IN RE: MARRIAGE of Vera and Earl GILLMORE. (1980)

FACTUAL BACKGROUND

The parties separated in 1978 following a 14-year marriage, during all of which Earl Gillmore received credit for participation in an employer retirement plan. All community property was divided except that representing Earl's retirement, and as to that the court reserved jurisdiction. The court did make specific findings regarding the plan: (1) the plan had no present cash value; (2) Earl obtained retirement eligibility April 11, 1979 (approximately six months following the interlocutory decree); and (3) Vera Gillmore had a 24.7 percent community property interest in said plan as of April 11, 1979, as of that date the monthly gross benefit was $717.18 of which Vera was entitled to $177.14.

April 11, 1980, Earl became eligible to retire at age 50 with 30 years service but elected not to do so. Vera requests the court exercise its reserved jurisdiction to order payment of her now vested and matured interest in the pension plan.¹ Earl countered with a motion to reduce child and spousal support in the event he was compelled to compensate Vera for her present community interest in the retirement plan.

Without specifying any reason for its decision the court denied Vera's request and continued to reserve jurisdiction, indicating a division of the pension benefits would be made upon Earl's eventual retirement.

THE COURT ERRED BY REFUSING TO PRESENTLY AWARD VERA HER COMMUNITY INTEREST IN EARL'S VESTED AND MATURED RETIREMENT PLAN.

While not precisely on all fours we find little difference between the actual situation with which we deal and that resolved in In re Marriage of Luciano, 104 Cal.App.3d 956, 164 Cal.Rptr. 93. In Luciano the court reversed so much of a decree of dissolution which declared the nonemployee spouse must wait until the employed spouse actually retired before commencing to collect her share of the pension. Relying on Waite v. Waite, 6 Cal.3d 461, 472, 99 Cal.Rptr. 325, 492 P.2d 13; In re Marriage of Martin, 50 Cal.App.3d 581, 584, 123 Cal.Rptr. 634, and other cases set forth in the opinion, the court found it basically unfair to allow the employee spouse to defeat the nonemployee's interest in the community property by relying on a condition solely within the employed spouse's control.

Earl characterizes Vera's attempt as an effort to force him into early retirement. He correctly describes his right to receive retirement benefits as contingent upon his retiring from a “lucrative” position. This, he argues, would deprive him of significant potential increases in future monthly amounts of his eventual retirement payments and would result in his suffering a substantial loss of current income. Describing himself as a “healthy, active man only 51 years of age” Earl implies he is nowhere near the twilight years of his productivity.

This argument presupposes the nonemployed spouse must always subordinate his or her interest when the employed spouse finds it in his or her economic interest to defer retirement, or simply chooses not to out of spite.

Here Earl has opted to continue receiving his “lucrative” salary of $2,505 per month gross rather than to retire and receive $717.80 per month gross. We do not quarrel with his business acumen but hold it inequitable to allow him to do so at the expense of Vera's vested community interest.

Earl argues Vera will eventually achieve parity by allowing her interest to remain in the retirement fund until actual retirement since there is a commensurate increase in the total value of the retirement as well as the monthly payments based upon the length of employment. Even if that were so it is no bar to Vera's right to elect to receive a present division, but it is not so clear. As Earl himself admits, the retirement plan is “entirely noncontributory.” The employee put no money into any fund. Therefore, any increase in the value of the plan following separation is arguably attributable to Earl's separate efforts. It may well be Earl could successfully prevail on this point 15 or 20 years down the line. (In re Marriage of Adams, 64 Cal.App.3d 181, 186, 134 Cal.Rptr. 298.) Further, there is no guarantee Vera will survive Earl so she could ever be made whole.

REQUIRING EARL TO COMPENSATE VERA FOR HER SHARE OF THE RETIREMENT PLAN OVER WHICH HE EXERCISES CONTROL DOES NOT DEPRIVE HIM OF DUE PROCESS OF LAW.

