In re the Marriage of CARLOS V. and JOANNE LOIS CORNEJO. CARLOS V. CORNEJO, Appellant, v. JOANNE LOIS CORNEJO, Respondent, 13 Cal. 4th 381

Opinion MOSK, J. In In re Marriage of Gillmore (1981) 29 Cal.3d 418 [174 Cal.Rptr. 493, 629 P.2d 1] (hereafter sometimes Gillmore), we held that retirement benefits that an employee spouse earns during a marriage to a nonemployee spouse are community property. On dissolution of the marriage, such benefits are subject to equal division. When the employee spouse becomes eligible for retirement, he may choose to retire and receive benefits or to continue to work.

That is to say, he may retire and thereby commence drawing from the stream of income that then begins to flow, with the result that the nonemployee spouse may start to draw her share of the community property interest as well; or he may continue to work and thereby forgo the income he would have drawn, with the result that the nonemployee spouse is compelled to forgo what would have been her share as well. In brief, the employee spouse has an initial choice of retiring or continuing to work. He is not permitted, however, to adversely affect the nonemployee spouse’s share by putting off his retirement.

To prevent such an outcome, the nonemployee spouse too is allowed a choice. If the employee spouse continues to work, she may merely wait to draw her share when he commences to receive benefits (with the possibility of increase as a result of his then greater age, longer service, and/or higher salary); or she may demand immediate payment to compensate for what would have been her share (without such possibility of increase). Thus, the nonemployee spouse has a choice of delayed benefits or immediate payment. If she decides on the latter, the employee spouse is given another choice.

He may make arrangements to meet her demand for immediate payment; or he may simply retire and allow her to draw her share. In a word, the employee spouse has a final choice of satisfaction or avoidance. (In re Marriage of Gillmore, supra, 29 Cal.3d at pp. 422-429.) Plainly, if the employee spouse continues to work, and the nonemployee spouse chooses delayed benefits, she is entitled to obtain such benefits as of the date of his retirement.

The question presented is this: If the employee spouse continues to work, and the nonemployee spouse chooses immediate payment, as of what date is she entitled to obtain such payment? I In 1978, appellant Carlos V. Cornejo (hereafter Carlos) filed a petition in the San Francisco Superior Court seeking dissolution of his marriage of 21 years to respondent Joanne Lois Cornejo (hereafter Lois). Carlos was employed by the San Francisco Unified School District. He belonged to the State Teachers’ Retirement System (hereafter STRS), and would become eligible to retire when he reached 60 years of age, on May 16, 1989.

STRS was joined in the dissolution proceeding as a party claimant and made an appearance. In 1979, the court entered an interlocutory judgment of dissolution in conformity with a marital settlement agreement between the parties. As a general matter, the court divided the community property equally: its division followed the parties’ resolution of the issues.

But it retained jurisdiction expressly to determine the extent of the community property interest in Carlos’s retirement benefits in STRS and impliedly to make necessary and appropriate orders to ensure that each party would receive his or her share, directing Carlos not to make any encumbrance in the interim. Its retention of jurisdiction was with the consent of the parties, who had attempted but failed to resolve this issue themselves. In 1980, it entered a final judgment in accordance with the interlocutory judgment.

On August 3, 1992, Lois sent a letter to Carlos, who had continued to work, asking whether he planned to retire in the near future and stating her intention, if he did not, to file a motion in the superior court for modification of the final judgment. Available STRS documents revealed that her share of the community property interest in his retirement benefits, as of May 1992, was about $1,381 a month “unmodified,” i.e., without provision for payments after his death. On March 31, 1993, Lois filed her intended motion in the superior court for modification of the final judgment.

She requested the court to determine the community property interest in Carlos’s retirement benefits in STRS and to order him to make immediate payment, retroactive to May 16, 1989, the date of his eligibility to retire. On October 14, 1993, after an evidentiary hearing, the superior court entered an amended final judgment. It impliedly determined the community property interest in Carlos’s retirement benefits in STRS. It fixed Lois’s share at $1,126 a month, a figure on which the parties had agreed in order to provide her with payments of equal sum after his death as well as before.

