Marriage of Andreen, In re

• Citation: 143 Cal.Rptr. 94,76 Cal.App.3d 667
• Parties: In re the MARRIAGE OF Kenneth ANDREEN and Jean Andreen. Kenneth ANDREEN, Plaintiff, Respondent and Cross-Appellant, v. Jean ANDREEN, Defendant, Appellant and Cross-Respondent. Civ. 16883.
• Decision Date: 09 January 1978
• Court: California Court of Appeals

Page 94

143 Cal.Rptr. 94

76 Cal.App.3d 667

In re the MARRIAGE OF Kenneth ANDREEN and Jean Andreen.

Kenneth ANDREEN, Plaintiff, Respondent and Cross-Appellant, v. Jean ANDREEN, Defendant, Appellant and Cross-Respondent.

Civ. 16883.

Court of Appeal, Third District, California.

Jan. 9, 1978.

As Modified Jan. 18, 1978.

Hearing Denied March 16, 1978.

Fullerton, Lang, Richert & Patch, Jeff Wall, and William Richert, Fresno, for plaintiff, respondent and cross-appellant

Wild, Carter, Hamlin, Tipton & Quaschnick, and Trevor Clegg, Fresno, for defendant, appellant and cross-respondent.

FRIEDMAN, Acting Presiding Justice.

Both wife and husband appeal from financial provisions of their marital dissolution decree. The parties married in 1946 and separated 27 years later, in 1973. When the judgment was entered in April 1976, husband was 50 years old and wife was 49. Their two children had reached adulthood.

The court ordered husband to pay wife spousal support of $500 per month for five years beginning November 1, 1974, $1 per month for the next five years, terminating support and terminating jurisdiction to award support at the end of the second five-year period.

SPOUSAL SUPPORT

Wife charges abuse of discretion in the award of $500 per month, in the automatic reduction to $1 per month at the end of five years and in the automatic termination at the end of ten years. In reviewing these provisions, we bear in mind the standards fixed by Civil Code section 4801, the extent of discretion invested in trial courts by decisional law (e. g., In re Marriage of Lopez (1974) 38 Cal.App.3d 93, 114, 113 Cal.Rptr. 58; In re Marriage of Patrino (1973) 36 Cal.App.3d 186, 188, 111 Cal.Rptr. 367; In re Marriage of Kelley (1976) 64 Cal.App.3d 82, 134 Cal.Rptr. 259) and the consequent limitations upon the scope of appellate review. The trial court's discretion is abused when it "exceeds the bounds of reason, all of the circumstances before it being considered." (In re Marriage of Lopez, supra, 38 Cal.App.3d at 114, 113 Cal.Rptr. at 71.)

The couple's capital assets, divided by the decree, did not have enough value to affect support duties or needs. Husband is a superior court judge, having served on the bench since 1959. At the time of the trial (1974), husband's gross annual judicial salary was $40,322. According to cash flow schedules offered by the husband and based upon assumed spousal support payments of $500 per month, husband would have annual after-tax disposable income of $22,472 (subject to retirement contributions of $3,225) and wife an annual disposal income of $9,300. ¹ Wife possesses a teaching credential, taught school for about ten years during the marriage but had not taught since 1969. She had retirement credits as a teacher and would draw a pension of $1400 per year at age 60 (i. e., in 1987). According to trial testimony, her chance of reemployment as a teacher was "meager." She did not want to return to teaching. At the time of trial, she was taking secretarial training, had gained competence in typing and shorthand and expected that upon completion of her training she would get secretarial work at an estimated annual salary of $6,000. She had some physical problems (recurrent bursitis and arthritis) which might interfere with her employment expectations.

We have reviewed the award of $500 monthly spousal support in the light of Civil Code section 4801 and such decisions as In re Marriage of Lopez, supra, 38 Cal.App.3d 93, 113 Cal.Rptr. 58, and In re Marriage of Rosan (1972) 24 Cal.App.3d 885, 101 Cal.Rptr. 295. ² The award represents an abuse of discretion. It supplies the husband a continued standard of living much higher than the wife's. This was a marriage of 27 years; the parties pursued an upper middle-class life style. The husband's earning capacity is unimpaired; he has a fairly assured station in life. Aided by the income tax law's treatment of alimony payers, his 1977 take-home pay should be in excess of $2,000 per month. The automatic salary increases provided for superior court judges in 1974 were quite predictable to the trial court. Husband can pay his wife more than $500 support and still have funds for a comfortable life style.

