WAITE v. WAITE

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Court of Appeal, Second District, Division 5, California.

Jean L. WAITE, Plaintiff and Respondent, v. Russell S. WAITE and Houston I. Flournoy, State Controller of the State of California, Defendants and Appellants.

Civ. 34742.

Decided: June 25, 1970

King & King, San Bernardino, and Kenneth Sperry, Long Beach, for Russell S. Waite. Thomas C. Lynch, Atty. Gen., and Edward M. Belasco, Deputy Atty. Gen., for Houston I. Flournoy, State Controller of Cal. Hennigan, Butterwick & Clepper, J. David Hennigan, Riverside, for plaintiff and respondent.

Pleadings

Plaintiff by her complaint, filed in the County of Riverside on March 8, 1967, sought a decree of separate maintenance or of divorce with provisions for support and for division of the community property. In paragraph IV thereof plaintiff alleged the existence of community property consisting of, among other things, ‘contribution to Judge's [sic] Retirement Fund made by husband while employed as a Superior Court Judge, and monthly proceeds from said fund paid to husband by reason of his retirement as a Superior Court Judge.’ Defendant Waite appeared by demurrer on April 7, 1967, after having been served by publication of summons at his residence in the State of Nevada. By first amended complaint, filed on April 25, 1967, plaintiff described that portion of the community property referred to above as ‘6. Approximately $7,500 cash received by defendant from the Judge's Retirement Fund since November 1, 1966.7. Proceeds payable from Judge's Retirement Fund resulting from contributions made for and by defendant Russell Scott Waite while employed as a Superior Court Judge in the State of California, and paid monthly from said fund to defendant Russell Scott Waite by reason of his retirement as a Superior Court Judge.’ By the amended complaint, plaintiff sought and obtained a temporary restraining order enjoining Houston I. Flournoy, State Controller, a newly joined defendant, from transferring or otherwise disposing of the alleged community property interest of plaintiff and defendant Waite in the Judges' Retirement Fund. On June 6, 1967, after hearing, the temporary restraining order was dissolved. By answer to the first amended complaint, filed June 2, 1967, defendant Waite alleged that he was, and since February 2, 1967, had been a resident of Clark County, Nevada, and that on the 14th day of April, 1967, said defendant had been granted an absolute decree of divorce from plaintiff by the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark. A copy of such decree was attached to the answer and made a part thereof by reference. By his answer, defendant Waite alleged that his contributions to the Judges' Retirement Fund were community property, but denied that the proceeds of his pension were community property. He also alleged that plaintiff already had in her possession most of the items of community property which were in existence at the time of separation (January 20, 1967), including cash and securities of a value in excess of $30,000.

By the terms of the Nevada decree, the court, in addition to dissolving the bonds of matrimony and releasing the parties from any and all marital obligations, awarded to defendant Waite (as plaintiff therein), as his separate property, a 1966 Chrysler automobile; social membership in a country club; cash in his possession; ‘contributions to Judges' Retirement Fund, together with all rights and benefits accruing thereunder’; and a promissory note in the principal sum of $5,734. The Nevada decree awarded to plaintiff (defendant therein), as her separate property, the household furniture and furnishings; a 1965 Dodge automobile; cash and promissory notes then in her possession, and contributions to the Teachers' Retirement Fund, together with all rights and benefits accruing thereunder.

