Martin v. Martin

California Court of Appeal Aug 11, 1975 No. Civ. No. 14564Published

Before: Evans

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Holding. The court held that military retirement benefits that have vested and are subject to the employee's sole control are community property subject to immediate division, even if the employee has not yet retired.

Issues

Whether military retirement benefits are divisible as community property when the employee is eligible for retirement but has not yet retired.
Whether a court may order the immediate payment of a spouse's share of military retirement benefits prior to the employee's actual retirement.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“the only condition to the payment of pension benefits is a condition entirely within Sergeant Martin’s control, and that is not an uncertainty precluding division of the asset upon dissolution of marriage.”

“To defer distribution of this community asset until the retirement of appellant would deprive respondent of her share of a substantial community asset.”

Opinion

EVANS, J. This is an appeal in a dissolution proceeding in which the appellant husband claims the court erred in declaring his military retirement benefits to be community property and subject to immediate division, although he had not then retired.

The appeal comes to us on an agreed statement pursuant to rule 6 of the California Rules of Court. The statement reflects that appellant was a chief master sergeant in the Air Force. During 21 years of marriage and for three years prior to marriage, appellant had been in military service. He was eligible for retirement, but at the time of the dissolution proceeding, was still on active duty. Had appellant retired in 1972, the year of separation, he would have received $571.68 per month as [583]retirement pay; $503.08 was the community portion of the retirement pay; and respondent’s share would be $251.54.

Prior to trial, the parties agreed upon all issues framed by the pleadings with the exception of the division of the retirement pay. The trial court adopted the stipulation for division of property and payment of support and in the interlocutory judgment of dissolution ordered division of the military retirement pay as follows: “ . . . the community share of the husband’s military retirement fund as of the date of separation is 88%, or $503.88 [j/c] as of the date of separation, of which $251.54 is the wife’s share, and that the respondent is ordered to pay petitioner, as and for her community share of the retirement fund, the sum of $251.54, commencing December 15, 1973 and continuing monthly thereafter so long as both petitioner and respondent shall live, but to terminate upon the death of the husband or wife. [$] DATED: 12-28-73.”

Appellant’s sole contention is that payment to respondent of her share of his vested retirement with the military as a community asset should only begin upon his retirement.

The Supreme Court in In re Marriage of Fithian (1974) 10 Cal.3d 592, at page 596 [111 Cal.Rptr. 369, 517 P.2d 449] stated, “The law is settled in California that retirement benefits which flow from the employment relationship, to the extent they have vested [fn. omitted], are community property subject to equal division between the spouses in the event the marriage is dissolved. [Citations.]” (See also In re Marriage of Peterson (1974) 41 Cal.App.3d 642, 649 [115 Cal.Rptr. 184].)

Martin v. Martin

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