In Re Marriage of Loehr

Opinion

TOBRINER, J.

This appeal presents the same issue as

In re Marriage of Jones, ante,

p. 457 [119 Cal.Rptr. 108,531 P.2d 420]. The trial court in the present case held that the portion of a serviceman’s disability pension attributable to military service during the marriage is community property, and awarded one half that value to his spouse. For the reasons stated in

In re Marriage of Jones, supra,

we reverse that determination and hold that the disability benefits are not a community asset.

David and Michiele Loehr were married July 9, 1966, and have one child. David received a commission as a Naval officer on June 12, 1965. In November of 1970, David suffered serious injuries in an accident; he became blind in one eye with limited vision in the other, practically deaf and sustained skull injury and possible brain damage. On February 1, 1972, the Secretary of the Navy placed David on the temporary disability list, assigning'him a disability rating of 90 percent. (See 10 U.S.C. § 1202.)

1

David thus became entitled to retired pay of $735.84 monthly, an amount equal to 75 percent of his basic pay. (See 10 U.S.C. §§ 1372, 1401.)

In the dissolution action, the trial court held that the portion of David’s right to disability pay attributable to military service during the marriage was a community asset. Observing that 83.6 percent of David’s naval career occurred after his marriage, the court assigned to Michiele,

[467]

as her share of the community interest in the disability payments, 41.8 percent (1/2 of 83.6 percent) of all future disability benefits received by David. This figure amounts to $307 per month. The court allocated the balance of the community property,

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denied Michiele’s request for alimony, and awarded her $1 a year for child support. David’s appeal attacks the court’s award of a portion of the disability benefits to Michiele; her appeal criticizes the court’s refusal to award additional child support.