Marriage of Adams, In re

CourtCalifornia Court of Appeals
Citation64 Cal.App.3d 181,134 Cal.Rptr. 298
Decision Date24 November 1976
PartiesIn re the Marriage of Ida Jean and Floyd Sherman ADAMS. Floyd Sherman ADAMS, Appellant, v. Ida Jean ADAMS, Respondent. Civ. 47400.
Theodore C. Eckerman, Pasadena, for appellant

Bernard Lauer, Beverly Hills, for petitioner.

[64 Cal.App.3d 183] HASTINGS, Associate Justice.


Floyd Sherman Adams (husband), appellant, and Ida Jean Adams (wife), respondent,

were married on July 27, 1947. On March 1, 1949, husband was employed by the City of Pasadena as a fireman and served in that capacity until 1962, at which time he became a fire inspector. The parties separated on September 30, 1970. Thereafter, wife filed an action for dissolution of marriage, and on January 31, 1972, an interlocutory judgment of dissolution was entered reserving all issues other than the matter of dissolution for decision by further judgment. On March 21, 1973, trial was held upon the reserved issues, and a further judgment was entered that awarded wife alimony and distributed the community property assets except for husband's retirement benefits. 1

At the time of the second hearing, husband had not retired; therefore, the court reserved jurisdiction to determine the apportionment of husband's retirement benefits until after his retirement. He retired as of October 31, 1974, and the delayed hearing was held on March 1975, in order to determine the community property and separate property portions of his retirement benefits. At that hearing the following facts were introduced into evidence: On January 18, 1972 (date of dissolution hearing), husband had participated in his retirement plan for 22.88 years, was 50.25 years old, and had a salary of $991.24 per month. At that date, he had a vested interest to a monthly retirement allowance of $459.44. When husband retired on October 31, 1974, he had 25.67 years of service, was 53 years old, and had a salary of $1,341.75. His monthly retirement allotment had increased to $805.31.

The trial court apportioned the benefits according to the ratio of years of service during marriage, compared to years of service not during marriage 2 and determined that the community property interest was 89.13 percent and his separate property interest was 10.87 percent. Accordingly, out of the $805.31 per month retirement benefit, wife was given $358.89 per month and husband $446.42 per month.

[64 Cal.App.3d 184]


Husband raises two issues on appeal: (1) The retirement plan was vested; therefore, the court was required to value the community property interest as of the date of dissolution and not on the date of retirement. (2) In the event the later date is proper, the increase in his retirement benefits after date of dissolution was based upon his increase in salary, his advance in age, and his additional time spent on the job, and it should be considered his separate property. (See Civil Code, § 5118.) 3

It is wife's position that the trial court properly exercised its judicial discretion and apportioned the retirement benefits in an equitable manner. Wife, by cross-appeal, raises the issue that she was entitled to attorney's fees for services rendered in connection with the hearing to apportion the retirement benefits, and that the court abused its discretion in not awarding her such fees.


The computation and apportionment of a nonemployee spouse's interest in present or future retirement benefits on dissolution of marriage can often be abstruse. Almost each case dealing with a different kind of retirement plan is Sui generis. Complicated issues of apportionment can arise from retirement benefits that include community and separate property interests, especially when Civil Code section 5118, Supra, comes into play. The instant

case presents such an example. Two recent cases deal with apportionment of vested interests: 4 In In re Marriage of Martin, 50 Cal.App.3d 581, 123 Cal.Rptr. 634, the husband had completed the required number of years of military service and was eligible for a pension. On the date of separation, he had a vested interest that was capable of computation. The community property interest was determined to be $503.08, of which $251.54 would be the wife's share. Husband, however, had not retired, so he was not receiving the monthly pension payments. He contended that wife's payments should commence only upon his retirement. The court rejected this argument, stating that the only condition to the payment of pension benefits was a condition [64 Cal.App.3d 185] entirely within husband's control, and that such an uncertainty did not preclude division of the asset upon dissolution of marriage. (See also Waite v. Waite, 6 Cal.3d 461, 472, 99 Cal.Rptr. 325, 492 P.2d 13.) The Martin court cited Bensing v. Bensing, 25 Cal.App.3d 889, 102 Cal.Rptr. 255, where the court, in ordering husband to pay wife her community share of the retirement benefits at a monthly rate commencing prior to husband's retirement, stated on page 893, 102 Cal.Rptr. on page 257: '. . . 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.'

And in In re Marriage of Ward, 50 Cal.App.3d 150, 123 Cal.Rptr. 234, husband's pension rights vested 12 days after the parties' separation. He argued that his retirement benefits must be deemed to have been 'earned and accumulated' on the day that they vested in him. The court rejected his argument, pointing out that pension rights which are earned during the course of a marriage are the community property of the employee and his wife. It then held that the percentage of the community interest in the pension benefits had to be fixed as of The date of separation, and that husband had a separate property interest in the pension plan for the 12 days that his employment earned after the separation. Ward cited this court's opinion of In re Marriage of Imperato, 45 Cal.App.3d 432, 119 Cal.Rptr. 590, which held that Civil Code section 5118 does not change the rule as to the date of valuation of community property, but merely removes the earnings and accumulations of the spouses after their separation, from the community property.


Husband argues...

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31 cases
  • Marriage of Hunt, In re
    • United States
    • Supreme Court of Colorado
    • December 18, 1995
    ......38, 638 P.2d 705, 708 (1981)). . IV. . A. .         We agree with the rationale employed by those jurisdictions which reject the "bright line" rule and approve the use of the "time rule" formula under the "marital foundation" theory. See, e.g., In re Marriage of Adams, 64 Cal.App.3d 181, 134 Cal.Rptr. 298, 302 (1976) (holding that "[t]wo of the factors causing the increase, namely 'time on the job' and increased earnings, were directly enhanced by the many years credited to the marriage" ); Stoerkel v. Stoerkel, 711 S.W.2d 594, 597 (Mo.Ct.App.1986) (holding ......
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    • May 28, 1998
    ...... As to apportionment, it applied the so-called "time rule." (See, e.g., In re Marriage of Judd (1977) 68 Cal.App.3d 515, 522, 137 Cal.Rptr. 318; In re Marriage of Adams (1976) 64 Cal.App.3d 181, 186, 134 Cal.Rptr. 298.) Under that method, the community property interest in retirement benefits is the percentage representing the fraction whose numerator is the employee spouse's length of service during marriage before separation, here 17.39 years, and whose ......
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    • California Court of Appeals
    • August 28, 2007
    ...Marriage of Anderson, supra, 64 Cal.App.3d at pp. 39-40, 134 Cal.Rptr. 252), to city government plans (In re Marriage of Adams, supra, 64 Cal.App.3d at pp. 186-187, 134 Cal.Rptr. 298), and then to all plans in which years of service is a "substantial factor" in computing the benefit formula......
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1 books & journal articles
  • Dividing pension property after Boyett.
    • United States
    • Florida Bar Journal Vol. 75 No. 3, March 2001
    • March 1, 2001
    ...the burden on the employee to offer proof when it does not. (7) See Hunt v. Hunt, 909 P.2d 525 (Colo. 1995); In re Marriage of Adams, 134 Cal.Rptr. 298 (2dDist.Ct.App. 1976); Majauskas v. Majauskas, 463 N.E.2d 15 (N.Y. 1984); Rothbart v. Rothbart, 677 A.2d 151 (NH 1996); Jerry L.C. v. Lucil......

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