Petition for Writ of Certiorari — Fithian v. Fithian

si oreeeemeeninenent

IN THE § Bsns ‘

coe Court of the United States

October Term, 1973

No. €3 Ss 1 3 8 7

In re the Marriage of

JAMES E. FITHIAN, JR.,

Petitioner,

and

CAMILLE J. FITHIAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI.

STEVEN E. BRiGGs,

440 E. La Habra Boulevard,

La Habra, Calif. 90631,

(213) 694-3821,

(714) 870-9972, |

aia cad aa

LAWTON, CHRISTENSEN, Fazio,

McDONNELL, Briccs & WARD,

Of Counsel.

Parker & Son, Inc, Law Printers, Los Angeles. Phone 724-6622

aye

SUBJECT INDEX

Page

Petition for a Writ of Certiorari -........................-.- 1

Opinion Below .....................-.------- 1

a TE: HES RE LS bak nea 1

eee 2

Constitutional and Statutory Provisions Involved .... 3

I a sei ict esstaiinen ee ais ae 4

Statement of the Case .........................-..-- ae

Reasons for Granting the Writ ......................-..--...-- 6

1.

The Decision Below Conflicts With a Decision

of This Court in That the Decision Below De-

termined That Federal Military Retirement

Benefits Are Community Property and Not the

Seprate Property of Petitioner 6

A. This Court in the Leading Case of Wiss-

ner v. Wissner (1950) 338 U.S. 655, 70

S.Ct. 398, Established a Test to Deter-

mine Congressional Intent With Regard

to the Separate Property Character of

Funds Paid Pursuant to’ a Congressional

| REPO ee ore ee 6

B. Wissner Test Applied 5 ; 8

II.

Should the Court Decide That the Wissner Test

Is Not Dispositive, Then the Court Below Has

Decided a Federal Question of Substance Not

Theretofore Determined by This Court ........ 12

ii.

Ill. Page

The California Supreme Court by Characterizing

Federal Military Pay as Compensation for Past

Services, Has Decided a Federal Question of

Substance Inconsistently With Decisions of the

Federal Court. This Question Has Not There-

tofore Been Decided by This Court .................. 17

i RENE CASE PERRI = ere Sen ON cee oe NN 21

INDEX TO APPENDICES

Appendix A. Opinion of the Supreme Court of

the State of California -........................- App. p. 1

Appendix B. Statutes —.............................ccescccsecees 17

7 OCR NEE RR eae 28

.. e

TABLE OF AUTHOFITIES CITED ©

Cases Page

Berkey v. United States (1966) 361 F.2d 983 .... 15 .

- Clearfield Trust Co. v. United States (1945) 318

RPS EE aca essbcbuasceicerd eacdigcbdmeeancaadarhanin. 12

Franklin v. United States, 29 ct. Cl. 6

Free v. Bland (1962) 369 U.S. 663, 82 S. Ct. 1089

Gold Kist, Inc. v. United States (1971), 339 F.

OI OD rn ircesciceniscrescnegennscoarnistn deecseennaBitert 8

dotinsky v. United States (1961) 292 F.2d 508 .... 19

Lemly v. United States (1948) 75 F.Supp. 248 ..18, 19

Lynch v. United States (1934) 292 U.S. 571......... 15

Phillipson v. Board of Administration (1970) 3

RCO EU sosseonpirnscitce- bicnatialaasanaiecanecaacaiad 15, 16

Tyler v. United States, 16 Ct. Cl. 223 2. 20

\

United States v. City and County of San Francisco

(1940) 310 U.S. 16, 60 S.Ct. 749 oo. 7; 8

United States v. Hooper (1958) 9 U.S.C.M.A. 637,

y Rat Rey ra ie ees ee x» 20

United States v. Kelly (1964) 382 F.2d 227 .. Toe

United States v. Wise (1962) 370 U. S. 405, 32 oe

PS. ~ RECOLOR LA SM SER ENTE “

United States v. Zacks (1963) 375 U.S. 59, 84 S.

SS 2 EN Se se RETO tance 7

Wissner v. Wissner (1950) 338 U.S. 655, 70 S. .

Ry aoe et a 6,7, € 41; 32

iv.

Miscellaneous Page

Is Armed Services Retired Pay Really Community

Property? Judge B. Abbot Goldberg, Cal. State

Bar Journal, Vol. 48, No. 1, p. 89 ......................

104 Congressional Record, p. 7613 ....................--.-

91 Congressional Record p. 12465 ...................-.-

109 Congressional Record, p. 14200 ....................

109 Congressional Record, p. 14202 ....................

Marin? Corps Retirement Guide (1972), NAVMC

SE ec .

Marine Corps Retirement Guide (1972), NAVMC

2642 Ch. 47, p. 55 ..... a ng

Navy Guide for Retired Personnel and their Fami-

lies, NAVPERS 15891 (1970), p. 89 ..................

Navy Guide for Retired Personnel and their Fami-

lies, NAVPERS 15891C Para. 46 (1970), p. 23

Peer ee een cee eeeeneseseeee

3 United States Code Congressional and Admin-

istrative News. 70th Congress, 2d Sess. (1968),

AF: SME chisicasrubecks dip shia Uadeinnabaie tai baemsidenbddcdbstiine 13,

3 United States Code Congressional and Admin-

istrative News, 90th Congress, 2d Sess. (1968),

pp. 3301-3306, 3307 13,

Statutes

Act of February 21, 1946, Ch. 34, Sec. 6, 60 Stat.

27 . 3,

Act of April 14, 1949, Ch. 52, 63 Stat. 47, Title

34, Sec. 855(), Public Law 81-91 -....00000022 2.

Act of August 10, 1956, Ch. 1041, 70A Stat.

399, Public Law 84-1028 ~............2222222-2...2----0e-

Act of September 2, 1958, Ch. 142, Sec. 1, 72 Stat.

1509, Public Law 85-861 . :

15

17

v.

Page

Act of October 2, 1963, Sec. 5(h)(4), 72 Stat.

y; a > Rem NRgeee eT ae. 3, 10

California Civil Code, Sec. 4800 ............-....-0--+ 4, 15

California Civil Code, Sec. 5119.00... 22... 4

California Civil Code, Sec. 5119 -....00.00 2... .eeeeeeeee 20

Career Compensation Act of 1945, 63 Stat. 802,

gp BE | Cee CE nem meee ta we 3, 3

Career Incentive Act of 1955; 69 Stat. 19, Public

RIE FI hie Gece ictenssececcceeingiicencicin Rese ee EA 8

California Probate Code, Sec. 201 ............2....... 4, 15

Officers Personnel Act of 1947, 61 Stat. 795, Pub-

OR Tem I cia cacciccseasends beteauctesebiecnncs 3, 8

Pay Readjustment Act of 1958, 72 Stat. 122, Public

OURS a bare ie eee 3, 8, 10

United States Code Annotated, Title 10, Sec. 6323

ical a 3, 8, 10

United States Code Annotated, Title 10, Sec. 6323

COR in a ee ee 3

United ails Code Annotated, Title 10, Sec. 6323

So) Bia RSI EE 2 SO oan Reatard rnd a 3

United States Code Annotated, Title 10, Sec. 6325

CCAS ADAP E 3

United Seite Code A Annoiated, Title 10, Sec. 6325

Sf Se Saeed aera re 3

United States Code Annotated, Title 10, Secs 1447-

1455 anteasiais Sakid sibs aE ccc Ae ee 3, 13, 14

United States Code Annotated, Title 10, Sec. 1448

1 Sipe saee nt He eh SA een eM REE, Se AE EY 14

United States Code Annotated, Title 10, Sec. 1450

3) Best k Taos SAR SEE Sad are Rae ego A) Coe 16

Page

United States Code Annotated, Title 10, Sec. 2771

‘a a 3,15

United States Code, Title 28, Sec. 1257(3) ........ 2

United States Code, Title 34, Sec. 410(b) -........... 3

United States Code, Title 34, Sec. 410(b)(1) ...... 3

United States Code, Title 38, Sec. 3105 ............ . ae

United States Constitution, Art. VI, Ch. 2 ..4, 1i, 17

Textbook

Hart, The Relations Between State and Federal

Law, 54 Col. L. Rev. (1954), pp. 488, 534 .... 12

IN THE

Supreme Court of the United States

October Term, 1°7

| eee

In re the Marriage of

JAMES E. FITHIAN, JR.,

Petitioner,

and

CAMILLE J. FITHIAN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI.

Petitioner respectfully prays that a writ of certiorari

issue to review the finai order of, the Supreme Court

of the State of California entered herein on January

3, 1974, affirming the decision of the Court of Ap-

peal, Fourth District, State of California and. the Judg-

ment of the Superior Court of the State of California

for the County of Orange.

Opinion Below.

The opinion of the Supreme Court, State of Califor-

nia is reported at 10 Cal.3d 592; .... P.2d ....; it is

printed in Appendix A at page la, infra. The opinion

was delivered and filed January 3, 1974.

Jurisdiction.

The opinion of the California Supreme Court was

made and entered on January 3, 1974. This petition

oF SESE Wen One AER oda OOK aT eae

cists

was filed winin ninety (90) days of that date. The

jurisdiction of this Court is invoked under 28 U.S.C.

1257(3).

Questions Presented.

1. Was it the intent of Congress that in enacting

the Federal Military Retirement System that petitioner’s

retirement benefits be his sole and personal entitle-

ment not subject to division under the community prop-

erty laws of the State of California, or any other State

law that arbitrarily deprives the retiree of a portion of

his retirement pay?

