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The duties of spouses to deal fairly with each other do not terminate when they separate and obtain dissolution of their marriage. In particular, one spouse cannot, by invoking a condition wholly within his control, defeat the community interest of the other spouse. Thus a serviceman's election of a disability pension in lieu of a pension based on length of service does not defeat the community interest in the pension based on length of service, nor will an employee spouse be permitted to defeat the other spouse's community interest in a pension by converting it to a joint and survivor annuity.
In a marriage dissolution proceeding, the trial court denied spousal support to either party and determined that the wife was entitled to a community interest in her husband's retirement benefits attributable to the second marriage of the parties only to the extent of the benefit the husband would have received absent his redeposit of previously withdrawn contributions, the redeposit having been made with his separate funds after the parties' separation. The court retained jurisdiction over the community property interest in the wife's retirement benefits based on a finding she had been employed for a period of six years during the parties' second marriage.
Did the trial court err in failing to consider community property rights in husband's retirement benefits attributable to his employment during the first marriage?
The Court of Appeal modified the judgment and affirmed it as modified. The court held that the trial court's finding of the circumstances justifying its denial of spousal support to the wife was adequate and that any error therein was nonprejudicial. The court also held the redeposit right was a community property pension right subject to division on dissolution and that therefore the wife was entitled to elect to share in the increased retirement benefits upon payment by her of her pro rata share of the redeposit. The court further held that the trial court properly limited the community property interest in the husband's retirement benefits to the parties' second marriage, since their first marriage was terminated by a final judgment of divorce and a subsequent California Supreme Court decision providing for division of nonvested pension rights on dissolution of marriage was not fully retroactive. The court also held the trial court's finding that the wife had been employed for six years during the marriage was not supported by substantial evidence, and that the evidence established as a matter of law that she was employed two years and four months.