189 Cal. App. 3d 849 | Cal. Ct. App. | 1987
Opinion
—This case involves the right of a wife to insist that her husband elect a joint and survivor annuity under husband’s retirement plan.
Husband and wife were married for 27 years, from July 20, 1956, until November 14, 1983, when they separated. Throughout this period, husband was employed by Pacific Telephone (now Pacific Telesis). On November 29, 1983, husband filed for divorce. The case was bifurcated and on July 10, 1985, the court dissolved the marriage, leaving the issue of the property division for a later date.
Wife appeals, contending that the trial court erred in not ordering Pacific Telesis to issue husband a joint and survivor annuity. She argues that she is entitled to one under federal law.
I
The federal Employee Retirement Income Security Act of 1974 as amended by the Retirement Equity Act of 1984, requires pension plans to provide joint and survivor annuities. (29 U.S.C.A. § 1055(a).)
An exception to this provision is made for divorced spouses under 29 United States Code Annotated section 1056 (d)(3)(F). If a court so provides in a qualified domestic relations order, a former spouse has the same right to a joint and survivor annuity as provided above. Moreover, the requirement of section 1055(f) that the parties be married for the full year preceding the annuity is satisfied if the parties were married at any time for at least one year.
We note that this issue arises entirely because the trial court chose to bifurcate the dissolution proceedings. If the status portion of the decree had been issued at the same time as the property division—as is usually the case— appellant would undeniably have had a right to a joint and survivor annuity. In that situation, if the husband had retired before the decree was issued, the parties would still have been married and wife’s written permission would have been required before the survivor’s benefits could have been waived. If husband had retired after the decree, then a qualified domestic relations order would have been in effect giving wife the same rights. But because the court bifurcated the proceedings, a period of several months was created in which appellant was no longer married to respondent, but was
As should be obvious, it is fundamentally unfair to allow appellant’s property rights to be conclusively determined by a trial court’s decision to bifurcate its judgment. This act, taken for the benefit of the trial court, should not divest appellant of any substantive rights. To allow it to do so defeats the very purpose of the federal statute, which is designed to protect the pension rights of nonemployee spouses.
This difficulty is easily resolved. Under California law, it is a “settled principle that one spouse cannot, by invoking a condition wholly within his control, defeat the community interest of the other spouse.” (In re Marriage ofStenquist (1978) 21 Cal.3d 779, 786 [148 Cal.Rptr. 9, 582 P.2d 96].) By opting to retire in the brief period between the judgment of dissolution and the division of property, husband attempted to do just that. The remedy in this situation is to award wife the actuarial value of her forfeited interest. (In re Marriage ofGillmore (1981) 29 Cal.3d 418, 426 [174 Cal.Rptr. 493, 629 P.2d 1].) We therefore reverse the judgment of the trial court and conclude that wife is at least entitled to the actuarial value of the survivorship benefits.
II
Respondents argue, however, that wife has no community property interest in a survivor annuity as such rights are extinguished by the “terminable interest rule.” This doctrine, established in Benson v. City of Los Angeles (1963) 60 Cal.2d 355 [33 Cal.Rptr. 257, 384 P.2d 649], recognized that a community property interest exists in a pension during the lifetime of the employee spouse, but held that this community interest terminates upon the death of the employee spouse, and does not extend to benefits paid to the surviving spouse. (In re Marriage of Becker (1984) 161 Cal. App.3d 65, 70 [207 Cal.Rptr. 392].) In recent years, this rule has come in for considerable criticism. (See, e.g., Chirmside v. Board of Administration (1983) 143 Cal.App.3d 205, 209 [191 Cal.Rptr. 605].) We conclude that it is inapplicable here. As the court recently noted in Bowman v. Bowman (1985) 171 Cal.App.3d 148, 155 [217 Cal.Rptr. 174]: “The reason for the rule was to prohibit interference with the contractual mandates and policy considerations of public employment retirement plans. We see no purpose to be served in extending this rationale ‘to cut off the nonemployee spouse’s community property rights in private, i.e., nongovernmental, pensions.” (Italics in original.)
We concur with the court in Bowman. The survivorship benefits of a private pension plan are a community asset, and may be divided as such.
Ill
While it is clear that appellant is entitled to the actuarial value of the survivorship benefits, appellant claims the additional right to invalidate husband’s election of the life annuity and to now change the retirement plan to a joint and survivor annuity. Respondents contend that she cannot, as the state courts are without jurisdiction to do so. They also argue that any order so providing would not be a qualified domestic relations order and thus unenforceable.