2. Has the United States preempted the field of

characterization of federal military retirement bene-

fits by virtue of its exclusive legislative jurisdiction,

thus precluding the State of California from judicially

divesting Petitioner of all or a portion of his retirement

benefits?

3. In light of the fact that federal courts have

clearly distinguished between federal pensions and fed-

eral military retirement and has characterized military

retirement as a continuation of active duty on a re-

duced basis, does this characterization preclude the

California courts from characterizing such military re-

tirement pay solely as compensation for past services in

order that said courts might find sufficient jurisdictional

basis to order an equal division of said retirement pur-

suant to its community property laws?

-_ ——————

—

a

Constitutional and Statutory Provisions Involved.

Appellant was retired pursuant to 10 U.S.C.A. 6323,

the pertinent parts thereof are set out in Appendix B.

Five Congressional acts have formed the basis of

10 U.S.C.A. 6323:

1. The Act of February 21, 1946, 60 Stat. 27

is the predecessor of Title 10 U.S.C.A. 6323.

2. Act of April 14, 1949, Ch. 52, 63 Stat. 47,

amends Title 34 U.S.C. §855(h), Pub. L. 81-91.

3. Act of August 10, 1956, Ch. 1041, 70A Stat.

399, Pub. L. 84-1028, Repealed 34 U.S.C. §§410(b)

and 410(b)(1), and codified them as Title 10

U.S.C.A. §6323(a)-(c). Computation of retirement

pay for retired members of the Navy or Marine Corps

was codified in 10 U.S.C.A. §6325.

4. Act of September 2, 1958, §1, Ch. 142, 72 Stat.

1509, Pub. L. 85-861. This Act took the language of

10 U.S.C.A. §6325(a)(2) and without change, en-

acted §6323(e).

5. Act of October 2, 1963, §5(h)(4), 72 Stat. 214,

Pub. L. 88-132.

Title 10 U.S.C.A. §§1447-1455 and §2771 are set

out in Appendix B. Title 38 U.S.C. 3105 is set out in

Appendix B.

There are four Acts of Congress that consider the

relationship of federal military retirement pay to the

morale of the men in the armed services:

1. Officers Personnel Act of 1947, 61 Stat. 795,

Pub. L. 80-381.

2. Career Compensation Act of 1949, 63 Stat.

802, Pub. L. 81-351.

4. Pay Readjustment Act of 1958, 72 Stat. 122,

Pub. L. 85-422.

“e ees, ~

par ta

Pertinent comments from the Congressional Record

are included in the Reasons for Granting the Writ.

United States Constitution, Article VI, Ch. 2 in Ap-

pendix B.

State Statutes.

California Probate Code §201, in Appendix B.

California Civil Code §§4800 and 5119 in Appen-

dix B.

Statement of the Case.

The facts relevant to the questions presented by this

petition may be introduced to the Court, as follows:

James E. Fithian, Jr., was the Petitioner in the orig-

inal Petition for Dissolution of Marriage filed in the

Superior Court of the State of California for the Coun-

ty of Orange on March 26, 1971. The Respondent

was Camille J. Fithian.

--. On July 31, 1968, Petitioner was honorably retired

from the United States Marine Corps. At that time he

had served twenty-two (22) years; four of those

years as an enlisted man; eighteen as an officer.

Petitioner was married to Respondent for nearly six-

teen of his twenty-two years in the Marine Corps, resid-

ing in California for only four of those years.

The nature, character and status of compensation

received by retired officers of the United States Ma-

rine Corps was fully argued and briefs filed in the

Superior Court of California, for the County of Orange,

the original trial court.

Se ee Oe SATS

a

The Interlocutory Judgment of Dissolution of Mar-

riage dated May 1, 1972, specifically met the issue as

follows:

“The court further finds 71% of Petitioner’s

* retirement to be community property or qudsi-

community property and he is ordered to pay her

one half of 71% for so long as he continues to

receive same.” (Emphasis added) “. . . specifical-

ly reserve the right to request findings of fact and

conclusions of law and reserve the right to ap-

peal as to the issues of property division . . .”

The Court of Appeal, Fourth Appellate District,

State of California, affirmed the judgment in an unre-

ported opinion entered on April 9, 1973.

The California Supreme Court affirmed the lower

courts at 10 Cal.3d 592; .... P.2d ... on January 3,

1974, a copy of which is reproduced in Appendix A.

sail

REASONS FOR GRANTING THE WRIT.

I.

THE DECISION BELOW CONFLICTS WITH A DECISION

OF THIS COURT IN THAT THE DECISION BELOW

DETERMINED THAT FEDERAL MILITARY RETIRE-

MENT BENEFITS ARE COMMUNITY PROPERTY

AND NOT THE SEPARATE PROPERTY OF PETI-

TIONER.

A. This Court in the Leading Case of Wissner v.

Wissner (1950) 338 U.S. 655, 70 S.Ct. 398,

Established a Test to Determine Congressional

Intent With Regard to the Separate Property Char-

acter of Funds Paid Pursuant to a Congressional

Act.

Wissrer answered the question of whether the pro-

ceeds of a National Serviceman Life Insurance Policy

were the separate property of the insured serviceman

or community property of the serviceman and his

spouse. This Court reversed the California appellate

court and held that the proceeds of the policy were

the separate property of the insured, despite the fact

that the payments of premiums on the policy came

from the earnings of the serviceman during marriage.

To reach this conclusion, this Court discussed the con-

flict between the clear intent of Congress and the Cali-

fornia decision which had frustrated that intent:

“We do not share Appellee’s discovery of Con-

gressional purpose that widows in community

property states participate in the payments under

the policy, contrary to the express directions of

the insured. Whether directed at the very money

received from the government or an equivalent

amount, the judgment below nullifies the soldier’s

choice and frustrates the deliberate purpose of

Congress. It can not stand.” (338 U.S. at 659, 70

S.Ct. at 400.)

or ae perez NS a 5 "= es Se

ilies

Wissner provides that Congress must have intended

federal military retirement pay to meet certain require-

ments before the retirement pay wouki be considered

the separate property of the retired serviceman:

1. The Airst requirement is that military retirement

pay must be intended as a method which might directly

enhance the morale of the serviceman. (338 U.S. at

660, 70 S.Ct. at 401.)

2. The second is that Congress must have intended

military retirement pay to be paid from Congressional

appropriations. (338 U.S. at 658, 70 S.Ct. at 399.)

3. The third is that Congress must have intended

the cost of administering the military pay system to be

borne by ‘the United States. (338 U.S. at 658, 70 S.Ct.

at 399.)

4. The fourth is that Congress must. have intended

that premiums or contributions to the military retire-

ment system be low. (338 U.S. 658, 70 S.Ci. at 399);

and

5. The fifth is that Congress must have intended

the Federal military retirement pay system to afford as

much material protection as possible to the serviceman.

(338 U.S. at 660, 70 S.Ct. at 401.)

It is uncontrovertible that the legislative history

of a statute is the proper source to ascertain the intent

of Congress as ‘to its ultimate purpose. United States

v. Wise (1962) 370 U.S. 405, 414, 82 S.Ct. 1354,

1360; See also: United States v. Zacks (1963) 375

U.S. 59, 84 S.Ct. 170; United States v. Kelly (1964)

382 F.2d 227.

The legislative history of an act includes debates and

discussions on the floor of the Congress as well as

committee reports. United States v. City and County

es

of San Francisco (1940) 310 U.S. 16, 60 S.Ct. 749;

Gold Kist, Inc. v. United States (1971), 339 F.Supp.

1249.

It is these sources that Petitioner relies upon in his

contention that federal military retirement pay as sep-

arate property meets the Wissner criteria.

B. Wissner Test Applied.

Petitioner was retired pursuant to the authority of

10 U.S.C.A. 6323 and an analysis of the debates of

the five Congressional Acts forming the basis thereof

and the four Acts of Congress bearing on the morale

of servicemen, conclusively satisfies the Wissner cri-

teria.’

Space does not permit a full demonstration as in the

State briefs of the pertinent relationship of all relevant

acts and comments thereto and because of that limita-

tion, Petitioner limits himself to an overview:

' (1) It is clear that Congresss was primarily con-

cerned about raising the morale of the men in the

armed services in enacting the entire system of military

retirement.

The Act of February 21, 1946° was enacted for the

purpose of inducing young men to make a career of

the armed services. To accomplish this purpose, Con-

gress provided the servicemen with specific incentives

to remain in the services for at least twenty years.

1Officer Personnel Act of 1947; 61 Stat. 795, P.L. 80-381;

Career Compensation Act of 1949; 63 Stat. 802, P.L. 81-351;

Career Incentive Act of 1955; 69 Stat. 19, P.L. 84-20; Pay

Readjustment Act of 1958; 72 Stat. 122, P.L. 85-422.

2An act to provide additional inducement to citizens of the

United States to make a career of the United States Military or

Naval Service, and for other purposes. Ch. 34 Sec. 6, 60 Stat.

27, P.L. 79-305.

tiles

These incentives included four provisions in the area of

retirement; the statutory age of retirement was low-

ered, a new system to compute retirement pay was es-

tablished, a man was allowed to retire after only twenty

years of service, and the serviceman was not re-

quired to make any contributions to his retirement

fund.

Petitioner contends that the general Congressional

purposé in enacting the Act of February 21, 1948, was

to provide meaningful incentives, which would raise

the level of morale of the servicemen by establishing a

liberal and generous retirement system.

