Sommers v. Sommers

Opinion

In this dissolution of marriage proceeding the issue on appeal is whether a pension plan was properly joined as a party in the proceeding and whether the wife was entitled to an order for direct payments from the pension plan. In this proceeding Lydia R. Sommers (hereinafter the “wife’’) is the petitioner and Kenneth J. Sommers (hereinafter the “husband”) is the respondent.

Following the granting of wife’s motion that Masters, Mates and Pilots and The Pacific Maritime Association Pension Plan (hereinafter be joined as a party in the dissolution of marriage proceedings the “pension issue” was severed and tried prior to and separately from the remaining issues. The “pension issue” was presented upon by the wife that MMP-PMA was in possession of an asset of community property subject to disposition in the dissolution proceeding

Following the hearing on the bifurcated issue the court entered a judgment that 74. percent of the husband’s interest in the pension plan (hereinafter the “Plan”) is the community property of the husband and wife, that wife is entitled to 37 percent of any and all payments which would otherwise be payable solely to husband from the Plan; and that if and when pension benefits become due from the Plan to husband, MMP-PMA shall pay directly to wife 37 percent of any and all payments which would otherwise be payable solely to husband. As a part of the judgment the court denied the request of MMP-PMA that it be dismissed as a party to the action. MMP-PMA appeals from this order, i.e., the “Order Granting Modification of Judgment on Bifurcated Issue (Pension Plan).”

The parties stipulated to the following facts: Husband is a covered employee under the Plan to which contributions were made by employer during husband’s employment. Husband himself has made no contributions from his salary to the Plan. The Plan provides that when an employee has accumulated 100 “quarters of pension credit” he is entitled to the maximum pension payable. Husband has earned 100 quarters of pension credit, 26 of which were earned prior to his marriage to wife and 74 quarters of which were earned by him while they were living together as husband and wife. Husband is presently eligible to retire with a lifetime pension of $842.64 per month if he were to apply for these benefits. The amount could increase or decrease depending upon thé future earnings of husband. No pension benefits are paid as a lump sum. No pension is payable in the event of husband’s death prior to retirement. The Plan provides that a pensioner cannot assign, pledge or dispose of his retirement payments, that such pension benefits “shall not in any way be subject to any legal process, that any assignment thereof shall be void and of no effect whatsoever,” and that “in the event of any attempt to assign, anticipate, pledge, dispose of or to attach or garnish or subject to bankruptcy or insolvency proceedings,” the trastees of the Plan shall have the right to terminate any pension payments. The Plan provides that no pensioner shall have any right or interest in any of the income received or held by or for the account of the pension trust and that no person shall have any vested right to benefits “except through fulfillment of all the conditions and requirements set forth in the documents constituting the Pension Plan and any regulations adopted pursuant thereto.” The Plan provides that it shall continue in

Upon an application of these principles to the stipulated facts there can be no doubt that husband has acquired an irrevocable interest in the Plan. He has a present right to pension benefits which have accrued. MMP-PMA concedes that at the present time if husband applies for a pension it must pay him $842.64 per month. It is equally clear that husband’s vested interest can be defeated only by a condition i.e., his death. We perceive that under the contingencies therein specified husband will have a vested interest in certain payments to him from the funds held by the Plan. Husband’s vested interest is equivalent to the maximum pension payable and is based upon 100 quarters of earned pension credits. Of these, 74 quarters were earned during the marriage of husband and wife and while they were living together as husband and wife. To this extent, i.e., 74 percent, the earned pension credits constitute community property.

As respects MMP-PMA’s contention that the federal Employee Retirement Income Security Program ( 29 U.S.C. § 1001 et seq.) preempts all state laws relating to an employee benefit plan, we need not consider this issue. The effective date of the federal act is January 1, 1975. ( 29 U.S.C. § 1031 .) Accordingly, it would not, in any event, be pertinent to the instant case.

We are thus projected to the remaining issue whether wife is entitled to an order for direct payments from the -Plan. As already pointed out, the community has a 74 percent interest in the earned pension credits. This right is a vested one. It is contingent, however, upon

As observed in Franklin Life Ins. Co. v. Kitchens, 249 Cal.App.2d 623 , 629 [ 57 Cal.Rptr. 652 ], the authority of a divorce court over community property is no longer limited to a division of the community property but extends to the flexibility of method and timing in the disposition of community property. (See McClenny v. Superior Court, 62 Cal.2d 140 , 148 [ 41 Cal.Rptr. 460 , 396 P.2d 916 ].) Deferred compensation, accrued pensions, annuities to take place in the future, and social security, veterans’ and insurance benefits are well recognized property rights and are properly the concern of courts upon the severance of the marital relationship. (See Franklin Life Ins. Co. v. Kitchens, supra.) Here the divorce court properly treated the pension rights as property subject to its control, and when it made its order directing MMP-PMA to pay 37 percent of such benefits to wife if and when they became due it was exercising “an authority to control the form of the benefits which was requisite to the effective performance of its judicial duty to divide the community property.” (Phillipson v. Board of Administration, supra, 3 Cal.3d 32 , 48.)

The order is affirmed.

Sims, J., and Elkington, J., concurred.