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 l. Flournoy, State Controller, Defendants and Appellants.

Civ. 34742.

Decided: April 26, 1971

King & King, San Bernardino, and Kenneth Sperry, Long Beach, for defendant and appellant Russell S. Waite. Evelle J. Younger Thomas C. Lynch, Attys. Gen., and Edward M. Belasco and Anthony M. Summers, Deputy Attys. Gen., for defendant and appellant Houston I. Flournoy, State Coutroller. Hennigan, Butterwick & Clepper, by J. David Hennigan, Riverside, and Edward Lascher, Ventura, for plaintiff and respondent.

In an action filed in Riverside, California on March 8, 1967, plaintiff sought a decree of separate maintenance or divorce with provisions for support and division of community property which she alleged included ‘[a]pproximately $7,500 cash received by defendant from the Judge's Retirement Fund since November 1, 1966’ and ‘[p]roceeds payable from Judge's Retirement Fund resulting from contributions made for and by defendant * * * while employed as a Superior Court Judge in the State of California, and paid monthly from said funds to defendant * * * by reason of his retirement.’ By amendment, plaintiff also sought and obtained a temporary restraining order enjoining State Controller Flournoy, 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.

Defendant Waite's answer, filed on June 2, 1967 alleged that he was, and since February 2, 1967 had been, a resident of Nevada, and that on April 14, 1967 had been granted a divorce from plaintiff by the Nevada District Court. He admitted 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 had in her possession most of the items of community property which were in existence at the time of the parties' separation on January 20, 1967, including cash and securities totaling in excess of $30,000.

The findings pertinent to this appeal are as follows: The parties were married on October 27, 1934, and separated on January 20, 1967. During the marriage period, defendant was employed as a judge of the Superior Court of Riverside County, and retired (pursuant to Gov.Code § 75025(h)1 on October 31, 1966. All contributions by defendant Waite (totaling $13,090.18) to the Judges' Retirement Fund were community funds. All services rendered by defendant Waite to qualify for retirement under the Judges' Retirement Law were performed during the period of the marriage. Defendant Waite's retirement rights were complete, vested, and matured within the period of the marriage. On or about February 2, 1967, defendant Waite moved to Nevada and established a bona fide residence there. In Nevada, on March 20, 1967, defendant Waite instituted a divorce action against plaintiff, in which he also sought a division of the community property, to include an award to him of contribution to the Judges' Retirement Fund as his separate property, and an award to plaintiff of other items of personal property as her separate property. Substituted service in the matter was made by personal service on plaintiff in California; plaintiff never appeared, and was not served in Nevada. On April 14, 1967, the Nevada District Court granted defendant Waite a decree of divorce, awarding to him certain personal property, including ‘contributions to Judges' Retirement Fund, together with all rights and benefits accruing thereunder,’ and awarded to plaintiff certain items of personal property as her separate property, including her ‘contributions to the Teachers' Retirement Fund, together with all rights and benefits accruing thereunder.'2 Between the date of separation of the parties and the date of trial, defendant Waite had received $26,562.50 in monthly payments of $1,562.50 from the Judges' Retirement Fund. At the time of final separation, the parties also possessed approximately $32,000 in cash and notes (proceeds from the sale of their home) and additional monies accumulated from payments from the Judges' Retirement Fund and from payments of teacher's salary to plaintiff, all prior to separation of the parties. The court found that defendant Waite is able to pay reasonable alimony to plaintiff, but made no finding relating to the need of plaintiff for such support.

In its judgment, the court embodied the substance of the following findings and conclusions of law pertinent to the issues on appeal:

‘1. The bonds of matrimony between plaintiff and defendant were dissolved April 14, 1967 in the * * * State of Nevada * * *’

‘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 Judges' Retirement Law are community property located in * * * California and * * * under the control of the State Controller. The ownership and rights to benefits under the Teachers' 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 Flournoy or his successor one half of all benefits payable under the Judges' Retirement Law by reason of the service of defendant Waite as a Judge of the Superior Court * * *’

‘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 Teachers' 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 Judges' 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 Judges' Retirement Fund, the sum of $1.00 per month * * * commencing September 1, 1968.

