Marriage of Chapman

Filed 9/27/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

In re the Marriage of JUDY KAY and PHILIP C079615 KURTIS CHAPMAN.

JUDY KAY CHAPMAN, (Super. Ct. No. 01FL06530)

Respondent,

v.

PHILIP KURTIS CHAPMAN,

Appellant.

APPEAL from a judgment of the Superior Court of Sacramento County, Steven M. Gevercer, Judge. Affirmed in part and reversed in part.

Walzer Melcher, Steven K. Yoda and Christopher C. Melcher for Appellant.

Michael R. Locks for Respondent.

The main issue in this case is whether one spouse’s unilateral election (after a marital settlement agreement and judgment of dissolution) to change from one type of

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military benefit (military retirement that is taxable and community property) to another type of military benefit (combat-related special compensation that is not taxable and separate property) can defeat the community property interest of the other spouse set forth in the marital settlement agreement. The answer is “no.” “It is a ‘settled principle that one spouse cannot, by invoking a condition wholly within his control, defeat the community interest of the other spouse.’ ” (In re Marriage of Gillmore (1981) 29 Cal.3d 418, 423.) The trial court here correctly determined that “the post-judgment election” by appellant Philip Kurtis Chapman (Philip) “of Combat[-]Related Special Compensation in lieu of military pension payments” does not “relieve[] [Philip] of his agreement to pay [respondent Judy Kay Chapman (Judy)] $475 per month for her community property share of his military retirement.” We reverse the trial court’s order, however, because the remedy the court selected was improper. The trial court imposed a constructive trust on the funds received by Philip as combat-related special compensation benefits. But the remedy of a constructive trust is available only for wrongful conduct. (Calistoga Civic Club v. City of Calistoga (1983) 143 Cal.App.3d 111, 116.) Here, Philip’s election was not wrongful; he had every right to choose to receive combat-related special compensation benefits in lieu of military retirement benefits. But he could not, by that election, defeat Judy’s right to receive $475 per month for her community property interest in the pension payments he voluntarily and unilaterally relinquished. Accordingly, we will reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND For 20 years, from July 1971 to July 1991, Philip served in the United States Navy, including in the Vietnam War and the Persian Gulf War. For 17 of those years, beginning in August 1974, Philip and Judy were married. In 1991, after Philip retired, he started receiving military retirement benefits.