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Court of Appeal:
Judge’s Ex-Spouse Won’t Get Half of Retirement Benefits
Former Husband of Jurist Under JRS II Is Limited to 50% of Value of Benefits as of Time of Separation—Justices
By a MetNews Staff Writer
A judge correctly ruled that the ex-husband of a member of the Contra Costa Superior Court, who is under the retirement system applicable to judges who were elected or appointed on or after Nov. 9, 1994, is entitled to a 50% interest in monetary credits attributable to his former spouse’s service on the bench up until the couple separated—and nothing more, the Sixth District Court of Appeal has held.
In an unpublished opinion by Presiding Justice Mary J. Greenwood, the court on Thursday rejected the contention by attorney Douglass C. MacMaster, former spouse of Judge Joni T. Hiramoto, that he is entitled, under community property laws, to half of all retirement benefits.
Hiramoto and MacMaster were married July 1, 1989; she was appointed to the bench on March 11, 1998; the two separated on Oct. 4, 2004. They were divorced in December 2005, with jurisdiction being reserved as to their respective rights to benefits under the Judges’ Retirement System II (“JRS II”).
No Agreement
Through the ensuing years, MacMaster resisted a resolution of the reserved issue—in particular, not agreeing to a lump-sum payment to him under which he would have no further interest in the benefits. In December 2019, Hiramoto sought an order establishing what MacMaster was to receive.
Proceedings were held before Alameda Superior Court Judge Gregory Syren.
MacMaster, now residing in the State of Washington, was then on active State Bar status in California. He had served at one point as acting district attorney of Contra Costa County, had been chief assistant district attorney there for more than three years preceding his removal from that post by a new chief prosecutor on Dec. 1, 2017, and was a deputy district attorney.
He pointed out that under Government Code §75550(b), a “nonmember” of JRS II is defined as “the spouse or former spouse of a member, who as a result of petitioning the court for the division of community property has been awarded a distinct and separate account reflecting specific monetary credits, specific credited service, and accumulated contributions.”
The lawyer testified:
“I’m not a nonmember ... I’m the ex-spouse of a member. For purposes of my interest in the JRS II Fund, I’m a ‘nonemployee spouse’...Right now, the marital community’s interest in the JRS II Fund can only be divided into separate accounts ‘[u]pon the agreement of the nonemployee spouse...’ I don’t agree to such a division; I vehemently oppose Judge Hiramoto’s proposed order.”
Argument on Appeal
He argued on appeal:
“The JRS II Law and the Family Code operate in harmony to render JRS II benefits subject to equal division, while nevertheless permitting a JRS II nonmember to waive that right and to choose a reduced lump sum distribution….Where a nonemployee spouse doesn’t petition for a lump sum distribution, the JRS II Law’s silent as to how a trial court should divide his JRS II benefits…, so the Family Code fills the void….In that case, nothing in the JRS II Law relieves a trial court of its ‘mandatory, nondelegable duty’ to divide the community estate equally…and to ensure the nonemployee spouse receives his full community share of the JRS II benefits.”
Hiramoto countered:
“But the delayed benefit Mr. MacMaster seeks is not available from JRS II. Instead, the Legislature carefully designed JRS II to reduce costs and simplify administration by ensuring that JRS II would never provide a deferred benefit such as Mr. MacMaster seeks—not to a member and not to an ex-spouse.”
Greenwood’s Opinion
Greenwood said the word “nonmember” must be interpreted in conformity with the legislative intent. She noted that as of the date of the parties’ separation, MacMaster’s share in the value of the benefits was $87,682.03 while, if calculated as of March 31, 2020, it would be $320,805.28.
The presiding justice wrote: “This result is obviously contrary to the Legislature’s intention in enacting JRS II to reduce the amount of retirement benefits owed by the judicial retirement system.”
She declared:
“[W]e determine that the context of the JRS II statutory scheme requires that MacMaster, as the former spouse of Hiramoto, be deemed a nonmember within the meaning of the section 75550, subdivision (b) definition of ‘nonmember,’ and therefore the provisions of JRS II apply to the division of his community property interest. MacMaster is therefore not entitled to an award of his community property interest that would be based on the present value of Hiramoto’s potential maximum JRS II retirement benefit.”
MacMaster also pointed to Family Code §2610(a)(3)(D) which provides:
“Except as provided in subdivision (b), the court shall make whatever orders are necessary or appropriate to ensure that each party receives the party’s full community property share in any retirement plan, whether public or private, including all survivor and death benefits, including, but not limited to, any of the following:”
He complained:
“Appellant lodged multiple Family Code section 2610 objections below….He objected that Family Code section 2610(a) required the trial court to award him his full community share in the JRS II retirement plan… and that it was obligated to ‘make whatever orders [were] necessary or appropriate’ to accomplish that equal division….The trial court brushed those aside without serious discussion or analysis.”
Greenwood said:
“Since Family Code section 2610, subdivision (a)(3)(D) does not include JRS II (§ 75500 et seq.) in the enumeration of enactments that require the consent of the nonemployee spouse to the division of the community property in a retirement plan as provided by specific enactments, we determine under the principle of expressio unius est exclusio alterius that JRS II is excluded. Therefore, consent of the former spouse is not required for the division of the community property interest in a JRS II retirement plan as provided by the provisions of JRS II.”
The case is Hiramoto v. MacMaster, H051793.
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