Borges v. Robinson

Opinion

CHRISTIAN, J. Jacqueline Robinson, special administratrix of the estate of Verna C. Borges, deceased, appeals1 from an order denying modification of an interlocutory judgment of marital dissolution.

The marriage of Nelson W. Borges and Verna C. Borges was terminated on January 3, 1975, by an interlocutory judgment which awarded to Verna $250 per month alimony. Integrated into the judgment was a marital settlement agreement which identified and divided several items of community property. Verna gave to Nelson a promissory note in the amount of $21,858 to balance the division of community property.

Almost two years later, Verna retained new counsel and obtained from the court an order directing Nelson to show cause why he should not be compelled, under terms of the agreement, to pay to Verna half the value, as of the time of the dissolution, of benefits which Nelson would upon his retirement receive from his employer, Pacific Telephone and Telegraph Company.

At hearings on the order to show cause the evidence established without contradiction that both parties had been aware that Nelson’s [774]employer would pay benefits to him upon his retirement. The settlement was entered into before nonvested retirement interests were held by the California courts to be subject to treatment as community property.2 Counsel for Verna assumed that Nelson had no vested retirement right, and did not bring into the negotiations any consideration of retirement benefits. Actually, rights had vested in Nelson, and were worth $269.79 per month at the time of separation.

Verna pointed out to the court that the marital settlement agreement contained the following provisions under the caption “Undisclosed Assets”: “Each of the parties warrants to the other that this agreement sets forth the total community property of the parties and if it later appears that either of the parties hereto owns any other property which would be community property of the parties hereto, said property is to be divided equally. Husband acknowledges that real property located at 6417 Mission Street, Daly City, California, is the separate property of Wife and agrees to execute a quitclaim deed of any interest he might have therein.” Although the order to show cause had seemed to seek an order for direct application of the quoted provision to Nelson’s retirement rights, i.e., “an order compelling [Nelson] to pay to [Verna] one-half of the value at the time of the dissolution of [Nelson’s] pension benefits . . . ,” at the hearing counsel for Verna asked the court to modify the decree to treat the retirement right as a community asset. The court denied modification, and the present appeal followed.