Marriage of Wilson, In re

• Decision Date: 22 May 1973
• Citation: 108 Cal.Rptr. 371,32 Cal.App.3d 546
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE of Dolores M. and Eugene T. WILSON. Dolores M. WILSON, Respondent, v. Eugene T. WILSON, Appellant. Civ. 31497.

Page 371

108 Cal.Rptr. 371

32 Cal.App.3d 546

In re the MARRIAGE of Dolores M. and Eugene T. WILSON Dolores M. WILSON, Respondent, v. Eugene T. WILSON, Appellant.

Civ. 31497.

Court of Appeal, First District, Division 3, California.

May 22, 1973.

For Opinion on Hearing, see 112 Cal.Rptr. 405, 519 P.2d 165

Elster S. Haile, Palo Alto, for appellant.

Philip A. Di Maria, Palo Alto, for respondent.

HAROLD C. BROWN, Associate Justice.

This is an appeal from that portion of an interlocutory judgment of dissolution of marriage which determined the value of the community assets. Appellant husband complains that the trial court erred in declaring all of his retirement benefits from the U. S. Marine Corps to be community property.

Husband's pension benefits were based upon two years' service in the National Guard, active duty in the U. S. Marine Corps from 1933 to 1954, and service in the Fleet Reserve for a period of some six years. Of the total of 30 years of Marine Corps service, 13.5 years were served before marriage and 16.017 years were served after marriage. Based upon these figures, the husband claims that only 53.38 percent of the retirement benefits may be considered community property and the balance, being attributable to the years when he was not married to respondent, should be declared to be his separate property. After retirement from active duty in the Marines, appellant went to work for the post office. At the time of the dissolution of his marriage, he had worked at the post office approximately 18 years and would be eligible for retirement and to receive retirement benefits in about two years. During the entire 18 years of service in the post office, appellant was married and contributions were made from his salary toward the retirement fund.

The trial court in dividing the community property determined that the entire U. S. Marine Corps pension was community property. No mention was made by the court of any interest of the wife in the postal pension which required only two years more time of employment by husband before it matured. No demand was made by the wife for a share in the expectant postal pension or for a share in the contributions of the husband to the Postal Retirement Pension Fund, although approximately $6,700.00 has been contributed during the marriage to that fund from community earnings.

We have concluded that the Marine Corps pension rights should have been apportioned between separate and community property, since the years giving rise to the pension were served both before and after marriage. We also conclude that the contributions from husband's salary toward his ultimate post office pension were contributions from community assets and should have been included in the divisible community property.

Respondent's position in regard to the Marine Corps pension is that the moment of vesting is determinative of whether the pension is community or separate property. We cannot agree.

Retirement pay is part of the consideration earned by the employee. (Sweesy v. L. A. Etc. Retirement Bd., 17 Cal.2d 356, 359-360, 110 P.2d 37; Waite v. Waite, 6 Cal.3d 461, 469-470, 99 Cal.Rptr 325, 492 P.2d 13.) Only the consideration earned by an employee during marriage is community property. Salary earned prior to marriage is separate property. (Civ.Code, §§ 5108, 51110.) Pension rights which result from employment both before and after marriage derive from both separate and community property. Like any other asset which has its source in both separate and community property, the retirement pension fund must be apportioned upon division of the assets. (See Estate of Fellows, 106 Cal.App. 681, 683-684, 289 P. 887.)

Respondent argues that the case of Cheney v. City & County of San Francisco, 7 Cal.2d 565, 61 P.2d 754, supports her position. In Cheney, the wife of a deceased employee and his mother were in conflict over the disposition of a lump sum payment from the employees' retirement fund. The holding of the court was that a prenuptial agreement between husband and wife providing that after marriage the earnings of each should be the separate property of the spouse so earning was valid and binding. The fund thus went to the named beneficiary as the separate property of the husband. In arriving at its decision, the court stated that the fund except for the agreement would be community property. The deceased had entered employment in 1929, married in 1932, and died in 1933. The question of apportionment of the fund between separate and community was not before the court and its treatment of the entire fund as community, absent an agreement to the contrary, is dicta. Later statements of the Supreme Court in Waite v. Waite, supra, 6 Cal.3d 461, 99 Cal.Rptr. 325, 492 P.2d 13, indicate that the Supreme Court would apportion a pension fund on the basis of the proportion earned before and after marriage. Thus the court said at page 471, 99 Cal.Rptr. at 332, 492, P.2d at 20: '. . . Whether a pension plan provides for fixed or variable payments, and whether adjustments occur automatically or require legislation, the basic point remains that the pension payment serves as a remuneration for services rendered by the employee; if these services were discharged during the marriage, that remuneration must compose a community asset. . . .'

Although the California appellate courts have not been called upon to rule directly on this point, in two recent cases, apportionment of pension rights between separate and community has been approved without discussion. In Bensing v. Bensing, 25 Cal.App.3d 889, 102 Cal.Rptr. 255, when husband had a number of years of military service prior to the marriage, this court approved the apportionment of the pension between the years served prior to marriage and the years during marriage. The court in Brown v. Brown, 27 Cal.App.3d 188, 103 Cal.Rptr. 510, remanded the cause to the trial court for further proceedings to determine what portion of the pension rights should be declared community property. (See also Mora v. Mora, Tex.Civ.App., 429 S.W.2d 660; LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755.)

We conclude that the trial court erred in failing to take into account that part of the Marine Corps pension which may be attributable to his military service prior to marriage and which should be declared to be his separate property.

Respondent argues that apportionment of the Marines' Retirement Fund would be particularly unjust to her for she was awarded no portion of the Post Office Retirement Fund. No reason appears why she should not have received one-half of the contributions which appellant put into the fund from his earnings despite the fact that the pension will not be received until...