Marriage of Chapman

The main issue in this case is whether one spouse’s unilateral election (after a marital settlement agreement and judgment of dissolution) to change from one type of military benefit (military retirement that is taxable and community property) to another type of military benefit (combat-related special compensation that is not taxable and separate property) can defeat the community property interest of the other spouse set forth in the marital settlement agreement.

The answer is “no.” “It is a ‘settled principle that one spouse cannot, by invoking a condition wholly within his control, defeat the community interest of the other spouse.’ ” (In re Marriage of Gillmore (1981) 29 Cal.3d 418, 423 [ 174 Cal.Rptr. 493 , 629 P.2d 1 ].)

The trial court here correctly determined that “the post-judgment election” by appellant Philip Kurtis Chapman (Philip) “of Combat[-]Related Special Compensation in lieu of military pension payments” does not “relieve[] [Philip] of his agreement to pay [respondent Judy Kay Chapman] $475 per month for her community property share of his military retirement.” We reverse the trial court’s order, however, because the remedy the court selected was…