In a “heads I win-tails you lose” argument Earl claims Vera's interest in the retirement is protected by law but the court lacks power to give her access to it except either (1) by giving her an offset award from the community property or (2) by giving her a share of benefits as they are paid. Since the interlocutory decree had the effect of transmuting all community property (except the retirement fund) into separate property, Earl claims the court has now burned Vera's bridges by putting all community property from which an offsetting award could be made out of its equitable reach.²

Earl points out the only source of payment to Vera for her community share of the retirement plan is from his present earnings or his newly transmuted separate property. Since the court in a dissolution proceeding has no jurisdiction to dispose of separate property. Earl argues the court cannot make an order which he can comply with only by using his separate property to fulfill and, therefore, the court has no alternative but to defer division until he chooses to retire.

The court is not limited to the two remedies suggested by Earl and his reference to In re Marriage of Brown, 15 Cal.3d 838, 848, 126 Cal.Rptr. 633, 544 P.2d 561, does not support his position. The latent inequity in Earl's argument may be highlighted by the hypothetical situation where the only community asset is a 10-year community interest in a noncontributory retirement which will not vest until 10 years after separation. Since there is no community property from which to satisfy the nonemployee's spouse's present interest, any actuarial computation as to present value would necessarily have to be paid from “separate” property. The alternative, according to Earl, is to foreclose any possibility of obtaining this interest until the employee chooses to retire.

There are sound policy reasons to speedily and effectively disengage property, as well as marital, ties between persons who can no longer live and work in harmony. As a result the court is given wide discretion in bifurcating certain issues when it deems such in the best interest of the parties. Here, by stipulation, the parties agreed to proceed with the divorce reserving only the equal division of the retirement plan upon vesting. Thus Earl succeeded in having Vera's interest removed from certain property to which he took title some six months earlier than had the court waited until time of vesting. The parties waived their right to appeal and Earl promptly remarried. It seems the heights of chutzpah to now claim due process deprives Vera of immediate possession to what is rightfully hers.

Earl raises the additional, and startling, point “a judicially created rule of law requiring him to compensate, by payments from his separate estate, his former spouse for unpaid pension benefits is an unreasonable and overbroad restriction on his right to work and enjoy the fruits of his labors.” Pointing to the Fourteenth Amendment of the United States Constitution, he declares that such an infringement upon his personal liberty is a violation of due process. To the extent he is alluding to such an order being a forced retirement³ we point out his freedom to change, terminate or to pursue his employment is solely his decision. (In re Marriage of Brown, supra, 15 Cal.3 838, 849, 126 Cal.Rptr. 633, 544 P.2d 561.)

To Earl's contention his being forced to make any payment to Vera from his present earnings or present separate property will adversely impact his ability to pay current child and spousal support, and, if in fact he were forced to retire might even result in a substantial reduction of the same against the interests of Vera and the child, we simply note her right to receive a present division of community property is independent of support issues.

The court has continuing jurisdiction over the matters of child and spousal support and may modify them from time to time upon an appropriate showing of change of circumstances.

We do not overlook Earl's not too subtle reference to a “forced” retirement should he be forced to pay $177.14 a month to Vera. Since early retirement will reduce his gross income $1,787 a month it is not likely he will feel “forced” to choose this option, but in any event, the court then would be entitled to take into consideration his current statements regarding availability of employment, health, vigor and desire to be productive. (Meagher v. Meagher, 190 Cal.App.2d 62, 64, 11 Cal.Rptr. 650.)

The matter is remanded to the trial court which is directed to vacate so much of its order as denies division and distribution of Vera's share in Earl's vested retirement benefits; the court is further ordered to enter an order appropriately dividing and distributing such asset, and to determine reasonable attorneys' fees for her prosecution of this appeal.

FOOTNOTES

1.  She does not specify whether that should be in the form of a lump sum payment of her present interest or a monthly payment equivalent to her community share had Earl retired at his earliest opportunity.

2.  Civil Code section 5119 reads as follows:“After the rendition of a judgment decreeing legal separation of the parties, the earnings or accumulations of each party are the separate property of the party acquiring such earnings or accumulations.”

3.  As he argued to the trial court.

WORK, Associate Justice.

GERALD BROWN, P. J., and STANIFORTH, J., concur.