French v. French

EDMONDS, J.

In awarding the respondent an interlocutory decree of divorce, the court included in the community property of the parties the husband’s “reserve pay, pension or retired pay” to be received by him “for services in the United States Navy” and divided such pay equally between them. The husband has appealed from that portion only of the decree, contending that any amounts received by him will not be in compensation for services previously rendered but, on the contrary, for services presently rendered, and that it is therefore not community property subject to division upon divorce.

It appears from appellant’s answer to the complaint that he was in the service of the United States Navy for sixteen years, and at the time the court made its decree had been transferred from active service to membership in the Naval Reserve. Although under former statutes the compensation of members of the Naval Reserve was referred to as “retainer pay” (39 Stats, at Large, chap. 417, p. 590), and has been said to be compensation “for the obligation on the part of such members to serve in the Navy in time of war or national emergency”

(Sawyer

v.

United States,

10 Fed. (2d) 416, 421), the Naval Reserve Act of 1938 (U. S. C. A., Title 34, sec. 853 et seq.) dropped that expression and uses the term “pay”. Unquestionably, this change in language was made in order to more accurately designate the character of the compensation provided for by the later enactment.

Under the Naval Reserve Act of 1938,

supra,

the Naval Reserve is “a component part of the United States Navy” and includes the Fleet Reserve. (Sec. 853.) The appellant, as an enlisted man transferred to the Fleet Reserve, having completed sixteen years of naval service, is entitled to receive, except when on active duty, “pay” based upon the amount he was receiving at the time of transfer. As a member of that organization he may be required to perform not more than two months’ active duty in each four-year period; to

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submit to a physical examination at least once during each four-year period; and to obey its regulations. He is subject to certain training duty and may be ordered to active duty, in either of which events his reserve pay will cease and he will receive pay at a higher rate. (Sec. 854e.) His pay as a member of the Fleet Reserve is compensation for the demands the government makes upon him in these particulars; it is not a pension for services which were entirely performed before the date of his transfer.