Wife, in contrast, faced a shaky economic situation and a shaky economic future. She enters the employment market at age 50. She has shown no disinclination to work for a living. ³ The record does not show whether she found work or not. If she found work at the expected range of $500 per month, her income of $1,000 per month before taxes would provide her a drab, relatively austere standard of life, hardly comparable to husband's. If because of health she is unable to work, the $500 spousal support payment would constitute her sole income. In that event she would find herself barely above the poverty level. Whether her before-tax income is $1,000 a month or $500 a month, the decree depresses her standard of living considerably below husband's.

We turn to the provision dropping the award to $1 per month at the end of five years. The automatic reduction was undoubtedly based upon the trial judge's assumption that by 1979 wife would be earning enough to afford an appropriate standard of living. At this point, the case is a close one. The automatic reduction provision resides in the no-man's-land between permissible inference and impermissible speculation. (See In re Marriage of Kelley, supra, 64 Cal.App.3d at 94, 134 Cal.Rptr. 259.) It postulates a future earning capacity which had not yet been established by an actual history of employment. Wife has no visible assets to augment her earnings. In 1979, when the automatic reduction occurs, she will be receiving neither her teacher's pension nor her share of husband's retirement allowance.

On the other hand, the specification of a precise sum payable during 1979-1984 would be no less speculative. The trial judge realistically gave weight to wife's experience, intellectual competence and capacity for livelihood. We agree with the Kelley opinion (64 Cal.App.3d at 93, 134 Cal.Rptr. 259) that the Family Law Act evinces no hostility toward decrees which envision future modification proceedings. Although the automatic reduction rests on as much speculation as evidence, we cannot classify it as an abuse of discretion.

The automatic reduction was based upon the trial court's assumption that by November 1979 wife would be earning enough to afford a standard of living appropriate to the parties' social and cultural condition. The failure of that assumption would constitute a change of condition and provide a ground for modification of this phase of the decree. It is much more realistic (and at least as fair) to appraise the parties' 1979 situation by the measure of actual rather than prophesied 1979 facts.

The automatic termination of spousal support and the court's relinquishment of jurisdiction in 1984, is, in our view, an abuse of discretion. At this point we adopt the reasoning employed in the Kelley case, supra, 64 Cal.App.3d at pages 93-95, 134 Cal.Rptr. 259. This was a marriage of 27 years. In 1984 wife will be 57 years old. She has a health problem, husband apparently has none. Her ability at age 57 to compete in the employment market is at least speculative. From all present appearances husband's 1984 earning capacity will be unimpaired. The trial court had no way of predicting the parties' situation in 1984. ⁴ The rejection of jurisdiction to review the parties' 1984 situation cannot stand. ⁵

WIFE'S INTEREST IN JUDICIAL PENSION

At the time of the decree (1976) husband was 50 years old and had approximately 16 years of credit in the judges' retirement system. In the division of community property the trial court awarded wife a portion of the retirement allowance husband would receive during his lifetime. The court refused to make any award premised on the value of the rights wife was losing as "surviving spouse." Wife charges error.

The Judges' Retirement Law (Gov.Code, §§ 75000 et seq.) establishes a system of lifetime allowances for retired judges plus several varieties of allowances for the surviving spouses of judges who die in service or after retirement. When produced by marital earnings, the lifetime allowances are community property; upon divorce they form a divisible community asset. (Waite v. Waite (1972) 6 Cal.3d 461, 470-472, 99 Cal.Rptr. 325, 492 P.2d 13.) Decisional law has refused similar recognition to surviving spouse allowances. The latter, according to the decisions, are only expectancies, predictions of entitlement which will be fulfilled when and if the claimant becomes the surviving spouse; they are payable only to the person occupying that status at the time of the employee's death; they do not constitute a divisible community asset upon marital dissolution. (Benson v. City of Los Angeles (1963) 60 Cal.2d 355, 362, 33 Cal.Rptr. 257, 384 P.2d 649; see also Phillipson v. Board of Administration (1970) 3 Cal.3d 32, 42-43, 89 Cal.Rptr. 61, 473 P.2d 765; Waite v. Waite, supra, 6 Cal.3d at 470, 99 Cal.Rptr. 325, 492 P.2d 13.)

In 1976, In re Marriage of Brown, 15 Cal.3d 838, 841, 851-852, 126 Cal.Rptr. 633, 544 P.2d 561, overturned the California doctrine which had classified nonvested pension rights as mere expectancies, excluded from the inventory of divisible community assets. Wife relies upon Marriage of Brown, arguing that it requires recognition of the value of her contingent interest as surviving spouse under the Judges' Retirement Law.

Although our course is not crystal clear, stare decisis impels us to adhere to Benson v. City of Los Angeles, thus sustaining the trial court's refusal to grant value to the wife's contingent interest as surviving spouse. Marriage of Brown did not overrule Benson ; nor do we find in the former any implied disavowal of the latter. Marriage of Brown dealt only with nonvested pension rights; it did not obliterate the distinction between enforceable pension...