Barnes v. Henkle

Opinion

KING, J. In this case we hold that once maximum retirement benefits have been earned, further employment thereafter during marriage does not count as service during marriage for the purpose of applying the time rule to determine the community interest in an employee spouse’s retirement pay.

The Henkles married in 1969 and separated six years later in 1975. At the time of marriage Robert was an Air Force colonel with 26 years service. He retired in 1975 with 32 years of service. [99]After 20 years of service a member of the military may retire with 50 percent of his/her base pay. Thereafter, 2lh percent per year is added until, after 30 years of service, the maximum of 75 percent is reached.

I*

II

“Benefits like pensions are part of the compensation an employee receives for his services and they are community property to the extent they are earned by employment during marriage.” (In re Marriage of Davis [(1980), 113 Cal.App.3d 485, 488 (169 Cal.Rptr. 863)] citations omitted.) “Although the ‘time rule’3 is not the only acceptable method for apportioning retirement benefits between the community and separate estates [citations], it is apparently the method most frequently employed. [Citations.] [¶] However, apportionment on the basis of the ‘time rule’ is appropriate only where the amount of the retirement benefits is substantially related to the number of years of service.” (In re Marriage of Poppe [(1979) 97 Cal.App.3d 1, 8 (158 Cal.Rptr. 500)].)

The Poppe court rejected the time rule where retirement benefits were based on a point system “depending on the nature and frequency of the service rendered, not the number of years served.” (Id. at p. 9.) But Poppe does not govern this case, since Robert’s retirement benefits were substantially related to the number of years served. In these circumstances, “the community is entitled to have its share based upon the length of service performed on behalf of the community in proportion to the total length of service necessary to earn those benefits.” (In re Marriage of Judd, supra, 68 Cal.App.3d at p. 522, italics added.)

Delsa argues the community interest in Robert’s retirement pay is six thirty-seconds because she was married to him for six of his thirty-two years of service. However, only the first 30 of those years were necessary to earn the benefits; Robert acquired no increase in percentage thereafter. Under Delsa’s theory, if Robert had already served 30 years when the parties married, and served 10 more years during marriage, the community would have a ten fortieths or 25 percent interest in a separate property asset fully