Irvin v. Contra Costa Cnty. Ret. Assn. (2017)

Irvin v. Contra Costa County Retirement Association, et al. (2017), from the First Appellate District, Division One, in San Francisco, concerns a civil dispute between a widow, Marianne Irvin, and her late husband Richard Irvin’s Contra Costa County Retirement Association (“Association”) pension plan governed by the County Employees Retirement Law of 1937 (“CERL,” Gov. Code sections 31450-31898) through the Association’s Board of Retirement (“Board”).  The bone of contention is whether Marianne’s legal separation from Richard eliminated her as Richard’s “surviving spouse,” entitled to Richard’s continuance benefits (a survivor’s annuity) for the remainder of Marianne’s life.  (The appellate court’s opinion is somewhat complex and worth reading rather than repeating.  For brevity’s sake and because all of the record the appellate court relied on is not presented, below are the basic facts and analysis.)


Richard retired in 1988 and began receiving pension benefits from the Association.  He married Marianne in 1994.  Beginning in 2001, Richard began suffering from serious medical conditions which required a lot of high-cost medical care.

Richard and Marianne separated in 2008, and Marianne filed a petition for legal separation in 2009.  Richard responded by requesting a divorce (rather than agreeing to a legal separation), which he eventually withdrew.

Marianne and Richard reconciled in 2012, although their case was still pending, but in October, 2013, they signed a marital agreement, which they incorporated into a judgment of legal separation (“Judgment”).  The marital agreement confirmed the pension benefits were Richard’s sole and separate property, but it required Richard maintain Marianne as a pension beneficiary and it also expressed his intention that Marianne be deemed his “surviving spouse” for purposes of the pension benefits.  Richard died in early 2014.

Despite Marianne having been awarded by the Judgment prior to Richard’s death an interest in Richard’s pension and his intention that she be his “surviving spouse,” the Association and its Board looked to California Probate Code sections 20-88 [Definitions], and specifically to section 78, subdivision (d) which defines “surviving spouse.”  Section 78, subdivision (d) states, “‘Surviving spouse’ does not include any of the following: . . . (d)  A person who was a party to a valid proceeding concluded by an order purporting to terminate all marital or registered domestic partnership property rights.”  Because the Probate Code excludes from the definition of “surviving spouse” any spouse subject to a legal separation terminating all interests in the property of the spouse participating in a pension plan, the Association and (on Marianne’s appeal) the Board concluded Marianne was ineligible for the continuance benefits.  (Frankly, I think section 78(d) is the more specific indication of legislative intent and should have been decisive at the appellate level.)  

Marianne next petitioned the Superior Court for a writ of mandate challenging the Board’s refusal to pay out the continuance benefits.  The trial court accepted the Board’s argument that Probate Code section 78, subdivision (d), applies, along with the rationale from the Santa Barbara Superior Court’s statement of decision in Marriage of Burson (2013), which relied on Government Code section 31760.1, a related California pension statute, to conclude a legally-separated spouse is not a “surviving spouse.”  The trial court denied Marianne’s request for a writ, and she appealed to the First Appellate District.


Government Code’s Pension Statutes are Applicable, Not the Probate Code’s Definitions

The appellate court dismissed the trial court’s use of the California Probate Code in to define “surviving spouse.”  Although the Probate Code defines it to generally exclude a spouse who is legally separated from the plan participant (here, Richard) at the time of the participant’s death, several Probate Code sections specifically treat a legally-separated spouse “at least as often as not in the same manner as a ‘surviving spouse.'” For example, Probate Code section 5040, subdivision (a)[regarding nonprobate transfers] states “[a] judgment of legal separation that does not terminate the status of spouses is not a dissolution for purposes of this section,” thereby treating a legally-separated spouse like any other surviving spouse.  This ambiguity  in the Probate Code’s statutes, according to the appellate court, leaves no meaningful conclusion to be drawn from the Probate Code’s definition.  What is more, the Board provided no plausible public-policy reason for its reliance on section 78, subdivision (d) (over the CERL, I assume).

In contrast, the CERL contains no definition of “spouse” or “surviving spouse” in its series of definitions (Gov. Code sec. 31455, et seq.) governing the construction of its terms.  Additionally, the default statute for the payment of benefits to a surviving spouse grants such benefits only to a person who was married to the pensioner prior to retirement.  (Gov. Code sec. 31760.1.)   However, unlike the Burson court’s reliaince on the section 31760.1, the more generous alternative statute which applies here, Government Code section 31760.2, grants continuance benefits to any surviving spouse, so long as that person was married to the pensioner for at least two years prior to his or her death and was at least 55 years old at the time of the pensioner‘s death.  (Id., subds. (a), (b).)  Such a surviving spouse is entitled to lifetime payments equal to 60 percent of the pensioner‘s retirement allowance.  If the pensioner has no surviving spouse, the benefit is paid to the pensioner‘s unmarried children under the age of 18 years or attending college, if any.  (Id., subds. (a), (c).)  There is no dispute that Marianne satisfied the requirements of section 31760.2, subdivision (b), entitling her to continuance benefits, but only if she qualifies as a “surviving spouse.”