‘(b) During such time as payments from the Judges' 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 [plaintiff's attorneys] as additional attorney's fees for services rendered to plaintiff the sum of $3,000.00.’

In Finding No. 15, the court found that ‘The actuarial value of the benefits due from the Judges' Retirement Fund cannot be reasonably ascertained.’

Conclusion No. 12 states: ‘Defendant Flournoy or his successor in office should pay directly to plaintiff herein, or her heirs or devisees, one-half of all benefits under the Judges' Retirement Law accrued by reason of the services of defendant Waite as described in the Judges' Retirement law. [¶] Such payment is not a garnishment or execution against said benefits, nor an assignment thereof by defendant Waite, but is paid in recognition of the fact that said benefits as community property belong to and are the property of plaintiff herein under the community property laws of the State of California.’

The court denied defendant Waite's motion for new trial, which alleged errors of law and discovery of new evidence claimed to be material to the issue of whether he should have been ordered to pay additional attorneys' fees to plaintiff's attorneys (i. e., that plaintiff had inherited liquid assets and cash totaling in excess of $176,000 from the estate of her deceased father and had secreted that fact throughout the trial); also, that, at the time of the making of such order prior to the trial, the judge there intended the sum of $2,000 to be an overall fee since plaintiff had already paid her counsel the sum of $1,500.

Defendant Waite appeals from the ‘entire judgment * * * with the exception of that portion which determines [that the marriage was dissolved by decree of the Nevada court on April 14, 1967].’

Defendant Flournoy appeals from the judgment against him.

The first question which must be answered relates to the Nevada decree. The second question relates to plaintiff's interest, if any, in the pension benefits under the Judges' Retirement Law.

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 Benson v. City of Los Angeles, 60 Cal.2d 355, 359, 33 Cal.Rptr. 257, 384 P.2d 649; French v. French, 17 Cal.2d 775, 777, 112 P.2d 235; Cheney v. City and County of San Francisco, 7 Cal.2d 565, 61 P.2d 754; Cavitt v. City of Los Angeles, 251 Cal.App.2d 623, 59 Cal.Rptr. 690; Jorgensen v. Cranston, 211 Cal.App.2d 292, 27 Cal.Rptr. 297; Williamson v. Williamson, 203 Cal.App.2d 8, 21 Cal.Rptr. 164; Finley v. Finley, 161 Cal.App.2d 390, 326 P.2d 867; Crossan v. Crossan, 35 Cal.App.2d 39, 94 P.2d 609.)

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. (In re 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.

In answering the second question, we follow the holding first enunciated in Benson v. City of Los Angeles, 60 Cal.2d 355, 360, 33 Cal.Rptr. 257, 260, 384 P.2d 649, 652:3 ‘On the face of the contract entered into between the community and the city, Teresa was not entitled to assert any personal rights other than those of the community, which were to enforce payments to August and after his death to his widow. (Packer v. Board of Retirement [etc.], 35 Cal.2d 212, 216, 217 P.2d 660.) [¶] This is not to say that upon a division of the community estate she could not have participated therein. Undoubtedly she had an interest which she could have asserted in the payments to August during his lifetime, had she sought to do so.4 But after August's death the only right remaining was to enforce the city's covenant to make payments to the ‘widow.” (The anticulation of the law in Benson was reaffirmed in Phillipson v. Board of Administration, etc., 3 Cal.3d 32, 42, 89 Cal.Rptr. 61, 67, 473 P.2d 765, 771:5 ‘Thus, after his retirement August had a present and unconditional right to pension payments; this right, therefore, composed a community asset which could be divided upon divorce.6 But this right to a lifetime pension or to accumulated contributions did not survive August's death. The only right that remained after death was that of his widow to a widow's pension; that right, however, was a conditional one, payable only if August left a widow and only to the person so described.’)