Statement of Facts

The facts essential to the determination of the issues presented here are found in the findings of fact made by the trial court. They are as follows: Plaintiff and defendant Waite were married on October 27, 1934, and separated on January 20, 1967; both children of the marriage are adults and neither is dependent upon the parties hereto; during the period of the marriage, defendant Waite was employed as a judge of the Superior Court of Riverside County and retired pursuant to section 75025(h) of the Government Code (Judges' Retirement Law) on October 31, 1966; all contributions of money, amounting to $13,090.18 by defendant Waite into the Judges' retirement Fund were commmunity funds; all services rendered to qualify for retirement under the Judges' Retirement Law were made during the time of the marriage of plaintiff and defendant Waite; defendant Waite's retirement rights were complete and vested and matured during the marriage of plaintiff and defendant Waite and before the final separation of the parties; on or about February 2, 1967, defendant Waite moved to the State of Nevada and established a bona fide residence there; on March 20, 1967, defendant Waite instituted divorce proceedings in the Eighth Judicial District Court of the State of Nevada in and for the County of Clark in which he alleged, among other things, that community property of the parties consisted in part of ‘Contributions to Judges' Retirement Fund made by plaintiff while serving as a Superior Court Judge in the State of California’; substituted service in the matter was made by personal service on plaintiff in the State of California on March 22, 1967; plaintiff never appeared in and was not served in the State of Nevada; by the terms of the complaint he requested the granting of a decree of divorce dissolving the bonds of matrimony then existing between plaintiff and defendant Waite and that the community property of the parties be divided in accordance with the prayer of the complaint, which included a request that the defendant's contributions to the Judges' Retirement Fund (as plaintiff therein) be awarded to him as his separate property and that various other items of personal property be awarded to the wife (plaintiff herein) as her separate property; on April 14, 1967, a decree of divorce was granted to defendant Waite as plaintiff in the Nevada action against plaintiff Jean B. Waite as defendant in such action, by the terms of which the court dissolved the marriage of the parties and released each from any and all marital obligations to the other and awarded to defendant Waite (as plaintiff therein) certain personal property including ‘contributions to Judges' Retirement Fund, together with all rights and benefits accruing thereunder,’ and awarded to plaintiff (as defendant therein) certain items of personal property as her separate property, including her ‘contributions to Teachers' Retirement Fund together with all rights and benefits accruing thereunder.’

The findings, here, further disclose that during the marriage of the parties plaintiff was employed as a teacher in the State of California and made contributions to the Teachers' Retirement Fund in the amount of $6,734.42 prior to January 20, 1967, and retains a teaching credential. Plaintiff was eligible to retire as a teacher on January 20, 1967, at which time her monthly benefits under the plan would have been $98.11 per month for the remainder of her life.1 Between the time of separation of the parties and the date of trial, defendant Waite had received the sum of $26,562.50 in payments of $1,562.50 per month from the Judges' Retirement Fund. In addition to retirement benefits, the parties owned at the time of final separation cash and notes of the value of approximately $32,000 representing proceeds from the sale of the family home, and additional monies which were accumulated from payments from the Judges' Retirement Fund prior to separation of the parties, and from payment of teacher's salary to plaintiff prior to separation. These cash amounts were equitably divided between the parties at the time of separation.

The trial court found that defendant Waite is possessed of the ability to pay reasonable alimony to the plaintiff, but made no finding with respect to the need of plaintiff for such support.

The court made the following conclusions of law pertinent to the issues raised on appeal:

‘1. The bonds of matrimony between plaintiff and defendant were dissolved April 14, 1967, in the Eighth Judicial District of the State of Nevada in and for the County of Clark.

‘2. The Nevada Court lacked jurisdiction to determine the rights of plaintiff herein to alimony or share of the community property of the parties.

‘3. The ownership and rights to benefits under the Judge's Retirement Law are community property located in the State of California and in the custodianship of the Treasurer of the State of California and under the control of the State Controller. The ownership and rights to benefits under the Teacher's Retirement Law are 96% community property. All of said retirement benefits are subject to the jurisdiction and control of this court.

‘4. Plaintiff is the owner of and should receive directly from defendant Flourenoy [sic] or his successor one half of all benefits payable under the Judge's Retirement Law by reason of the service of defendant Waite as a Judge of the Superior Court or other service qualifying him under the Judge's Retirement Law.

‘5. There should be awarded to plaintiff as a portion of her share of the community property of the parties all benefits payable to plaintiff pursuant to the Teacher's Retirement Act.

