Berry v. Board of Retirement

California Court of Appeal Feb 24, 1972 No. Civ. 38106Published

Before: Stephens

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Holding. The court held that a former spouse's community interest in a retirement fund, as defined by a divorce stipulation, does not extend to benefits payable to a subsequent surviving spouse after the employee's death.

Issues

Whether a former spouse's community interest in a retirement fund survives the death of the employee spouse when the divorce judgment conditioned payment on the employee's election to retire.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The “community interest” valuation could not be en-grafted into any benefits ultimately payable to a surviving spouse.”

“The parties took their chances, and Elizabeth’s community interest died at the same time as did Eugene’s; thereafter, the only benefits were those belonging solely to the surviving spouse, Monica.”

Opinion

STEPHENS, Acting P. J.

The pertinent facts in this case are that Eugene Berry was an employee of the County of Los Angeles. At the time of his divorce from plaintiff (Elizabeth Berry), the community had $14,845.14 in the retirement fund. He was not at that time eligible to retire, and continued in active employment with the county until his death. At the time of death, he had a surviving spouse, Monica.

Pursuant to stipulation, the court, as part of the interlocutory judgment of divorce between the parties, had ordered: “. . . . In the event defendant [Eugene] elects to> retire from his employment with the County of Los Angeles and accept a cash payment of monies in his retirement fund, defendant is ordered to pay one-half of the amount in said fund as of December 31, 1957, in the total amount of $7422.57, to- the plaintiff [Elizabeth]; in the event the defendant does not elect to take cash, as aforesaid, and shall elect to exercise one of the other options available

[759]

under the County Retirement program, the Court shall retain jurisdiction to make its order respecting a fair and equitable distribution of the cash between defendant and plaintiff based upon the option exercised; . . . .” It is apparent that Eugene did not elect to withdraw the funds, and the only “election” he made was to substitute Monica for Elizabeth so far as designation of the spouse was concerned.

It is our opinion that the parties, Elizabeth and Eugene, by their stipulation which was carried verbatim into- the judgment, elected to take the chance that Eugene would live to participate personally in retirement benefits; in this event, the court retained jurisdiction to order a proportion thereof to Elizabeth. It is also our opinion, as spelled out in

Waite

(1972) 6 Cal.3d 461 [99 Cal.Rptr. 325, 492 P.2d 13], that the “community interest” which was divisible by the divorce court was either the funds on deposit at the time of the divorce, or the retirement benefits payable to Eugene during his lifetime and after his retirement as those payments became due and payable, or an actuarial equivalent of the retirement benefits reasonably expected to be paid to Eugene based upon the actuarial expectancy of the lives of Elizabeth and Eugene at the time of his retirement. The “community interest” valuation could not be en-grafted into any benefits ultimately payable to a surviving spouse. By this statement we do not wish to be misunderstood: there is no question but that the court could have made an order directing Eugene to pay the amount of $7,422.57 to Elizabeth at the time of the interlocutory order,

Berry v. Board of Retirement

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