Marriage of Martin, In re

Citation50 Cal.App.3d 581,123 Cal.Rptr. 634
PartiesIn re the MARRIAGE OF Margaret Anne MARTIN and Ford Nelson Martin. Civ. 14564.
Decision Date11 August 1975
CourtCalifornia Court of Appeals

F. William Fennell, Sacramento, for appellant.

Donald E. Huckins, Yuba City, for respondent.

EVANS, Associate Justice.

This is an appeal in a dissolution proceeding in which the appellant husband claims the court erred in declaring his military retirement benefits to be community property and subject to immediate division, although he had not then retired.

The appeal comes to us on an agreed statement pursuant to rule 6 of the California Rules of Court. The statement reflects that appellant was a Chief Master Sergeant in the Air Force. During 21 years of marriage and for three years prior to marriage, appellant had been in military service. He was eligible for retirement, but at the time of the dissolution proceeding, was still on active duty. Had appellant retired in 1972, the year of separation, he would have received $571.68 per month as retirement pay; $503.08 was the community portion of the retirement pay, and respondent's share would be $251.54.

Prior to trial, the parties agreed upon all issues framed by the pleadings with the exception of the division of the retirement pay. The trial court adopted the stipulation for division of property and payment of support and in the interlocutory judgment of dissolution ordered division of the military retirement pay as follows: '. . . the community share of the husband's military retirement fund as of the date of separation is 88% Or $503.88 (sic) as of the date of separation, of which $251.54 is the wife's share, and that the respondent is ordered to pay petitioner, as and for her community share of the retirement fund, the sum of $251.54, commencing December 15, 1973 and continuing monthly thereafter so long as both petitioner and respondent shall live, but to terminate upon the death of the husband or wife. ( ) DATE: 12--28--73.'

Appellant's sole contention is that payment to respondent of her share of his vested retirement with the military as a community asset should only begin upon his retirement.

The Supreme Court in In re Marriage of Fithian (1974) 10 Cal.3d 592, at page 596, 111 Cal.Rptr. 369, at page 371, 517 P.2d 449, at page 451, stated, 'The law is settled in California that retirement benefits which flow from the employment relationship, to the extent they have vested (fn. omitted), are community property subject to equal division between the spouses in the event the marriage is dissolved. (Citations.)' (See also In re Marriage of Peterson (1974) 41 Cal.App.3d 642, 649, 115 Cal.Rptr. 184.)

It is conceded by appellant that he was entitled to retire from the United States Air Force after 20 years of service. At the time of the hearing on the petition for dissolution, appellant had accumulated 24 years of service.

The court, in In re Marriage of Brown (1972) 27 Cal.App.3d 188, 191, 103 Cal.Rptr. 510, 512, stated under these circumstances, 'Ordinarily, military retirement benefits are not divisible as community property as long as they are a mere expectancy. (French v. French, 17 Cal.2d 775, 778, 112 P.2d 235 (134 A.L.R. 366).) But where a spouse is eligible for retirement from the military and the only condition to the payment of benefits is the spouse's application for them, the benefits should be divided as part of the community property. To rule otherwise would mean that one spouse could be deprived of any share in retirement benefits by the decision of the other spouse to delay retirement until after dissolution proceedings are concluded. (Bensing v. Bensing, 25 Cal.App.3d 889, 893, 102 Cal.Rptr. 255.)'

The appellant has completed the required number of years of service and is eligible for a pension. This fact is not in dispute. He need only apply for the pension benefits to receive them. The only condition to the payment...

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13 cases
  • Marriage of Brown, In re
    • United States
    • United States State Supreme Court (California)
    • 16 Enero 1976
    ...the sweep of French, holding that a vested pension is community property even though it has not matured (In re Marriage of Martin (1975) 50 Cal.App.3d 581, 584, 123 Cal.Rptr. 634; In re Marriage of Ward (1975) 50 Cal.App.3d 150, 123 Cal.Rptr. 234; In re Marriage of Bruegl (1975) 47 Cal.App.......
  • Marriage of Hunt, In re
    • United States
    • United States Appellate Court of Illinois
    • 5 Noviembre 1979
    ...or profit sharing interests are community property subject to division in a divorce proceeding. (E.g., In re Marriage of Martin (1975), 50 Cal.App.3d 581, 123 Cal.Rptr. 634.) This is significant, because section 503's definition of marital property, including its recognition of the value of......
  • In re Marriage of Gray
    • United States
    • California Court of Appeals
    • 28 Agosto 2007
    ...military pension, which was proportionately divisible based on premarital versus marital years]; In re Marriage of Martin (1975) 50 Cal.App.3d 581, 583-585,123 Cal. Rptr. 634 (Martin) [upon dissolution, wife was entitled to her proportionate share of husband's expected retirement benefit ba......
  • Farver v. Department of Retirement Systems
    • United States
    • Court of Appeals of Washington
    • 27 Abril 1981
    ...re Marriage of Fithian, 10 Cal.3d 592, 599-600, 517 P.2d 449, 453-54, 111 Cal.Rptr. 369, 373-74 (1976); In re Marriage of Martin, 50 Cal.App.3d 581, 585, 123 Cal.Rptr. 634, 636 (1974); Bensing v. Bensing, 25 Cal.App.3d 889, 893, 102 Cal.Rptr. 255, 257 (1972), and to private pension plans, I......
  • Request a trial to view additional results

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