Waite v. Waite

Decision Date14 January 1972
Citation99 Cal.Rptr. 325,492 P.2d 13,6 Cal.3d 461
CourtCalifornia Supreme Court
Parties, 492 P.2d 13 Jean L. WAITE, Plaintiff and Respondent, v. Russell S. WAITE et al., Defendants and Appellants. L.A. 29905. In Bank

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Edward M. Belasco, Deputy Atty. Gen., King & King, San Bernardino and Kenneth Sperry, Long Beach, for defendants and appellants.

Hennigan, Butterwick & Clepper, J. David Hennigan, Riverside, Edward L. Lascher, Ventura, and Richard E. Rader for plaintiff and respondent.

TOBRINER, Justice.

On April 14, 1967, defendant Russell Waite, a retired California Superior Court judge, in an action for an ex parte divorce in Nevada obtained a judgment awarding him all benefits accruing under the Judges' Retirement Law (Gov.Code, §§ 75000--75109). Plaintiff, Jean Waite, defendant's former wife, brought the present action in the Riverside County Superior Court against defendant 1 and Houston Flournoy, State Controller and administrator of the Judges' Retirement System. Following change of venue to Los Angeles County, on August 7, 1968, that court entered judgment awarding plaintiff, her devisee or heirs, one-half of all benefits payable under the Judges' Retirement Law. Defendants appeal.

We affirm the determination of the Los Angeles County Superior Court holding that the portion of the Nevada judgment that awards defendant the whole of the retirement benefits is not entitled to full faith and credit; Nevada had neither personal jurisdiction over plaintiff nor in rem jurisdiction over the asset. We further hold that the retirement benefits attributable to defendant's service as a judge during the marriage constitute community property subject to division and award upon divorce. In so dividing this asset, the superior court awarded a one-half interest not only to plaintiff but also to her heirs and devisee. Since the purpose of the Judges' Retirement Law is to ensure sustenance for the retired judge and his spouse, not to benefit their heirs or devisees, we conclude that this mode of division of the pension rights cannot stand and that the judgment in that respect must be reversed.

1. Statement of Facts.

The following recital rests upon the superior court's findings of fact, which are not challenged on appeal. The parties married in 1934, and separated on January 20, 1967. During the marriage defendant served as a judge of the Superior Court of Riverside County. Over these years of service he contributed $13,090.18 to the Judges' Retirement Fund, all of which was community property. He retired on October 31, 1966, without withdrawing his contributions (Gov.Code, § 75033) or electing any optional settlement (Gov.Code, §§ 75070--75071), and became entitled to a monthly pension in an amount equal to 75 percent of the salary of the judge holding defendant's former office (Gov.Code, § 75076). At all relevant times this yielded a monthly payment of $1,562.50, but since defendant will obtain the benefits of any future increase in salary of that office, the trial court did not find the actuarial value of defendant's pension.

Plaintiff was eligible to retire from her teaching position on January 20, 1967, and did retire on June 16, 1967; she receives monthly benefits from the Teachers' Retirement Fund of $111.67. Her pension rights equal an actuarial value of $14,457, of which $13,879 is attributable to her services and contributions during the marriage.

Upon separating on January 20, 1967, the parties equitably divided the community property at hand, which include cash, notes, automobiles, clothing, and furniture. Apparently the only assets not included in the agreement were the parties' respective pension rights.

On February 2, 1967, defendant became a permanent resident of Nevada. He then sued for divorce in the Eighth Judicial District Court of Nevada. On March 22, 1967 plaintiff was personally served in California with the Nevada summons. Since plaintiff was not served in Nevada, and did not appear there, defendant concedes that Nevada did not acquire personal jurisdiction over her. Granting defendant an ex parte divorce on April 14, 1967, the Nevada court awarded defendant the 'contributions to Judges' Retirement Fund, together with all rights and benefits accruing thereunder,' likewise gave plaintiff equivalent title to her teachers' pension, and finally distributed the rest of the community property in accord with the separation agreement.

Plaintiff, on March 8, 1967, filed the present action for divorce in the Riverside County Superior Court, naming Houston Flournoy, State Controller and administrator of the Judges' Retirement Fund, as an additional party. Defendant and Flournoy appeared and answered the complaint. After trial the superior court, on August 7, 1968, concluded that the Nevada decree terminated the marriage, but that Nevada lacked jurisdiction to allocate the community property or fix alimony. The court divided the property, other than the pension rights, on the basis of the separation agreement; it awarded plaintiff all benefits under the Teachers' Retirement Fund, valued at $13,879. In return defendant received the $26,562.50 which had been paid him by the Judges' Retirement Fund between the separation and the date of trial.

