In Re Marriage of Robinson

California Court of Appeal Jan 22, 1976 No. Civ. 46375Published

Before: Roth

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Holding. The court held that disability payments received after the entry of a judgment dissolving a marriage are the separate property of the disabled spouse, rather than community property.

Issues

Whether workers' compensation disability payments received after the entry of a dissolution judgment are community or separate property.
Whether the child support order constituted an abuse of discretion in light of the reclassification of the disability payments.

Disposition. Affirmed in part, reversed in part, and remanded.

Quotations verified verbatim against the opinion

“an award solely for disability, one which in no way involves retirement pay, is a community asset only during marriage and that when a judgment dissolving the marriage is entered, all disability payments made to the disabled spouse become the separate property of such spouse, and we so hold.”

“The trial court is directed to vacate that part of the judgment which designates appellant’s disability payments as community property and to provide that the disability payments payable after judgment are appellant’s separate property.”

Opinion

ROTH, P. J.

Pursuant to an interlocutory judgment (judgment) dissolving a 20-year marriage entered in favor of Mary Robinson against her husband, Tom, Mary was awarded custody of two minor children aged at the time of judgment respectively 12 and 14, with a weekly support allowance for each of $12.50; spousal support was reserved and as her share of the community property a 50 percent division of a workers’ compensation claim for a temporary total disability suffered from an industrial injury on March 11, 1969 from which Tom had not recovered in whole or in part. The total disability award was in effect at the time of the judgment.

[684]

Tom appeals from those portions of the judgment which treat the disability payments received after judgment as community property and which require him to pay $12.50 per week for the support of each of the two minor children.

The record shows without dispute that Mary was receiving by way of public assistance $280 per month for the support of herself and the two minors, and that said sum according to her declaration was $74 in excess of her need. Tom’s income since just prior tó and during the litigation and his potential income after judgment was and would be $87.50 per week. By reason of advances theretofore paid by the compensation insurance carrier made some time before judgment and presumably used by the community, the payments of weekly disability were to be postponed for a 15-week period after judgment before further payments were made to Tom.

Tom was at the time of judgment and there is nothing in the record to indicate that he is not still permanently disabled.

The judgment requiring Tom to pay one-half of $87.50 to Mary and $25 per week for child support left Tom approximately $19 per week with which to support himself.

All award payments made prior to dissolution were treated as community property.

The primary question presented is whether payments of award compensation to Tom

after

the entry of judgment retained their community character or were Tom’s separate property.

In Re Marriage of Robinson

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ROTH, P. J.

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