Baker v. Baker

• Decision Date: 16 December 1975
• Docket Number: No. 46748,46748
• Citation: 546 P.2d 1325
• Parties: Frank D. BAKER, Appellant, v. Leona Ehler BAKER, Appellee.
• Court: Oklahoma Supreme Court

Page 1325

546 P.2d 1325

Frank D. BAKER, Appellant, v. Leona Ehler BAKER, Appellee.

No. 46748.

Supreme Court of Oklahoma.

Dec. 16, 1975.

Rehearing Denied March 23, 1976.

Newcombe & Redman by Ralph W. Newcombe, Lawton, for appellant.

T. D. Nicklas, Nicklas, Parrish, Saenz & Wade, Lawton, for appellee.

BARNES, Justice:

Frank D. Baker, Appellant, and Leona Ehler Baker, Appellee, had been married over seventeen years when this action was filed. At the time of their marriage, Appellee was a widow thirty-one years of age and had three children by her former marriage, a son five, a daughter seven, and a daughter ten. Appellant was twenty-one years old and a Second Lieutenant in the U.S. Army. Appellee received Social Security and Veterans Administration benefits for these children during their minority, and most of this money was spent for the support of the family. The parties had a daughter who was sixteen years old at the time of the divorce. No question is raised by either party concerning the court's order of support for this child. Appellant's income was used for the support of the family and himself. Appellee quit work at the time of the marriage at Appellant's request and was a housewife throughout the marriage. At the time of the divorce, Appellant was recently retired (Lieutenant Colonel), unemployed and seeking work. There was no question of his willingness and ability to work, but there was some question about the type of job he was qualified to do.

The Trial Court awarded Appellee property totaling $27,625.00 in value and Appellant property totaling $6,050.00 in value. In addition to that, the court found that Appellant's retirement benefits, $812.85 per month at the time of the divorce, were property acquired during the marriage and subject to division as such. In respect thereto, the court awarded Appellee an additional $24,000.00 property division, to be paid by Appellant at the rate of $400.00 per month beginning on the 10th day of May, 1973. The court also awarded alimony for support to Appellee in the amount of $18,000.00, to be paid at the rate of $300.00 per month beginning in May of 1978.

Both parties appeal the Trial Court's order. The principal question presented by both parties is how the service retirement benefits should have been treated by the Trial Court. Appellee contends that the court's finding that the retirement benefits are property is correct, but asserts that the court failed to give her an equal share of said benefits. The Appellant contends that retirement pay is not property acquired by the parties during coverture and therefore is not subject to being divided by the court as part of the property division.

We agree with Appellant that the Trial Court erred in treating the Appellant's retirement income as property subject to division by the court.

The nearest this Court has come to answering this question is the case of Holeman v. Holeman, Okl., 459 P.2d 611, in which we observed that if the retirement fund is divided at the time of the divorce as jointly acquired property that this would in effect destroy the husband's future livelihood and means of complying with an alimony or support award. We further observed, and inferentially approved, that the Trial Court obviously took into consideration the retirement fund in regard to setting an award of alimony for support out of the husband's future income or earning capacity. See also Heuchan v. Heuchan, 38 Wash.2d 207, 228 P.2d 470, 22 A.L.R.2d 1410, where the Washington Court found that a railway pension, payable to the exhusband, was a resource which could be considered in determining alimony for support. All of the cases cited in the annotation of Heuchan v. Heuchan, supra, are to the effect that pension of a husband may be considered in determining amount of alimony for support. All of these cases...