Bennett v. Bennett, 16268

• Decision Date: 20 February 1980
• Docket Number: No. 16268,16268
• Citation: 607 P.2d 839
• Parties: Charles N. BENNETT, Plaintiff and Appellant, v. Donna Mae BENNETT, Defendant and Respondent.
• Court: Utah Supreme Court

Page 839

607 P.2d 839

Charles N. BENNETT, Plaintiff and Appellant, v. Donna Mae BENNETT, Defendant and Respondent.

No. 16268.

Supreme Court of Utah.

Feb. 20, 1980.

Pete N. Vlahos, Ogden, for plaintiff and appellant.

J. Val Roberts, Centerville, for defendant and respondent.

WILKINS, Justice:

A petition for rehearing in this divorce action was granted by this Court after its per curiam unpublished opinion was filed on October 19, 1979, which affirmed the action of the District Court of Davis County.

Plaintiff and defendant were married on May 31, 1947, and have four children as issue of this marriage, two of whom are emancipated. The two minor children reside with defendant, to whom care, custody, and control were awarded on November 29, 1978, by the District Court.

The only issue we shall address here is whether the District Court erred in considering as an asset of this marriage the share of plaintiff's retirement fund contributed by the United States government. The plaintiff is and has been employed at Hill Air Force Base, Utah.

The Court, in its award to the defendant of the real property of the parties, the equity of which was $38,000, imposed a lien of $5,000 on that property in favor of the plaintiff, making the lien payable upon the occurrence of one of four conditions, which are not pertinent to this appeal.

The retirement officer in the Civilian Personnel Office at Hill Air Force Base, a Margaret S. Woods, testified that as of the time of this divorce hearing the present value of plaintiff's retirement fund was $15,681.95, the amount of his total contribution. She further stated that the U. S. government had contributed the same amount to his retirement fund; viz., $15,681.95, and that plaintiff could withdraw his contribution any time prior to thirty-one days before the eligibility date for his retirement on May 7, 1984. The retirement officer further testified, "(t)he amount of money that he (plaintiff) has in the retirement fund does not have any bearing on what he would get under retirement monthly annuity. The only value of what he has in the retirement fund is for income tax purposes or death benefit purposes." She did not elaborate on this last, somewhat cryptic, sentence. But, from her uncontradicted testimony, we believe no reasonable interpretation can be placed on it other than one that concludes no present value can be assigned to that portion of plaintiff's retirement fund contributed by the U. S. government. And the Court in its findings found no present value on this portion.

Significantly, the Court, in determining what an equitable amount of this lien should be, frankly acknowledged that it considered the amount of the government's contribution to plaintiff's retirement fund. The following dialogue occurred between the Court and plaintiff's counsel:

Mr. Vlahos: Your Honor, if I understand your Honor's position in reference to this $5,000.00 lien, it is based on some $15,000.00 that the government has that he can't touch, has no control over, has never seen, rather than taking what the parties can have right now?

The Court: Yes. That's taken into consideration. I want that understood, so that in case you do want to appeal, and have that matter raised you can do so.

In Englert v. Englert, Utah, 576 P.2d 1274, 1276 (1978), this Court in interpreting Sec. 30-3-5 ¹ stated:

It is our opinion that the correct view under our law is that this encompasses all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived; and that this includes any such pension fund or insurance. These should be...