In Re Marriage of Scott

Opinion

WORK, J.

Cornelius Chapman Scott HI appeals a postjudgment order that he make monthly payments to his ex-wife equal to her present community interest in his vested and matured military pension even though he chooses to remain on active duty. In addition, the trial court modified and retained jurisdiction over spousal support and ordered Cornelius to advise it of any changes in his retirement entitlement to allow for future adjustments in his ex-wife’s entitlement, We hold an ex-spouse having a community interest in a matured military retirement may not be deprived of present use of that property because the serviceperson finds it in his or her interest to remain on active duty. We affirm.

Background

Cornelius has a vested, mature interest in a military pension. Although presently eligible to receive pension benefits should he retire, he voluntarily remains in active service. At the time the marriage was legally dissolved, Cornelius’ retirement rights had matured and Adeline’s community property interest in the pension was established as 35 percent of the pension’s worth, computed on 20 years service. After the retirement rights matured, Adeline exercised her option and elected to receive her community share of the pension before Cornelius retires. The trial court calculated the dollar value of Adeline’s community share were Cornelius to retire the date of its order and ordered monthly payments to her.

1

Cornelius claims federal law prohibits division of his military retirement pay while he remains on active duty, but if division is permitted, it should be calculated on the “net” retirement pay he would receive, not the “gross.”

Discussion

We find this case controlled by the rule stated in

In re Marriage of Gillmore

(1981) 29 Cal.3d 418, 428 [174 Cal.Rptr. 493, 629 P.2d 1], There,

[254]

the Supreme Court held a nonemployee former spouse may irrevocably elect to receive the present value of a community share in a vested, mature interest in a pension, or to delay payment until payments are made to the spouse under the pension plan.