29 United States Code Annotated section 1132(e)( 1) provides in relevant part: “Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter____State courts ... shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section.”
Subsection (a)(1)(B) states: “A civil action may be brought—
“(1) by a participant or beneficiary—
“(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.”
Thus, by federal law, state courts are limited to hearing only those actions brought to recover benefits due under the terms of the pension plan or to clarify rights to future benefits under the terms of the pension plan.
As the court noted, however, in Pacific Bell v. Workers’ Comp. Appeals Bd. (1986) 186 Cal.App.3d 1603, 1610 [231 Cal.Rptr. 484], citing Gors v. Venoy Palmer Market, Inc. (E.D.Mich. 1984) 578 F.Supp.365, 368, this is not much of a restriction, as “ ‘[a]ny attempt to establish a right to benefits will involve a determination of the terms of the plan.’ ” Here, appellant is suing to establish her right to a joint and survivor annuity. This is a determi
Respondents finally contend that any order now changing the pension plan from a life annuity to a joint and survivor annuity would be unenforceable. As a former spouse, appellant is only entitled to joint and survivor annuity if this is so provided in a qualified domestic relations order (29 U.S.C.A. § 1056 (d)(3)(F)). However, if an order requires the plan to provide greater benefits than the plan allows—determined on the basis of actuarial value—it is not a qualified domestic relations order (29 U.S.C.A. § 1056 (d)(3)(D)). Respondents argue that since husband has been drawing full retirement pay from the time he elected a life annuity (rather than the 90 percent pay due him under a joint and survivor annuity) to change now to a joint and survivor annuity would increase the actuarial value of the retirement plan.
We find this argument totally without merit. Under this reasoning, if Pacific Telesis simply ignored former spouses’ rights to joint and survivor annuities, and in the future issued only life annuities, no remedy would lie. Once the first payment was made, any order enforcing the former spouse’s rights would increase the actuarial value of the plan and thus would not be a qualified domestic relations order. As to the increase in actuarial value, there is a simple remedy to this problem. Pacific Telesis has merely overpaid husband and wife and may treat this like any other overpayment. Accordingly, we hold that it may recover from both parties the amount of the overpayment or may request the trial court to reduce the future pension payments to the parties until the overpayment is recouped.
Having found neither of respondents’ arguments a bar to our consideration of this issue, we conclude that it could never have been the intent of Congress to countenance the situation presented here. The act of the trial court in bifurcating its judgment should not waive appellant’s right to a joint and survivor annuity. We therefore hold that on remand, wife is properly entitled to change husband’s pension plan to a joint and survivor annuity.
McClosky, J., and Arguelles, J., concurred.
A petition for a rehearing was denied March 11, 1987.
Although the judgment terminating the marriage was filed on July 10,1985, it was ordered effective as of the date of trial, February 8, 1985. This case is briefed as though the parties
29 United States Code Annotated section 1055(a) reads: “Each pension plan to which this section applies shall provide that—
“(1) in the case of a vested participant who retires under the plan, the accrued benefit payable to such participant shall be provided in the form of a qualified joint and survivor annuity____”
29 United States Code Annotated section 1055(c) states: “(1) A plan meets the requirements of this section only if—
“(A) under the plan, each participant—(i) may elect at any time during the applicable election period to waive the qualified joint and survivor annuity form of benefit----
“(2) Each plan shall provide that an election under paragraph (l)(A)(i) shall not take effect unless—
“(A) The spouse of the participant consents in writing to such election, and the spouse’s consent acknowledges the effect of such election and is witnessed by a plan representative or a notary public ....”
29 United States Code Annotated section 1055(f) states: “(1)... a plan may provide that a qualified joint and survivor annuity ... will not be provided unless the participant and spouse had been married throughout the 1-year period ending on the earlier of—
“(A) the participant’s annuity starting date, or
“(B) the date of the participant’s death.”
29 United States Code Annotated section 1056(d)(3)(F) reads: “To the extent provided in any qualified domestic relations order—(i) the former spouse of a participant shall be treated as a surviving spouse of such participant for purposes of section 1055 of this title, and (ii) if married for at least 1 year, the former spouse shall be treated as meeting the requirements of section 1055(f) of this title.”