Marriage Of Stenquist

582 P.2d 96 (1978)

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Nature of the Case

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Facts

H joined the Army in 1944 and married W in 1950. In 1953, H suffered a service-related injury leading to amputation of his left forearm, for which the Army assigned him an 80 percent disability rating. If H had retired immediately, his maximum 'disability' pay would have been 75 percent of basic pay, compared to a maximum 'retirement' pay of 22 1/2 percent of basic pay. H continued his military service until he retired in 1970. At that time, he faced the choice of taking regular 'retirement' pay at the rate of 65 percent of his basic pay or taking 'disability' pay, a stipend equal to 75 percent of basic pay. If H had retired four years later, in 1974, both his maximum 'disability' and his maximum 'retirement' pay would have been 75 percent of his basic pay. H commenced dissolution of the marriage in 1974. The trial determined that all pension rights attributable to H's military service before marriage, plus the portion of those rights earned during marriage attributable to the husband's disability, constituted his separate property. It then ruled that portion of the pension rights earned after the marriage equivalent to an ordinary retirement pension, computed on the basis of longevity of service and rank at retirement, constituted a community asset. The court divided the disability pay by using time-based analysis to the payments at 65% as that would have been normal retirement pay for H. It held that 66.73% of said disability retirement pay is community property and one-half thereof (33.36%, rounded off to 33 1/3% for convenience, by stipulation) is W's share. (86.66% x 77%/2 = 33 1/3%) H appealed.