Bensing v. Bensing

• Court: California Court of Appeals
• Writing for the Court: HAROLD C. BROWN; DRAPER, P.J., and CALDECOTT
• Citation: 102 Cal.Rptr. 255,25 Cal.App.3d 889
• Parties: N. Elaine BENSING, Plaintiff and Respondent, v. Robert G. BENSING, Defendant and Appellant. Civ. 28959.
• Decision Date: 23 May 1972

Page 255

102 Cal.Rptr. 255 25 Cal.App.3d 889 N. Elaine BENSING, Plaintiff and Respondent,
v.
Robert G. BENSING, Defendant and Appellant. Civ. 28959. Court of Appeal, First District, Division 3, California. May 23, 1972.
As Amended May 25, 1972.
Hearing Denied July 19, 1972.

Page 256

[25 Cal.App.3d 891] Ronald E. Moe, Dixon, for appellant.

McPherson & Harris, William H. McPherson, Fairfield, for respondent.

HAROLD C. BROWN, Associate Justice.

This is an appeal in a divorce action in which the appellant husband claims the court erred in declaring his pension benefits to be community property and subject to division even though he had not retired. Appellant also claims that the court failed to consider the wife's retirement benefits in its award and, further, that the evaluation of items of personal property was not based on substantial evidence.

The evidence disclosed that appellant was a major in the Air Force. During the 23 years of the marriage and for five years prior to the marriage, appellant was in military service. He was eligible for retirement but at the time of the divorce was still in the Air Force. He testified that his retirement income would be approximately $700 a month. The court found that the retirement benefits were community property to the extent that they resulted from service during the years of marriage. Based upon the percentage earned during marriage, the life expectancy of the appellant and the estimate of $700 per month benefits, the court calculated the community property portion of the retirement benefits to have an actuarial value of $91,149.90. The court also found that other community assets [25 Cal.App.3d 892] totaled $27,683.61. Of this property he awarded items totaling $16,470.00 to respondent and items totaling $11,913.61 to the appellant. In order to equalize the award of the community property, the court divided the retirement benefit in the sums of $43,296.76 to respondent and $47,853.15 to appellant. Appellant was ordered to pay respondent her share of the retirement benefits at the rate of $271.72 per month starting on April 1, 1970.

Appellant first contends that military retirement benefits are contingent upon both retirement and survival and do not vest until retirement. Therefore, appellant argues, as he had not retired but was merely eligible for retirement, the pension benefits should be considered a mere expectancy not subject to division as community property.

We do not agree with this contention. Pension benefits are a part of the consideration earned by the employee. They are not gratuities of the employer but, as a part of the salary earned by such employee, they are community property. 'Both employee, and non-employee (spouse) own community property rights in the pension fund that are of equal stature; such rights are equally subject to the power of the divorce court.' (Phillipson v. Board of Administration, 3 Cal.3d 32, 50, 89 Cal.Rptr. 61, 73, 473 P.2d 765, 777.) This applies not only to the accumulated contributions the employee has made to a pension plan but also to the entire matured pension rights payable as a benefit of employment. (Waite v. Waite, 6 Cal.3d 461, 469--470, 99 Cal.Rptr. 325, 492 P.2d 13.) '(P)ensions 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.' (Williamson

Page 257

v. Williamson, 203 Cal.App.2d 8, 11, 21 Cal.Rptr. 164, 167.) Application of this latter principle in Williamson resulted in a determination that a policeman's wife was not entitled to a division of pension rights. The provisions of the pension fund were such that the employee was not entitled to any portion of the fund until he had served 20 years. At the time of the divorce, the husband in Williamson was not eligible to retire.

Likewise, in French v. French, 17 Cal.2d 775, 112 P.2d 235, the court recognized that retirement pay of appellant, who was in the U.S. Navy, was community property but held in that case that retirement pay was a mere expectancy because the appellant had not completed the number of years of normal service in the fleet reserve to become eligible for the pension. (P. 778, 112 P.2d 235.)

Here the appellant had completed the required number of years of service and was eligible for a pension. He does not dispute the contention [25 Cal.App.3d 893] that he only...