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Irvin v. Contra Costa County Employees Retirement Association

California Court of Appeals, First District, First Division

June 30, 2017

MARIANNE IRVIN, Plaintiff and Appellant,

         Contra Costa County Super. Ct. No. CIV MSN15-1024 Trial Judge: Hon. Jill C. Fannin

          Renaker Hasselman Scott, Teresa Renaker, Kirsten Scott for Plaintiff and Appellant Marianne Irvin.

          Doyle Low and Michael J. Low for Louise Nixon, Lorrina M. Duffy, Ann Fallon, Richard R. Muir, and Michael J. Low as Amici Curiae on behalf of Plaintiff and Appellant Marianne Irvin.

          Reed Smith, Harvey L. Leiderman, Jeffrey R. Rieger, and Rachel A. Naor for Defendants and Respondents Contra Costa County Employees' Retirement Association and Contra Costa County Employees' Retirement Association Board of Retirement.

          Margulies, Acting P.J.

         Plaintiff Marianne Irvin and her late husband, Richard Irvin (respectively, Marianne and Richard), obtained a judgment of legal separation a few months before his death. Notwithstanding the separation, the couple's agreement dividing their assets reflected Richard's intent that Marianne would receive the pension benefits available to a surviving spouse after his death. Defendant Contra Costa County Employees' Retirement Association Board of Retirement (Board), however, denied Marianne those benefits, concluding she was not Richard's “surviving spouse” for purposes of the governing statute as a result of the legal separation. In the absence of an applicable statutory definition for the term, the Board relied on the definition of “surviving spouse” found in the Probate Code. In denying Marianne's petition for a writ of mandate, the trial court accepted that rationale.

         We reverse. Because the entry of a judgment of legal separation does not terminate a marriage, but only separates a couple's economic interests, the plain meaning of the term “surviving spouse” includes a legally separated person. The Board has provided no persuasive reason for departing from this plain meaning. While the Probate Code defines “surviving spouse” generally not to include a person who is legally separated, several substantive provisions of the Probate Code treat legally separated spouses in the same manner as a surviving spouse. For that reason, no meaningful conclusion can be drawn from the Probate Code's definition. Further, the Board has not articulated any plausible public policy that would be furthered by the denial of continuance benefits in these circumstances.

         I. BACKGROUND

         Richard, a 30-year employee of the county, was a member of the Contra Costa County Employees' Retirement Association (Association), a pension plan governed by the County Employees Retirement Law of 1937 (CERL; Gov. Code, [1] § 31450 et seq.). Richard retired in 1988 and married Marianne six years later, in 1994. Beginning in 2001, Richard began to suffer from serious medical conditions that lingered for the remainder of his life and required extensive and expensive medical care. The couple separated in 2008, and Marianne filed a petition for legal separation the following year. Although Richard responded with an action for divorce, he later withdrew that response and did not oppose the legal separation.

         The couple reconciled in 2012, but they nonetheless finalized their separation in October 2013 through the entry of a judgment of legal separation, apparently to insulate Marianne's assets from the claims of Richard's creditors. The judgment was entered pursuant to a “Marital Settlement and Legal Separation Agreement” (marital agreement), which was intended “to make a final and complete settlement of all financial issues regarding the parties['] marriage.” The marital agreement acknowledged that the pension was Richard's separate property, but it required him to maintain Marianne as a pension beneficiary and indicated his intent that Marianne would be his “surviving spouse” for purposes of the pension.

         Richard died early the following year. Notwithstanding the formalization of their separation, Marianne later told the Board: “We were not really separated [during the final months of Richard's life]. I was with him every day throughout, and I was with him at the time of his death. And I was his advocate. I had power of attorney for him. And I-you know, for all the legal decisions, all the medical decisions. This was not a distant separation.”