In the case of Jorgensen v. Cranston, 211 Cal.App.2d 292, 298, 27 Cal.Rptr. 297, 300, wherein the question before the court was the ‘pension-status' of a judge's widow, the court considered payments of retirement benefits to a judge in the nature of deferred compensation, stating (quoting from Brummund v. City of Oakland, 111 Cal.App.2d 114, 121, 244 P.2d 441): “As said is the Sweesy [v. Los Angeles County Peace Officers' Retirement Board, 17 Cal.2d 356, 110 P.2d 37] case, supra, a pension is not a gratuity when based on services rendered under a pension statute. The pension provisions are a part of the contemplated payment for those services and in a sense a part of the contract of employment itself. Thus, petitioner's husband rendered services as a member of the fire department under a pension statute giving his wife a ‘pensionable status' which was a part of his contract of employment.” In Williamson v. Williamson (1962) 203 Cal.App.2d 8, 11, 21 Cal.Rptr. 164, 167, the law is expressed as follows: ‘[P]ensions become community property, subject to division in a divorce, when and to the extent that the party is certain to receive some payment or recovery of funds. To the extent that payment is, at the time of the divorce, subject to conditions which may or may not occur, the pension is an expectancy, not subject to division as community property. * * *’ It is therefore apparent that as of the time of the divorce in the instant case, the principals had been in a ‘pension-status' that had vested in each of them, and the value thereof was a community asset.7 The trial court here carried into its finding of fact No. 5 its determination that all of the benefits under the retirement system which could be, constituted a community asset: ‘All contributions of money, amounting to $13,090.18 by defendant Waite into the Judges' Retirement Fund were community funds. All services rendered to qualify for retirement under the Judges' Retirement Law were made during the marriage of plaintiff and defendant Waite and before the final separation of the parties.’

The benefits payable under the retirement system here while both parties are alive were community property and subject to allocation at the time of the divorce, and we must determine whether a supportable award of this asset was made in the instant case in the light of Phillipson, supra. That case is determinative of the issues of law which involve the allocation of the interests of the parties here. The court in Phillipson did not restrict its consideration solely to the award of the particular fund which was on deposit in the retirement system there involved; it directed its attention to the interests each spouse had vested as of the time of the divorce, and to the fact that the pension rights had in fact matured prior to that time. The Phillipson majority in reaching its conclusion disposes of the question of whether community pension payments earned by a member are allocable and subject to court order directing payments thereunder to a non-member, divorced wife. As the Phillipson majority said (3 Cal.3d 32 at p. 50, 89 Cal.Rptr. 61 at p. 73, 473 P.2d 765 at p. 777): ‘To sum up the essence of the case, we do not believe the Legislature has declared the employee's right to a pension so sacrosanct that it is incompatible with his spouse's ownership of her community share in it. Both employee and nonemployee own community property rights in the pension fund that are of equal stature; such rights are equally subject to the power of the divorce court. Because the employee participates in the pension program he does not thereby strip his spouse of vested community property rights in that fund.’

Once a community asset has an established value, there is little question but that it may be divided between the spouses at the time of a divorce. If it can be divided physically, that is proper; otherwise, an apportionment of its value may be made. In Phillipson, because the divorce court made the election which Nicholas had had the right to make under the retirement system, but which he had failed to exercise, the court had before it a specific sum. Once that election was made, the right of the Board of Administration to hold that sum as part of the retirement fund terminated, and there remained only the obligation to pay it to the party rightfully entitled thereto. There, by the award of all of the right, title and interest in that community asset to Rose, she became its sole owner, as distinguished from creditor, and since she had had at all times an undivided (community) interest, the award of all of it to her excluded any interest theretofore had by Nicholas, and was not an interest acquired by assignment, hence was not prohibited by statute.8 At the time of the judgment in the instant case, Code of Civil Procedure section 690.23 was applicable so far as the provisions of exemptions from execution or attachment of pension payments were concerned. A like exemption protecting such payments in the hands of the dispensing authority is presently contained in Code of Civil Procedure section 690.18. The exemption is relative to ‘[a]ll money held, controlled or in process of distribution by the state,’ and since the member of the judges' retirement system cannot, by assignment either voluntary or involuntary, require the Controller to issue warrants to persons other than to the member (Gov.Code § 75106), the directive to the Controller, if not within the purview of the ownership theory is tantamount to a judicial attachment (or prohibited assignment). We likewise note that under then section 690.22 (Code Civ.Proc.) and now under 690.18(a), there is no exemption from execution or attachment of pension payments made to and received by a nonresident of this state.