‘6. There should be awarded to defendant Waite as a portion of his share of community all sums received by defendant Waite from the Judge's Retirement Act between January 20, 1967, and July 3, 1968.’

After providing that certain items of personal property should be awarded to the respective parties as their separate property, the following conclusions were made:

‘9. Plaintiff should be awarded alimony in the following amounts:

‘(a) During such time as plaintiff receives directly from the State of California one half of the benefits of Judge's Retirement Fund, the sum of $1.00 per month payable monthly commencing September 1, 1968.

‘(b) During such time as payments from the Judge's Retirement Fund are suspended pursuant to the provisions of Government Code Section 68543.5, or for any other reason subject to the voluntary control of defendant Waite, a sum equal to 37 1/2% of the then salary of a Judge of the Superior Court of the State of California, payable on the fifth day of the month following such suspension of payment.

‘10. Defendant Waite should pay to the firm of Hennigan, Butterwick, Haning and Duda as additional attorney's fees for services rendered to plaintiff the sum of $3,000.00.

‘* * *

‘12. Defendant Flourenoy [sic] or his successor in office should pay directly to plaintiff herein, or her heirs or devisees, one-half of all benefits under the Judge's Retirement Law accrued by reason of the services of defendant Waite as described in the Judge's Retirement Law.’

The foregoing conclusions of law were in substance embodied in the judgment.

Subsequent to the entry of judgment, defendant Waite gave notice of intention to move for a new trial based upon claimed errors of law and, in addition thereto, upon the ground of newly discovered evidence material to the issue of whether defendant should have been ordered to pay additional attorneys' fees to plaintiff's attorneys, namely, the fact that plaintiff had inherited liquid assets and cash valued in excess of $176,000 from the estate of her deceased father, which fact it is claimed had been secreted by plaintiff throughout the trial, it being claimed also that at the time of the making of the original order for payment of attorneys' fees prior to trial, the order then made by Judge Thompson, sitting by assignment in Riverside County, on August 14, 1967, in the sum of $2,000 was intended to be an overall fee, having in mind that plaintiff had already paid her counsel the sum of $1,500. The motion for new trial was denied.

Defendant Waite appeals from the judgment except that portion thereof wherein ‘It is adjudged and decreed that the parties hereto are no longer husband and wife, bonds of matrimony having been dissolved by decree of the Eighth Judicial District Court of the State of Nevada in and for the County of Clark on April 14, 196[7].’

Defendant Flournoy appeals from the judgment against him.

Contentions on Appeal

Waite urges that (1) the trial court erred in decreeing that defendant Flournoy should pay directly to plaintiff or her devisee or heir any portion of the retirement benefits that are payable to him under the Judges' Retirement Law, and (2) the trial court erred in denying his motion for a new trial based on the ground of newly discovered evidence.

Flournoy urges that (1) the Judges' Retirement Law requires the State Controller to pay the retirement allowance directly to defendant Waite, and (2) the trial court did not have the power to assign one-half of defendant Waite's retirement allowance to plaintiff.

Jurisdiction of the Nevada Court

It is held that “In a divorce action in a foreign state upon constructive service the court there has authority to adjudicate status (in rem) of a person residing in that state but has not jurisdiction to adjudicate away (in personam) any of the then vested property rights of the absent spouse who does not reside in such state, who is not personally served with process in that state and who does not appear in the action. The personal rights of the spouses in property not within the jurisdiction of the acting court remain subject to litigation in the proper forum. * * *” (Hudson v. Hudson, 52 Cal.2d 735, 742, 344 P.2d 295, 299, quoting from the concurring opinion of Schauer, J., in DeYoung v. DeYoung, 27 Cal.2d 521, 527, 165 P.2d 457; cf. Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456.)

