Evelyn M. Bruegl appeals from that portion of an interlocutory judgment of dissolution of marriage which characterizes the pension rights of Herbert J. Bruegl as his separate property.
The trial court found Herbert was not eligible to retire and if he stopped working he could not withdraw any funds from the pension fund; it concluded there was no community property interest in the fund. In so ruling the trial court was concerned with the proper interpretation of one instrument, the pension plan.
Herbert is over 45 years of age and has accumulated more than 10 years of pension credit. There is no way for his pension rights to be reduced or withdrawn. Herbert has an irrevocable interest in the fund; his rights have vested (In re Marriage of Peterson, 41 Cal.App.3d 642, 649 [115 Cal.Rptr. 184]).
Repeating the findings of the trial court, Herbert argues he is not eligible for retirement, he cannot receive any benefits until age 55 at the earliest
(i) .... .... .... .... .
(ii) If an Employee who ... has attained age 45 and has accumulated 10 years of Pension Credit dies, his designated beneficiary or the person or persons selected ... shall, upon application, be entitled to 36 monthly payments in an amount equal to the monthly pension which the deceased Employee would have received had he retired at age 62, based on his years of Pension Credit at the time of his death. The total value of any Pension payments, if any, received by the deceased Employee during a previous period of retirement shall be deducted from the total value of the 36 monthly payments otherwise due the deceased Employee's beneficiary. The monthly payments described herein will begin with the first month following the death of the Employee....
"(b) Death After Retirement.
(i) If a Retired Employee dies within the 36-month period beginning with the effective date of such payments, his monthly pension payments shall be continued, until a total of 36 such payments have been made to such Retired Employee, to his designated beneficiary, ... and shall thereupon cease."
Because the pension plan has vested, it is community property subject to division between the spouses. However, Evelyn has no community interest in the guaranteed payment feature of the plan insofar as it relates to payments due after Herbert's death. Since the pension plan comprises the bulk of the community assets, the trial court may wish also to review its earlier determinations on spousal and child support.
"Art. IV, § 5. Early Retirement Pension. An Employee shall be entitled to retire on an Early Retirement Pension if he meets these requirements:
"(a) He has attained age 55 but has not yet attained 62;
"(b) he has Pension Credit for at least 10 years without a break in employment as defined in Article IV, Section 7; and
"(c) he has received Pension Credit for 700 hours of work in Covered Employment since his Contribution Date."
"Art. IV, Section 7. Breaks in Covered Employment After the Contribution Date and Cancellation of Pension Credit.
"(a) General Rule.
"(1) .... .... .... .... .... .
"(2) After January 1, 1963, it shall be considered a break in employment and an Employee's previously accumulated Pension Credit shall be cancelled if he fails to earn at least one quarter of Future Service Credit in any period of three consecutive calendar years."
However, after age 45 and 10 years of pension the break rule does not apply as long as the employee follows simple notification procedures. These regulations are:
"Art. IV, Section 8. Vesting.
"(a) An Employee who has earned at least 25 years of Pension Credit ... or who has attained age 45 and has accumulated at least 10 years of Pension Credit, shall have his Pension Credit vested and the break rule, as set forth in Section 7 of this Article IV, shall not operate to deprive him of his previously accumulated Pension Credit, provided he meets the following requirements:
"(1) If, after January 1, 1963, an Employee fails to earn at least one quarter of Future Service Credit in any period of three consecutive calendar years, he must, before the end of the subsequent calendar year, make application to have his Pension Credits vested.
"(2) After receipt of notification from the Board of Trustees of a determination that his Pension Credits are vested, an Employee must keep the Trustees informed of any change in his mailing address so long as he fails to earn one quarter of Future Service Credit in any period of three consecutive calendar years."
Although the pension credits could be lost by failing to notify the appropriate persons during a break in employment, this does not affect vesting in terms of the characterization of these rights as separate or community property. Where "the only condition to the payment of pension benefits is a condition entirely within ... [Herbert Bruegel's] control ... this is not the type of uncertainty which precludes division on divorce." (Bensing v. Bensing, 25 Cal.App.3d 889, 893 [102 Cal.Rptr. 255].)