Allen v. Allen

• Decision Date: 06 December 1962
• Docket Number: No. 14010,14010
• Parties: Dora C. ALLEN, Appellant, v. Bedford E. ALLEN, Appellee.
• Court: Texas Court of Appeals

Page 312

363 S.W.2d 312

Dora C. ALLEN, Appellant, v. Bedford E. ALLEN, Appellee.

No. 14010.

Court of Civil Appeals of Texas, Houston.

Dec. 6, 1962.

Gerald S. Gordon, Houston, for appellant.

R. Shearn Smith, Houston, for appellee.

WERLEIN, Justice.

The trial court decreed a divorce in favor of appellant and awarded to her custody of the minor child, child support, and the use of the home until the minor child reaches the age of 18. Appellant has not appealed from such provisions of the decree, but complains of the court's failure to adjudicate her community interest in railroad retirement benefits, the court's denial of attorney's fees, and the court's alleged errors in several other respects.

The evidence with respect to the railroad retirement benefits of appellee is quite meager. There is evidence that appellant and appellee were married in November, 1936 and separated March 7, 1961. Appellee's average gross earnings were approximately $450.00 per month plus an allowance for gas and oil for his car. The evidence also shows that he had worked for the railroad for some thirty-odd years, but he did not know what his benefits amounted to and no evidence was introduced concerning the same, other than appellee's testimony that he would receive 'so much a month' when he retired.

There is no mention of railroad retirement benefits in the inventory of property filed by appellant or in the inventory filed by appellee, or in the decree of the court granting the divorce and dividing the property, or in the court's findings of fact and conclusions of law. In the court's additional findings of fact and conclusions of law made on request of appellant, the court stated: 'Due to the insufficiency of the evidence as to the status of a railroad retirement benefit, the Court made no findings concerning the same.'

There is nothing in the record to show that appellant excepted to such finding nor is there anything in the record to show that appellant excepted to any of the orders of the court made with respect to the production in court of records of the parties. The court made no specific order requiring appellee to produce any record in connection with railroad retirement benefits. Appellant filed a motion on January 11, 1962 asking the court to reopen to case and to require appellee to produce a complete statement from the Railroad Retirement Board of all his accrued rights and benefits under the Railroad Retirement Act. Pursuant to such motion the court ordered the hearing for January 17, 1962. It is not shown anywhere in the record that such hearing was had nor does it appear why such hearing was not had. There is no bill of exception with respect to such matter and nothing is brought forward in the record preserving any error in such connection, if such there was. We think there was no error in the court's failure to make any findings of fact concerning railroad retirement benefits.

This Court may take judicial notice of the Railroad Retirement Act of 1937, as amended, 45 U.S.C.A. Sec. 228a et seq., and of the fact that railroad employees and their employers share the cost of employees' retirement benefits. The fact that appellee's employer made deductions from appellee's earnings belonging to the community does not establish, as appellant asserts, that there was any accumulated community property right in railroad retirement benefits susceptible of division when the divorce was granted.

Section 228l of the Retirement Act, which is controlling, provides:

'Notwithstanding any other law of the United States, or of any State, Territory, or the District of Columbia, no annuity or pension payment shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated.'

It is our view that the trial court had no power to divide any anticipated future railroad retirement benefits or to give appellant any interest therein, and that the court did not err in failing to make a disposition thereof.

In Commonwealth v. Berfield, 160 Pa. Super. 438, 51 A.2d 523, the court said:

'The general language of the provision exempting the annuity or pension from 'attachment, or other legal process under any circumstances whatsoever' (emphasis added) bars a wife from looking to a fund though earmarked for the payment of an annuity to her husband. Under this Act of Congress funds supplied by railroads and their employees are paid into the United States Treasury. Through an administrative agency of government a railroad employee on retirement is entitled to receive from the treasury an annuity based upon his and his employer's contributions to the fund.'

It is true that in several jurisdictions, courts have held that where railroad retirement annuities or pensions have matured and are being paid to a retired employee, the court may consider such payments as income of the employee in determining the amount of alimony that should be paid a divorced wife. Heuchan v. Heuchan, 1951, 38 Wash.2d 207, 228 P.2d 470, 22 A.L.R.2d 1410, and annotations; Commonwealth v. Berfield, supra. We have neither found nor been cited to any case in which a court has undertaken to apportion or divide a railroad retirement benefit that has not matured and is not being paid in the form of an annuity or pension.

Berg v. Berg, Tex.Civ.App., 115 S.W.2d 1171, writ dism., is distinguishable from the instant case. In that case the employee had retired and was receiving a monthly annuity when the divorce was granted. The court merely awarded the needy wife a portion of the payments being made and secured the payment thereof by a lien on the husband's separate estate. The case does not hold that the court may make an award of an annuity which an employee may receive at some indefinite period in the future. When such payments are finally made, they will in effect be paid in lieu of the husband's earnings when he is no longer gainfully employed. Such payments which will be made in the form of monthly annuities or pensions are not property or 'the estate of the parties' within the meaning of Article 4638, Vernon's Annotated Civil Statutes, any more than future wages which might be received by an employee are property subject to division. McBride v. McBride, Tex.Civ.App., 256 S.W.2d 250. Moreover, an examination of Section 228b and the other sections of the Act clearly show that such Act provides definitely and in detail the conditions under which retirement payments will be made and to whom they are payable. No provision is made for a divorced spouse. The supremacy of this Act of Congress over State law must be recognized.

As set out in the complicated provisions of Section 228b of the Railroad...