In the instant case, the asset not already realized from the community interest in the retirement system was the valuable right of each party to participate in retirement benefits to be paid periodically under the retirement law, the payments of which had become a State obligation at the time of the judge's retirement. The terms and conditions of the retirement-contract had become certain, and the rights thereunder as of the time of retirement (and as of the time of the divorce) were vested in those parties with a ‘pensionable status.’ (Sweesy v. Los Angeles County Peace Officers' Retirement Board, 17 Cal.2d 356, 110 P.2d 37.) The interest which vested in the wife at the time of the retirement was a ‘present, existing, and equal interest’ (Civ.Code § 161a, now § 5105) in the payments as they were to be paid during her lifetime and that of the judge to the community. At the time of the divorce, that interest of the wife in the community asset did not change unless by judicial decree either increasing or decreasing the percentage of her interest in that asset. The court found that ‘The ownership and rights to benefits under the Judges' Retirement Law are community property * * *’ The court sought not to place an actuarial value upon the asset and then make its award of all or a portion thereof, for it found that the actuarial value of the benefits due from the Judges' Retirement Fund could not be reasonably ascertained.9 In lieu of an award based upon an ‘ascertained value’ of the community asset, the court determined that plaintiff was ‘the owner of and should receive directly from defendant Flournoy or his successor one-half of all benefits payable under the Judges' Retirement Law * * *’ This finding of fact was the basis of the conclusion of law that ‘Defendant Flournoy or his successor in office should pay directly to plaintiff herein, or her heirs or devisees, one-half of all benefits under the Judges' Retirement Law * * *,’ and the judgment followed the quoted portion of the conclusion of law. It is our view that such an order is not supportable for, if read in the broadest sense, it indicates that plaintiff, her heirs, or devisees have an ownership interest in all benefits which might become payable, including one-half of any widow's participation within the provisions of the retirement system, and this is contra to Phillipson, Benson, and Williamson, supra, for plaintiff would not obtain a vested interest in any payments to be made under provisions benefiting the ‘widow.'10 If, in fact, the award orders that the Controller is to pay to plaintiff that portion of each monthly retirement payment to which she would have had a vested interest had the community not been dissolved (and to that extent plaintiff was certainly an ‘owner’), the order exceeded the intent. In such case, there can be no interest vested in plaintiff in any payment to be made after her death, provided the judge survived her, for certainly if the community had continued, her death prior to that of the judge would terminate any vested interest in payments to be made to the judge after her death. Any payment to the ‘heirs or devisees' would constitute a prohibited assignment of pension payments. On this reasoning, we determine that an ownership interest in benefits payable cannot exceed the lifetime of the individual claiming the interest. Of course, this does not mean that under the law applicable to this case (pre-1970), a greater portion than one-half of the payments to be made to the judge during the lifetime of plaintiff and during the lifetime of the judge could not be awarded her and thus make her the ‘owner’ of that greater portion, just as was done in Phillipson, supra. This reasoning conforms to the intent and purpose of the retirement law, for one of the purposes of providing retirement benefits is to provide a continuing income to the judge and his spouse during his lifetime (and to his widow at his death). The provision of proportional payments upon the theory of vested interest is, in a sense, continuing the provisions and benefits of the retirement contract as though the community had not been terminated, except, of course, the divorced spouse would have no survival interests. (Benson v. City of Los Angeles, supra, 60 Cal.2d 355, 362–363, 33 Cal.Rptr. 257, 384 P.2d 649.)

We have noted that the trial court found as a fact that ‘The actuarial value of the benefits due from the Judges' Retirement Fund cannot be reasonably ascertained.’ (Finding No. 15.) Though computation of an ‘actuarial equivalent’ may be difficult, this certainly does not mean that it cannot be ascertained with reasonable accuracy under recognized accounting practices.

