Nizenkoff v. Nizenkoff

Opinion

On this appeal by the husband^[1] from a portion of an interlocutory decree of dissolution,^[2] the only question is whether the trial

The appeal is on a settled statement that sets forth the following pertinent facts, as found by the court: The parties were married in December 1954, and separated in June 1973. During the almost 20-year duration of the marriage, both worked for the Garland Company. At the time of dissolution, the wife was 69 years old and collecting her federal social security old age and retirement benefits; the husband, who was then 41, claimed that these benefits were, in part, a community asset.

Relying on In re Marriage of Brown, 15 Cal.3d 838 [ 126 Cal.Rptr. 633 , 544 P.2d 561 ], In re Marriage of Fithian, 10 Cal.3d 592 [ 111 Cal.Rptr. 369 , 517 P.2d 449 ], In re Marriage of Sommers, 53 Cal.App.3d 509 [ 126 Cal.Rptr. 220 ], In re Marriage of Martin, 50 Cal.App.3d 581 [ 123 Cal.Rptr. 634 ], and other similar and more recent authorities,^[3] the husband argues that federal social security old age benefits are analogous to the contractual or property rights to insurance and other benefits acquired by one spouse resulting from the employment of the other during marriage. He contends that here, therefore, the wife’s benefits should have been treated as community property^[4] and appropriately divided.^[5]

It is now well settled in this state that in order to qualify as a divisible community asset, an interest must be a contractual right or property interest. A pension right becomes a property interest when the employer cannot unilaterally repudiate the right (Brown, supra, p. 842).

Although the identical arguments made by the husband here, namely, that social security benefits are not a gratuity but an earned right based upon earnings and therefore analogous to annuities and insurance policies, were made initially by the four dissenters in Flemming, supra, the United States Supreme Court in 1971 reaffirmed its position. In Richardson v. Belcher, 404 U.S. 78 [ 30 L.Ed.2d 231 , 92 S.Ct. 254 ], the court said, at pages 80 and 81 [30 L.Ed.2d, at p. 234]: “The fact that social security benefits are financed in part by taxes on an employee’s wages does not in itself limit the power of Congress to fix the levels of benefits under the Act or the conditions upon which they may be paid. Nor does an expectation of public benefits confer a contractual right to receive the expected amounts. Our decision in Goldberg v. Kelly, 397 U.S. 254 , upon which the District Court relied, held that as a matter of procedural due process the interest of a welfare recipient in the continued payment of benefits is sufficiently fundamental to prohibit the termination of those benefits without a prior evidentiary hearing. But there is no controversy over procedure in the present case, and the analogy drawn in Goldberg between social welfare and ‘property,’ 397 U.S., at 262 n. 8, cannot be stretched to impose a constitutional limitation on the power of Congress to make substantive changes in the law of entitlement to public benefits.” More recently in Weinberger v. Wiesenfeld, 420 U.S. 636 [ 43 L.Ed.2d 514 , 95 S.Ct. 1225 ], the court reaffirmed the noncontractual nature of social security benefits. Further, Congress, which has recognized the need for vested pension rights in the private sector,^[6] has, in the intervening 26 years since Flemming, retained section

In addition, in 1965, Congress added to the Social Security Act specific provisions for benefits to Be paid directly to a “divorced wife” or “surviving divorced wife”^[8] (§ 402(b), (e), Pub.L. 89-97, § 308, 79 Stats. 375 (1965)); these benefits do not affect the benefits received by the former husband and his present dependents ( 42 U.S.C.A. § 403 (a)(3)). These provisions demonstrate that in the statutory scheme of the Social Security Act, Congress has considered the termination of marital relationships by divorce and expressly set forth a method for protecting the interests of the divorced wife. In Adair v. Finch (10th Cir. 1970) 421 F.2d 652 , the court, at page 654, rejected a contention that the denial of social security benefits to a divorced wife constituted deprivation of community property without due process of law, in violation of the Fifth Amendment of the United States Constitution.

The sweep of the Social Security Act is not to be interpreted by the variations and idiosyncrasies of local law (Wissner v. Wissner, 338 U.S. 655 [ 94 L.Ed. 424 , 70 S.Ct. 398 ]; O’Leary v. Social Security Board (3d Cir. 1946) 153 F.2d 704 , 707). As Congress expressly provided for the interests of a divorced wife in the social security system, it did not intend that they rely on state family law concepts of support, alimony and community property.

We also note that in Fithian, supra, our Supreme Court (at pp. 597-600) was unable to find any express intent of Congress to provide for the divorced spouse and reasoned that since the military retirement benefits did not survive the serviceman, Congress intended to provide only for surviving spouses and leave surviving ex-spouses to state family law concepts of support, alimony and community property. The contrary is true here. A ruling that social security benefits are divisible community assets would seriously interfere with the express statutory scheme of the Social Security Act and is forbidden by the supremacy clause of the United States Constitution (art. VI, cl. 2). Thus, we do not think that the rationale of In re Marriage of Milhan,^[9] 13 Cal.3d 129 [ 117 Cal.Rptr. 809 , 528 P.2d 1145 ], applies to the instant case. Further, in Mathews v. deCastro (1976) 429 U.S. 181 [ 50 L.Ed.2d 389 , 97 S.Ct. 431 ], the United States Supreme Court held that, given the primary legislative purpose of the old age and disability benefits (e.g.,