In Re Marriage of Mahone

I respectfully dissent.

As to the portion of the majority opinion treating the “Military Pension,” it is my opinion that the parties should be relieved of any binding effect of a “community property status” stipulation. During the pendency of this appeal, as the majority opinion points out, the United States Supreme Court declared the legal status of military pensions is not as was understood in California. Since it is obligatory on the trial court to divide equally the community property between the spouses, an artificial element should not be included in that division, i.e., that pension which is not legally community property. Here it is necessary to remand the case to the trial court for recomputation of division and I see no valid reason not to relieve the parties from what is now a legally erroneous stipulation.

As to the recomputation of the assets in the various house purchases, it appears to me necessary that the court reanalyze the status of these properties, i.e., they are either community property or joint tenancy (except such part which may maintain a separate property status). If the community has an interest, the court may divide it or impose obligations upon such…

Both parties appeal from a "Further Judgment on Reserved Issues After Bifurcation and Final Judgment of Dissolution of Marriage." The dispute on appeal concerns the court's determination of the community property and separate property. Husband contends the court erroneously determined that three parcels of real property were wife's separate property, and he further contends the court erred in determining that a portion of his military pension is community property. Wife contends that certain funds in joint savings accounts were erroneously determined to be community property rather than her separate property.

The parties were married in 1961 and separated in 1976. At the time of the marriage husband was a major in the United States Air Force. He retired from the Air Force in 1966 as a lieutenant colonel. At the time of trial he was a project manager with the County of Los Angeles earning $2,476 per month and was receiving air force retirement benefits of $1,181 per month. At all times during the marriage wife was a homemaker.

(1) The parties stipulated in the trial court that the portion of husband's United States Air Force retirement benefits accrued from…

*21 Opinion

Both parties appeal from a “Further Judgment on Reserved Issues After Bifurcation and Final Judgment of Dissolution of Marriage.” The dispute on appeal concerns the court’s determination of the community property and separate property. Husband contends the court erroneously determined that three parcels of real property were wife’s separate property, and he further contends the court erred in determining that a portion of his military pension is community property. Wife contends that certain funds in joint savings accounts were erroneously determined to be community property rather than her separate property.

The parties were married in 1961 and separated in 1976. At the time of the marriage husband was a major in the United States Air Force. He retired from the Air Force in 1966 as a lieutenant colonel. At the time of trial he was a project manager with the County of Los Angeles earning $2,476 per month and was receiving air force retirement benefits of $1,181 per month. At all times during the marriage wife was a homemaker.

Husband’s Appeal

Military Pension

The parties stipulated in the trial court that the portion of husband’s United States Air Force retirement…