Marriage of Adams, In re

• Decision Date: 24 November 1976
• Citation: 64 Cal.App.3d 181,134 Cal.Rptr. 298
• Court: California Court of Appeals Court of Appeals
• Parties: In re the Marriage of Ida Jean and Floyd Sherman ADAMS. Floyd Sherman ADAMS, Appellant, v. Ida Jean ADAMS, Respondent. Civ. 47400.

Page 298

134 Cal.Rptr. 298

64 Cal.App.3d 181

In re the Marriage of Ida Jean and Floyd Sherman ADAMS. Floyd Sherman ADAMS, Appellant, v. Ida Jean ADAMS, Respondent.

Civ. 47400.

Court of Appeal, Second District, Division 5, California.

Nov. 24, 1976.

As Modified on Denial of Rehearing Dec. 16, 1976.

Theodore C. Eckerman, Pasadena, for appellant

Bernard Lauer, Beverly Hills, for petitioner.

HASTINGS, Associate Justice.

STATEMENT OF FACTS

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

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

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.

CONTENTIONS OF PARTIES

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.

DISCUSSION

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 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.

                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.'
                

DISPOSITION

Husband argues that the court was required to value the community interest in the retirement benefits as of the date of dissolution (value $459.44) instead of date of retirement (value $805.31). His argument, under the facts of this case, is incorrect. A hurried reading of Martin would seem to support his contention; however, the two cases are quite distinct and the reasoning behind Martin is not applicable here. There, husband sought to delay distribution of the vested retirement interest because he had not yet retired. The wife objected and the court agreed that she was entitled to her share on the date of dissolution of the marriage. Here, wife agreed to wait until husband retired and to take her share at that time. We find nothing wrong with this and believe it was a decision she was...