Marriage Of Lucero

173 Cal. Rptr. 680 (1981)

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Nature of the Case

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Facts

H and W were married in January 1947. This marriage terminated in a final judgment of divorce entered in October 1955. In March 1956, the parties remarried. They again separated in November 1976. H worked for the federal government beginning in 1942 and ending with his retirement in October 1977 at the age of 57. H's employment was not continuous but was interrupted several times. At the time of retirement, H received credit for 30 years and 1 month of employment service. However, he had withdrawn his retirement contributions to date in 1966. To obtain the maximum retirement benefit, he had to redeposit these funds; $9,373. H redeposited this amount, after separation from W, using his own separate funds. As of October 1977, the date of retirement, his monthly retirement benefit was $840 per month. Without the redeposit, his monthly benefit would have been $474 per month. At the time of the trial, W was 54 years old, was still working, and had credit for approximately 12 years of federal employment. According to federal civil service regulations, an employee may retire at age 55 with 30 years of service, at age 60 with 20 years of service, or at age 62 with 5 years of service. The trial court held that W had a community interest in the $474 amount. W appealed. W concedes that the community must pay its pro rata share of the redeposit and indicates that she has at all times been willing to contribute her fair share. H responds that the increase due to redeposit is entirely his separate property because the redeposit was made with his separate funds after separation.