(2) The second is that Congress must have intended

military retirement pay to be paid from Congressional

appropriations.

The following excerpt from the Congressional Rec-

ord of a dialogue between Messrs. Cochran and Vin-

son is illustrative of the fact that Congress specifically

undertook to have the benefits paid from Congressional

appropriations. The dialogue refers to the Act, last

mentioned:

Mr. Cochran, Representative from Missouri,

“They get so much of their basic pay when they

retife?”

Mr. Virtson, “Exactly”.

Mr. Cochran, “They never contribute one

nickel toward any retirement fund. Is that cor-

rect?”

Mr. Vinson, “That is absolutely correct.” (9/

Cong. Rec. 12465.)

(3) The third is that Congress must have intended

the cost of administering the military retirement pay

system to be borne by the United States.

ad

$0

(4) The fourth is that Congress must have intended

that premium or contributions to the military retire-

ment system be low.

Obviously, since there are no premiums or contribu-

tions required to be paid by the serviceman, all liabil-

ities must be paid from Congressional appropriation

and the cost of administering the system must be

borne by the United States. Congressional comments

during debate over a subsequent act, also to become

part of 10 U.S.C.A. 6323, are informative:

“Fortunately, we have for our military personnel

the most liberal retirement provisions our subcom-

mittee was able to learn about anywhere in the

world. The retirement compensz*ion is paid by

the Federal government . . . as yet it has not

been necessary to care for any contributions by

the personnel involved. The retirement is paid

for by direct appropriation, with no contribution.”

(104 Cong. Rec. 7613; remarks of Senator Stennis

of Mississippi. )

(5) The fifth is that Congress must have intended

the Federal military retirement system to afford as much

material protection as possible.

This purpose is inherent in the Federal military re-

tirement system and in all five acts forming 10

U.S.C.A. 6323; specific attention is invited to the re-

computation section and to the cost of living provisions

of the Act of October 2, 1963:*

“First to improve the attraction and retenticn

of service members for career military service by

SAct of June 1, 1958; 72 Stat. 122, Pub. L. 85-422. Pay

Readjustment Act of 1958.

*Act of October 2, 1963, Sec. 5(h)(4), 77 Stat. 214, Pub.

L. 88-132.

nee wae sanhated iiahiiciniinsedaitialldiadint ecictaieten niet tae

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5

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providing increased basic pay with the larger per-

centages increases at points of retention; second

to correct certain inequities in the military com-

pensation (and retirement) system; third, to pro-

vide as a permanent statutory matter an equitable

basis for adjusting retired pay for members after

retirement, based on cost-of-living increases, ap-

plicable to all retired personnel.” (Emphasis

added. 109 Cong. Rec. 14200; comment of Mr.

Cannon, Represenitative from Missouri. )

The Congressional purpose throughout the history of

military retirement legislation has been to insure that

the retired serviceman be able to live in the same

standard post-retirement as he had prior as a means

of providing as much material protection as possible.

(109 Cong. Rec. 14202.)

Through the test established in Wissner, supra, Peti-

tioner has demonstrated that Congress specifically in-

tended Federal military retirement pay to be separate

property of the recipient, yet a California decision has

determined that Federal military retirement pay is com-

munity property.

When such a conflict occurs, the outcome is clear;

the California decision must yield to the clear and

sf~cific intent of Congress. (Article VI, Clause 2 of

the United States Constitution; Free v. Bland (1962)

369 U.S. 663, 82 S.Ct. 1089; Wissner v. Wissner

(1950) 338 U.S. 655, 70 S.Ct. 398.)

ae ee

Il.

SHOULD THE COURT DECIDE THAT THE WISSNER

TEST IS NOT DISPOSIfIVE, THEN THE COURT BE-

LOW HAS DECIDED A FEDERAL QUESTION OF

SUBSTANCE NOT THERETOFORE DETERMINED BY

THIS COURT.

(a) Assuming arguendo that Wissner has left open

the character of Federal military retirement benefits,

then it must be Federal law that will govern the in-

terpretation of a Federal right. Free v. Bland, supra;

and in the absence of an applicable Act of Congress, it

is for the Federal Courts to fashion governing rules ac-

cording to its own standards and either to accept or

reject state law. Clearfield Trust Co. v. United States

(1945) 318 U.S. 363.

The opinion below proceeds upon the somewhat

parochial premise that California community property

law is not inconsistent with Congressional intent in that

the lower Court (see pp. 9A and 10A of Appen-

dix A) fails to find any indication that treating the

pay as community property circumvents the Congres-

sional scheme and therefore the states have jurisdic-

tion to characterize the nature of a Federal right.

It is Petitioner’s contention that the United States

has exclusive jurisdiction to characterize a federally

created right and that the states cannot operate in the

area until or unless the state law has been absorbed

as the Federal rule.°

The Federal statutes are silent as to the character of

military retirement pay and there is absolutely no indi-

cation that Congress has ever considered that retirement

‘Hart, The Relations Between State and Federal Law, 54 Col.

L. Rev. 488, 534 (1954).

iets:

pay is a partnership asset divisible at divorce or dis-

solution of marriage. The statutes do not even refer to,

let alone provide for, the spouse of the retiree.

To the contrary there is very strong indication that

Congress intended the retirement pay to be the sepa-

rate property of the recipient and a “personal entitle-

ment that accrues to the retiree” and which ceases

upon the death of the retired member. U.S. Code Con-

gressional and Administrative News, 70th Congress,

2nd Sess. (1968) Vol. 3, at 3300; Navy Guide fox Re-

tired Personnel and their Families; NAVPERS 15891

| at page 89 (1970).

(b) The entire system of Federal Military Retire-.

ment is inconsistent with the California. community

property system and these inconsistencies evidence a

strong Congressional disregard of the community prop-

erty system.

In 1955, Congress ena.ted the Contingency Option

Plan, which allowed a retiree to provide an annuity

for eligible widows and dependerc children after he

died. The plan was subsequently renamed the Retired

Serviceman’s Family Protection Plan ‘hereinafter re-

ferred to as the RSFPP) and because of inadequacies

therein, Congress enacted the Survivor Benefit Plan

(10 U.S.C.A. §§1447-1455) in 1972.

The RSFPP was funded with deductions from the

retiree’s payments and continued even if there was no

longer an eligible beneficiary. (U.S. Code Congressional

and Administrative News, 90th Cong., 2nd Sess.

Ni ceeemerernateeinciemaan

0 at ese

Bx |” eae

(1968) Vol. 3, 3307.) Congress rectified this anamoly

by providing an automatic termination of deduction

when there was no longer an eligible beneficiary (Jd.

at 3301-3306) and specified the reason therefor:

“To safeguard the participant’s future retired

pay when the spouse predeceases the member, or

a divorce occurs . . .” Id. at 3307. (Emphasis

added.)

Clearly Congress realized that Federal military re-

tired pay was the separate property of the retiree. If,

however, states are to be permitted to find these same

benefits community, then the state will be allowed to

do exactly that which the Congress sought to guard

against; that is, the states will compel the retiree to

share with the spouse whom Congress explicitly found

ineligible for voluntary coverage.

' The RSFPP proved inadequate because of the pro-

hibitive cost to the retiree and as a result Congress

enacted the Survivor Benefit Plan, which is now Sec-

tions 1447-1455 of Title 10 U.S.C.A., hereinafter re-

ferred to as the S.B.P. The S.B.P. is pertinent for two

reasons. First, it was funded by deductions from the re-

tiree’s pay and second, the serviceman had to elect

not to be covered. If he so elected, he was required

to file written notice with the proper officials and to

notify his spouse of said election. (10 U.S.C.A. §1448

(a).)

Clearly, if California were allowed to apply its com-

munity property laws, then the retiree’s pay is already

community property and Congress should have ex-

empted the notice provisions in community property

states. Congress never provided this exception and it

must be concluded that Congress has never intended

ser ae

any part of the Federal military retirement pay to be a

community property asset.

Reinforcement of this conclusion is found in that

Congress specifically provided that unpaid pay and al-

lowances would be disbursed upon the death of the re-

tiree to those beneficiaries whom the retiree designated.

(Navy Guide for Retired Personnel and their Families,

NAVPERS 15891C Para. 46, p. 23 (1970); 10

U.S.C.A. § 2771.) Query, if Federal military retired

pay is a community property asset, then how could the

retiree designate who is to receive all Federal monies

that are due when he dies? This Federal power of testa-

mentary disposition is on its face repugnant to the Cali-

fornia concept of community property, which provides

that one-half of the community property passes to the

surviving spouse. California Probate Code §201.

The inconsistencies abound as is further illustrated

by the fact that under 38 U.S.C. 3105 (1970) a dis-

abled serviceman is entitled to waive all or part of his

retired pay to receive a Veteran’s Administration pen-

sion and thereby convert part of his pay to a gra-

tuity, Lynch v. United States (1934) 292 U.S. 571,

577; Berkey v. United States (1966) 361 F.2d

983, 987, 988; and thus his separate property. Cali-

fornia Civil Code §4800.

Finally, we must consider what occurs when the

benefits of the former spouse, whom Congress inten-

tionally failed to provide for, are compared to the

benefits of the widow, whom Congress spécifically pro-

vided for.

If Federal military retirement pay is community

property, then upon dissolution the share that ‘is the

widow’s would become her separate property. Phillip-

Se

son v. Board of Administration (1970) 3 Cal.3d 32,

42, n. 9. Thereafter, if she remarried the retiree would

be obligated to contribute to the support of the second

husband and the children of the second marriage.

