Shaver v. Shaver

• Court: California Court of Appeals
• Citation: 165 Cal.Rptr. 672,107 Cal.App.3d 788
• Parties: Patricia SHAVER, Plaintiff and Appellant, v. Clark Edward SHAVER, Individually, Board of Pension Commissioners of the City of Los Angeles, for and on Behalf of New Pension System, Defendants and Respondents. Civ. 56884.
• Decision Date: 04 June 1980

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165 Cal.Rptr. 672 107 Cal.App.3d 788 Patricia SHAVER, Plaintiff and Appellant,
v.
Clark Edward SHAVER, Individually, Board of Pension Commissioners of the City of Los Angeles, for and on Behalf of New Pension System, Defendants and Respondents. Civ. 56884. Court of Appeal, Second District, Division 3, California. June 4, 1980.

[107 Cal.App.3d 789]

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Gustin & Lynch, Helen B. Gustin, Van Nuys, for plaintiff and appellant.

Burt Pines, City Atty., Siegfried O. Hillmer, Asst. City Atty., Mary Jo Curwen, Deputy City Atty., for defendant and respondent Bd. of Pension Commissioners.

James Edward Green, Van Nuys, for defendant and respondent Shaver.

ALLPORT, Associate Justice.

In a second amended complaint Patricia B. Shaver seeks a declaratory judgment determining her to be entitled to a proportionate[107 Cal.App.3d 790] share of the retirement benefits being received by Clark Edward Shaver under the Pension System for Firemen and Policemen of the City of Los Angeles administered by the Board of Pension Commissioners of said city. It is alleged that Patricia and Clark were married on August 30, 1947, and, after approximately 20 years the marriage was dissolved on September 26, 1967, and a final judgment entered on November 29 of that year, that Clark became a city fireman on November 2, 1948, serving in that capacity for 28 years and 103 days or until February 13, 1977, at which time he retired entitled to receive the pension; that the judgment of divorce disposed of all community assets except the pension benefits of which no mention was made. Plaintiff also alleges that Clark has been receiving all the monthly pension benefits since February 13, 1977, in an unknown amount without her consent. Patricia seeks a declaration of her rights and appropriate orders assuring payment of the share to which she is now found to be entitled.

The Board of Pension Commissioners demurred on the ground that there was no allegation of a reservation of jurisdiction in the divorce judgment to divide the pension rights at a future date, and Clark did likewise on the ground that no cause of action is stated because there is no allegation that the pension rights were vested prior to the dissolution of the marriage. Both demurrers were sustained without leave to amend upon the ground of failure to state a cause of action and the court below entered orders dismissing the action against both defendants. ¹ Patricia appeals from the orders of dismissal (judgments).

CONTENTIONS

It is contended on appeal that the trial court erred in concluding that the pension rights, a community asset, were terminated by the divorce judgment and, on the contrary, that the parties remained tenants in common in these rights until the marriage was dissolved and that an accounting for and distribution of the funds due after Clark's retirement is in order. We disagree, and for reasons to follow will affirm.

DISCUSSION

At the time the Shaver marriage was dissolved in 1967, a nonvested right to receive retirement pay was deemed an "expectancy [107 Cal.App.3d 791] which is not subject to division as community property." (French v. French (1941) 17 Cal.2d 775, 778, 112 P.2d 235, 237.)

In In re Marriage of Brown (1976) 15 Cal.3d 838, 841-842, 126 Cal.Rptr. 633, 544 P.2d 561, our Supreme Court overruled the holding in French and several subsequent cases which followed it and held that pension

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rights (vested or nonvested) are a property interest and to the extent that such rights derive from employment during coverture, they comprise a community asset subject to division in a dissolution proceeding. In so holding, the court carefully defined the correct terminology relating to the vested or nonvested status of pension rights. It said in this respect (id., at p. 842, 126 Cal.Rptr. at p. 635, 544 P.2d at p. 563):

"Before we turn to the facts of this appeal we must devote a few words to terminology. Some decisions that discuss pension rights, but do not involve division of marital property, describe a pension right as 'vested' if the employer cannot unilaterally repudiate that right without terminating the employment relationship. (See Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 45 (112 Cal.Rptr. 805, 520 P.2d 29); Kern v. City of Long Beach (1947) 29 Cal.2d 848, 855 (179 P.2d 799); Dryden v. Board of Pension Commrs. (1936) 6 Cal.2d 575, 579 (59 P.2d 104).) As we explain later, we...