Under varying conditions and under retirement systems created under different laws, it has been recognized that contributions to and benefits earned in such retirement systems are community property. (See Finley v. Finley, 161 Cal.App.2d 390, 326 P.2d 867; Jorgensen v. Cranston, 211 Cal.App.2d 292, 27 Cal.Rptr. 297; Crossan v. Crossan, 35 Cal.App.2d 39, 94 P.2d 609; Cheney v. City and County of San Francisco, 7 Cal.2d 565, 61 P.2d 754; Williamson v. Williamson, 203 Cal.App.2d 8, 21 Cal.Rptr. 164; Cavitt v. City of Los Angeles, 251 Cal.App.2d 623, 59 Cal.Rptr. 690; French v. French, 17 Cal.2d 775, 777, 112 P.2d 235; Benson v. City of Los Angeles,60 Cal.2d 355, 359, 33 Cal.Rptr. 257, 384 P.2d 649.)

In the case at bench, plaintiff wife was a domiciliary of the State of California, she was not personally served in the State of Nevada and did not appear in the divorce action prosecuted there by defendant husband. The Nevada court, therefore, was without jurisdiction to adjudicate plaintiff's rights in property which was outside the territorial limits of the court, and the decree of divorce granted by such court to the husband, while valid as effectively dissolving the bonds of matrimony, does not constitute a bar to plaintiff's right to sue for support and maintenance in the courts of her domicile.

The situs of the fund (the debt) created by payments thereto from the community earnings of defendant pursuant to the provisions of the Judges' Retirement Law was in California. (Estate of Waits, 23 Cal.2d 676, 680, 146 P.2d 5.) The trustee of the fund, the State Controller, is a resident of California. (Cf. McElroy v. McElroy, 32 Cal.2d 828, 831, 198 P.2d 683.) Both the situs of the trust res and the trustee of the trust being situated outside the territorial limits of the State of Nevada, the courts of that state, under the circumstances here shown, were without jurisdiction to adjudicate the rights of the plaintiff, if any, to the corpus of the fund or to benefits, if any, to which she might be entitled under the Judges' Retirement Law, and plaintiff is entitled to litigate such rights in the courts of her domicile.

Plaintiff's Right in Defendant's Pension

Conceding the community nature of the pension here involved, nevertheless, the community possessed only such interest in defendant's pension as his employment contract provided. (Benson v. City of Los Angeles, 60 Cal.2d 355, 360, 33 Cal.Rptr. 257, 384 P.2d 649.) The wife of a public employee does not acquire a vested interest in a pension until it becomes payable to her. (Packer v. Board of Retirement, 35 Cal.2d 212, 217, 217 P.2d 660.) The pension benefits paid to defendant are income and bear upon his ability to support plaintiff in the event of need therefor. The record discloses that there had been deposited in the Judges' Retirement Fund, by amounts deducted from defendant's compensation as a judge of the superior court during the marriage, the sum of $13,090.18. Defendant retired on October 31, 1966, and received retirement benefits commencing in November 1966. The parties separated on January 20, 1967. The cause was tried in July 1968. By the time of trial payments from the fund by way of benefits under the law exceeded the sum of $30,000 thus completely depleting the deposits to the fund made by the community. Plaintiff's community property rights, if any, therefore, must relate to a claim against the husband's pension rights under the Judges' Retirement Law.

Defendant husband retired under the provisions of section 75025(h) of the Government Code. He received an allowance equal to 75 percent of the then salary of a judge of the superior court. (Gov.Code, § 75076.) Pursuant to the provisions of sections 75075 and 75077, plaintiff was entitled to receive, as the surviving spouse of defendant, an allowance equal to one-half of the retirement allowance that would be payable to defendant were he living and receiving the benefits accorded by the Judges' Retirement Law.

