Marriage of Cohen, In re

• Court: California Court of Appeals
• Citation: 164 Cal.Rptr. 672,105 Cal.App.3d 836
• Decision Date: 16 May 1980
• Parties: In re the MARRIAGE of Philip Laurence and Sheila May COHEN. Philip Lawrence COHEN, Petitioner and Respondent, v. Sheila May COHEN, Respondent and Appellant. Civ. 55303.

Page 672

164 Cal.Rptr. 672 105 Cal.App.3d 836 In re the MARRIAGE of Philip Laurence and Sheila May COHEN.
Philip Lawrence COHEN, Petitioner and Respondent,
v.
Sheila May COHEN, Respondent and Appellant. Civ. 55303. Court of Appeal, Second District, Division 4, California. May 16, 1980.
Rehearing Denied May 22, 1980.
Rehearing Denied June 5, 1980.
Hearing Denied July 16, 1980.

[105 Cal.App.3d 838]

Page 673

Martin E. Shucart, Encino, for respondent and appellant.

Southwestern Clinical Law Center and Anslyene A. Abraham, Rodney Jones, Richard C. Solomon and Mark Burstein, Los Angeles, for petitioner and respondent.

JEFFERSON, ^* Associate Justice.

This is a case in which petitioner Philip Cohen sought dissolution of his 12-year marriage to respondent Sheila Cohen. The trial court awarded an interlocutory judgment of dissolution to Philip. Sheila has appealed from certain provisions of that judgment; we affirm the judgment.

The case comes to us by means of a settled statement in lieu of a reporter's and clerk's transcripts. (Cal.Rules of Court, rule 7(b).) From that statement we summarize the pertinent facts.

I

A Summary of the Facts

Philip and Sheila married on October 4, 1964. Two children were born of the marriage: Scott, on January 26, 1967, and Craig, on July 9, 1969. Family support was provided by Philip, employed as a bus driver for the Rapid Transit District. The couple separated November 17, 1976. Philip's petition was heard on November 16, 1977.

At time of trial, Philip, aged 31, was employed as a salesman, grossing $500 per month. Sheila, aged 30, and the children, respectively 10 and 8 years of age, were receiving welfare support of $375 per month. [105 Cal.App.3d 839] In addition, Sheila's mother had assisted with a substantial loan. Both children were requiring medical attention for heart problems; the extent of their disability, if any, is unknown.

The community indebtedness of the Cohens far exceeded community assets; the only asset listed by Philip was a 1968 Plymouth automobile which he valued at $50. Sheila, however, sought disposition of community furniture and furnishings, "petitioner's retirement rights" and "petitioner's social security benefits."

The parties stipulated at trial that, during the marriage, Philip had had certain sums withheld from his wages and paid to the federal government pursuant to the Federal Insurance Contributions Act (F.I.C.A.) which conceivably could, at some future time, entitle Philip to a variety of social security benefits.

It also developed at trial that, after the separation of the parties, Philip, listing $10,418 in indebtedness (a substantial portion of which was owed to Sheila's mother),

Page 674

had obtained a discharge in bankruptcy for himself only. In addition, during the separation, Philip left his employment as a bus driver and "cashed out" his pension rights, obtaining $550. He also sold some furniture for $470, obtained $56 from a bank account and cashed federal and state income tax refund checks totalling $300. II

The Trial Court's Findings, Conclusions and Judgment

The trial court granted the dissolution; no spousal support was awarded Sheila, although the court expressly retained jurisdiction over this issue for six years. Custody of the minors was awarded to Sheila; Philip was ordered to pay child support of $150 per month through the office of the Court Trustee. He was also ordered to obtain medical insurance for the children, and to pay $200 in attorney's fees to Sheila's attorney in monthly installments of $50.

The trial court further determined that there were no community assets subject to disposition except for the Plymouth automobile which was valueless and awarded to Philip as his sole and separate property.

[105 Cal.App.3d 840] Pursuant to Code of Civil Procedure section 632 and rule 232(b) of the California Rules of Court, Sheila requested that the court make findings of fact and conclusions of law. The trial court made a finding that Philip's social security benefits were his separate property, declaring that "(t)o hold otherwise, the court finds, would frustrate the intent of the Federal Social Security Act and thus violate the supremacy clause of the United States Constitution."

The trial court declined to reassign to Philip his share of the community debts or to offset that share by ordering Philip to reimburse Sheila in full or in part, finding that such orders would, if made, "frustrate the intent and purpose of the Federal Bankruptcy Act and thus violate the supremacy clause of the U. S. Constitution."

The trial court also declined to take cognizance of Philip's acquisitions of claimed community assets during separation; these assets were determined to be not subject to disposition "in that such property was expended between the time of separation and trial on the petitioner's necessities of life . . . ."

Sheila filed objections to the findings of fact and conclusions of law. The trial court rejected the objections, and this appeal from the judgment followed. The issues raised by Sheila below have been preserved for review here; the record on appeal has been properly prepared and is complete, pursuant to California Rules of Court, rule 7(b).

III

Social Security Benefits

There has been considerable litigation in recent years concerning the proper characterization of federally created retirement benefits by state family law courts. Two Court of Appeal opinions have analyzed the issue with respect to social security benefits, and have rejected the contention that such benefits constitute community assets subject to disposition by state courts at the time of dissolution. In In re Marriage of Kelley (1976) 64 Cal.App.3d 82, 96, 134 Cal.Rptr. 259, 267, the court determined that the state power to dispose of such assets rested upon "(1) the characterization of the 'contributions' and benefits as akin to a community property right; and (2) the impact of the supremacy clause of [105 Cal.App.3d 841] the United States Constitution. (Art. VI, cl. 2.)" The Kelley court analyzed the various OASDI benefits, and concluded that, while some have similarity to private pensions, the statutory scheme designed by Congress is "one of social insurance designed to provide financial security to covered workers and their families rather than one of deferred compensation for past labor." (Id. at p. 98, 134 Cal.Rptr. at p. 268.) Kelley relied upon a similar characterization of social...