In Re Marriage of Olhausen

Opinion

FILES, P. J.

The sole issue to be determined on this appeal is whether the benefits to be paid to a local police officer who has retired for an industrial disability under the Public Employees’ Retirement Law (Gov. Code, § 20000 et seq.) are community property, to be divided upon dissolution of his marriage.

Alan and Jan Olhausen were married in 1964. Alan was employed in police work for the City of La Habra from 1967 to 1970 and by the City of Vernon from 1970 to 1972. During his Vernon employment, Alan

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sustained a fractured spine, which disabled him from performing further services as a law enforcement officer. By reason of this he was retired, and became entitled to benefit payments of $444.58 per month, commencing April 10, 1972. The benefits were payable solely because of his disability, as he had not worked long enough to have any vested right in other benefits.

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The parties separated March 28, 1972, and this dissolution proceeding was filed March 30, 1972. Following a trial held on October 2, 1972, the court made its judgment dissolving the marriage, dividing the community property and providing for child custody, child support and spousal support. In arriving at its decision, the trial court concluded that the disability retirement benefits to be received after dissolution were not community property, and therefore not subject to division by the court.

Jan, the wife, has appealed from the judgment. Her brief challenges only that portion of the trial court’s decision which holds that retirement benefits are not community property.

In re Marriage of Jones

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

In re Marriage of Loehr

(1975) 13 Cal.3d 465 [119 Cal.Rptr. 113, 531 P.2d 425], both held that military retirement pay was not community property where the retirement had been for disability and prior to the time when the serviceman had earned a vested right to retire for longevity of service. These cases drew a distinction between disability retirement benefits, which are compensation for personal anguish and diminished ability to earn a living in the future, and longevity retirement benefits, which are deferred compensation for services rendered prior to retirement. The Supreme Court had previously decided that military retirement benefits based upon longevity of service constituted community property to the extent that the service had been performed during marriage.