The Remedy of Legal Separation

The appellate court provided a history of legal separation because understanding of the remedy of legal separation is “critical to the interpretation of section 31760.2”:

“[Legal separation] is descended from an early California Supreme Court decision that allowed a deserted wife to obtain financial support from her husband without suffering the religious or social disapproval attendant upon a divorce.  In that ruling, Galland v. Galland (1869) 38 Cal. 265, the court held that a wife, ‘who, without cause or provocation, is driven from her husband‘s house . . . and is wholly without the means of  support,’ has a common law right of action against the husband for a ‘reasonable allowance, for the maintenance of herself and child,’ without being required to sue for divorce.   (Id. at pp. 266, 271–272.)  Nearly 10 years later, the Legislature made the remedy available by statute in former section 137 of the Civil Code (Amends. to Codes 1877–1878, ch. 298, § 1, p. 76), which eventually allowed a wife who had any grounds for divorce to sue for a decree of ‘separate maintenance’ as an alternative to seeking dissolution of the marriage.  (Hiner v. Hiner (1908) 153 Cal. 254, 257–258; Sweasey v. Sweasey (1899) 126 Cal. 123, 128–129, disapproved on other grounds in De Burgh v. De Burgh (1952) 39 Cal.2d 858, 871; Stats. 1905, ch. 216, § 1, p. 205.)  Not only did this secure support for the wife, it prevented the husband from using the threat of nonsupport as leverage to obtain a divorce from an unwilling wife.  As noted in Sweasey, ‘the wife, having a good cause for a divorce, may, if her circumstances require it, . . . apply for a separate maintenance without seeking for a divorce.  A husband who wishes to be freed from a deserted wife cannot starve her into the necessity of suing for a divorce, which his guilt and her innocence would alike prevent him from obtaining.’ (Id. at p. 129.)  In 1917, former section 137 of the Civil Code was amended to require the court to divide the ‘community property’ and ‘the homestead, if any,’ in the same manner as it would in the event of a divorce, as well as to determine maintenance.  (Stats. 1917, ch. 36, § 1, p. 35; see Krier v. Krier (1946) 28 Cal.2d 841, 843.) 

“The remedy of separate maintenance was retained as California‘s public attitudes toward marital relations evolved.  As early as 1927, Civil Code section 137 was amended to make the remedy of separate maintenance available to both spouses.  (Stats. 1927, ch. 249, § 1, p. 441.)  [Fn. 4 adds: ‘The exception was an action for separate maintenance based on a failure to provide, which continued to be available only to a wife.  (Stats. 1927, ch. 249, § 1, p. 441.)  That provision was not made gender neutral until 1951.  (Stats. 1951, ch. 1700, § 1, p. 3910.).’]  When the Legislature passed the Family Law Act in 1969, making California the first state in the nation to enact no-fault divorce (In re Marriage of Davis (2015) 61 Cal.4th 846, 868 (conc. opn. of Liu, J.); In re Marriage of McKim (1972) 6 Cal.3d 673, 678), the legislation retained the substance of a decree of separate maintenance, although it changed the name to ‘legal separation’ and enacted substantive modifications.  (Faught v. Faught (1973) 30 Cal.App.3d 875, 878 (Faught); Stats. 1969, ch. 1608, § 8, pp. 3328, 3333, 3335.)  Following adoption of the Family Law Act, the entry of a judgment of legal separation required the consent of both parties, and either spouse could convert the legal separation into a marital dissolution at any time by filing a petition for divorce.  (Stats. 1969, ch. 1608, § 8, pp. 3324–3325; Civ. Code, former § 4508, subd. (b).)

“By the 1970‘s, an action for legal separation was regarded as implementing the judicial concept of ‘divisible divorce,’ which recognizes that the economic aspects of a marital separation can be judicially resolved separately, in time and place, from the issue of marital status.  (See generally Hull v. Superior Court (1960) 54 Cal.2d 139, 147–148; In re Marriage of Gray (1988) 204 Cal.App.3d 1239, 1248.) As the remedy was characterized in Faught, ‘Separate maintenance (now legal separation) is essentially a device to determine and settle the spouses’ financial responsibilities to one another and to their minor children.  While the law may once have been to the contrary [citation], a decree of separate maintenance now operates as a final adjudication of such financial aspects of the matrimonial relationship as spousal support, division of community property, and settlement of property rights, and to the extent the decree deals with such matters it is conclusive.’  (Faught, supra, 30 Cal.App.3d at p. 878.)

“Under current law, a judgment of legal separation continues to permit the parties to a marriage to separate their financial affairs without severing their marital bonds.  Unlike divorce, it is a wholly voluntary remedy. The family court can render a judgment of legal separation only with the consent of both parties, unless the judgment is taken by default (Fam. Code, § 2345), and either party is free, at any time, to convert the legal separation into a dissolution of the marriage by filing an appropriate petition (id., § 2347).  As in an order settling property rights upon dissolution, the court is instructed to split the couple‘s community property equally.  (Fam. Code, § 2550.)  Once the judgment is entered, the earnings of each party are deemed separate property (Fam. Code, § 772), and the parties‘ assets cannot be used to satisfy each other‘s debts (id., § 910, subd. (b)).  Because a judgment of legal separation deals only with the couple‘s financial affairs, it is regarded as ‘leav[ing] the marriage bonds intact.’  (Estate of Lahey (1999) 76 Cal.App.4th 1056, 1058 . . .)  Only a subsequent divorce can ‘terminate the marital status of the parties.’  (Elam v. Elam (1969) 2 Cal.App.3d 1013, 1020.)”

The appellate court indicated (no doubt, correctly) the plain meaning of “surviving spouse” includes Marianne because the Judgment left the marriage bonds intact.  Thus, despite clearly conflicting language in Probate Code section 78, subdivision (d) (which arguably supersedes the plain meaning of “surviving spouse”), the appellate court held Marianne is Richard’s surviving spouse for purposes of the continuance benefits.  (There were other supporting bases for the appellate court’s conclusion, but I think the plain meaning of “surviving spouse” in light of legal separation is the foundation of the opinion.)

The appellate court reversed the trial court order denying the writ of mandate requested by Marianne and returned the case to the trial court with instructions to issue the writ.