In Re Marriage of Foster

When Johnnie and Betty Foster’s marriage was dissolved in 1978, the trial court awarded Betty a 43 percent community interest in Johnnie’s military retirement benefits. Johnnie refused to pay Betty from his retainer pay and eventually voluntarily resigned from the Navy, thereby forfeiting his retirement benefits. In a later action challenging the original judgment’s enforcement, the trial court awarded Betty arrears and made Johnnie a constructive trustee for the amount Betty would have monthly received from the pension had Johnnie not resigned. We find the award of arrears proper. However, because Johnnie resigned, his pension never matured. Under the original judgment, Betty would have had no claim to immature benefits. Therefore, the trial court erred in making Johnnie a trustee of the same. We affirm in part and reverse in part.

Factual and Procedural Background

Johnnie enlisted in the United States Navy in October 1952 and married Betty approximately six months later. Johnnie actively served in the Navy until October 1976 when he transferred to the Fleet Reserve. At that time, he began receiving monthly retainer pay under 10 United States Code section 6330 .

In…