403 N.W.2d 405 (S.D. 1987), 15232, Stemper v. Stemper

Docket Nº:15232.
Citation:403 N.W.2d 405
Opinion Judge:The opinion of the court was delivered by: Moses
Party Name:Bernadette L. STEMPER, Plaintiff and Appellee, v. Kenneth C. STEMPER, Defendant and Appellant.
Attorney:John L. Morgan of Morgan, Theeler, Cogley, Padrnos & Tucker; for plaintiff and appellee.
Case Date:April 01, 1987
Court:Supreme Court of South Dakota

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403 N.W.2d 405 (S.D. 1987)

Bernadette L. STEMPER, Plaintiff and Appellee,


Kenneth C. STEMPER, Defendant and Appellant.

No. 15232.

Supreme Court of South Dakota.

April 1, 1987

Considered on Briefs Oct. 22, 1986.

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John L. Morgan of Morgan, Theeler, Cogley, Padrnos & Tucker, Mitchell, for plaintiff and appellee.

John R. Steele of Steele Law Office, P.C., Plankinton, for defendant and appellant.

MOSES, Circuit Judge.

This appeal arises from a decree of divorce terminating the marriage between Bernadette L. Stemper (Bernadette) and Kenneth C. Stemper (Kenneth). Kenneth appeals from those portions of the decree dividing the property and awarding alimony. We affirm in part and reverse in part.

Bernadette and Kenneth were married on November 10, 1956. At the time of the marriage, both were nineteen years of age and high school graduates. They had little or no property. At the time of the trial in this matter, Bernadette was employed by the Unified Judicial System as a deputy

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clerk of courts in Davison County. Kenneth was employed as a United Parcel Service driver. Bernadette sued Kenneth for divorce. The trial court granted her the divorce.

The trial court divided the property by having the house sold and the proceeds divided equally between the parties. Bernadette received furniture and appliances valued at $1,500. The trial court awarded Bernadette one-half of Kenneth's savings account and one-third of the value of Kenneth's United Parcel Service Thrift Plan. As a part of the division of the property, the trial court also awarded Bernadette $9,862, which constituted one-third of Kenneth's pension plan. The trial court found that the pension plan had a present value of $25,585. The trial court further awarded Bernadette $600 per month alimony for her lifetime. She was also awarded $2,000 for attorney fees.

Kenneth contends that the trial court abused its discretion by awarding one-third of his pension plan to Bernadette. He further contends that the trial court abused its discretion in awarding alimony.

The trial court has broad discretion in awarding alimony and making a property division, and its judgment will not be set aside unless it clearly appears that it abused its discretion. Goehry v. Goehry, 354 N.W.2d 192 (S.D.1984). In order to determine whether the trial court has abused its discretion, this court reviews the award of alimony and property division together. Booth v. Booth, 354 N.W.2d 924 (S.D.1984).

The United Parcel Service has a non-contributory pension plan which is vested if an employee is employed for at least ten (10) years with twenty or more weeks of pension contributions for each year. It appeared from the evidence that Kenneth had worked for the United Parcel Service nine years. Kenneth alleges that he is therefore not vested. The trial court found that he was vested. 1 We cannot say the trial court abused its discretion in finding the pension of Kenneth was vested. 2

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In South Dakota a retirement plan has been recognized as a divisible marital asset since it represents consideration in lieu of a higher present salary. Stubbe v. Stubbe, 376 N.W.2d 807 (S.D.1985); Hansen v. Hansen, 273 N.W.2d 749 (S.D.1979). Contributions made to the pension plan would have been available to the family as disposable income during the marriage. Boyd v. Boyd, 116 Mich.App. 774, 323 N.W.2d 553 (1982).

We find that dividing the retirement fund or pension plan as marital property at the time of the divorce in effect destroys Kenneth's future livelihood and means of complying with the alimony award. The trial court's error was further compounded because it considered the retirement fund, which was already a part of the property division, in awarding alimony out of Kenneth's future income or earning capacity. We find that the trial court correctly made a retirement or pension plan a part of the property division after reducing the amount of the...

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