## Facts

- Spouses married in 1947, divorced in 1955, remarried in 1956, and separated in 1976.
- Husband was a federal civil service employee and retired in 1977 with credit for 30 years and 1 month of service.
- During the marriage, husband withdrew his civil service retirement contributions (1966).
- After separation, husband used separate property to redeposit about $9,373 plus interest, increasing his monthly retirement benefit from $474 (without redeposit) to $840 (with redeposit).
- Wife had interrupted federal employment due to family responsibilities; at trial she had accrued substantial federal employment, including some during the second marriage.
- The trial court bifurcated dissolution proceedings, dissolved marital status first, then later ruled on property and support.
- The trial court denied current spousal support, treated only the $474/month pension level as community, treated the increase attributable to redeposit as husband’s separate property, and misstated wife’s federal employment during the second marriage.

## Issues

1. Whether the post-separation redeposit of previously withdrawn civil service retirement contributions (using separate funds) made the resulting enhanced portion of the pension husband’s separate property.
2. Whether pension rights attributable to the parties’ first marriage or their cohabitation between marriages could be claimed and divided in the later dissolution action.
3. Whether the trial court erred in calculating wife’s length of federal employment during the second marriage for apportionment purposes.
4. Whether the trial court abused its discretion in denying present spousal support.

## Decision

- Affirmed in part and reversed in part; remanded with directions to modify the property division.
- Held the community had an interest in the right to redeposit contributions to increase retirement benefits to the extent the right derived from marital employment, and the trial court erred by awarding the entire enhancement to husband as separate property.
- Directed that wife be given an option to share in the enhanced benefit if she pays her pro rata share of the redeposit cost (with appropriate interest); otherwise her share is limited to benefits computed without redeposit.
- Held later community-property treatment of nonvested pension rights did not reopen property rights fixed by the final 1955 divorce judgment; wife could not claim in the later dissolution a community interest tied to the first marriage.
- Corrected the trial court’s erroneous finding regarding wife’s employment during the second marriage to two years and four months and ordered recalculation of any dependent apportionment.
- Upheld denial of current spousal support as supported by the evidence and within the trial court’s discretion.

## Legal Principles

- Pension rights are deferred compensation; the community owns pension rights attributable to employment during marriage, whether vested or nonvested.
- The right to redeposit withdrawn retirement contributions to obtain higher pension benefits is itself a pension right; to the extent earned during marriage, it is community property.
- A spouse may not defeat the other spouse’s community interest in pension benefits through unilateral post-separation elections affecting pension value.
- When an enhancement requires a post-separation separate-property expenditure, equity may be served by an election: the nonpaying spouse may obtain a share of the enhancement by reimbursing a proportional share of the cost (including interest); otherwise the spouse’s share is based on the unenhanced benefit.
- Final property determinations in a prior dissolution are not reopened in a later dissolution based on subsequent developments in community-property pension doctrine, absent applicable retroactivity rules.
- Spousal support determinations are reviewed for abuse of discretion and may be denied based on findings regarding employability, resources, and circumstances.

## Conclusion

The court required recognition of the community’s interest in redeposit-based pension enhancement while protecting the paying spouse’s separate-property outlay through an election-and-reimbursement remedy, declined to reopen pension claims tied to an earlier final divorce, corrected a factual error affecting apportionment of wife’s benefits, and affirmed the denial of present spousal support.


In re Marriage of Lucero, 118 Cal. App. 3d 836 (Ct. App. 1981)