In Re Marriage of Donnelly

Opinion

THE COURT.

*

Robert Donnelly appeals from a portion of a decree of marital dissolution determining to be community property benefits received under an income protection insurance policy purchased during appellant’s marriage to Doree Donnelly and paid for with community funds. The benefits became payable following separation of the parties upon appellant’s total disability.

The parties married on May 28, 1950. On January 9,1961, appellant entered employment with the San Francisco Police Department as a police officer. On November 24, 1968, appellant took out an “ income protection” policy issued by New York Life Insurance Company. Premiums of $32.52 per month were paid from appellant’s earnings. On November 31, 1977, appellant was injured in the performance of his duties as a policeman; he took disability retirement from the police department on February 5, 1979. On August 21, 1979, the parties separated.

In the dissolution proceeding, New York Life Insurance Company was joined for determination of the interspousal status of the policy. The court determined that the policy was a community asset and the present appeal followed.

Husband contends that payments received by reason of a person’s status as a disabled person are separate property because they derive from the disability rather than from labor (citing

In re Marriage of Flockhart

(1981) 119 Cal.App.3d 240 [173 Cal.Rptr. 818], and

In re Marriage of Jones

(1975) 13 Cal.3d 457 [119 Cal.Rptr. 108, 531 P.2d 420]). In

Flockhart,

the benefit arose from United States Public Law No. 85-250, the Redwood Employee Protection Program. The court held “the weekly layoff benefit” was not in the nature of a pension as Mrs. Flockhart had contended, but rather, present compensation replacing lost income and hence, separate property.. In

Jones,

the California Supreme Court held that military pay received on retirement for disability serves primarily to compensate the disabled serviceman for current suffering and lost earning capacity. On that basis only such payments as are received dur