Benson v. City of Los Angeles

• Decision Date: 27 August 1963
• Court: California Supreme Court
• Parties: , 384 P.2d 649 Olive M. BENSON et al., Plaintiffs, Cross-Defendants and Respondents, v. CITY OF LOS ANGELES et al., Defendants, Cross-Defendants and Appellants; Teresa G. Benson, Defendant, Cross-Complainant and Appellant. L. A. 26786.

Page 257

33 Cal.Rptr. 257

60 Cal.2d 355, 384 P.2d 649

Olive M. BENSON et al., Plaintiffs, Cross-Defendants and Respondents, v. CITY OF LOS ANGELES et al., Defendants, Cross-Defendants and Appellants;

Teresa G. Benson, Defendant, Cross-Complainant and Appellant.

L. A. 26786.

Supreme Court of California, In Bank.

Aug. 27, 1963.

Roger Arnebergh, City Atty., Bourke Jones, John J. Tully, Jr., and Weldon L. Weber, Asst. City Attys., for defendants, cross-defendants and appellants.

Wendell R. Thompson, City Atty. (Pasadena), Fred R. Metheny, Asst. City Atty., Donald B. Hagler and Evelynn M. Finn, Deputy City Atty., as amici curiae on behalf of defendants, cross-defendants and appellants.

Glenn S. Roberts and Henry W. Low, Los Angeles, for defendant, cross-complainant and appellant.

Kenneth Sperry and John L. Kaesman, Long Beach, for plaintiffs, cross-defendants and respondents.

PEEK, Justice.

Teresa G. Benson appeals from that portion of a judgment denying her the right, after the demise of her former spouse, August Benson, to receive a widow's pension from the City of Los Angeles. The city also prosecutes an appeal, but only from that portion of the judgment which awards to Olive M. Benson, the widow of August, interest on accrued pension benefits withheld by the city pending the award of the pension to Olive. The appeals arise out of an action by Olive and a cross action by Teresa against each other and the city for declaratory relief as to their entitlement to the widow's pension in question, and for accruals of payments and interest allegedly withheld by the city.

Teresa married August in January 1920 and resided with him in California from that date until 1945. Between 1916 [60 Cal.2d 358] and 1940 August was employed by the Los Angeles Fire Department. During that time withholdings were made from his earnings in the amount of his contribution for pension benefits pursuant to provisions in the Los Angeles Charter. In 1940 he retired from active service and thereafter regular pension payments were made to him in accordance with the charter provisions.

In 1945 August commenced an action against Teresa for divorce. She cross-complained and a decree of separate maintenance was awarded to her. In that action, although the court found that the parties were possessed of a community property interest in the pension, no division of such interest was made.

In 1952, after moving to the District of Columbia, August commenced an action for and was granted a divorce from Teresa. She was not personally served in the District of Columbia and did not make an appearance. It does not appear that the court purported to adjudicate property matters as between the parties.

In 1953 August married Olive and thereafter resided with her until his death in 1960.

Shortly after August's death, and preliminary to the instant actions, both Teresa and Olive filed claims with the City of Los Angeles for the widow's pension benefits based upon August's service. The claims were denied in both instances, the city maintaining that it was obligated to neither claimant for a pension as neither was qualified under the charter provisions.

The city's appeal, insofar as its notice of appeal discloses, is from the whole of the judgment except that portion awarding nothing to Teresa. It sought to avoid the obligation to Olive on the ground of a 1925 modification of the provisions governing the widow's pension, wherein eligibility of the widow was changed from marriage to the member of the retirement system for at least one year prior to the date of his death to marriage for at least one year prior to his retirement, which remains the current requirement. After the filing of the instant claims the modification was held in other proceedings to be invalid as to a widow of a pensioner who was a member of the retirement system prior to the modification. (Henry v. City of Los Angeles, 201 Cal.App.2d 299, 29 Cal.Rptr. 440; Eaton v. City of Los Angeles, 201 Cal.App.2d 326, 20 Cal Rptr. 456; Atwell v. City of Los Angeles, 201 Cal.App.2d 336, 20 Cal.Rptr. 462.) The city concedes that it may be deemed to have abandoned its appeal as to that portion of the judgment awarding a pension to Olive in the event such portion of the judgment otherwise is to be affirmed.