In the instant case, in making allocation of the individual ownership interests in the community asset, rather than making a division of that asset's value, under Phillipson the respective interests could be determined with exactness. So long as the divorced wife lived (and so long as the judge lived), she would receive one half of the pension payable to the member. To allocate the pension payments as they became due in such manner simulates a continuation of the community status and hence provides that each party is an owner of one-half of each payment as it becomes due. In such a circumstance, upon the death of the divorced wife, if she predeceases the member, her entitlement to share in the community asset would terminate, and full payment of the remaining retirement benefits would be paid to the member. Any order of division of the asset based upon the lifetime of the member, without regard to the possibility of the nonmember's predeceasing the member, is not consistent with the theory that the divorced wife is an owner of pension benefits (as owner of a one-half interest in the payments) because that ownership is limited to those payments due and payable during the lifetime of such owner. Any ownership in ‘one-half’ of the amount of each retirement benefit payment must of necessity cease at the time of death of the divorced wife, and equally certain is the fact that any effort to extend such interest in the benefits past that lifetime, and to require payments, as the court did, directly to plaintiff ‘or her devisee or heirs [of] one-half of all benefits which may be payable under the Judges' Retirement Act by reason of the services of defendant Waite’ exceeds the ownership interest which plaintiff had independently of judicial assignment by the award of the community property. We conclude that the proportional division of the asset as ordered violates the ruling in Phillipson, and the order must be reversed.

In reaching the conclusion above, we recognize that the judges' retirement statute is not based upon the amount of a member's contributions paid into the fund, but upon a contractual type of employment wherein by certain specified services rendered, the state becomes obligated to continue to pay a ‘salary.’ The amount of this deferred ‘salary’ is not an unalterable sum certain fixed at the time of retirement, except as particular payments are made. It may be raised or lowered by future changes in the salaries paid to active judges (Gov.Code § 75076), and may be discontinued during such time as the member might perform the duties of an active judge (by assignment), or may be reduced by the amount of salary or other compensation received during such time as the member becomes entitled to salary or compensation as the incumbent of any public office (Gov.Code § 75080). While it appears quite unlikely that the member in the instant case would be reassigned as an active judge (since he is a resident of Nevada), the law is applicable alike to all persons in a like position, and we must take cognizance of the fact that the judges' retirement system is so designed as to utilize the services of retired judges. It is in such a circumstance, where there is a reduction or termination of the retirement ‘salary,’ that provisions for alimony, if warranted, must be concerned. Moreover, it is clear that if the marriage was not dissolved and the wife died first, even at a time closely after the commencement of the retirement, she, at the time of her death, does not have such an interest in the retirement benefits as would permit her to pass anything on to others she would consider the objects of her bounty. Retirement benefits of the nature involved in the instant case are in no way akin to a chose in action. The contingencies related above make unpersuasive the concern for possible injustices of award recited in the dissent. Where the retirement system is particularly designed to provide incentive for the retired member to continue in an active and productive life so as to reduce or terminate the burden upon a retirement fund not itself founded upon an actuarial basis, it appears to us to compel the conclusion that the interest of each party in each pension payment (as distinct from an interest in the right to receive benefits under certain circumstances) matures only at the instant that payment becomes due and payable, and that such interest of a party necessarily requires his being alive at that time.

We also note that the trial court sought to obviate the need for subsequent judicial actions to establish alimony payments in excess of the one dollar per month ordered, and it sought to make the award of alimony.11 There is no necessary relationship between an award of community property and a provision for alimony, and to integrate the two, as attempted in the instant case, is not supportable under the record.

We conclude that it was within the jurisdiction of the California court to divide that community asset which was not before the Nevada court, and, under proper order, to direct the Controller to make payments to the non-member.

As to the contention of error in the amount of the award for attorney's fees, we see no merit.

Other issues need not be determined, for they are unlikely to be present at the time of reconsideration of the judgment.

That portion of the judgment (paragraph 2) decreeing that ‘defendant Flournoy 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 Judges' Retirement Act by reason of the services of defendant Waite as described in the Judges' Retirement Act’ is reversed.

