Marriage of Justice, In re

• Decision Date: 17 May 1984
• Citation: 157 Cal.App.3d 82,204 Cal.Rptr. 6
• Parties: In re MARRIAGE OF Joan and Harold L. JUSTICE. Joan JUSTICE, Respondent, v. Harold L. JUSTICE, Appellant. Civ. 70085.
• Court: California Court of Appeals Court of Appeals

Page 6

204 Cal.Rptr. 6

157 Cal.App.3d 82

In re MARRIAGE OF Joan and Harold L. JUSTICE Joan JUSTICE, Respondent, v. Harold L. JUSTICE, Appellant.

Civ. 70085.

Court of Appeal, Second District, Division 1, California.

May 17, 1984.

Stillman, Green & Shinee and Marianne B. St. John, Encino, for appellant.

Allred, Maroko, Goldberg & Ribakoff and Roberta Brown, Los Angeles, for respondent.

LILLIE, Acting Presiding Justice.

Joan and Harold Justice were married in 1958. On August 6, 1962, Harold was employed by the Los Angeles Police Department; he remained in that employment throughout the marriage. In 1979 the parties separated and Joan commenced proceedings for dissolution of the marriage. On June 25, 1981, interlocutory judgment of dissolution was entered approving a property settlement agreement executed by the parties. Pursuant to such agreement the judgment awarded to Joan as her separate property (inter alia) "[a]n amount equal to one-half of 16.6/20 of the amount Respondent would receive upon his retirement on August 6, 1982 from the Los Angeles Police Department when his Pension Plan at the Los Angeles Police Department vests, and said payments to be made by Respondent to Petitioner on August 6, 1982, and on the 6th day of each and every month thereafter, whether or not Respondent elects to retire on August 6, 1982." ¹ On June 10, 1982, as the result of gunshot wounds sustained in 1974 in the course of his employment, Harold was retired from active duty with the police department ² and was granted a service-connected disability pension in the initial amount of $2,931.55 per month. On August 6, 1982, Harold refused to pay to Joan any sum pursuant to the formula set forth in the judgment arguing that he was receiving a disability pension rather than the service pension to which he would have been entitled if he had continued to work until August 6, 1982.

On August 18, 1982, Joan filed a motion to compel payment to her of half the community interest in Harold's "retirement and/or disability payments." The motion was granted and an order was signed and filed directing the Board of Pension Commissioners of the City of Los Angeles ³ to pay directly to Joan an amount equal to 50 percent of 16.6/20 of the amount Harold would have received had he retired August 6, 1982, on a service pension. Harold's motion for a "new trial" and his motion to vacate the order were denied. He appeals from the order. ⁴

At the outset we dispose of two arguments made by Harold on his motions in the trial court and renewed on appeal. Harold contends that because the judgment awarded to Joan one-half of the community interest in his service retirement benefits and did not reserve the court's jurisdiction over any disability retirement benefits to which he might have become entitled, the court was without jurisdiction to "divide" Harold's disability pension by postjudgment order. The contention is without merit. A judgment entered in a marital dissolution proceeding "may be enforced by the court ... by such ... order or orders as the court in its discretion may from time to time deem necessary." (Civ.Code, § 4380.) The postjudgment order enforces the judgment by securing to Joan her share of the community interest in Harold's service retirement benefits; the order does not by its terms award to Joan any portion of Harold's disability pension.

Harold further argues that the order is void because it was made by a court commissioner who was not authorized by stipulation of the parties to act as a temporary judge, as required by the California Constitution. ⁵ This contention, too, lacks merit. The dissolution proceeding was tried by Commissioner Majors acting as temporary judge pursuant to stipulation of the parties which read in part: "It is stipulated between the undersigned attorneys and parties that said commissioner or any other commissioner appointed, as set forth above, shall hear the action sitting as a judge pro tempore. [p] It is further stipulated that said commissioner, or any other commissioner appointed as set forth above, shall by this signed document be vested with the authority to hear any future or further proceedings or further hearings, or the trial in this case whether contested or uncontested, as a judge pro tempore without prejudice to either party appearing at a subsequent date or at such new hearing or trial and withdrawing the continuing authority contained herein." Commissioner Calof, acting as a temporary judge, heard and granted Joan's motion and made the postjudgment order. The stipulation, which gave Commissioner Calof such authority, was not withdrawn by the parties and was in effect when he heard the motion and made the order. We turn now to the merits of Harold's appeal.