It ordered Carlos to make immediate payment to Lois in the amount stated until he retired. It also ordered him to make such payment retroactive to May 16, 1989, as she had sought over his opposition: it reasoned that payment of this sort was mandated by Gillmore and In re Marriage of Crook (1992) 2 Cal.App.4th 1606 [3 Cal.Rptr.2d 905] (hereafter Crook), and was necessary to ensure that she receive her share for the period from May 16, 1989, through October 13, 1993, as guaranteed by former

section 4800.8 of the Civil Code (present

section 2610 of the Family Code). In addition, it ordered STRS to make payment to her in the amount stated after he retired. Carlos filed a notice of appeal from the amended final judgment insofar as it ordered him to make payment for the period from May 16, 1989, through October 13, 1993. In an opinion not certified for publication, Division Four of the First Appellate District of the Court of Appeal affirmed. Carlos petitioned for rehearing. After choosing to grant rehearing on its own motion, the court again affirmed in an unpublished opinion.

It concluded that the superior court had not erred, apparently accepting its reasoning as sound. On Carlos’s petition, we granted review. II As stated, the question is this: If the employee spouse continues to work, and the nonemployee spouse chooses immediate payment, as of what date is she entitled to obtain such payment?

In the course of our consideration, we have been presented with four possible answers: (1) the date of the employee spouse’s eligibility to retire; (2) the date of a demand by the nonemployee spouse preceding the filing of a motion seeking immediate payment; (3) the date of the filing of such a motion; and (4) the date of the issuance of an order passing thereon. After review, we believe that the correct answer is the date on which the nonemployee spouse files a motion seeking immediate payment. Such a point in time is bright.

More important, the filing of a motion of this sort is a formal act and, as such, furthers recognition and appreciation of the fact and perhaps even the extent of the underlying claim. It clearly constitutes the nonemployee spouse’s choice of immediate payment. And it clearly puts the employee spouse on notice that he may exercise his choice of satisfaction or avoidance. We cannot accept the answer that fixes the date at the nonemployee spouse’s demand preceding the filing of a motion seeking immediate payment. Such a point in time might not be bright.

The “demand,” for example, might be oral in its delivery, indeterminate in its substance, or ambiguous in its language. It might therefore encourage litigation, which the “policy of the law” has long sought to “discourage” (Hamilton v. Oakland School Dist. (1933) 219 Cal. 322, 329 [26 P.2d 296]). Neither can we accept the answer that fixes the date at the issuance by the court of an order directing immediate payment. Although bright, such a point in time would be too late, to the prejudice of the nonemployee spouse’s choice of immediate payment.

In addition, it would give the employee spouse an incentive to protract the proceeding in order to make the payment remote in fact even while it is deemed immediate in law. Finally, we cannot accept the answer that fixes the date at the employee spouse’s eligibility to retire. Such a point in time would be too early, to the prejudice of his choice to satisfy or avoid the nonemployee spouse’s choice of immediate payment. Eligibility may come long before the filing of a motion. Possibilities that were available around the time of the former may long since have become impossibilities by the time of the latter.

The employee spouse may be forced to try to come up with a substantial sum to cover a claim that has “accrued retroactively” over a long period. If his choice of satisfaction or avoidance is to remain meaningful, he should not be put into such a position.

Ill Turning to the present proceeding, we believe that the Court of Appeal did not err by sustaining the superior court’s order insofar as it directed Carlos to make payment to Lois for the period from March 31, 1993, the date of the filing of her motion seeking immediate payment, through October 13, 1993, the date immediately preceding its entry of the amended final judgment. As explained, a nonemployee spouse is entitled to postmotion payment. Lois is no exception.

By contrast, we believe that the Court of Appeal did indeed err by sustaining the superior court’s order insofar as it directed Carlos to make payment to Lois for the period from May 16, 1989, the date of his eligibility to retire, through March 30, 1993, the date immediately preceding the filing of her motion seeking immediate payment. As explained, a nonemployee spouse is not entitled to premotion payment. Lois is no exception.

Against this conclusion, Lois argues, in reliance on the superior court’s reasoning, that premotion payment is necessary to ensure that she receive her share of the community property interest in Carlos’s retirement benefits in STRS for the period from May 16, 1989, through March 30, 1993, as guaranteed by former

section 4800.8 of the Civil Code. It is not. Carlos forwent his retirement benefits in that period by continuing to work. As a result, Lois was compelled to forgo what would have been her share of the community property interest therein. To be sure, she could have obtained compensation for the share forgone. But she had to have filed a motion by May 16, 1989. This she did not do. She directs our attention to a finding by the superior court that she was unaware she could have filed a motion until August 3, 1992, and that she acted with reasonable dispatch thereafter.

