were community property. However, he would not represent her and told her to go back to see appellant. She went back to appellant, and appellant continued to advise her that he was positive that the benefits were not community property.
It further appears that the discussion with the other attorney was after the interlocutory decree and may have been after the six-month period for a motion to set aside the interlocutory decree under Code of Civil Procedure section 473. Neither the respondent nor the attorney could remember when it was, except that it was after the interlocutory decree.
We do not believe that the nebulous character of this evidence made her fault a factual issue in the case nor that her conduct caused or contributed to the judgment which had already been entered. In light of the state of the testimony, it is sheer speculation to assume, had she taken action, that it would have been within the six-month period Code of Civil Procedure section 473, and assuming that it was within that period, that the judge would have granted relief.
Appellant complains of the refusal by the trial court to give his proposed instruction which, among other things, instructs that the respondent must show she relied upon the advice of the appellant. However, in a legal malpractice action the plaintiff is only required to show causation, not reliance. (Ishmael v. Millington, supra, 241 Cal.App.2d 520, 523, 529, 50 Cal.Rptr. 592) and the jury was adequately instructed on causation. There was no error.
The remaining summary tag-end complaints regarding the giving of and refusal to give instructions have been carefully reviewed; they have no merit. Where refused, the refusal was proper, either because the legal principal stated in the instruction is wrong or the subject is adequately covered by other instructions. The instructions given were substantially correct. In any event, if there was error, it was of minuscule proportions and could not have affected the result. (Cal.Const., art. VI, § 13; Code Civ.Proc., § 475; Wells v. Lloyd (1942), 21 Cal.2d 452, 457-460, 132 P.2d 471.)
For the first time, in his closing brief, and without citation to the record, appellant contends there was a transmutation agreement prior to the divorce decree between respondent and General Smith converting the retirement benefits from community to separate property. This theory was not presented or argued to the [107 Cal.Rptr. 106] trial court and cannot be raised for the first time here. (In re Marriage of Karlin, supra, 24 Cal.App.3d 25, 33, 101 Cal.Rptr. 240.)
The judgment is affirmed.
GARGANO and FRANSON, JJ., concur.
'You are instructed that the retirement benefits that CLARENCE SMITH commenced receiving in January of 1967 and has been receiving on a monthly basis from that time to the present time and will receive in the future from the State of California, were, and will be the community property of the plaintiff and CLARENCE SMITH.'
'You are instructed that the retirement benefits that CLARENCE SMITH will commence to receive at age 60 from his service in the CALIFORNIA AIR NATIONAL GUARD and each monthly payment that he receives thereafter will be the community property of the plaintiff and CLARENCE SMITH.'
'In performing legal services for a client in a divorce action an attorney has the duty to have that degree of learning and skill ordinarily possessed by attorneys of good standing, practicing in the same or similar locality and under similar circumstances.'
'It is his further duty to use the care and skill ordinarily exercised in like cases by reputable members of his profession practicing in the same or a similar locality under similar circumstances, and to use reasonable diligence and his best judgment in the exercise of his skill and the accomplishment of his learning, in an effort to accomplish the best possible result for his client.
'A failure to perform any such duty is negligence.'
'An attorney is not liable for every mistake he may make in his practice; he is not, in the absence of an express agreement, an insurer of the soundness of his opinions.'
'(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.'