Marriage of Loehr, In re

• Decision Date: 07 February 1975
• Citation: 13 Cal.3d 465,531 P.2d 425,119 Cal.Rptr. 113
• Court: California Supreme Court
• Parties: , 531 P.2d 425 In re MARRIAGE OF Michiele G. and David D. LOEHR. Michiele G. LOEHR, Appellant, v. David D. LOEHR, Appellant. L.A. 30342. In Bank

Page 113

119 Cal.Rptr. 113

13 Cal.3d 465, 531 P.2d 425

In re MARRIAGE OF Michiele G. and David D. LOEHR.

Michiele G. LOEHR, Appellant, v. David D. LOEHR, Appellant.

L.A. 30342.

Supreme Court of California,

In Bank.

Feb. 7, 1975.

Jones, Tellam, Irving & Estes, and Joel C. Estates, San Diego, for appellant Wife.

Hervey, Mitchell, Ashworth & Keeney, and Thomas Ashworth, III, San Diego, for appellant Husband.

TOBRINER, Justice.

This appeal presents the same issue as In re Marriage of Jones, Cal., 119 Cal.Rptr. 108, 531 P.2d 420. The trial court in the present case held that the portion of a serviceman's disability pension attributable to military service during the marriage is community property, and awarded one half that value to his spouse. For the reasons stated in In re Marriage of Jones, Supra, we reverse that determination and hold that the disability benefits are not a community asset.

David and Michiele Loehr were married July 9, 1966, and have one child. David received a commission as a Naval officer on June 12, 1965. In November of 1970, David suffered serious injuries in an accident; he became blind in one eye with limited vision in the other, practically deaf and sustained skull injury and possible brain damage. On February 1, 1972, the Secretary of the Navy placed David on the temporary disability list, assigning him a disability rating of 90 percent. (See 10 U.S.C. § 1202.) ¹ David thus became entitled to retired pay of $735.84 monthly, an amount equal to 75 percent of his basic pay. (See 10 U.S.C. §§ 1372, 1401.)

In the dissolution action, the trial court held that the portion of David's right to disability pay attributable to military service during the marriage was a community asset. Observing that 83.6 percent of David's naval career occurred after his marriage, the court assigned to Michiele, as her share of the community interest in the disability payments, 41.8 percent ( 1/2 of 83.6 percent) of all future disability benefits received by David. This figure amounts to $307 per month. The court allocated the balance of the community property, ² denied Michiele's request for alimony, and awarded her $1 a year for child support. David's appeal attacks the court's award of a portion of the disability benefits to Michiele; her appeal criticizes the court's refusal to award additional child support.

David contends that military disability pensions, whether based on temporary or permanent disability, cannot constitute a community asset, and are not subject to division upon dissolution of the marriage. On the basis of the reasoning set out in our opinion in In re Marriage of Jones, Supra, we conclude that David's contention is correct, and that the judgment of the trial court must be reversed.

In limiting Michiele to $1 a year for child support the trial court may have relied upon the fact that under its order dividing the community property Michiele would receive $307 each month from David's disability benefits. Upon remand of this matter, the trial court should reconsider the award of child support in light of the fact that under our holding none of David's disability pay will be available for Michiele's use.

Parts 3 and 4 of the interlocutory judgment, which award Michiele 41.8 percent of all military pension and retirement...