Marriage of Ward, In re

• Decision Date: 28 July 1975
• Parties: In re MARRIAGE OF Wyvette A. WARD and Robert B. Ward. Wyvette A. WARD, Appellant, v. Robert B. WARD, Respondent. Civ. 34729.
• Court: California Court of Appeals Court of Appeals

Page 234

123 Cal.Rptr. 234

50 Cal.App.3d 150

In re MARRIAGE OF Wyvette A. WARD and Robert B. Ward.

Wyvette A. WARD, Appellant, v. Robert B. WARD, Respondent.

Civ. 34729.

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

July 28, 1975.

Carley, Love, Small & Munro, Inc., Thoits, Lehman, Hanna & Love, William S. Love, Palo Alto, for appellant.

Jarvis & Irvine, Perry A. Irvine, Palo Alto, for respondent.

MOLINARI, Presiding Justice.

It is the settled law of this state that "retirement benefits which flow from the employment relationship, To the extent they have vested, are community property subject to equal division between the spouses in the event the marriage is dissolved." (Emphasis added.) (Smith v. Lewis, 13 Cal.3d 349, 355, 118 Cal.Rptr. 621, 625, 530 P.2d 589, 593; In re Marriage of Fithian, 10 Cal.3d 592, 596, 111 Cal.Rptr. 369, 517 P.2d 449.) Such 'retire(ment) pay is community property because it is compensation for services rendered in the past,' and during the marriage. (Smith v. Lewis, supra, 13 Cal.3d p. 357, 118 Cal.Rptr. p. 626, 530 P.2d p. 594; French v. French, 17 Cal.2d 775, 778, 112 P.2d 235.) 'The right to retirement benefits 'vests' when an employee acquires an irrevocable interest in a fund created by his own contributions and/or the contributions of his employer. The 'vesting' of retirement benefits must be distinguished from the 'maturing' of those benefits, which occurs only after the conditions precedent to the payment of the benefits have taken place or are within the control of the employee.' (In re Marriage of Fithian, supra, 10 Cal.3d p. 596, fn. 2, 111 Cal.Rptr. p. 371, 517 P.2d p. 451.)

The instant appeal was taken on the judgment roll; we have not been furnished with a record of the oral proceedings, or evidence adduced, at the trial.

We construe the parties' briefs as presenting for our consideration the single question whether retirement benefits resulting from employment during marriage which vest in an employee after his marital separation, but before entry of an interlocutory decree dissolving the marriage, are community property subject to equal division with his spouse upon dissolution of the marriage.

The briefs of the parties are in substantial agreement on the following facts. At the time of their separation petitioner Wyvette Ward and respondent Robert Ward had been married to each other during the entire period of Robert's corporate employment. Twelve days following their separation certain retirement benefit rights of his employment Vested in Robert; they would Mature several years later when he reached a designated retirement age. Thereafter, in the couple's marriage dissolution proceedings, Wyvette asserted a claim on those rights as community property. The trial court ruled, in effect, that having vested in Robert After the parties' separation, they were not community property. Judgment was entered accordingly and Wyvette appealed.

Robert bases his claim that the retirement benefit rights are his separate property on Civil Code section 5118 which, as relevant, provides:

'The earnings and accumulations of a spouse . . . while living separate and apart from the other spouse, are the separate property of the spouse.'

He argues that his retirement benefit rights must be deemed to have been 'earned and accumulated' on the day that they vested in him, i.e., 12 days after the parties' separation.

We cannot agree.

It is established law that pension rights of a spouse resulting from his Employment during marriage are community property. As was said in Benson v. City of Los Angeles, 60 Cal.2d 355, 359, 33 Cal.Rptr. 257, 259, 384 P.2d 649, 651, 'It necessarily follows that pension rights which are Earned during the course of a marriage are the community property of the employee and his wife.' (Emphasis added.) This rule was reiterated in Phillipson v. Board of Administration, 3 Cal.3d 32, 40, 89 Cal.Rptr. 61, 473 P.2d 765, and Cavitt v. City of Los Angeles, 251 Cal.App.2d 623, 626, 59 Cal.Rptr. 690. Another expression of the rule is found in Waite v. Waite, 6 Cal.3d 461, 471, 99 Cal.Rptr. 325, 332, 492 P.2d 13, 20, where it was said: '(T)he basic point remains that the pension payment serves as a remuneration for services rendered by the employee; If those services were discharged during the marriage, that remuneration must compose a community asset.' (Emphasis added.)

These cases, holding that a spouse's retirement benefit rights 'are Earned during the course of a marriage' (emphasis added), and are accordingly community property, indicate the invalidity of the theory advanced by Robert that the retirement benefit rights at issue were accumulated and earned by him during the short period between the separation, and marriage dissolution, of the parties.

The subject retirement benefits had vested before dissolution of the marriage. They accordingly constituted, as said in In re Marriage of Jones, 13 Cal.3d 457, 461, 119 Cal.Rptr. 108, 111, 531 P.2d 420, 423 'a community asset subject to Division upon...