Contrasted to this result, is the treatment of the

widow, who under the S.B.P. is receiving an annuity.

The annuity terminates upon remarriage. [10 U.S.C.A.

§1450(b).] Thus, the only conclusion to be reached

is that either the widow, whom Congress preferred, is

to be treated worse than the ex-wife, whom Congress

negiected, “or perhaps more logically that those it

neglected have no community properiy right.” (Is

Armed Services Retired Pay Really Community Prop-

erty? Judge B. Abbot Goldberg, Cal. State Bar Journal,

Vol. 48, No. 1 at p. 89.)

It is submitted that the following hypothetical clearly

illustrates that Congress has never intended a divorced

spouse to share in the retired serviceman’s pay: Let us

assumed two married military officers enter the service .

on the same date and serve the same functions for

nineteen years. In the twentieth year, one officer is

transferred to a community property state and one to a

non-community property state and thereafter both of-

ficers retire. The spouses of both officers thereafter ob-

tain a divorce and subsequently remarry. The wife in

the community property state would have a vested one-

half interest in his ex-spouse’s retirement. The ex-wife

in the common law state will most likely have received

alimony based upon her need and the income of her

ex-spouse until she remarried, when the alimony would

cease. in light of the Congressional treatment of the ;

S.B.P. and Federal military retirement in general, it ic

incomprehensible that Congress intended to have Fed- F

eral monies subject to such unequal treatment. ;

a ee — |

POP SS Ta. we

= a

Petitioner relies upon the supremacy clause of the

United States Constitution, Article VI, Clause 2 to

support the proposition that since Congress clearly in-

tended that military retirement be the “personal entitle-

ment” of the serviceman*® and because the entire scheme

of the military retirement system reflects a clear Con-

gressional disregard of the state community property

system, that the State court decision and statutory law

must give way to the express will of Congress.

Ill.

THE CALIFORNIA SUPREME COURT BY CHARACTER-

IZING FEDERAL MILITARY PAY AS COMPENSA-

TION FOR PAST SERVICES, HAS DECIDED A FED-

ERAL QUESTION OF SUBSTANCE INCONSISTENTLY

WITH DECISIONS OF THE FEDERAL COURT. THIS

QUESTION HAS NOT THERETOFORE BEEN DE-

CIDED BY THIS COURT.

Federal Courts distinguish between the character of

Federal military retirement pay and Federal pensions.

Extensive research of California decisions and indeed

the lower court’s opinion (See A16) indicate that

California refuses to recognize a distinction of a pen-

sion as a gratuity under California law.

Federal Courts, however, treat Federal retirement

pay entirely Jifferent than Federal pension. This dis-

tinction has appeared in the context of whether Con-

gress intercc “icaere! retirement pay” to be a “federal

peasion.”

“An e.amiuaicm of the Acts of Congress

throv zi: .he years reveals that when the word ‘pen-

sun’ was used, it meant ‘pension’ (Federal defini-

: GS. Cole Congressional and Administrative News, 90th Con-

gress, 2nd Session (1968) Vol. 3 at 3300.

a

tion) and when ‘retirement pay’ was used it meant

‘retirement pay’ (Federal definition). It is evident

that Congress recognizes that each word has its

own individual meaning and by such usage dis-

alae 2 lomsten? ‘aa 2 pey’,

‘compensation’, ‘hospital benefits,’ etc.” Lemly v.

United States (1948) 75 F.Supp. 248, 249, 117

Ct. Cl. 365.)

The Court in Lemly, supra, then went on to say,

“In other words, when a pension is paid someone,

he is considered all through, his services are over,

and he is pensioned ‘off’. Furthermore, a pension

is paid after the service has been performed with-

out any regard to the actual performance of service

as a gratuitous recognition of a moral or honorary

obligation of the government. When a person is

‘pensioned off by the government, that govern-

ment no longer has any control over his services.

He is actually ali through serving the government

and yet he receives his pension as long as he

lives.” (1d. at 249.)

Therefore, a federal “pension” is recognized by Fed-

eral Courts as pay for services that have already been

performed. Thus, even though he receives Federal

Funds, the former employee is no longer subject to re-

call or control by the Federal government.

Federal military retirement pay, on the other hand,

is treated entirely different by the Federal Courts:

“Retirement pay, on the other hand, is a con-

tinuation of active duty pay on a reduced basis.

Even though an officer is retired from active duty

and is receiving retirement pay, he is still subject

to call on active duty as long as his physical con-

POLO al PLT NS AS

OR ART

T peagt Gal CS

4.

= =

dition will permit. He is still an officer in the serv-

ice of his country even though on the retired list.

(Lemly v. United States, supra, at 249).” (Em-

phasis added.)

This distinction has been consistently followed in

Federal Courts:

“Plaintiff says a retired officer does not hold

an office. We think that an officer in the Navy,

though retired, is still an officer. He continues to

draw pay as a retired officer. Being an officer, he

is subject to recall whether he wishes to serve or

not. He is still subject to naval discipline.” Citing

Lemly v. United States, supra; Hotirisky v. United

States (1961) 292 F.2d 508, 510.

Petitioner has not ended his obligations to the United

States. He is subject to recall ai any time, as long as his

physical condition permits. He is subject to discipline of

his supervisors. He must inform them of his place of

residence.

The Petitioner’s retired pay is subject to forfeiture

if he loses his citizenship or acquires foreign citizen-

ship by a voluntary action inconsistent with his oath

of allegiance to the United States and thus repugnant

to his status as a member of the United States Armed

Forces. (See Marine Corps Retirement Guide (1972)

NAVMC 2642 Ch. 46, p. 54.) The retiree is subject to

the U.C.M.J. He can forfeit his pay by securing employ-

ment with a foreign government without prior ap-

proval. (Jd. Ch. 47, p. 55.)

For this, petitioner receives active duty pay, albeit

at a reduced rate, in the form of Federal military re-

tirement pay. (Lemiy v. United States, supra, 249.)

—

Relying on these Federal decisions, petitioner submits

that Federal military retirement pay must be treated

in a state dissolution proceeding in the same manner

as active duty pay.

It is the rule in California, that active duty pay, as

with any pay received for employment, is not subject to

distribution in a dissolution proceeding. (California

Civil Code §5119.)

Therefore, petitioner contends that Federal military

retirement pay characterized as active duty pay at a re-

duced rate by the Federal Courts, is not within the

jurisdiction of the California Courts in a dissolution

proceeding. Petitioner’s contention is further supported

by decisions in the Federal military courts.

In United States v. Hooper (1958) 9 U.S.C.M.A.

637, 26 C.M.R. 417, the court ruled that retired

servicemen are still members of the Armed Services.

Courts which have heretofore expressed opinions on

this question have concluded “‘that retired personnel are

a part of the land or naval forces . . .”

The Court of Claims has held retired per-

sonnel a part of the military force «f this country.

Tyler v. United States, 16 Ct. Cl. 223; Franklin

v. United Staies, 29 Ct. Cl. 6. (/d. at 642.)

The Court expressly stated that retired pay is com-

pensation, so that the serviceman be available:

“The salaries they receive are not solely recom-

penses for past services, but a means devised by

Congress to assure their availability and prepared-

ness in further contingencies.” (Jd. at 645.) (Em-

phasis added. )

Wiki PR REE So Sor Kata ee?

Wace 9 CCA aie ein id Roba Mall mi tehiaee”

Na ee ener aa

Sek aed Te FT PSS PE a ey LEEPER OIE BPOLN PAG OC a ee

Relying upon the authority provided by the Federal

District Courts, the Feceral Court of Appeals, and the

United States Court of Claims, as well as the United

States Court of Military Appeal, Petitioner respectfully

contends that Federal military retirement pay is not

subject to characterization by the California courts as

compensation solely for past services.

Conclusion.

For the foregoing reasons, a Writ of Certiorari should

issue to review the opinion of the Supreme Court of

California in this action.

Dated: March 13, 1974.

Respectfully submitted,

STEVEN E. BRIGGs,

Attorney for Petitioner.

LAWTON, CHRISTENSEN, FAZIO,

McDONNELL, Briccs & WARD,

Of Counsel.

PS Spe TEP SRST ee TONE STORK PRE

te

PPE Ge Da rms < STS Tre

APPENDIX A.

Opinion of the Supreme Court of the State of California.

In the Supreme Court of the State of Galifornia,

in Bank.

In re the Marriage of James E. and Camille J.

Fithian, Jr. James E. Fithian, Jr., Appellant, v. Camille

J. Fithian, Respondent. L.A. 30165, (Super. Ct. D-

45860).

Filed: January 3, 1974.

James E. Fithian, Jr., appeals from an interlocu-

tory judgment ordering the dissolution of his marriage

to Camille J. Fithian and establishing the community

property rights of the respective parties. Husband spe-

cifically challenges the trial court’s characterization of

a portion of his federal military retirement pay as com-

munity property, contending such a determination is

forbidden to the states by the supremacy clause (art.

VI, cl. 2) of the United States Constitution. We con-

clude federal military retirement pay is properly the

subject of California community property law and

therefore affirm the judgment.

After serving 22 years in the United States Marine

Corps, husband retired with the rank of lieutenant

colonel under the authority of title 10, United States

Code, section 6323.’ Pursuant to the provisions of that

1$ecticn 6323 provides in pertinent part: ae An officer of

the Navy or Marine Corps who applies for retirement after

completing more than 20 years of active service, of which at least

10 years was service as a commissioned officer, may, in the

discretion of the President, be retired on the first day of any

month designated by the President.

