In Re Marriage of Nizenkoff

On this appeal by the husband from a portion of an interlocutory decree of dissolution, the only question is whether the trial court properly concluded that the wife’s interest in her federal social security old age and survivor’s benefits was her separate property. The question is one of first impression. We have concluded that an affirmance is mandated by 42 United States Code Annotated, section 1304, as interpreted in Flemming v. Nestor, 363 U.S. 603 [ 4 L.Ed.2d 1435 , 80 S.Ct. 1367 ], and the fact that any other result would interfere with the statutory scheme of the federal Social Security Act, in violation of the supremacy clause of the federal Constitution (art. VI, cl. 2).

The appeal is on a settled statement that sets forth the following pertinent facts, as found by the court: The parties were married in December 1954, and separated in June 1973. During the almost 20-year duration of the marriage, both worked for the Garland Company. At the time of dissolution, the wife was 69 years old and collecting her federal social security old age and retirement benefits; the husband, who was then 41, claimed that these benefits were, in part, a community asset.

Relying…