As to amounts payable under the Judges' Retirement Law, the court order that 'Flournoy or his successor in office pay directly to plaintiff herein Or her devisee or heirs one half of all benefits which may be payable under the Judge's Retirement Act by reason of the services of defendant Waite.' (Emphasis added.) Finally, the court awarded plaintiff alimony of $1 a month, but provided that 'During any period of time that said payment be suspended pursuant to the provisions of Government Cdoe (suspending payments whenever a retired judge accepts temporary judicial assignment and receives a salary) or for other cause within the control of defendant Waite, defendant Waite is ordered to pay as alimony to plaintiff a sum equal to 37 1/2% Of the then salary of a judge of the Superior Court. . . .'

Defendant's appeal attacks only the award to plaintiff, her devisee or heirs, of one-half of all benefits payable under the Judges' Retirement Law. He raises three contentions: (1) that the Nevada judgment awarding him all the benefits should receive full faith and credit in California; (2) that the benefits do not constitute community property, but his separate property; and (3) if plaintiff should predecease him, payments thereafter should go to defendant instead of to plaintiff's heirs or devisee.

2. The Nevada court lacked jurisdiction to divide and award the benefits accruing under the Judges' Retirement Law.

The concept of divisible divorce in California found expression in the classic decision of Hudson v. Hudson (1959) 52 Cal.2d 735, 344 P.2d 295, in which we stated that "In a divorce action in a foreign state upon constructive service the court there has authority to adjudicate status (in rem) of a person residing in that state but has not jurisdiction to adjudicate away (in personam) any of the then vested property rights of the absent spouse who does not reside in such state, who is not personally served with process in that state and who does not appear in the action. The personal rights of the spouses in property not within the jurisdiction of the acting court remain subject to litigation in the proper forum." (52 Cal.2d at p. 742, 344 P.2d 299 quoting concurring opinion of Schauer, J., in DeYoung v. DeYoung (1946) 27 Cal.2d 521, 527, 165 P.2d 457; see Vanderbilt v. Vanderbilt (1957) 354 U.S. 416, 418, 77 S.Ct. 1360, 1 L.Ed.2d 1456; Weber v. Superior Court (1960) 53 Cal.2d 403, 405, 2 Cal.Rptr. 9, 348 P.2d 572.)

Acknowledging that Nevada lacked in personam jurisdiction over plaintiff, defendant nevertheless contends that his right to pension benefits is a species of intangible personal property, and that Nevada, as the state of his domicile, could exercise jurisdiction in rem to adjudicate and award title to that property. In support of this contention he cites numerous cases which fix the 'situs' of a debt or chose in action in the state of the creditor's domicile. (See, e.g., Texas v. New Jersey (1965) 379 U.S. 674, 85 S.Ct. 626, 13 L.Ed.2d 596; McCulloch v. Franchise Tax Bd. (1964) 61 Cal.2d 186, 37 Cal.Rptr. 636, 390 P.2d 412; Chambers v. Mumford (1921) 187 Cal. 228, 233, 201 P. 588; Fenton v. Edwards & Johnson (1899) 126 Cal. 43, 46, 58 P. 320.) Plaintiff responds with an equal array of cases holding that the situs of a debt can only repose where the debtor is subject to an in personam action. (E.g., McElroy v. McElroy (1948) 32 Cal.2d 828, 831, 198 P.2d 863; see Harris v. Balk (1905) 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023; Estate of Waits (1944) 23 Cal.2d 676, 680, 146 P.2d 5.

This apparent clash of authorities, however, does not signify any fundamental difference of principle, but serves instead to illustrate the proposition that 'An intangible, unlike real or tangible personal property, has no physical characteristics that would serve as a basis for assigning it to a particular locality. The location assigned to it depends on what action is to be taken with reference to it.' (Estate of Waits (1944) 23 Cal.2d 676, 680, 146 P.2d 5, 8; accord, Atkinson v. Superior Court (1957) 49 Cal.2d 338, 342--343, 316 P.2d 960.) (Emphasis added.) Thus most cases that place the situs of an intangible asset at the domicile of the owner do so to enable the jurisdiction of the owner's domicile to tax that property or the income derived from it. (See McCulloch v. Franchise Tax Bd. (1964) 61 Cal.2d 186, 37 Cal.Rptr. 636, 390 P.2d 412; Chambers v. Mumford (1921) 187 Cal. 228, 201 P. 588; Mackay v. San Francisco (1900) 128 Cal. 678, 61 P. 382.) Texas v. New Jersey (1965) 379 U.S. 674, 85 S.Ct. 626, 13 L.Ed.2d 596, adopted a similar rule for escheat. When, however, the issue, as in this case, involves...

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