Justices Uphold Appeals Ruling, Ease Way for Claims : Ex-Spouses May Share in Military Pensions

The state Supreme Court eased the way Monday for a divorced person to claim a share of an ex-spouse’s military pension, ruling that federal statutes permit California courts to make such awards under state law.

In a unanimous ruling, the court also said the division of the pension is to be based on its “gross”--or pre-tax--amount.

Affirming a state Court of Appeal ruling, the justices upheld an award of 30% of the pension of a retired naval commander to his former wife after she brought suit seeking a share of the benefits in 1980.

The case involved a dispute between former Cmdr. Max Thompson and Virginia Casas, who were divorced in 1966 after 17 years of marriage and five children. At the time, Thompson had been on active duty in the Navy more than 21 years--and his retirement pension was not at issue in the dissolution proceedings.

In 1970, Thompson retired and began receiving monthly retirement pay. Casas later sought part of the pension as community property, but a trial court, citing a ruling by the U.S. Supreme Court, rejected her claim. The trial court ruled the benefits were Thompson’s separate property.

Congress, however, enacted a law in 1983 aimed at overcoming the U.S. Supreme Court ruling and allowing state courts to apply their own laws in determining the rights of former spouses to military pensions.

Casas went back to court, citing the new law, and won a ruling that Thompson’s retirement pay under state law was community property in which she was entitled to share.

On appeal, Thompson argued that his retirement income should not be shared--but that, if it were, payment should be based on the amount he received after taxes, rather than before.

Daniel B. Hunter of San Diego, an attorney for Thompson, expressed disappointment with the decision and said it was possible the ruling would open “a tremendous number” of similar cases to further legal proceedings. He said it was likely the ruling would be appealed to the U.S. Supreme Court.

Lawyers for Casas could not be reached for comment.

In another decision, the court interpreted a provision of Proposition 8, the Victims’ Bill of Rights, in ruling that juries may not be told the nature of a prior felony in a case in which the defendant’s status as a felon is an issue--in a prosecution for possession of a firearm by a felon, for example.

The court said the law requires only that the jury in such a case be advised that the defendant is an ex-felon, without going into the circumstances of the prior offense.