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In re Main2/13/2003
ilitary. Upon their divorce, the wife was awarded a 43 percent community interest in his military retirement benefits. Three years after their divorce, the husband forfeited his retirement benefits by voluntarily resigning from the military. The Court of Appeal held that the trial court improperly placed a constructive trust upon the husband's immature pension benefits, noting that the benefits did not mature because the husband resigned prior to reaching 30 years of service. The court reasoned, "[Wife] is correct in noting our courts have scrupulously protected a former spouse's community property rights from the detrimental control of the other. For example, in California a spouse cannot defeat a former spouse's community interest in a pension by unilaterally electing a disability pension instead of a non-disability pension . . . or by postponing retirement until sometime after pension eligibility has matured . . . . However, [this] protective principle . . . does not apply with equal force here. [Husband], by resigning, disadvantaged both [wife] and himself. He has not . . . somehow relabeled or shifted benefits to increase his share or augment his control over the pension." (Id. at p. 1074, citations omitted.)
Here, unlike Foster, husband did not forfeit either his pension benefits entirely or his right to redeposit. Rather, the couple opted instead for a disability pension that provided husband at least double the retirement benefits he would have otherwise received and tax free income for life without waiting until the age of 55.
Moreover, contrary to husband's contention, Levy v. Office of Personnel Management (Fed. Cir. 1990) 902 F.2d 1550, does not support his position. There, in 1966, the husband became disabled after six years of federal civil service and was awarded a disability retirement pension of $1,460 per month. Had he retired instead at the age of 62, his monthly retirement benefit would have been $89 per month. In 1983, husband divorced. In 1985, when he reached 62 years of age, his wife sought to reapportion his retirement benefits. The federal court of appeals held, under California law, that the wife was entitled to only one-half of the amount husband would have received had he retired in 1966 and received a longevity-based pension. Following the principles expressed in Justice and Stenquist, supra, the court reasoned that most of his monthly compensation was attributable to his disability, rather than to his longevity of service. (Id. at p. 1554.) The holdings in Levy, Justice, and Stenquist are consistent with the trial court's calculation in this case of the community interest in husband's disability benefits.
Finally, we observe that in Lucero, the wife was required to share in the cost of paying back the retirement funds her husband had previously withdrawn in order to receive a community property interest in the benefits represented by those funds (i.e., wife paid $3,154 of $9,373 redeposited). Here, Reddall approximated the cost of husband paying back the 2.2 years of contributions he withdrew at $1,700 to $2,500. There is no evidence in the record of the exact amount CalPERS would have charged husband in 1994 to pay back the contributions he withdrew, and there is no indication in the judgment that wife was required to pay one-half of that cost. Nevertheless, husband has not asserted error in this regard and we assume he has waived the issue.
The judgment is affirmed. Wife is awarded costs on appeal.
NOT TO BE PUBLISHED.
We concur:
YEGAN, Acting P.J.
PERREN, J.
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