“(b) For the purposes of this section (1) an officer’s years

of active service are computed by adding all his active service

(This footnote is continued on next page)

er

peer. se

section, husband began to draw retirement pay, re-

ferred to in the statute as “retired pay,” on a monthly

basis and remains eligible to do so for the duration of

his life. Two years subsequent to his retirement, hus-

band commenced the instant dissolution proceeding.

The trial court found the parties had been married for

16 of husband’s 22 years in the Marine Corps and had

become residents of California prior to husband’s re-

tirement. Therefore, the trial court concluded 71 per-

cent of husband’s retirement pay is part community

property and part quasi-community property subject to

the jurisdiction of California courts, and directed hus-

band to pay 35% percent of his post-dissolution retire-

ment benefits to wife as he receives them.

The law is settled in California that retirement bene-

fits which flow from the employment relationship, to

the extent they have vested,” are community property

in the armed forces; and (2) his years of service as a commis-

sioned officer are computed by adding all his active service

in the armed forces under permanent or temporary appointments

in grades above warrant officer, W-1. ;

“(c) Unless otherwise entitled to a higher grade, each officer

retired under this section shall be retired (1) in the highest

grade, permanent or temporary, in which he served satisfac-

torily on active duty as determined by the Secretary of the

Navy; or (2) if the Secretary determines that he did not serve

satisfactorily in his highest temporary grade, in the next lower

grade in which he has served, but not lower than his per-

manent grade... .

“(e) Unless otherwise entitled to a higher pay, an officer

retired under this section is entitled to retired pay at the rate of

2% percent of the basic pay to which he would be entitled

if serving on active duty in the grade in which retired multi-

plied by the number of years of service that. may be credited

to him under section 1405 of this title, but the retired pay

may not be more than 75 percent of the basic pay upon which

the computation of retired pay is based. . . .”

“The right to retirement benefits “vests” when an employee

acquires an isvevocable interest in a fund created by his own

contributions and/or the contributions of his employer. The

icalliia

subject to equal division between the spouses in the

event the marriage is dissolved. (Waite v. Waite

(1972) 6 Cal.3d 461; Phillipson v. Board of Ad-

ministration (1970) 3 Cal.3d 32; Benson v. City of

Los Angeles (1963) 60 Cal.2d 355; French v. French

(1941) 17 Cal.2d 775; Crossan v. Crossan (1939)

35 Cal.App.2d 39.) Underlying the community treat-

ment of retirement benefits is the concept that they do

not derive from the beneficence of the employer, but

are properly part of the consideration earned by the

employee. Thus whether an employee is required to

make contributions to the retirement fund is irrelevant

to the ultimate characterization of the benefits as com-

munity property. (Phillipson v. Board of Administra-

tion (1970) supra; Sweesy v. Los Angeles etc. Retire-

ment Bd. (1941) 17 Cal.2d 356.) Furthermore, the

principle that retirement benefits are community prop-

erty has been held to apply whether the source of the

retirement fund lies in a state, federal, military, or pri-

vate employment relationship. (Waite v. Waite (1972)

supra; Phillipson v. Board of Administration (1970)

supra; Estate of Perryman (1955) 133 Cal.App.2d 1;

French v. French (1941) supra.)

The conclusion follows that husband’s federal mili-

tary retirement pay must be considered community

property in accordance with established principles of

California law. Although the retirement fund was non-

“vesting” of retirement benefits must be yt ag from the

“maturing” of those benefits, which occurs only after the con-

ditions precedent to the payment of the benefits have taken place

or are within the control of the employee. (Williamson v. Wil-

liamson (1962) 203 Cal.App.2d 8, 11; see also Kent, Pension

Funds and Probiems Under California Community Property

Laws (1950) 2 Stan.L.Rev. 447, 463, 465.)

Husband does not contend his rights to the retirement fund

had not vested during the marriage.

sind

contributory, husband’s rights to the benefits vested

during marriage and constituted an integral part of iis

compensation for service in the military.

Husband contends, however, the treatment of federal

military retirement pay as community property frus-

trates the specific purpose of Congress in enacting the

federal military retirement pay system, and therefore

is beyond the jurisdiction of the California courts’ by

virtue of the supremacy clause of the United States

Constitution.* It is asserted that the several cases in

California and other community property states hold-

ing federal military retirement pay to be community

property have failed to explore the crucial issue wheth-

er federal law permits the states to make such a de-

termination. (In re Marriage of Karlin (1972) 24

Cal.App.3d 25; Bensing v. Bensing (1972) 25 Cai.

App.3d 889; In re Marriage of Brown (1972) 27 Cal.

App.3d 188; Dominey v. Dominey (Tex. 1972) 481

S.W.2d 473; Busby v. Busby (Tex. 1970) 457 S.W.2d

551; Mora v. Mora (Tex. 1968) 429 S.W.2d 660;

Kirkham v. Kirkham (Tex. 1960) 335 S.W.2d 393;

LeClert v. LeClert (N.M. 1969) 453 P.2d 755; Morris

v. Morris (Wash. 1966) 419 P.2d 129) (dictum).)

When there have been questions of property law in-

volving a conflict between a state decision and a valid

federal statute, the United States Supreme Court has

determined that the supremacy clause requires the state

law to yield no matter how clearly the subject matter

*Article VI, clause 2, of the United States Constitution pro-

vides: “This Constitution, and the laws of the United States

which shall be made in pursuance thereof; and all ties

* made, or which shall be made, under the authority of the

United States, shall be the supreme law of the land; and the

Judges in every state shall be bound thereby, anything in the

Constitution or laws of any state to the contrary notwithstand-

ing.” ‘

a ee oR CREATIONS BRST Y'!

ee

= hoee

rae is

otherwise falls within the state’s acknowledged sphere

of power. (Free v. Bland (1962) 369 U.S. 663; Wiss-

ner vy. Wissner (1950) 338 U.S. 655.) Our task,

therefore, is to ascertain whether the application of

California community property law to husband’s feder-

al military retirement pay interferes in any way with

the accomplishment of the goals of Congress in creat-

ing the current military retirement scheme.‘

The contention that Congress intended federal mili-

tary pay to be the separate property of the recipient is

based in large measure on Wissner v. Wissner (1950)

supra, 338 U.S. 655. In Wissner, the trial court ordered

the beneficiary of life insurance proceeds under the

National Service Life Insurance Act (38 U.S.C. § 701

et seq.) to pay half the proceeds, as community prop-

erty, to the deceased soldier’s widow. The United

States Supreme Court held the order invalid under the

supremacy clause on the ground that the specific lan-

guage of the act,® construed in the light of congres-

“In a recent article, Js Armed Services Retired Pay Really

Community Property? (1973) 48 State Bar J. 12, Judge B. Ab-

bott Goldberg maintains that the characterization of a federally

created property right is exclusively a matter of federal law, and

state law may not operate unless Congress specifically intended

it to do so. Free and Wissner make clear, however, that state

law may determine the treatment accorded locally to a federally

created property right so long as the result does not frustrate the

express or implied purposes of the federal legislation. (See also

Bank of America v. Parnell (1956) 352 U.S. 29.)

Judge Goldberg’s article also supports several of husband’s

ceatentions regarding congressional intent which we consider

infra.

5Title 38, United States Code, -section 717(a), provides:

“The insured shall have the right to designate the bene ciary or

beneficiaries of insurance maturing on or after August 1, 1946,

and shall, subject to regulations, at all times have the right to

change the beneficiary or beneficiarics of such insurance without

the consent of such beneficiary or beneficiaries.”

‘mi,

sional intent, gave the serviceman the absolute right

to choose the beneficiary of the policy and hence was

invulnerable to the application of state community

property law. )

Wissner does not require community property states

to classify the proceeds of National Service Life In-

surance policies as separate property, but only to re-

train from administering those incidents of community

property law which would frustrate the congressional

plan. In Estate of Allie (1958) 50 Cal.2d 794, we

held that insurance proceeds payable to the service-

man’s estate may be considered community property

since such a classification does not hinder the insured’s

free choice of beneficiaries. It is clear, therefore, Wiss-

ner did not establish a general rule that federal em-

ployment benefits cannot be treated as community prop-

erty, but merely construed a specific statute in view

of the congressional intcet it’ embodied.’ Wissner has

no controlling impact cn the case at bar except to

mandate us to examine the legislative goals behind the

federal military retirement pay system.

Nevertheless we are asked to measure the property

involved herein against a five-part Wissner “test” which

purportedly determines whether Congress intended a

federally created property right to be immune from

community property characterization by the states. Ac-

cording to this asserted yardstick, federal benefits must

be the separate property of the recipient if (1) they

were intended to directly enhance morale; (2) they

were intended to be paid from congressional appropria-

*Wissner, for example, expressly refrained from decidin

whether army pay could be classed as community tty ae

whether the soldier’s widow could recover half insurance

premiums derived from that pay.