The judgment of the trial court was predicated upon the finding that Olive and not Teresa is the 'widow' of the deceased pensioner within the meaning of that term as used in section 4 of article XI 1/2 of the Los Angeles City Charter which, under the rule of the Henry, Eaton, and Atwell cases, must be looked to in the instant case. (Stats.1923, pp. 1413, 1414.)

The portion of that section relevant to the issues herein provides: 'Whenever any member of the Fire or Police Department shall die * * * then an annual pension shall be paid in equal monthly installments to his widow * * * in an amount equal to one-half (1/2) of the salary attached to the rank or position which such deceased person held * * *. Provided, however, that no widow of a pensioner shall be entitled to a pension unless she shall have been married to such deceased pensioner at least one year prior to the date of his death * * *.'

Following the aforesaid modification, in 1925 the governing provision became section 183, Stats.1925, c. 5, but the references therein to 'widow' were not made more specific and at no time has that term been defined by a charter provision.

The real question to be determined is whether the ordinary meaning of the term 'widow' can be applied to defeat Teresa's claim in a pension earned with community funds and effort. It is established that pension rights of a municipal employee are an integral part of his earnings. (Dryden v. Board of Pension Comrs., 6 Cal.2d 575, 59 P.2d 104.) Moreover, a widow's right to receive a pension after the death of her spouse is an element of her husband's contractual compensation and is earned by his performance of services for a municipality. (Henry v. City of Los Angeles, supra, 201 Cal.App.2d 299, 313, 20 Cal.Rptr. 440.) It necessarily follows that pension rights which are earned during the course of a marriage are the community property of the employee and his wife. (French v. French, 17 Cal.2d 775, 778, 112 P.2d 235, 134 A.L.R. 366; Cheney v. City and County of San Francisco, 7 Cal.2d 565, 569, 61 P.2d 754; Civ.Code, § 164.) Furthermore, the 1947 separate maintenance decree in favor of Teresa specifically recognized that the pension benefits herein involved were community property.

In view of the foregoing Teresa claims that she alone is entitled to the community assets after August's death, and that it was a denial of due process to deprive her of such property right by an ex parte decree of divorce in a foreign jurisdiction. (See Estate of Updegraph, 199 Cal.App.2d 419, 423, 18 Cal.Rptr. 591). Teresa's claim contemplates both that she was possessed of a property right and that she was improperly deprived thereof.

We shall consider first the nature of Teresa's property right. Conceding the community nature of the pension, it follows that the community possessed only such an interest therein as August's employment contract provided. The city need perform only in accordance with the contract as the terms thereof are contained pursuant to the charter provisions. That contract provided for payments to August during his lifetime and thereafter for the payment of benefits to August's 'widow.' Certainly if August had married and divorced several wives during the time he was employed by the city, each former wife would not be entitled to a widow's pension. It is apparent that the contract between the city and the community did not contemplate multiple or divisible pensions, but instead a pension for the member's 'widow' only. The only qualification which the charter provision imposes is that which requires the claimant to have been married to the pensioner 'at least one year prior to the date of his death.' But even this contemplates more than the bare fact that a marriage had taken place at such time, as the one eligible to make claim is further described as the 'widow,' and the obvious inference is that such marriage must have continued until the member's death.

On the face of the contract entered into between the community and the city, Teresa was not entitled to assert any personal rights other than those of the community, which were to enforce payments to August and after his death to his widow. (Packer v. Board of Retirement, 35 Cal.2d 212, 216, 217 P.2d 660.)

This is not to say that upon a division of the community estate she could not have participated therein. Undoubtedly she had an interest which she could have asserted in the payments to August during his lifetime, had she sought to do so. But after August's death the only right remaining was to enforce the city's covenant to make payments to the 'widow.'

The nature of a wife's interest in a death benefit pension prior to her husband's demise has before been considered. In Packer v. Board of Retirement, supra, 35 Cal.2d 212, 217 P.2d 660, an amendment to a pension statute had eliminated a provision for an automatic pension to widows of certain county employees. In its place the amendment gave an option to the retired employee to receive a lesser pension and thereby insure his widow of a future pension; if, however, he failed to exercise the option he would receive his full pension, and all widow's pension benefits would be lost. The amendment was made effective during the husband's period of employment and during the course of the marriage. He did not exercise his option, and received his full pension during retirement. After his death his widow sought to compel the payment of a pension to her. The court considered and summarized the prevailing law as follows at page 216, 217 P.2d at page 663: '* * * the cases have not treated provisions for pensions to widows of public employees as separate,...