Cavitt v. City of Los Angeles

• Citation: 59 Cal.Rptr. 690,251 Cal.App.2d 623
• Court: California Court of Appeals
• Decision Date: 06 June 1967
• Parties: Edith D. CAVITT, Plaintiff and Respondent, v. CITY OF LOS ANGELES, etc., et al., Defendants and Appellants. Civ. 30441.

Page 690

59 Cal.Rptr. 690

251 Cal.App.2d 623

Edith D. CAVITT, Plaintiff and Respondent, v. CITY OF LOS ANGELES, etc., et al., Defendants and Appellants.

Civ. 30441.

Court of Appeal, Second District, Division 2, California.

June 6, 1967.

Rehearing Denied June 29, 1967.

Hearing Denied July 26, 1967.

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

Kenneth Sperry, Long Beach, and Melvin King, Huntington Beach, for respondent.

ROTH, Presiding Justice.

The City of Los Angeles appeals from a judgment declaring that Edith D. Cavitt is entitled to receive, pursuant to section 183 1/2 of the Los Angeles City Charter, from the city's Fire and Police Pension Fund, a fixed monthly pension of $310.40 for the remainder of her natural life or until remarriage, and awarding her pension benefits of $2,926.89 including interest, accrued to date of judgment.

The facts are undisputed. On August 25, 1920, Edith married Clyde D. Cavitt. On March 1, 1930, Clyde became a member of the Los Angeles Police Department, a position he held continuously until February 15, 1949, when he retired on a nonservice-connected disability and began receiving a pension under section 182 1/4 of the City Charter.

On July 29, 1949, Edith obtained a final decree of divorce from Clyde. Both Edith and Clyde remained unmarried until September 11, 1952, when they remarried each other. They remained married and continued to live as husband and wife from that date until Clyde's death on January 25, 1965.

On February 2, 1965, Edith filed a written application with the city's Board of Pension Commissioners for a widow's death benefit pension pursuant to section 183 1/2 of the City Charter. Her application was denied by the Board on February 17, 1965. Edith filed the action at bench to compel payment under the above charter provision on July 2, 1965.

The pertinent provisions of section 183 1/2 of the Los Angeles City Charter are as follows:

'Sec. 183 1/2. Whenever any member of the Fire or Police Department (other than a member retired on account of years of service or a member eligible to retirement on account of years of service, But including a member retired on account of disability pursuant to the provisions of Section 182 1/4 of this charter) who shall have served in such department for five years or more in the aggregate from the date of his last appointment to such department, shall die from causes other than those arising out of or from the performance of his duties, then an annual pension shall be paid in equal monthly installments To his widow * * *. Said pension shall be paid to the widow during her lifetime or until she remarries * * *. Provided, further, however, that no widow shall be entitled to a pension pursuant to the provisions of this section Unless she shall have been married to such deceased member for at least one year prior to the date of his death.

'And provided further, that no widow of a member who shall die while on disability retirement pursuant to the provisions of Section 182 1/4 of this charter shall be entitled to a pension pursuant to the provisions of this section Unless she shall have been married to such deceased member for at least one year prior to the date of his retirement.' (Emphasis added.)

The city concedes that to qualify for pension benefits, Edith, if she is Clyde's widow, must satisfy only the proviso that 'she shall have been married to such deceased member for at least one year prior to the date of his retirement.' ¹

The city does not challenge the amount of monthly benefits awarded Edith, the lump sum award of accrued benefits, or the allowance of interest on the portion accrued before judgment. Its sole contention is that the trial court erred in qualifying Edith for pension benefits under section 183 1/2.

The agreed facts clearly show that Edith was married to Clyde for more than one year prior to February 15, 1949, the date Clyde retired. The language of section 183 1/2, however, provides benefits not to any woman to whom the deceased employee was married for at least one year prior to his retirement, but to the employee's Widow. Since a widow is the surviving spouse of a deceased man, the section imposes the additional requirement by its very terms that Edith have been Clyde's surviving spouse at the date of his death. (See Benson v. City of Los Angeles, 60 Cal.2d 355, 360, 33 Cal.Rptr. 257, 384 P.2d 649.)

Although conceding that the single proviso of section 183 1/2 applicable to Edith is the one requiring that the widow shall have been married to the deceased for at least one year prior to the date of his retirement, the city argues that the courts in Lovell v. Parrish, 34 Cal.App.2d 323, 93 P.2d 166, and Benson v. City of Los Angeles, supra, have, in construing similar statutory language, added the condition that the marriage must be 'continuous' to and including date of death.

Construing the provisions of section 183 1/2, we are guided by the firmly established rule that such pension statutes are to be liberally interpreted in favor of the applicant so as to effectuate, rather than defeat, their avowed purpose of providing benefits for the employee and his family. (Wendland v. City of Alameda, 46 Cal.2d 786, 791, 298 P.2d 863; Terry v. City of Berkeley, 41 Cal.2d 698, 701--702, 263 P.2d 833; Gibson v. City of San Diego, 25 Cal.2d 930, 935, 156 P.2d 737; McKeag v. Board of Pension Commissioners, 21 Cal.2d 386, 390, 132 P.2d 198.) Rights to pension benefits are valuable property rights (Kern v. City of Long Beach, 29 Cal.2d 848, 851, 179 P.2d 799; Malone v. City of Los Angeles, 126 Cal.App.2d 447, 452, 272 P.2d 796) which, when '* * * 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 & County of San Francisco, 7 Cal.2d 565, 569, 61 P.2d 754; Civ.Code, § 164.)' (Benson v. City of Los Angeles, supra, 60 Cal.2d at p. 359, 33 Cal.Rptr. at p. 259, 384 P.2d at p. 651.) Such rights may not be taken away 'by strained construction' of the applicable statutory language. (Larson v. Board of Police Etc. Commissioners, 71 Cal.App.2d 60, 63, 162 P.2d 33 and cases cited therein.)

There is nothing in the language of section 183 1/2 which imposes the further requirement that Edith have been Continuously married to Clyde from one year prior to his retirement, to the time she became his widow. We see no reason to infer such additional qualifying language contrary to the rule of construction of pension statutes.

In Benson, supra, the former wife (Teresa) of a deceased fireman, and the fireman's widow (Olive) were each seeking pension benefits based on their relationships to the deceased. The court concluded that despite Teresa's assertion that her rights in the pension were community property and were recognized as such in the divorce decree she obtained from deceased, ² the contract between the community and the city could validly provide for payment of benefits only to the widow. After the fireman's death, therefore, the only right which Teresa possessed in the pension 'was to enforce the city's covenant to make payments to the 'widow. " (Benson, supra, 60 Cal.2d at p. 360, 33 Cal.Rptr. at p. 260, 384 P.2d at p. 652.) Olive, and not Teresa, was the widow and so qualified for the benefits.

In the course of its discussion, the court stated, in construing the meaning of the phrase 'at least one year prior to the date of his death':

'But even this...