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Court of Appeal:
O’Melveny Lawyer Was Awarded Too Big a Share of Pension Upon Retiring As Partner
Opinion Says Community Had Larger Share Than Judge in Family Law Court Had Calculated
By a MetNews Staff Writer
An attorney who is of counsel to O’Melveny & Myers and specializes in matters relating to employee benefits was awarded too big a chunk of the pension he received upon retiring as a partner, Div. Three of the Fourth District Court of Appeal held yesterday, directing that his ex-wife’s share be recalculated.
Orange Superior Court Judge Lon F. Hurwitz determined that lawyer Wayne S. Jacobsen’s interest in his Partnership Agreement Retirement Benefit (“PARB”) was 66 percent. He reached that figure after reckoning the community interest to be 67.65 percent, dividing that evenly between Jacobsen and his ex-wife, Laurie Jacobsen, then awarding a 32.35 percent interest as the former law firm partner’s separate interest.
In applying the “time rule,” Hurwitz used 371 months as the denominator—the time from Wayne Jacobsen becoming equity partner and when he retired as a partner.
Ex-Wife’s Contention
That, the ex-wife argued, was error. In January 2011, about a month after they separated, she pointed out, her then-husband turned 55 and was eligible for the pension but continued working, with the pension not increasing after that.
Under her calculation, the community interest was 99.6 percent, with Wayne Jacobsen’s separate property interest being only .4 percent.
The lawyer, who works in O’Melveny’s Newport Beach office, retired as a partner on Dec. 31, 2020, and pension payments commenced.
Motoike’s Opinion
Justice Joanne Motoike authored the unpublished opinion. She wrote:
“We conclude the court erred in its application of the time rule. Once the maximum retirement benefit has been earned, a period of further employment is not included in the time rule formula….Time of service by the employee spouse that does not contribute to or increase the value of the retirement benefit is omitted because its inclusion dilutes the community property share of the retirement benefit….This means the court should have excluded from the denominator Wayne’s postseparation service that did not contribute to the PARB.”
She went on to say:
“Whether Laurie is correct the court should have excluded all of Wayne’s years of service after he reached age 55 is a more difficult question to answer on this record….[M]ultiple factors play into the determination of whether the inclusion or exclusion of the years of service between ages 55 and 60 is appropriate to reach a result that equitably apportions the community and separate property interests in the PARB.”
A remand was ordered “with directions to recalculate the community and separate property interests in the PARB.”
The case is Marriage of Jacobsen, G060633.
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