Under the Judges' Retirement Law (the contract with the community), plaintiff's right to receive the benefits provided for her under the law is contingent upon the death of defendant and her having the status at that time of surviving spouse of defendant. Her right to receive benefits under the contract with the community will not vest until both contingencies above mentioned occur. It is obvious here that the bonds of matrimony having been dissolved, plaintiff cannot acquire a vested interest in benefits to the pension being received by defendant. (Benson v. City of Los Angeles, 60 Cal.2d 355, 361, 33 Cal.Rptr. 257, 384 P.2d 649; Packer v. Board of Retirement, 35 Cal.2d 212, 217, 217 P.2d 660.) It is not clear from the judgment whether the court intended to award to plaintiff or her heirs, in the event defendant should remarry, die and leave a surviving spouse, one-half of 37 1/2 percent of a superior court judge's salary or whether the court intended that both plaintiff or her heirs and the surviving spouse be paid that amount. In either event, any payment to plaintiff or her heirs after defendant's death under such circumstances would be in clear violation of the statute.

Denial of Motion for New Trial on Ground of Newly Discovered Evidence

It is urged by defendant Waite that the trial court abused its discretion in awarding plaintiff's counsel an additional $3,000 attorneys' fees and in not reversing this order when, on motion for a new trial it was shown that by petiton for final distribution of the estate of plaintiff's father, set for hearing in the Superior Court of San Diego County on September 20, 1968, plaintiff would inherit property of a value in excess of $176,000 consisting of cash and securities, and that such fact was discovered for the first time by defendant on or about September 13, 1968. In this connection the affidavit of defendant in support of the motion disclosed that during the trial defendant made inquiry of plaintiff concerning the health of her father, and was told that her father was in good health, whereas, in fact, he had died May 29, 1967. Defendant Waite also claims that the amount of attorneys' fees originally ordered by Judge Thompson on October 6, 1967, was ‘intended to be an overall fee.’

The reporter's transcript of the proceedings wherein Judge Thompson set the attorneys' fees at $3,500 discloses that both parties contemplated entering into a written stipulation which would have disposed of many issues in the case. Such stipulation was not executed and the cause went to trial. In this state of the record we are unable to say that the fee set by Judge Thompson was intended as an overall fee including those to be incurred in the event of a full trial of the action.

The allowance of attorneys' fees and costs in a divorce action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal. (Primm v. Primm, 46 Cal.2d 690, 696, 299 P.2d 231.) Even when the wife has separate property in addition to community the trial court need not require her to resort to her own capital for payment of her counsel before ordering her husband to pay such fees. (Weinberg v. Weinberg, 67 Cal.2d 557, 571, 63 Cal.Rptr. 13, 432 P.2d 709.) We find no abuse of discretion in the award of $3,000 additional attorneys' fees to plaintiff's counsel and ordering defendant to pay such fees, and there was no abuse of discretion in the denial of defendant's motion for a new trial based upon newly discovered evidence bearing upon plaintiff's ability to pay her counsel out of her separate property.

That portion of the judgment contained in paragraph 2 thereof, wherein it is decreed that ‘defendant Flourenoy [sic] or his successor in office pay directly to plaintiff herein or her devisee or heirs one half of all benefits which may be payable under the Judge's Retirement Act [sic] by reason of the services of defendant Waite as described in the Judge's Retirement Act [sic],’ is reversed. Inasmuch as paragrph 8 of the judgment bearing upon defendant's obligation to pay plaintiff alimony is contingent upon plaintiff receiving one-half of the benefits to which defendant is entitled under the Judges' Retirement Law, all provisions relating to alimony as contained in paragraph 8 of the judgment are reversed. The judgment is affirmed in other particulars. Each party to bear his or her own costs on appeal.

FOOTNOTES

FOOTNOTE.  

1.  According to plaintiff's exhibit 5, her monthly allowance, if retirement became effective July 1, 1967, would amount to $111.67. It likewise appeared from plaintiff's exhibit 3 that her compensation from January 20, 1967, through June 16, 1967, amounted to $4,940.24.

FRAMPTON, Associate Justice Pro Tem.* FN* Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

KAUS, P. J., and REPPY, J., concur.