We believe, however, that she had been put on notice well before May 16, 1989, and that she should have proceeded accordingly. She had possessed the opportunity, motive, and means to file a motion for eight years prior to that date. She had been provided with the opportunity by Gillmore itself, which was decided in 1981. She had obtained the motive through her recognition of the retirement benefits issue, which dated at the latest to the interlocutory judgment of dissolution in 1979.

She had secured the means as a result of her access to information relating to the benefits in question, which extended back to the same period of time. The simple fact is that she did not file a motion by May 16, 1989. Lois also argues, again in reliance on the superior court’s reasoning, that premotion payment is mandated by Gillmore and Crook. It is not. Gillmore and Crook are factually distinguishable. It is true that, like the present proceeding, both happen to involve premotion payments.

But whereas the payments there extended back no more than a few months, specifically, three months in Gillmore and six months in Crook, those here reach almost four years into the past. In any event, Gillmore and Crook are not legally controlling. Neither considers the proposition whether premotion payment is mandated. “It is axiomatic that cases are not authority for propositions not considered.” (People v.

Gilbert (1969) 1 Cal.3d 475, 482, fn. 7 [82 Cal.Rptr. 724, 462 P.2d 580].) IV For the reasons stated above, we conclude that we must reverse the judgment of the Court of Appeal to the extent that it affirms the judgment of the superior court insofar as it orders Carlos to pay Lois for the period from May 16, 1989, through March 30, 1993. We also conclude that we must remand the cause to the Court of Appeal and direct it to modify the judgment of the superior court to order Carlos to pay Lois for the period from March 31, 1993, and to affirm the judgment as modified.

Finally, in all other respects, we conclude that we must affirm the judgment of the Court of Appeal. It is so ordered. George, C. J., Baxter, J., Werdegar, J., Chin, J., and Lucas, J., concurred. This answer, of course, effectively requires the filing of a motion by the nonemployee spouse. From all that appears, such is the common, and not unduly onerous, practice, even for one appearing in propria persona. And, obviously, it occurs in the context of a proceeding that has already been initiated.

We note in passing that, in her letter of August 3, 1992, Lois made no demand on Carlos, strictly speaking, but simply asked whether he planned to retire in the near future and stated her intention, if he did not, to file the motion in question. Carlos, however, evidently inferred a demand. Had he done otherwise, he might have injected another issue into the proceeding. Here, more than $51,000 over almost four years. Of course, if Carlos had received his retirement benefits, Lois would apparently have had a claim to her share of the community property interest therein. (See, e.g„ Henn v.

Henn (1980) 26 Cal.3d 323, 328-333 [161 Cal.Rptr. 502, 605 P.2d 10].) He did not. She does not. Lois discerns support for premotion payment in the Legislature’s declaration that former

section 4800.8 of the Civil Code should be “deemed to be retroactive to June 1, 1988.” (Stats. 1988, ch. 542, § 9, p. 1999.) We do not. Surely, the provision is applicable. But, as shown in the text, its application does not compel Carlos to pay what she seeks. Lois also discerns support for premotion payment in the marital settlement agreement. Here too, we do not. Neither expressly nor impliedly did Carlos bind himself to pay what she seeks.

We note in passing that the superior court should have determined the community property interest in Carlos’s retirement benefits in STRS as of March 31,1993, the date of the filing of Lois’s motion for immediate payment. Instead, it made its determination, in accordance with her motion, as of May 1992. Carlos has not made any complaint in this regard. Neither has Lois. Nor may she. The Court of Appeal ordered Carlos and Lois each to bear his or her own attorney fees and costs on appeal. In his brief on the merits, Carlos suggests for the first time that the court may have erred.

We may decline to reach an issue, like the present, that was not set forth in the petition for review or any answer thereto, or that is not fairly included in one that was. (Cal. Rules of Court, rule 28(e)(2).) We do so here. Retired Chief Justice of the Supreme Court, assigned by the Acting Chief Justice pursuant to

article VI,

section 6, of the California Constitution.