HARTSON MS HEIAR oY VEIN et oO

|

—

tions; (3) their administration costs were intended to

be borne by the United States; (4) premiums or con-

tributions to the system were intended to be low; and

(5) they were intended to afford as much material

protection as possible to the recipient. Although the”

federal military retirement pay system doubtless satis-

fies each of the asserted criteria, the source of these

purported standards is a tortured reading of the

Wissner opinion. No precise language in Wissner is

quoted in the formulation of this “test” of congres-

sional intent; rather the“standard is devised by para-

phrasing a stiies of statements by the court taken out

of context and artificially grouped together.’ Aside

from the vacuous content of the asserted “tests,” which

are so broad as to embrace virtually all federally

created benefit plans, Wissner makes plain that it is

embarking on the task of specific statutory construc-

tion, and not setting forth general propositions by

which to evaluate the goals of Congress in other legisla-

tive enactments. }

We have studied Senate reports and congressional

hearings concerned with the adoption of the federal

military retirement pay system in an effort to ascertain

any legislative intent to preserve the benefits of the sys-

tem as the separate property of the recipient. We fail

to find in the legislative background any indication that

Congress intended military retirement pay to be sep-

arate property, or conversely, that treating the pay as

‘The first and fifth “tests,” that the benefits be intended to

directly enhance morale and afford material tection, are

adopted frum a discussion in Wissner exploring the constitution-

ality of the National Service Life Insurance Act. The remaining

three “tests,” that costs be borne by the United States and

ig, See by congressional appropriations and that premiums

be low, derive from a discussion of characteristics peculiar to

the National Service Life Insurance system.

Te = ee

seas

community property circumvents the congressional

scheme. There is considerable evidence that Congress

enacted the feceral military retirement pay system in

order to bolster the morale of the serviceman and to

provide him with an incentive to remain in the armed

services, as well as to afford him material protection

in his later years. It does not follow therefrom that ap-

plying community property law to retirement pay cre-

ates a disincentive to esiablishing a career in the mili-

tary, or detracts from a serviceman’s spirit or future

security.

Husband argues that Congress explicitly determined

federal military retirement pay is the “personal entitle-

ment” of the serviceman, “payable to the member him-

self as long as he lives,” and therefore foreclosed the

states from applying a community property characteri-

zation which impinges on the concept of “personal

entitlement.” (1968 U.S. Code Cong. & Admip.- News,

p. 3300; see also Sen. Rep. No. 1480, 90th Cong., 2d

Sess. (1968).) The legislative materials cited, however,

make clear that Congress used the phrase “personal

entitlement” to signify that retirement benefits cease

with the death of the serviceman, and provide no con-

tinuing means of support for the serviceman’s widow or

family.*

It is next suggested that if military retirement pay

ceases with the death of the serviceman, then Congress

must have intended that wife have no vested rights in

the benefits. No part of a serviceman’s retirement pay

passes to the estate of his wife should she predecease

“Congress’ reference to military retirement benefits as the

ee of the serviceman occurs in the context

the need for an annuity plan to provide for a de-

sound cadets taille.

AS | ee STR ey

lien

him, and therefore, it is argued, this aspect of the

plan is significantly incompatible with our community

property scheme. This contention, however, overlooks

the fact that retirement benefits in California, though

community property, do not necessarily constitute an

inheritable legacy. Consistent with community property

law, a wife may maintain a nontestamentary com-

munity property right in benefits which extends only

during the lifetime of her husband. (Waite v. Waite

(1972) supra, 6 Cal.3d 461.)* Thus we conclude

that the application of California community property

law does not prevent federal military retirement pay

from retaining its character as the “personal entitle-

ment” of the serviceman in the sense Congress em-

ployed the phrase.

Because federal military retirement pay carries with

it no right of survivorship, the characterization of bene-

fits as community property places the serviceman’s ex-

wife in a somewhat better position than that of his

widow. Such result is anomalous, husband contends,

in light of the fact that Congress created annuity plans

specifically to support a serviceman’s widow,” but

made no provisions in favor of a serviceman’s divorced

wife. The point is not persuasive. Congress’ concern

for the welfare of soldiers’ widows sheds little light on

Congress’ attitude toward the community treatment of

- abe :

netic sw ote Ha) Sh es

sustenance of retired judges and their wives, and not to benefit

the low, soividhtandiig the compton teet ent it uae

be deprived cf her equal portion of husband's pension.

"See the revised version of the Retired Serviceman’s Family

Protection Plan, titie 10, United States Code, section 1431 et seq.,

and the Survivor's Be.cefit Plan, title 10, United States Code,

section 1447 ef seq.

—10—

retirement benefits, particularly since those benefits

do not survive the serviceman regardless of his marital

status at death. It is not incongruous for Congress to

supply a program to aid widows, who no longer have

husbands to provide sustenance, and omit to do so for

ex-wives who can rely on state family law concepts

of support, alimony, and community property for a

source of income.”

It is true, as husband points out, that if retirement

benefits are community property, upon divorce the por-

tion awarded to the ex-wife will become her separate

property. (See Phillipson v. Board of Administration

(1970) supra, 3 Cal.3d 32, 44.) It does not follow,

however, that should the ex-wife die, her rights would

descend to her heirs, and that the serviceman could

thus become obligated to the ex-wife’s future husband

or subsequent children. In California is it clear that

the heirs of the ex-wife are not entitled to the portion

of the retirement benefits the ex-wife would have re-

ceived had she lived. (Waite v. Waite (1972) supra,

6 Cal.3d 461.) As stated in Bensing v. Bensing (1972)

supra, 25 Cal.App.3d 889, 894 (hg. den.), “The pen-

sion terminates with the death of the husband, and

wife’s share also terminates if she predeceases the hus-

band.”

California community property law is not irrecon-

cilable with the military annuity program and as a re-

sult incompatible with the retirement system which sup-

"Similarly, there is little relevance to the argument that

could not have intended military retirement pay be com-

munity property because the ex-wife would retain rights against

the retired serviceman despite her remarriage, while an annuity

to a serviceman’s widow is suspended or terminated by remar-

riage. (10 U.S.C. § 1450.) The treatment of 2x-wives and wid-

ows does not present analogous problems or considerations.

a ARR

2. ee

ON em ree ee RT ee ee Bek ene se

—])]—

plied the premiums for the annuity fund. Although

insurance proceeds are community property to the ex-

tent the policy was purchased with community funds

(Grimm v. Grimm (1945) 26 Cal.2d 173), the prin-

ciple does not extend to annuity plans created in the

employment context. In Benson v. City of Los Angeles

(1963) supra, 60 Cal.2d 355, we held that the rights

of a widowed second wife take precedence over those

of an ex-wife whose community funds were converted

from husband’s retirement plan to a related annuity

contract. Characterizing retirement benefits as com-

munity property, therefore, does not conflict with the

serviceman’s right to choose an eligible beneficiary un-

der the annuity plans Congress established in coordina-

tion with the retirement system.”

Although a serviceman’s retirement pay does not

pass to his family when he dies, the serviceman retains

the right to designate a beneficiary to receive any ar-

rearages in pay which are due but unpaid at his death.

The designation right is derived from a statute which

gives the serviceman a power of testamentary disposi-

tion over any money owed to him by the federal govern-

ment, and it is contended that community property

laws interfere with husband's right to choose a bene-

ficiary. However, unlike the insurance program in

ne See Se SS ee ee Lele

community property law to the retirement of a soldier

who served outside California for the greater part of his term

of ee ee ee en aay Sa

prop sof seed validity (Addon v. Addison (1963). 52

Title 10, United States Code, section 2771, provides: “(a)

In the settlement of the accounts of a deceased member of the

(This footnote is continued on next page)

—

Wissner in which the right to choose a beneficiary was

an integral and explicit part of the federal plan, here

we have a designation right constituting no more than

a contingency procedure to distribute whatever money,

if any, is due to the serviceman but which he failed

to collect. We cannot perceive any Congressional intent

that the designation right be central to the whole mili-

tary retirement system or that it foreclose the states

from classifying retirement benefits as community prop-

lhe

Under federal law a disabled serviceman may waive

his retirement pay and instead receive a pension from

the Veterans Administration. (38 U.S.C. § 3105.) Be-

cause some federal cases have referred to pension

benefits as gratuities,"* husband contends such benefits

must be the separate property of the serviceman, and

therefore retirement pay must be so characterized as

well. While it would indeed be inconsistent with com-

munity property law to allow the husband to trans-

mute community property into his own separate proper-

ty, pensions are not considered gratuities under Cali-

fornia law and are classed as community property for

precisely the same reasons that retirement benefits are

community property. (Waite v. Waite (1972) supra,

6 Cal.3d 461; Phillipson v. Board of Administration

(1970) supra, 3 Cal.3d 32.) Thus, a disabled service-

armed forces . . . an amount due from the armed force of which

he was a member shall be paid to the persun inighest on the

fi ing list living at the date of death: (1) Beneficiary des-

ignated by him in writing to receive such an amount... .”

In Lynch v. United States (1933) 292 U.S. 571, the

court refers to pensions as gratuities in the sense that, so long

as they are not vested, the federal government can redistribute or

withdraw them at any time according to the discretion of Con-

gress. The reference has no impact on the states’ ability to char-

acterize pension rights under local principles of property law.

YM PEA NE A LE BL

OTR THE LY IOI Ds OR >

—

‘\

alii

man’s option to receive a pension instead of retirement

pay has no relevance to the issue whether the states

may treat either type of benefit as community property.