Inasmuch as paragraph 8 of the judgment (which bears 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. In its other particulars, the judgment is affirmed. Each party to bear his or her own costs on appeal.

While I agree that the judgment must be reversed because the trial court erroneously equated the plaintiff's need for alimony during future periods when defendant may not receive a pension, with 37 1/2% of the then salary of a superior court judge, I find myself unable to agree with other aspects of the majority opinion.

I.

Conclusion of law number 4 reads as follows:

‘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.'1

Of course the majority is right in holding that should defendant remarry and then die, survived by his widow and plaintiff, pension payments to the widow would not be a community asset and plaintiff would have no interest in such payments. I doubt whether the trial court intended to rule to the contrary, but certainly the conclusion and judgment are ambiguous in that respect and should be clarified.2

Unfortunately I cannot agree with the majority's holding that pension payments to be made to defendant, should he survive plaintiff, are not a community asset.

The majority, though recognizing in its holding that the community no longer exists, nevertheless, in its own words, ‘simulates a continuation of the community status' and proceeds to deal with future monthly payments as if it mattered whether defendant is or is not a ‘simulated’ widower.

As I read Phillipson v. Board of Administration, etc., 3 Cal.2d 32, 89 Cal.Rptr. 61, 473 P.2d 765, the right to future pension payments is property, an asset to be divided up by the divorce court as any other item of community property. It is a right to receive a certain amount of money, dependent only on the length of defendant's life and fluctuations in judicial salaries. Had the court divided up any other right to periodic payments, owned by the community, it certainly would not have made payments to plaintiff dependent on her survival to receive them. Thus, for example, had the community owned a note payable in installments and had the court, deciding to award the community property equally, ordered that plaintiff receive one-half of each future payment as it was made, surely it would not have occurred to any one that her death precluded payments to her estate. No different result should follow just because the community asset is a right to periodic pension payments.

I therefore think the trial court was entirely correct in ordering that plaintiff's estate should be the recipient of one-half of any pension payments to be made after her but before defendant's demise.

II.

Further, I should have preferred it, had the court not flirted with the question whether it would have been appropriate for the trial court to determine the actuarial value of the community's pension rights and awarding plaintiff a portion of that value, as a fixed sum of money.

First, I do not believe that the present record calls for such a discussion, even by way of dictum. None of the parties to this appeal contends for such a solution. Nor, as far as I can see, does defendant have any funds with which he could satisfy such an award and the court would find itself obligated to do precisely what it did, namely order periodic payments. Only this time the payments, in the aggregate, would be a fixed amount. If defendant outlives his life expectancy plaintiff would find herself short-changed. If he dies too soon, plaintiff would have a disproportionately large award but probably be unable to locate sufficient assets in defendant's estate with which to satisfy it.

Second, although the trial court was fully aware that, in some cases at least, type actuarial value of pension rights can be determined with precision,3 with respect to the actuarial value of defendant's pension rights, it found that it could not ‘be reasonably ascertained.’

As noted in the majority opinion we have no reporter's transcript. We therefore do not know on what evidence, if any, that finding is based. Before the abbreviated record which we do have was filed, defendant, as he had to, (Cal.Rule of Court 7(a)) listed the points to be raised on appeal. Error with respect to the finding concerning the impossibility of ascertaining the actuarial value of his pension was not one of them. Therefore, I take it, we must assume that the record supports the finding. (White v. Jones, 136 Cal.App.2d 567, 571, 288 P.2d 913.) Footnote 9 of the majority opinion suggests that the finding could not possibly be supported by evidence. In other words, it takes judicial notice of the fact that a pension right which fluctuates with future changes in judicial salaries can be actuarily valued. I have not been shown any materials which would support such an assumption. The majority points to sections 75070 et seq. of the Government Code. It seems to me that section 75072 at least indicates that it is not reasonably possible to determine the actuarial value of a fluctuating pension. That section provides that whenever the current judicial salary is increased, the amounts payable under the various optional settlements in section 75071 ‘shall be recomputed and increased to be the actuarial equivalent of the increased amount of the retirement allowance to which the retired judge would be entitled if he had not elected an optional settlement.’ While this does not, of course, prove that the majority is wrong, it certainly suggests that we should not tell the superior court that it erred with respect to a finding, when we do not have the evidence and when neither side claims error.

