IN RE: MARRIAGE OF RICHARD WILLIAM AND MARILYN BETTY STENQUIST. (1976)

In 1944 Richard William Stenquist began his career in the United States Army. He voluntarily retired almost 26 years later. In 1950 he and Marilyn Betty Stenquist were married. They had three children. In 1953 Richard was injured by shell fragments in a training exercise; his left forearm was amputated. He continued in the service, rose to the rank of Lieutenant Colonel, and in 1970, after turning down a proposed command assignment, sought retirement. Available to him were two types of retirement benefits, one based upon disability, determined to be 80%, which would provide the maximum of 75% of his final salary, tax free; the other, based upon his 26 years of service, which would provide 65% of his final active duty salary, subject to income tax. Naturally, he chose the disability retirement.

Four years later, in 1974, Richard petitioned the court to dissolve the marriage, contending among other things the trial court had no jurisdiction over the disability retirement pension, and if it did have jurisdiction, the pension be declared his separate property.

The court awarded Marilyn as her one-half community interest in the retirement, an amount equal to one-third of Richard's disability payments. This was calculated upon what Richard would have received had he retired by virtue of his longevity, less that portion attributable to service before marriage.

Both parties appeal. Richard claims the entire disability pension is his separate property. Marilyn contends the entire amount is community property.

Marilyn is entitled to what she would have received had Richard taken longevity retirement. Richard ‘may not defeat her interest by relying on a condition solely within his control. (Waite v. Waite, supra, 6 Cal.3d 461, 472, 99 Cal.Rptr. 325, 492 P.2d 13.¹ )’ (In re Marriage of Peterson, 41 Cal.App.3d 642, 650, 115 Cal.Rptr. 184, 190.) Thus, by choosing or electing to take disability retirement rather than longevity retirement, Richard cannot deprive Marilyn of what would have been her community interest in his accrued longevity retirement rights. Richard's six years of service time, accumulated before marriage, and the amount of disability benefits in excess of what Richard would have received had he taken the normal retirement benefits, are his separate property (see In re Marriage of Fithian, 10 Cal.3d 592, 595, 111 Cal.Rptr. 369, 517 P.2d 449; Civ.Code § 5126(a)(3)).

In view of Marilyn's entitlement, we need not address her claim that spousal support of $1.00 per month for 24 months was an abuse of discretion (see In re Marriage of Loehr, 13 Cal.3d 465, 467, 119 Cal.Rptr. 113, 531 P.2d 425), other than to say her rights in the retirement payments should not be dependent on the discretion of the court (In re Marriage of Brown, 15 Cal.3d 838, 848, 126 Cal.Rptr. 633, 544 P.2d 561).

The judgment is affirmed, neither party to receive costs.

FOOTNOTES

1.  Disapproved in In re Marriage of Brown, 15 Cal.3d 838, 851, 126 Cal.Rptr. 633, 544 P.2d 561, only as to its treatment of nonvested rights.

Gerald BROWN, Presiding Justice.

COLOGNE and COUGHLIN*, JJ., concur.