In Re Marriage of Henkle

189 Cal.App.3d 97 (1987) 234 Cal. Rptr. 351 In re the Marriage of DELSA JANE and ROBERT RUFUS HENKLE.

DELSA JANE HENKLE BARNES, Respondent,

v.

ROBERT RUFUS HENKLE, Appellant.

Docket No. A029945. Court of Appeals of California, First District, Division Five.

February 6, 1987. [98] COUNSEL

William H. McPherson and McPherson, Barnett & Mattice for Appellant.

Joel T. Pegg for Respondent.

[Opinion certified for partial publication.[*]]

OPINION

KING, J.

(1a) In this case we hold that once maximum retirement benefits have been earned, further employment thereafter during marriage does not count as service during marriage for the purpose of applying the time rule to determine the community interest in an employee spouse's retirement pay.

The Henkles married in 1969 and separated six years later in 1975. At the time of marriage Robert was an Air Force colonel with 26 years service. He retired in 1975 with 32 years of service.

[99] After 20 years of service a member of the military may retire with 50 percent of his/her base pay. Thereafter, 2 1/2 percent per year is added until, after 30 years of service, the maximum of 75 percent is reached.

I[*]

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II

(2) "Benefits like pensions are part of the compensation an employee receives for his services and they are community property to the extent they are earned by employment during marriage." (In re Marriage of Davis [(1980), 113 Cal. App.3d 485, 488 (169 Cal. Rptr. 863)] citations omitted.) (3) "Although the `time rule'[3] is not the only acceptable method for apportioning retirement benefits between the community and separate estates [citations], it is apparently the method most frequently employed. [Citations.] [¶] However, apportionment on the basis of the `time rule' is appropriate only where the amount of the retirement benefits is substantially related to the number of years of service." (In re Marriage of Poppe [(1979) 97 Cal. App.3d 1, 8 (158 Cal. Rptr. 500)].)