In Re Marriage of Wicks

Opinion

CALDECOTT, P. J.

Although wife noticed her appeal from the interlocutory judgment of dissolution of marriage, only the portion thereof which awards to husband as his separate property his variable incentive pay is argued on appeal.

Appellant wife and respondent husband were married August 28, 1971, and separated either March 31 or April 30, 1976. Husband commenced active duty as a physician, United States Army Medical Corps in August 1974 under orders which obligated him for two years active duty. His

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assignment to San Francisco, however, was contingent upon his “staying or reenlisting for a third year.”

At the time husband entered into a verbal agreement with regard to the assignment to San Francisco, husband did not know whether he would be eligible for the variable incentive pay which is at issue here. By letter dated January 15, 1976, husband was informed by the Surgeon General, Department of the Army, that he had been designated as a critical specialist under the provisions of DOD directive 1340.11. This “designation and selection as a Critical Specialist entitles you to participate in the Variable Incentive Pay Program on 6 August 1976 or upon acceptance of your agreement by your commanding officer, whichever is later.” The letter further advised husband to keep the letter indefinitely whether or not he planned to participate and that “[i]n order to receive your Variable Incentive Pay, you must sign an agreement.”

On June 21, 1976, after appellant and respondent had separated, husband requested variable incentive pay. The request was approved June 30, 1976, “as of 6 Aug 76.” In August 1976 when husband commenced his third year of active military service, he received $12,000 variable incentive pay. The interlocutory judgment of dissolution of marriage awarded the variable incentive pay to husband as his separate property. Wife appeals, contending that the variable incentive pay was “a chose in action, a fringe benefit, and not an expectancy . .. and that pay was therefore the community property of husband and wife.”

The controlling statute is 37 United States Code section 313 which provides in pertinent part;