Someday, some court will have to decide whether community property consisting of a right to receive a fluctuating pension can be divided by determining its actuarial value and awarding a fixed sum, equal to one-half of that value, to the pensioner's spouse. I neither have nor express a view on that issue. My sole point is that today is not that day and we are not that court.

FOOTNOTES

1.  Government Code section 75025 provides that every judge who has the age and service qualifications specified in one of its subdivisions shall be retired for service upon filing notice of retirement; subdivision (h) provides ‘age 60, with an aggregate of 20 years of service as a judge.’ Government Code section 75075 provides an incentive for retirement prior to the judge reaching the age of 70 years (subject to certain exceptions not applicable here).Government Code section 75076 provides that a judge who qualifies under section 75075 shall receive a retirement allowance equal to 75% of the salary payable to the judge holding the office which was last held by the retired judge, providing the judge has received credit for 20 or more years of service and has contributed for a like time to the Judges' Retirement Fund. Also, this section provides that such payments are payable during the remainder of the judges's life.Government Code section 75077 makes provision for payments of retirement benefits to the surviving spouse of a retired judge.

2.  During the marriage period, plaintiff was employed as a teacher in California, and retains a teaching credential. Her contributions to the Teachers' Retirement Fund prior to January 20, 1967 totaled $6,734.42. She was eligible to retire as a teacher on January 20, 1967 at monthly retirement benefits of $98.11 for the remainder of her life. Her compensation from January 20, 1967 through June 16, 1967 amounted to $4,940.24. (Ptf.'s Ex. 3.) Her monthly retirement benefits, if retirement became effective on July 1, 1967, would amount to $111.67. (Ptf.'s Ex. 5.)

3.  In Benson, August had worked for the city from 1916 to 1940, when he retired on a pension. He married Teresa in 1920, and they were divorced in 1952. The divorce judgment did not attempt to dispose of property interests. August married Olive in 1953, and on his death, both Teresa and Olive claimed a widow's pension. (See also, Cavitt v. City of Los Angeles, 251 Cal.App.2d 623, 627, 59 Cal.Rptr. 690.)

4.  This assumes the enforcement of such right for the duration of her life only.

5.  In Phillipson, Nicholas was employed by the State of California as a cook at the California School for the Deaf from 1955 until he left state employ on April 1, 1966. As a state employee, he contributed the required amounts to the Public Employees' Retirement System. At the time of the divorce, Rose was awarded the funds on deposit in that system. Nicholas having failed to elect to withdraw the funds or to receive a pension for life, such choice being provided an employee after leaving employment. Prior to Rose's seeking to enforce the divorce order against the Board, Nicholas sought to make such election, choosing the latter option of receiving a pension for life.

6.  This assumes that the divorced wife's life exceeds the life of Angust.

7.  We see no reason not to apply the same principles of law, so far as they bear on the questions herein involved, applicable to other governmental pension plans. Finley v. Finley, 161 Cal.App.2d 390, 326 P.2d 867 and Jorgensen v. Cranston, supra, relied upon cases involving other pension systems in arriving at their determinations, though each was determining matters relevant to the judges' retirement system.

8.  Government Code section 21201 provides that ‘[t]he right of a person to any benefit or other right under this part and the money in the Retirement Fund is not subject to execution, garnishment, attachment, or any other process whatsoever, and are unassignable except as specifically provided in this part.’Government Code section 75106 is a clear indication of legislative intent to make applicable to the judges' retirement system a similar prohibition against assignment of retirement benefits by the person with a ‘pension-status,’ for it provides that the Controller shall cause Warrants to be drawn in favor of the retired judge (or, under Gov.Code § 75104.4), presumably to the surviving spouse.