         Upon Richard's death, Marianne was eligible to receive a portion of his monthly benefits for the remainder of her life (continuance benefits) if she qualified as his “surviving spouse” for purposes of CERL. (§ 31760.2.) When Marianne requested continuance benefits from the Association, she was refused on the ground that, as a result of the judgment of legal separation, she did not qualify as a surviving spouse. Because the pension statutes do not define “surviving spouse, ” the Association's legal conclusion was premised on Probate Code section 78, subdivision (d), which defines the term for purposes of that code not to include spouses who are subject to a judgment of legal separation.[2] The Association originally adopted this position in 2009, on the basis of an opinion prepared by outside counsel, and has applied it consistently since that time. Upon Marianne's appeal, the Association's position was affirmed by the Board.

         Marianne filed a petition for writ of mandate challenging the Board's decision. The trial court denied the writ, relying in large part on the definitional provisions of Probate Code section 78 and the rationale of a statement of decision rendered in 2013 by the Superior Court of Santa Barbara County, In re Marriage of Burson (2013, No. 1197730) (Burson), which concluded that a spouse subject to a judgment of legal separation is not a “surviving spouse” for purposes of section 31760.1, a related statute.[3]


         A. Applicable Law

         1. Judgment of Legal Separation

         Critical to the interpretation of section 31760.2 is an understanding of the remedy of legal separation. It is descended from an early California Supreme Court decision that allowed a deserted wife to obtain financial support from her husband without suffering the religious or social disapproval attendant upon a divorce. In that ruling, Galland v. Galland (1869) 38 Cal. 265, the court held that a wife, “who, without cause or provocation, is driven from her husband's house... and is wholly without the means of support, ” has a common law right of action against the husband for a “reasonable allowance, for the maintenance of herself and child, ” without being required to sue for divorce. (Id. at pp. 266, 271-272.) Nearly 10 years later, the Legislature made the remedy available by statute in former section 137 of the Civil Code (Amends. to Codes 1877-1878, ch. 298, § 1, p. 76), which eventually allowed a wife who had any grounds for divorce to sue for a decree of “separate maintenance” as an alternative to seeking dissolution of the marriage. (Hiner v. Hiner (1908) 153 Cal. 254, 257-258; Sweasey v. Sweasey (1899) 126 Cal. 123, 128-129, disapproved on other grounds in De Burgh v. De Burgh (1952) 39 Cal.2d 858, 871; Stats. 1905, ch. 216, § 1, p. 205.) Not only did this secure support for the wife, it prevented the husband from using the threat of nonsupport as leverage to obtain a divorce from an unwilling wife. As noted in Sweasey, “the wife, having a good cause for a divorce, may, if her circumstances require it, ... apply for a separate maintenance without seeking for a divorce. A husband who wishes to be freed from a deserted wife cannot starve her into the necessity of suing for a divorce, which his guilt and her innocence would alike prevent him from obtaining.” (Id. at p. 129.) In 1917, former section 137 of the Civil Code was amended to require the court to divide the “community property” and “the homestead, if any, ” in the same manner as it would in the event of a divorce, as well as to determine maintenance. (Stats. 1917, ch. 36, § 1, p. 35; see Krier v. Krier (1946) 28 Cal.2d 841, 843.)

         The remedy of separate maintenance was retained as California's public attitudes toward marital relations evolved. As early as 1927, Civil Code section 137 was amended to make the remedy of separate maintenance available to both spouses.[4] (Stats. 1927, ch. 249, § 1, p. 441.) When the Legislature passed the Family Law Act in 1969, [5] making California the first state in the nation to enact no-fault divorce (In re Marriage of Davis (2015) 61 Cal.4th 846, 868 (conc. opn. of Liu, J.); In re Marriage of McKim (1972) 6 Cal.3d 673, 678), the legislation retained the substance of a decree of separate maintenance, although it changed the name to “legal separation” and enacted substantive modifications. (Faught v. Faught (1973) 30 Cal.App.3d 875, 878 (Faught); Stats. 1969, ch. 1608, § 8, pp. 3328, 3333, 3335.) Following adoption of the Family Law Act, the entry of a judgment of legal separation required the consent of both parties, and either spouse could convert the legal separation into a marital dissolution at any time by filing a petition for divorce. (Stats. 1969, ch. 1608, § 8, pp. 3324-3325; Civ. Code, former § 4508, subd. (b).)