Citing In re Marriage of Jones (1975) 13 Cal.3d 457, 119 Cal.Rptr. 108, 531 P.2d 420, Harold contends that the disability retirement benefits are his separate property because his right to a service pension had not vested when he was retired for disability. ⁶ Jones held that a married serviceman's right to disability pay, acquired before he has earned by longevity of service a vested right to retirement pay, is not a community asset subject to division upon dissolution of marriage. (13 Cal.3d at p. 461, 119 Cal.Rptr. 108, 531 P.2d 420.) The principle underlying that holding was overturned by In re Marriage of Brown (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561, wherein it was held that both vested and nonvested pension rights derived from employment during marriage constitute community assets. As the Supreme Court explained in In re Marriage of Stenquist (1978) 21 Cal.3d 779, 785, 148 Cal.Rptr. 9, 582 P.2d 96: "At the time Jones was decided, however, we deemed the community interest in a nonvested retirement pension a mere expectancy, and not a property interest. [Citation.] Since Jones retired before his right to a 'retirement' pension vested, his acceptance of 'disability' pay did not affect any present community asset, but merely prevented an expectancy from coming into fruition.... [p] One year following our decision in Jones we overturned past precedent and held in In re Marriage of Brown, supra, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561, that pension rights, whether or not vested, constituted a property interest; that to the extent that such rights derive from employment during coverture, they now comprise community assets. This holding undermines the fundamental premise of Jones: that the award of a serviceman's 'disability' pension to the serviceman as his separate property would not impair any community interest of his spouse. Under current law--in contrast to the law prevailing when Jones was decided--both the nonvested retirement pension in Jones and the husband's vested right to a 'retirement' pension in the present case constitute valuable community assets deserving of judicial protection."

In Stenquist, supra, husband married six years after joining the army. Three years after the marriage he suffered a service-related injury resulting in amputation of his left forearm. He nevertheless remained in the army for 17 more years, ultimately retiring after 26 years of military service. At that time he had the choice of taking regular retirement pay at the rate of 65 percent of his basic pay, or taking disability pay equal to 75 percent of basic pay. Assuming that the husband desired the higher amount, the army began making disability payments to him. Four years after his retirement the husband commenced proceedings for dissolution of the marriage. The court rejected husband's claim that his entire disability pension was his separate property under Jones, and held that only the excess of the disability pension over the alternative retirement pension represented additional compensation attributable to husband's disability the balance of the pension rights acquired during the marriage served to replace ordinary retirement pay and thus was a community asset. The court gave two reasons for such holding. First, permitting husband to elect a disability pension and thus defeat the community interest in his right to a longevity pension would violate the principle that one spouse cannot, by invoking a condition wholly within his control, defeat the community interest of the other spouse. Second, " 'only a portion of husband's pension benefit payments, though termed "disability payments," is properly allocable to disability. It would be unjust to deprive wife of a valuable property right simply because a misleading label has been affixed to husband's pension fund benefits.' [Citations.]" (In re Marriage of Stenquist, supra, 21 Cal.3d at pp. 786-787, 148 Cal.Rptr. 9, 582 P.2d 96.)

In the present case, unlike the situation in Stenquist, Harold the time of retirement did not have a sufficient number of years of service with the police department to enable him to choose between a service (longevity) pension and a disability pension. However, the second factor supporting the Stenquist decision is pertinent here, i.e.: the separate or community character of a "disability" pension is not determined by its label, but by its primary function or objective once its recipient reaches normal retirement age. (In re Marriage of Webb (1979) 94 Cal.App.3d 335, 342, 156 Cal.Rptr. 334.) "The purpose of disability benefits, as we explained in Jones, is primarily to compensate the disabled veteran for 'the loss of earnings...