Bensing v. Bensing

• Decision Date: 23 May 1972
• Citation: 102 Cal.Rptr. 255,25 Cal.App.3d 889
• Court: California Court of Appeals Court of Appeals
• Parties: N. Elaine BENSING, Plaintiff and Respondent, v. Robert G. BENSING, Defendant and Appellant. Civ. 28959.

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.

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 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 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 that he only needed to apply for the pension benefits to receive them. Thus, the only condition to the payment of pension benefits is a condition entirely within Major Bensing's control and this is not the type of uncertainty which precludes division upon divorce. This was brought out in Waite v. Waite, Supra, 6 Cal.3d 461, 472, 99 Cal.Rptr. 325, 492 P.2d 13, where the court held that the pension benefits of a retired California judge were community property and divisible upon divorce. The husband argued that retired judges do not enjoy an unconditional and vested right to pension payments because the acceptance by a retired judge of a temporary judicial assignment reduces his pension to the extent of the salary he receives. In rejecting this argument, the court stated: 'Yet the choice of whether or not the judge accepts future judicial assignments, if any are offered by the Chairman of the Judicial Council, lies with the judge; the exercise of any right accorded by the Judges' Retirement Law is completely within his control; hence this option does not reduce the pension to a 'conditional' one. Defendant's rights under the Judges' Retirement Law, coupled with his power to refuse further judicial assignment, render his pension fully as secured, as 'vested,' as that of any other public employee.' (P. 472, 99 Cal.Rptr. p. 332, 492 P.2d p. 20, emphasis added.)

Here, to accept appellant's argument would mean that a spouse could be deprived of any share of matured pension rights by the decision of the employee to delay retirement until after the divorce proceedings were concluded. This would deprive respondent of her share of the community's most substantial asset. Thus the trial court was correct in determining the benefits to be a divisible asset.

The judgment awards to the wife 'the sum of $43,296.76 as her share of defendant's retirement benefit which is in the amount of $91,149.90, payable at the rate of $271.72 per month until her entire share of the retirement benefits has been paid' and, in the following paragraph, derects that he 'shall pay to the plaintiff wife the sum of $271.72 per month from his monthly retirement pay until the full amount of $43.296.76...