Shaver v. Shaver

• Decision Date: 04 June 1980
• 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.
• Court: California Court of Appeals Court of Appeals

Page 672

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.

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 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 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 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 believe that these decisions correctly define the point at which a pension right becomes a property interest. In divorce and dissolution cases following French v. French, however, the term 'vested' has acquired a special meaning; it refers to a pension right which is not subject to a condition of forfeiture if the employment relationship terminates before retirement. We shall use the term 'vested' in this latter sense as defining a pension right which survives the discharge or voluntary termination of the employee.

"As so defined, a vested pension right must be distinguished from a 'matured' or unconditional right to immediate payment. Depending upon the provisions of the retirement program, an employee's right may vest after a term of service even though it does not mature until he reaches retirement age and elects to retire. Such vested but immature rights are frequently subject to the condition, among others, that the employee survive until retirement. (Fns. omitted.)" (Emphasis added.)

The Brown court then proceeded to discuss the extent to which the new rule would be given retroactive application in respect of existing decrees dividing marital property, as follows (15 Cal.3d at pp. 850-851, 126 Cal.Rptr. at pp. 640-641, 544 P.2d at pp. 568-569):

"Robert finally contends that any decision overruling French v. French, supra, 17 Cal.2d 775 (112 P.2d 235) should be given purely prospective effect. Although as we explain our decision cannot be accorded complete retroactivity without upsetting final judgments of long standing, we believe the decision may properly govern any case in which no final judgment dividing the marital property has been rendered.

"Although as a general rule 'a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation' (County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 680-681 (312 P.2d 680, 685)), we have recognized exceptions to that proposition when considerations of fairness and public policy preclude full retroactivity (see Westbrook v. Mihaly (1970) 2 Cal.3d 765, 800-801 (87 Cal.Rptr. 839, 471 P.2d 487); Forster Shipbldg. Co. v. County of L.A. (1960) 54 Cal.2d 450, 459 (6 Cal.Rptr. 24, 353 P.2d 736)). In Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 193 (98 Cal.Rptr. 837, 491 P.2d 421, 432), we observed that the resolution of this issue of prospective application turns primarily on two factors: 'the extent of the public reliance upon the former rule, . . . (and) the ability of litigants to foresee the coming change in the law.' In the present case both factors militate against a purely prospective overruling of French v. French. It is unlikely that a layman would rely upon the French rule, or even know of that doctrine; attorneys familiar with the decision in French v. French would also realize from our opinion in Marriage of Wilson, supra, 10 Cal.3d 851 (112 Cal.Rptr. 405, 519 P.2d 165) that the French rule was ripe for reconsideration. The unjust distribution of property engendered by the French rule should not be...