Appellant sought review of the Superior Court, Solano County (California), which denied appellant's post divorce judgment motion to restore payments based on appellee's pension.
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Overview
Appellee, the husband, and appellant, the wife, separated and a stipulated judgment was filed which divided their community property. Appellee returned from the air force and spousal support was terminated. However, appellant was to get a monthly share of the pension. Appellee's military pension stopped when he began receiving disability benefits. Appellant filed a motion to restore the payments that were based on the pension. The motion was denied, and the wife appealed. The court reversed and remanded. The court found that the trial court based its decision to deny the motion on an erroneous ground. The trial court relied on a case that held that retirement pay that was waived by the retiree in order to receive disability benefits was not property divisible upon divorce. However, the court found that case did not apply to postjudgment waivers of retirement pay. The court found that a majority of state courts take equitable action to compensate the former spouse when the spouse's share of retirement pay is reduced by the other's postjudgment waiver.
Outcome
The court reversed the denial of appellant's motion and remanded, finding the trial court based its decision to deny the motion on an erroneous ground that the money in question was not property that was divisible.