In Re Marriage of Jacanin

Opinion

MALKUS, J.

*

On April 6, 1978, after a 12-year marriage, respondent and former wife of appellant petitioned the superior court for the County of San Diego for a judgment of dissolution of marriage. On July 13, 1979, the matter was heard on the “short cause” calendar before a judge pro tempore, and the interlocutory judgment was entered on April 22, 1980.

In the judgment, custody of the parties’ three minor children was awarded to the father, Mr. Jacanin, subject to reasonable visitation rights reserved to the mother, Mrs. Jacanin. Mrs. Jacanin was awarded spousal support for the period of five years on a stepped down basis, in the sum of $500 per month from July 13, 1979, to January 12, 1980, and in the sum of $200 per month from June 13, 1980, to July 12, 1984, at which time spousal support terminates. The spousal support order is subject to reduction by one-half of Mrs. Jacanin’s gross monthly income in excess of $200 for the first six months and by one-half of her gross monthly income in excess of $600 thereafter.

The community property of the parties, except for Mr. Jacanin’s military retirement benefits, was valued at $23,500 and was initially divided unequally by the trial court which division was equalized by a monetary adjustment.

[69]

Paragraph 11 of the interlocutory judgment, which is the basis for the main issue on appeal, provides as follows:

“Petitioner shall further be awarded an interest in respondent’s U.S. Navy retirement equal to one-half of a fraction of the monthly payment to respondent as the retirement or retainer pay. The numerator of said fraction shall be 191, and the denominator of said fraction shall be the total number of months of respondent’s actual military service. Said amount shall be paid to petitioner by U.S. Navy allotment and this court shall retain jurisdiction to insure that the terms of this order concerning division of the community interest in respondent’s retirement is carried out.”

The statement of issue on appeal relating to paragraph 11 of the interlocutory judgment is simply, does the system of military retirement benefits established by the Congress preempt the State of California from treating military retired pay as community property divisible upon dissolution of marriage?