         By the 1970's, an action for legal separation was regarded as implementing the judicial concept of “divisible divorce, ” which recognizes that the economic aspects of a marital separation can be judicially resolved separately, in time and place, from the issue of marital status. (See generally Hull v. Superior Court (1960) 54 Cal.2d 139, 147-148; In re Marriage of Gray (1988) 204 Cal.App.3d 1239, 1248.) As the remedy was characterized in Faught, “Separate maintenance (now legal separation) is essentially a device to determine and settle the spouses' financial responsibilities to one another and to their minor children. While the law may once have been to the contrary [citation], a decree of separate maintenance now operates as a final adjudication of such financial aspects of the matrimonial relationship as spousal support, division of community property, and settlement of property rights, and to the extent the decree deals with such matters it is conclusive.” (Faught, supra, 30 Cal.App.3d at p. 878.)

         Under current law, a judgment of legal separation continues to permit the parties to a marriage to separate their financial affairs without severing their marital bonds. Unlike divorce, it is a wholly voluntary remedy. The family court can render a judgment of legal separation only with the consent of both parties, unless the judgment is taken by default (Fam. Code, § 2345), and either party is free, at any time, to convert the legal separation into a dissolution of the marriage by filing an appropriate petition (id., § 2347). As in an order settling property rights upon dissolution, the court is instructed to split the couple's community property equally. (Fam. Code, § 2550.) Once the judgment is entered, the earnings of each party are deemed separate property (Fam. Code, § 772), and the parties' assets cannot be used to satisfy each other's debts (id., § 910, subd. (b)). Because a judgment of legal separation deals only with the couple's financial affairs, it is regarded as “leav[ing] the marriage bonds intact.” (Estate of Lahey (1999) 76 Cal.App.4th 1056, 1058 (Lahey).) Only a subsequent divorce can “terminate[] the marital status of the parties.” (Elam v. Elam (1969) 2 Cal.App.3d 1013, 1020.)

         2. Relevant Pension Law

         Certain county pension plans are governed by CERL, which vests the administration of each county's plan in a retirement board, constituted according to the terms of the code.[6] (§ 31520; Flethez v. San Bernardino County Employees Retirement Assn. (2017) 2 Cal.5th 630, 635.) Each board is “required to administer the retirement system ‘in a manner to best provide benefits to the participants of the plan' ” and “owes fiduciary duties of good faith and loyalty to the county employees who are members of the retirement system.” (McIntyre v. Santa Barbara County Employees' Retirement System (2001) 91 Cal.App.4th 730, 734.)

         The provisions of interest here are contained in a group of Government Code provisions under the heading, “Optional Retirement Allowances.” (§ 31760.) The default provision for the payment of benefits to a surviving spouse grants such benefits only to a person who was married to the pensioner prior to retirement. (§ 31760.1.) The more generous alternative provision applicable here, section 31760.2, must be affirmatively adopted by the Board.[7] (Id., subd. (g).) Section 31760.2 grants continuance benefits to any surviving spouse, so long as that person was married to the pensioner for at least two years prior to his or her death and was at least 55 years old at the time of the pensioner's death.[8] (Id., subds. (a), (b).) Such a surviving spouse is entitled to lifetime payments equal to 60 percent of the pensioner's retirement allowance. If the pensioner has no surviving spouse, the benefit is paid to the pensioner's unmarried children under the age of 18 years or attending college, if any. (Id., subds. (a), (c).) If the pensioner has neither minor children nor a surviving spouse, the pensioner's “designated beneficiary” is entitled to a payment of the amount by which the employee's pension contributions exceeded the retirement benefits paid, if any. (Id., subd. (d).)

         CERL contains a series of definitions governing the construction of its terms (§ 31455 et seq.), but there is no definition either of “spouse” or “surviving spouse.”

         3. Standard of Review

         Because interpretation of the provisions of CERL is an issue of law, we review the trial court's decision de novo. (Rodarte v. Orange County ...

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