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In re Marriage of Green

Supreme Court of California

June 24, 2013

In re the Marriage of JULIE R. GREEN and TIMOTHY P. GREEN.
v.
TIMOTHY P. GREEN, Respondent. JULIE R. GREEN, Appellant,

Superior Ct.App. 1/4 A129436 Court Contra Costa County No. D0801292 Charles B. Burch, Judge

Counsel:

Aimee Feinberg and April Rose Sommer for Appellant.

Tarkington, O’Neill, Barrack & Chong and Robert A. Roth for Respondent.

Barbara A. DiFranza; Whiting, Fallon, Ross & Abel and Ann Fallon for the Northern California Chapter of the American Academy of Matrimonial Lawyers as Amicus Curiae on behalf of Respondent.

Barbara A. DiFranza as Amicus Curiae on behalf of Respondent.

R. Ann Fallon and James Crawford, Jr., as Amici Curiae.

CHIN, J.

Retirement benefits attributable to service rendered during a marriage are community property. In this case, the husband, a firefighter, has retirement benefits that are part community property and part his own separate property. During the time of the marriage, he exercised his right to purchase four years’ worth of additional retirement credit for his premarital military service. He had to pay to obtain this additional credit, which he elected to do in installments, some of which came from community property. The value of the additional credit substantially exceeds the cost of obtaining it. We must decide how much, if any, of the value of the four additional years of credit is community property.

What matters in determining whether retirement benefits are community or separate property is the person’s marital status when the services on which the benefits are based were rendered. Here the husband rendered the military service before the marriage. Accordingly, we conclude that, except for the community’s contribution to the cost of obtaining the credit, the four years of additional credit are the husband’s separate property.

The trial court ordered the husband to pay the wife one-half of the amount the community expended to obtain the credit plus interest. We conclude that the trial court acted within its discretion in using this method to compensate her for her share of the community’s interest in the property. We reverse the judgment of the Court of Appeal, which reached a different conclusion.

I. Facts and Procedural History

We draw these facts largely from the Court of Appeal opinion.

Timothy P. Green (husband) served in the United States Air Force for four years, from July 23, 1982, to May 1, 1986. On June 16, 1989, he began working as a firefighter for the Dougherty Regional Fire Authority in Dublin, which participated in the California Public Employees’ Retirement System (CalPERS). At that time, husband had the right to buy up to four years of service credit towards his retirement benefits for his military service. Husband married Julie R. Green (wife) in May 1992.

In July 1997, the Dougherty Regional Fire Authority merged with the Alameda County Fire Department, which also participates in CalPERS. Husband continued to work for the Alameda County Fire Department.

On August 1, 2002, husband exercised his right to buy four years of service credit for his military service. He elected to pay for the purchase under an installment plan, paying $92.44 twice each month through payroll deductions for 15 years, scheduled to end in July 2017. Before the parties separated on October 1, 2007, $11, 462.56 of community funds had been used toward the purchase of the military service credit.

Wife filed a petition for dissolution of the marriage in March 2008. The parties disputed whether to characterize husband’s military service credit as separate or community property. After a trial, the trial court ordered that the military service credit portion of husband’s CalPERS pension be awarded to him as his separate property. The court also ordered husband to pay wife $6, 699.54, representing half of the installment payments made with community funds toward the military service credit, plus interest at the rate of 6 percent.

Wife appealed, challenging the characterization of the military service credit as husband’s separate property. The Court of Appeal reversed the judgment. It concluded that, “because the military service credit was purchased with community funds during the parties’ marriage, it was community property” and ...


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