In Re Marriage of Briltz

Dorothy T. Briltz (hereinafter Dorothy) appeals from an order dated December 26, 1979, in favor of respondent Frank G. Briltz (hereinafter Frank). Respondent cross-appeals from that part of the order awarding attorney’s fees to Dorothy. Dorothy and Frank were married on April 10, 1945, and separated on December 3, 1975. The interlocutory decree of dissolution of marriage (which was also incorporated in the final judgment) determined the parties’ rights in the pension and retirement plans in accordance with a formula and reserved the court’s jurisdiction to adjudicate the extent of community interest in said plans.

On December 25, 1970, Frank, reached 55 years of age and became eligible for early retirement pursuant to section 3.04 of the union pension plan called “Pension Trust Fund For Operating Engineers” (hereafter Pension Plan). Frank worked until the fall of 1978, when he suffered heart attacks, became disabled and made an application to receive disability benefits pursuant to the disability provisions of the Pension Plan (§ 3.06 et seq.). His application was approved in September 1978, and he began receiving benefits in the amount of $574 per month in November…