Rivera v. Rodríguez

¶1delivered the opinion of the Court.

¶2The marriage contracted on June 28, 1918, by Fernando Díaz and Flora Rivera was dissolved by virtue of a divorce decree rendered by a competent court on April 23, 1963. Diaz served in the Armed Forces of the United States and upon being discharged, after rendering services while he was married, he was awarded a disability pension which he enjoyed for several years.1 It is accepted that with moneys from the “pension”2 he purchased federal bonds in the amount *22of about $6,800.2a Moreover, he had a bank balance in the current account which his guardian kept in the Banco Popular of Puerto Rico and he had advanced a certain amount to reserve a lot in Lomas Verdes Development in Bayamón. In rendering judgment in the action brought to liquidate the conjugal partnership the trial court stated that “[t]he proceeds of pensions received are the separate property of the defendant, as well as the property he acquired with said proceeds,” on the ground that pensions partake of the nature of a donation being an act of grace granted by the state.

¶3We decided to review the judgment rendered.

¶4Contrary to what happens in other areas, Wissner v. Wissner, 338 U.S. 655 (1950), the federal regulations are silent about the community or separate nature of a pension or compensation granted a veteran who is domiciled in a state where the community property law is in force. 38 C.F.R. 3.1 et seq. We must resort, then, to the local legislation to determine the community or separate character, Buchser v. Buchser, 231 U.S. 157 (1913).

¶5Already since 1255 in the Fuero Real3 a solution was proposed which depended on whether the service rendered the *23king was with or without pay. It was reasoned that if the service was without pay the husband’s expenses were paid by the community and the pension was intended to replace the community funds thus spent; if, on the other hand, the services were paid for, it was presumed that it covered his expenses, and therefore, the pension was his separate property. Symposium: Community Property, 25 La. L. Rev. 77, 138 (1964). It was also adduced that when he did not receive pay, the community was being deprived of his services and the pension constituted a compensation for it, Howard v. Ingle, 180 So. 248, 253 (La. 1938); if he received pay, his services were not for the furtherance of the marital partnership, but of his King and country, and the pay was given him the better to insure these services to the king. 1 De Funiak, Principles of Community Property 194, § 75; 22 Scaevola, Código Civil 130, 194-199 (1905).

¶6With the advent of the popular democracies and the disappearance of the monarchic regimes, the juridical ground of the pension is not a gratuity from the sovereign, but a moral obligation of the state. The character of donation of the pension is therefore rejected.4Cf. United States v. Realty Co., 163 U.S. 427, 441 (1896).

¶7The problem was recently raised in Louisiana, a state where the economic regime of community property prevails. The estate left by the decedent — a disabled veteran — corn-*24prised exclusively United States bonds and cash accumulated from pension payments received from the Federal Government because of a disability he sustained during his marriage. The court said in Succession of Scott, 91 So.2d 574, 577 (1956) :

“We are of the opinion that the disability payments made to the decedent in this cause, . . . are not to be considered as purely gratuitous and that, therefore, they constituted assets of the community that formerly existed between him and his wife. A casual reading of the statute will reveal that its purpose was the establishment of natural and social justice, and that the' benefits provided for therein were and are in recognition of an equitable obligation on the part of the United States Government to aid in the support of disabled veterans or their dependents — a debt owed by the nation as a whole to those persons who lost all or a part of their earning capacities in an effort resulting in the common good of all.”5 (Italics ours.)

¶8In French v. French, 112 P.2d 235 (Cal. 1941), 134 A.L.R. 366, it was held that the regular monthly payments received by a member of the navy for services rendered while he was married constitute community property subject to division upon marriage dissolution by divorce. When the services have been rendered prior to marriage, an opposite solution is imperative, Succession of Lewis, 189 So. 118 (La. 1939); Moore v. Moore, 192 S.W.2d 929 (Texas 1946). More recently, in Benson v. City of Los Angeles, 384 P.2d 649 (Cal. 1963), it was said that pension rights of a municipal employee are an integral part of his earnings for being an element of his contractual compensation, being community property if the employee is married while rendering the services. With regard to the community character of the allowances received by the wife as a dependent of a *25member of the armed forces, see, Sterret v. Sterret, 228 S.W.2d 341 (Texas 1950), and Hokenson v. Hokenson, 162 P.2d 592 (Wash. 1945). See, also, Retirement Benefits as Community Property in Divorce Cases, 15 Baylor L. Rev. 284 (1963); Applicability of Community Property Laws to National Service Life Insurance, 47 Calif. L. Rev. 374 (1959); Pension Funds and Problems under California Community Property Laws, 2 Stan. L. Rev. 447 (1950); Annotations in 23 So. Cal. L. Rev. 607 (1950) and 15 So. Cal. L. Rev. 226 (1942).

¶9From all that has been set forth it is deduced that the regular payments received by a veteran because of a disability he sustained during his marriage constitute assets of the conjugal partnership.6 In effect they substitute the Income which could have been perceived if the disability had not occurred. Therefore, the trial court erred in upholding that the property acquired with money from the accumulation of defendant’s pension payments was separate property.

¶10The judgment rendered by the Superior Court, Bayamón Part, on February 16, 1965, will be reversed and the case remanded for further proceedings not inconsistent with this opinion.