Next, it is said that California is, in effect, at-

taching the retirement pay of the serviceman .by ju-

dicially dividing it as community property, and that,

contrarily, Congress intended retirement pay to be im-

mune from attachment since it failed to enact a pro-

posed attachment rider to the Survivor’s Benefit Plan

(10 U.S.C. § 1447, et seq.). However, the relevant

legislative debate makes clear that Congress deleted

the attachment provision chiefly because it was extra-

neous to the annuity bill and because its passage would

treat servicemen differently from all other federal em-

ployees whose wages, to date, are not subject to attach-

ment by state courts.’* Congress’ action in failing to

enact the attachment rider indicates no more than a de-

sire to postpone the decision on the propriety of state

attachment proceedings until such time as all federal

payments are under its scrutiny. In any event, an

award of a community property share of retirement

benefits to wife involves neither an attachment of fed-

eral funds nor a demand on the federal paymaster,

but instead orders husband after he receives the benefits

Thus the Senate Committee on Armed Services reported:

“If the attachment provision were included in this bill, it would

make an exception of military retired pay by providing that it

alone, among all Federal pays and annuities, would be subject

to attachment. The committee felt that this would be an un-

warranted and unfair discrimination against the retiree.

“An attachment provision is extraneous to the question of sur-

vivor benefit legislation, and all its ramifications could not be

evaluated to the extent appropriate or desirable.

“The committee believes that, although the attachment provi-

sion may be justified in many instances, it should be addressed

from the perspective of its application to all Federal pays and

annuities.” (118 Cong. Rec. S 14335.)

a ae

to fulfill his obligation in the future pursuant to the

judgment of dissolution.

Husband finally contends that even if federal mili-

tary retirement pay can properly be considered com-

munity property, such a characterization must cease

upon the dissolution of the marriage because retire-

ment pay represents a continuation of active duty pay

on a reduced basis, and not remuneration for services

performed while husband was married. He relies

principally on Lemly v. United States (Ct. Cls. 1948)

75 F.Supp. 248, in which the court purportedly de-

clared a distinction as a matter of federal law between

a pension, which is compensation for services previous-

ly rendered, and retirement pay, which constitutes con-

sideration for the recipient’s continued obligations to

the government.”* In Lemly, the court of claims was

faced with the question whether a naval reserve of-

ficer who contracted a disabling disease while on

active duty was entitled to post-retirement compensa-

tion for his service-connected disability. Because the

court of claims has jurisdiction over claims for retire-

ment pay, but not claims for pensions, the court dis-

tinguished the two types of benefits, and determined

that retirement pay is compensation for services present-

ly being performed since the recipient is subject at all

times to recall to active duty.

Whether retirement pay is a pension and thus ex-

cluded from the jurisdiction of the court of claims is

1%6To some extent Hostinsky v. United States (Ct. Cls.

1961) 292 F.2d 508, and United States v. Hooper (1958)

9 U.S.C.M.A. 637, distinguish pensions from retirement pay.

Hostinsky and Hooper, however, do not address the issue of

which services, past or present, retirement pay rewards, but

merely stand for the proposition that retired officers are still

members of the armed services with certain limited duties.

y

%

Ba

inienmesummmnmmen PROT ET

SPR GS Se greet esa

an ie

far removed from the problem of classifying retirement

benefits under state community property law, arid is

e authoritative on the latter issue. Furthermore, in

Gordon v. United States (Ct. Cls. 1956) 140 F.Supp.

263, the court of claims reconsidered the nature of re-

tirement pay and concluded that it is awarded to serv-

icemen “for the reason that it is something they

earned while in the service of their country.”

Apart from the foregoing judicial declarations on

tangential issues, military retirement pay must be real-

istically viewed as compensation for past, not present,

services. Congress’ purpose in creating the retirement

pay system was to enhance the morale of the -service-

man and to encourage him to remain in the military,

and not to compensate him for his limited respon-

sibility to the government after his retirement. Indeed,

the amount of retirement pay a serviceman receives

bears no relation to any continuing duties after retire-

ment, but is calculated solely on the basis of the num-

ber of years served on active duty and the rank at-

tained prior to retirement. (10 U.S.C. § 6323 (e).)

Moreover, should the serviceman actually be recalled to

active duty, he is not only additionally compensated

according to the active duty pay scale, but his rate of

retirement pay is also increased thereafter. (10 U.S.C.

§ 1402.) The conclusion is inescapable that retire-

ment pay is awarded in return for services previously

rendered and therefore is divisible as community prop-

erty to the extent the serviceman was married while on

active duty.

Because we can find no evidence that the applica-

tion of California community property law interferes

in any way with the administration or goals of the

CRS SNe Ss i Oh at,

ws

|

Max” Teed

federal military retirement pay system, we hold that

military retirement pay properly can be characterized

as community property in accordance with established

principles of California law. No objection has been

made to the mathematical computation of the trial

court and it appears to be accurate.

The judgment is affirmed.

Mosk, J.

We Concur:

Wright, C. J.

McComb, J.

Tobriner, J.

Burke, J.

Sullivan, J.

Clark, J.

“Pr

a wm

APPENDIX B.

Statutes.

10 U.S.C.A. § 1447 SURVIVOR BENEFIT PLAN

Definitions

In this subchapter:

(1) “Plan” means the Survivor Benefit Plan estab-

lished by this subchapter.

(2) “Base amount” means—

(A) the amount of monthly retired or retainer

pay to which a person—

(i) was entitled when he became eligible

for that pay; or

(ii) later became entitled by being advanced

on the retired list, performing active duty, or

being transferred from the temporary disability

retired list to the permanent disability retired

list; or

(B) any amount less than that described by

clause (A) designated by that person on or before

the first day for which he became eligible for re-

tired or retainer pay, but not less than $300;

as increased from time to time under section 1401la of

this title.

(3) “Widow” means the surviving wife of a person

who, if not married to the person at the time he be-

came eligible for retired or retainer pay—

(A) was marriei to him for at least two years

immediately before his death; or

(B) is the mother of issue by that marriage.

aaiiiinds

§ 1448. Application of plan

(a) The Plan applies to a person who is married

or has a dependent child when he becomes entitled to

retired or retainer pay unless he elects not to participate

in the Plan before the first day for which he is eligible

for that pay. If a person who is married elects not to

participate in the Plan at the maximum level, that per-

son’s spouse shall be notified of the decision. An elec-

tion not to participate in the Plan is irrevocable :! «ot

revoked before the date on which the person fi: be-

comes entitled to retired or retainer pay.. However, a

persop ‘vo is not married when he becomes entitled to

retired or re‘ainer pay but who later marries, or acquires

a dependent child, may elect to participate in the Plan

but his election must be written, signed by him, and

received by the Secretary concerned within one year

after he marries, or acquires that dependent child. Such

an election may not be revoked. His election is effec-

tive as of the first day of the month after his election

is received by the Secretary concerned.

(b) A person who is not married and does not have

a dependent child when he becomes entitled to retired

or retainer pay may elect to provide an annuity to a

natural person with an insurable interest in that per-

son.

(c) The application of the Plan to a person whose

name is on the temporary disability retired list ter-

minates when his name is removed from that list and

he is no lenger entitled to retired pay.

(d) If a member of an armed force dies on ac-

tive duty after he has become entitled to retired or re-

tainer pay, or after he has qualified for that pay ex-

cept that he has not applied for or been granted that

— |

—19—

pay, and his spouse is eligible for dependency and in-

demnity compensation under section 411(a) of title

38 in an amount that is less than the annuity the

spouse would have received under this subchapter if it

had applied to the member when he died, the Secre-

tary concerned shall pay to thewspouse. an annuity

equal to the difference between that amount of com-

pensation and 55 percent of the retired or retainer pay

to which the otherwise eligible spouse described in sec-

tion 1450(a) (1) of this title would have been en-

titled if the member had been entitled to that pay

based upon his years of active service when he died.

Added Pub.L. 92-425, § 1(3), Sept. 21, 1972, 86

Stat. 707.

§ 1450. Payment of annuity: beneficiaries

(a) Effective as of the first day after the death of

a person to whom section 1448 of this title applies, a

monthly annuity under section 1451 of this title shall be

paid to—

(1) the eligible widow or widower;

(2) the surviving dependent children in equal

shares, if the eligible widow or widower is dead,

dies, or otherwise becomes ineligible under this

section; or

(3) the natural person designated under sec-

tion 1448(b) of this title at the time the person

to whom section 1448 applies became entitled to

retired or retainer pay, if there is no eligible bene-

ficiary under clause (1) or (2).

(b) An annuity payable to the beneficiary terminates

effective as of the first day of the month in which eli-

gibility is lost. An annuity for a widow or widower shall

i iat la i cee

ilies

be paid to the widow or widower while the widow or

widower is living or, if the widow or widower remarries

before reaching age 60, until the widow or widower

remarries. If the widow or widower remarries before

reaching age 60 and that marriage is terminated by

death, annulment, or divorce, payment of the annuity

will be resumed effective as of the first day of the

month in which the marriage is so terminated. How-

ever, if the widow or widower is also entitled to an

' annuity under this section based upon the marriage so

terminated, the widow or widower may not receive

both annuities but must elect which to receive.

(c) If, upon the death of a person to whom section

1448 of this title applies, the widow or widower of

' that person is also entitled to compensation under sec-

tion 411(a) of title 38, the widow or widower may be

paid an annuity under this section, but only in the

amount that the annuity otherwise payable under this

section would exceed that compensation.

(d) If, upon the death of a person to whom section

1448 of this title applies, that person had in effect

a waiver of his retire? or retainer pay for the purposes

of subchapter III of chapter 83 of title 5, an° an-

y nuity under this section shall not be payable unless, —

in accordance with section 8339(i) of title 5, he noti-

fied the Civil Service Commission that he did not de-

sire any spouse surviving him to receive an annuity

under section 8341(b) of that title.

