Filed 6/6/12
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re the Marriage of JULIE R. GREEN
and TIMOTHY P. GREEN.
A129436
JULIE R. GREEN,
(Contra Costa County
Super. Ct. No. D0801292)
Appellant,
v.
ORDER DENYING PETITION FOR
REHEARING AND MODIFYING
OPINION [NO CHANGE IN
JUDGMENT]
TIMOTHY P. GREEN,
Respondent.
BY THE COURT
The opinion filed May 16, 2012, is modified as follows:
1.
On page 2, delete the fourth and fifth paragraphs and replace with:
Julie filed a petition for dissolution of marriage in March 2008. During
dissolution proceedings, a dispute arose over whether to characterize
Timothyâs military service credit as separate or community property. The
trial court appointed an expert for the purpose of drafting proposed orders
to divide the community property interests in the partiesâ pension plans.
According to a brief filed by Timothy in connection with the dispute over
his military service credit, the expert proposed treating 34.44 percent of the
service credit as a community property asset, representing the percentage of
payments toward the military service credit made with community funds.
[¶] The parties could not agree on division of the military service credit,
and submitted briefs on the issue to the trial court. Julie sought to continue
to pay half of the cost of future installment payments, and requested that
half of the military service credit be placed into a separate account for her
benefit through CalPERS. Timothy argued that because his right to
purchase military service credit arose prior to the partiesâ marriage, all four
years of credit were his separate property. Timothy acknowledged,
1
however, that community funds used to pay for the purchase before the
partiesâ separation in October 2007 were community property.
2.
On page 9, replace the first paragraph with:
Even after Timothy started working for a CalPERS participant, and
thus became eligible to purchase military service credit based on his
premarital service in the military, his right to such credit amounted to no
more than an âexpectancy,â which is not a property right divisible upon
dissolution of marriage. (Brown, supra, 15 Cal.3d at pp. 844-845.) It is
undisputed that, when Timothy began working for the Dougherty Regional
Fire Authority in 1989, his employer was a CalPERS agency that provided
its employees the option to purchase military service credit. However,
section 21024, subdivision (e) specifically provides that the statute âshall
apply to a member only if he or she elects to receive credit while he or she
is in state service in the employment of one employer on or after the date of
the employerâs election to be subject to this section.â (Italics added.) In
other words, a memberâs right to purchase credit is dependent on his or her
employerâs election to be subject to section 21024. Presumably the
employer could elect at some point to no longer be subject to
section 21024, in which case employees who had served in the military
would have no right to purchase credit based on that service, let alone a
property interest in CalPERS credit based on that service.
The modification does not change the appellate judgment. (Cal. Rules of Court,
rule 8.264(c)(2).)
Respondentâs petition for rehearing is denied.
_______________________________P.J.
2
Trial Court:
Contra Costa County Superior Court
Trial Judge:
Honorable Charles B. Burch
Counsel for Appellant:
April Rose Sommer
Counsel for Respondent:
Tarkington, OâNeill, Barrack & Chong, Robert A. Roth
Counsel for Amicus Curiae
Whiting, Fallon, Ross & Abel, Ann Fallon; Office of
Northern California Chapter of Barbara A. DiFranza, Barbara DiFranza,
the American Academy of
Matrimonial Lawyers, upon the
request of the First District
Court of Appeal
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