9.  Though the result reached in this opinion does not depend upon what we believe to be an inaccuracy (and it has not been urged as a ground for reversal), this finding requires comment. The record on appeal includes an ‘Engrossed Narrative Statement of Oral Proceedings Material to Appeal of [Defendant].’ There is not one expression contained within that statement, or in any exhibit or admission to support the finding of fact that an actuarial value of the benefits could not be reasonably ascertained. Under such an abbreviated record, we cannot say that there was not some such evidence presented to the trial court, but we question whether such finding could be supported in any event. It appears that this finding militates against the very provisions of the retirement law itself.Government Code section 75070 states:‘In lieu of the retirement allowance for his life alone, a judge may elect, or revoke or change a previous election prior to the approval of the previous election, to have the actuarial equivalent of his retirement allowance as of the date of retirement applied to a lesser retirement allowance, in accordance with one of the optional settlements specified in Section 75071. * * *’Government Code section 75071(d) states:‘Optional settlement four consists of such other benefits as are the actuarial equivalent of his retirement allowance, that he may select subject to the approval of the State Controller.’The fact that the retirement of Judge Waite was under Government Code sections 75025 and 75075 and not under these sections does not prohibit the ascertainment of an ‘actuarial equivalent.’ The fact that sections 75070 and 75071 concern themselves with the actuarial equivalent of the judge's retirement allowance as of the date of retirement does not, however, make unascertainable the reasonable actuarial value of the benefits due from the Judges' Retirement Fund. We see no greater difficulty in ascertaining the actuarial value at the time of a judge's retirement than in ascertaining the same thing as of the time of his divorce. (We recognize that section 75072 provides for a recomputation of the actuarial equivalent in the case of an increase in judicial salaries during the period payments are made under these sections, but this provision does not change the fact that an actuarial equivalent may be arrived at at any given point of time. We make no determination as to the propriety in making an award of this community asset based upon an actuarial value.)If the order here is to make an award of the value of the community asset (as distinguished from an award of the individual's ownership interest therein), and to establish that value the payments actually to be made to the judge during his lifetime are the yardstick for the measurement of that value (regardless of whether plaintiff predeceases the judge), then the award is an allocation of the value of the community asset (and not a determination of plaintiff's ownership), and plaintiff would then be in the same position as a judgment creditor. The prohibition against the assignment of pension payments would bar the Controller from paying all or any portion of such payments to such creditor.

10.  Though not directly raised in the problem before us, in answering the second question which we initially set forth, we necessarily hold that any interest which the wife had in pension benefits prior to the divorce as they related to her as a surviving spouse were in the nature of an expectancy, and were ‘not subject to division as community property.’ The interest of the non-member party is limited to those benefits in which ‘and to the extent that the party is certain to receive some payment * * *.’ (Williamson v. Williamson, supra, 203 Cal.App.2d 8, 11, 21 Cal.Rptr. 164, 167.)

11.  ‘Defendant Waite is ordered to pay to plaintiff on the first of each month, commencing September 1, 1968 the sum of $1.00 per month as alimony, during such time as plaintiff shall receive directly 1/2 of the benefits payable by reason of defendant Waite's services pursuant to the provisions of the Judge's Retirement Act. During any period of time that said payments be suspended pursuant to the provisions of Government Code or for other cause within the control of defendant Waite, defendant Waite is ordered to pay as alimony to plaintiff a sum equal to 37 1/2% of the then salary of a judge of the Superior Court of . . . California during the period of such suspension. Said sum shall be paid on or before the 5th day of the month following such suspension of retirement benefits.’

1.  The judgment contains similar language: ‘It is further ordered, adjudged and 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 by reason of services of defendant Waite as described in the Judge's Retirement Act.’ (Emphasis added.)

2.  The ambiguity arises from the fact that arguably pension payments to the widow are payable ‘by reason of the service of defendant Waite as a judge.’

3.  Plaintiff herself is the recipient of a pension. The court found: ‘The actuarial value of plaintiff's right to retire on January 20, 1967 calculated at 5 1/2% discount is $14,457 of which 96% or $13,879 is community assets of the parties and 4% or $578 is the separate property of plaintiff.’

STEPHENS, Associate Justice.

REPPY, J., concurs.