(e) If no annuity under this section is payable be- -

cause of subsection (c), any amounts deducted from

_ the retired or retainer pay of the deceased under sec:

tion 1452 of this title shall be refunded to the widow

or widower. If, because of subsection (c), the annuity

ye: ee

payable is less than the amount established under sec-

tion 1451 of this title, the annuity payable shall be

recalculated under that section. The amount of the

reduction in the retired or retainer pay required to

provide that recalculated annuity shall be computed

under section 1452 of this title, and the difference

between the amount deducted prior to the computation

of that recalculated annuity and the amount that

would have been deducted on the basis of that recal-

culated annuity shall be refunded to the widow or

widower.

(f) An unmarried person who elects to provide an

annuity to a person designated by him under subsec-

tion (a) “3), but who later marries or acquires a de-

pendent child, may change that election and provide an

_ annuity to his spouse or dependent child. A change

of election under this subsection is subject to the rules

with respect to execution, revocation, and effectiveness

set forth in the last three sentences of section 1448(a)-

of this title.

‘(g) Except as provided in section 1449 of this title

or in subsection (f) of this section, an election under

this section may not be changed or revoked. |

(h) Except as provided in section 1451 of this title,

an annuity under. this section is in addition to any

other payment to which a person is entitled under any

> other provision of law. Such annuity shall be con-

sidered as income under iaws administered by the Vet-

erans’ Administration.

NE \ (i) Ap annuity under this section is not assignable

' or subject to éxecutton, levy, attachment, geehone,

or other legal process.

,.. + Added Pub.L.. 92-425, § 1 (3), eos 21, 1972, 86

Stat. 708.

= SS

Legislative History. For legislative 1972 U.S.Code

Cong. and Adm.News, p. history and purpose of Pub.

L. 92-425, see .....

§ 1451. Amount of annuity...

§ 1452. Reduction in retired or retainer pay

(a) The retired or retainer pay of a person to whom

section 1448 of this title applies who has a spouse, or

who has a spouse and a dependent child, and who has

not elected to provide an annuity to a person desig-

nated by him under section 1450(a) (3) of this title,

or who had elected to provide such an annuity to such

a person but has changed his election in favor of his

spouse under section 1450(f) of this title, shall be

reduced each month by an amount equal to 2% per-

cent of the first $300 of the base amount plus 10 per-

cent of the remainder of the base amount. As long as

there is an eligible spouse and a dependent child, that

amount shall be increased by an amount prescribed

under regulations of the Secretary of Defense.

(b) The retired or retainer pay of a person to whom

section 1448 of this title applies who has a dependent

child but does not have an eligible spouse, shall, as

long as he has an eligible dependent child, be reduced

by an amount prescribed under regulations of the

Secretary of Defense. t

(c) The retired or retainer pay of a person who

has elected to provide an annuity to a person desig-

nated by him under secticn 1450(a) (3) of this title

shall be reduced by 10 percent plus 5 percent for each

full S years the individual designated is younger than

that person. However, the total reduction may not ex-

ceed 40 percent.

ta eae See ee

—_— =

(d) If a person who has elected to participate in

the Plan has been awarded retired or retainer pay and

is not entitled to that pay for any period, he must

deposit in the Treasury the amount that would other-

wise have been deducted from his pay for that period,

except when he is called or ordered to active duty for a

period of more than 30 days.

(e) When a person who has elected to participate

in the Plan waives his retired or retainer pay for the

purposes of subchapter III of chapter 83 of title 5, he

shall not be required to make the deposit otherwise re-

quired by subsection (d) as long as that waiver is in

effect unless, in accordance with section 8339(i) of

title 5, he has notified the Civil Service Commission

that he does not desire any spouse surviving him to

receive an annuity under section 8341(b) of title 5.

(f) Except as provided in section 1450(e) of this

title, a person is not entitled to any refunds of amounts

deducted from retired or retainer pay under this sec-

tion unless the amounts were deducted through ad-

ministrative error.

Added Pub.L. 92-425, § 1(3), Sept. 21, 1972, 86

Stat. 710.

Legislative History. For legislative 1972 U.S.Code

Cong. and Adm.News, p. history and purpose of Pub.

L. 92-425, see—.

§ 1453. Recovery of annuity erroneously paid .. .

§ 1454. Correction of administrative deficiences . . .

§ 1455. Regulations

The President shall prescribe regulations to carry

out this subchapter. Those regulations shall, so far as

practicable, be uniform for the armed forces, the Na-

oulitens

tional Oceanic and Atmospheric Administration, and

(1) provide thai, when the notification re-

ferred to in section 1448(a) of this title is re-

quired, the member and his spouse shall, before

the date the member becomes entitled to retired

or retainer pay, be informed of the elections avail-

able and the effects of such elections; and

(2) establish procedures for depositing the

amounts referred to in section 1452(d) of this

Added Pub.L. 92-425, § 1(3), Sept. 21, 1972, 86

Stat. 711.

Legislative History. For legislative 1972 U.S.Code

Cong. and Adm.News, p. history and purpose of Pub.

L. 92-425, see—.

10 U.S.C.A. § 2771. Final settlement of accounts:

deceased members

(a) In the settlement of the accounts of a deceased

member of the armed forces who dies after December

31, 1955, an amount due from the armed force of

which he was a member shall be paid to the person

highest on the following list living on the date of death:

(1) Beneficiary designated by him in writing

to receive such an amount, if the designation is

received, before the deceased member’s death, at

the place named in regulations to be prescribed

by the Secretary concerned.

(2) Surviving spouse.

(3) Children and their descendants, by repre-

sentation.

Le

iets ele a liek I ea

=

(4) Father and mother in equal parts or, if

either is dead, the survivor.

(5) Legal representative.

(6) Person entitled under the law of the domi-

cile of the deceased member.

38 U.S.C.A. § 3105. Waiver of retired pay

Any person who is receiving pay pursuant to any

provision of law providing retired or retirement pay

to persons in the Armed Forces, or as a commissioned

officer of the National Oceanic and Atmospheric

Administration or of the Public Health Service, and

who would be eligible to receive pension or compen-

sation under the laws administered by the Veterans’

Administration if he were not receiving such retired

or retirement pay, shall be entitled to receive such pen-

sion or compensation upon the filing by such person

with the department by which such retired or retire-

ment pay is paid of a waiver of so much of his retired

or retirement pay as is equal in amount to such pen-

sion or compensation. To prevent duplication of pay-

ments, the department with which any such waiver is

filed shall notify the Veterans’ Administration of the

receipt of such waiver, the amount waived, and the ef-

fective date of the reduction in retired or retirement

pay.

As amended Pub.L. 91-621, § 6(a)(3), Dec. 31,

1970, 84 Stat. 1864.

1970 Amendment. Pub.L. 91-621 substituted “Na-

tional Oceanic and Atmospheric Administration” for

“Coast and Geodetic Survey”.

or oe

Legislative History. For legislative history and pur-

pose of Pub.L. 91-621, see 1970 U.S.Code Cong. and

Adm.News, p. 5757.

10 U.S.C.A. § 6323

“(a) An officer of the Navy or Marine Corps who

applies for retirement after completing more than 20

years of active service, of which at least 10 years was

service as a commissioned officer, may, in the discre-

tion of the President, be retired on the first day of

any month designated by the President.

“(b) For the purposes of this section (1) an of-

ficer’s years of active service are computed by adding

all his active service in the armed forces; and (2)

his years of service as a commissioned officer are

computed by adding all his active service in the armed

forces under permanent» or temporary appointments

in grades above warrant officer, W-1.

“(c) Unless otherwise entitled to a higher grade,

each officer retired under this section shall be retired

_ (1) im the highest grade, permanent or temporary, in

which he served satisfactorily on active duty as deter-

mined by the Secretary of the Navy; or (2) if the Sec-

retary determines that he did not serve satisfactorily in

his highest temporary grade, in the next lower grade

in which he has served, but not lower than his per-

manent grade. . . .

“(e) Unless otherwise entitled to a higher pay, an

officer retired under this section is entitled to retired

pay at the rate of 2% percent of the basic pay to

PS

which he would be entitled if serving on active duty in

the grade in which retired multiplied by the number

of years of service that may be credited to him under

section 1405 of this title, but the retired pay may not

be more than 75 percent of the basic pay upon which

the computation of retired pay is based. . . .”

United States Constitution, Article V1, Clause 2.

“This Constitution, and the laws of the United States

which shall be made in pursuance thereof; and all trea-

ties made, or which shall be made, under the authority

of the United States shall be the Supreme law of the

land; and the Judges. in every State shall be bound

thereby, anything on the Constitution or the laws of

any State to the contrary notwithstanding.”

= =

State Statutes.

California Probate Code, § 201

§ 201. Title of surviving spouse; portion subject to tes-

tamentary disposition or succession

Upon the death of either husband or wife, one-half

of the community property belongs to the surviving

spouse; the other half is subject to the testamentary dis-

position of the decedent, and in the absence thereof

goes to the surviving spouse, subject to the provisions

of sections 202 and 203 of this code. (Stats. 1931, c.

281, p. 595, § 201, as amended Stats. 1935, c. 831, p.

2249, § 2.)

California Civil Code § 4800

(a) Time of division; equality.

(a) Except upon the written agreement of the par-

ties, or an oral stipulation of the parties in open court,

the court shall in its interlocutory judgment of dissolu-

tion of marriage . . . divide the community property

and the quasi community property of the parties . . .

equally.

California Civil Code § 5119

After the rendition of a judgment decreeing legal

separation of the parties, the earnings or accumulations

of each party are the separate property of the party

acquiring such earnings or accumulations.

Sn