Bixler v. Fassnacht-Bixler
| Decision Date | 06 May 2022 |
| Docket Number | Case No. 118,841 |
| Citation | 515 P.3d 856 |
| Parties | In re the Marriage of: Gene BIXLER, Petitioner/Appellant, v. Kimberly FASSNACHT-BIXLER, Respondent/Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
W. Franklin Muret, Jr. Stillwater, Oklahoma, For Plaintiff/Appellant
Allision J. Wilson, WILSON LAW GROUP PLLC, Stillwater, Oklahoma, For Defendant/Appellee
OPINION BY GREGORY C. BLACKWELL, JUDGE:
¶1 Gene Bixler appeals several parts of a divorce decree entered between him and his now ex-wife, Kimberly Fassnacht. On review, we find no error in the district court's decisions regarding support alimony, the distribution of funds from the sale of the family home, or the distribution of a Fidelity investment account, and therefore affirm the trial court as to those issues. We find, however, that the court erred in declaring Mr. Bixler's Unum1 disability policy as marital property and reverse that decision and remand for further proceedings.
BACKGROUND
¶2 The parties were married in 1992. Mr. Bixler had been working at the Telex Corp. since 1981 and transferred to Johnson Controls when Telex went bankrupt in 1986. He remained employed until 2002, despite experiencing health problems and periods of being temporarily unable to work from 1982 onwards. In 1994 he was diagnosed with multiple sclerosis (MS). In 1996, Mr. Bixler was rated thirty percent disabled by the Veterans’ Administration on the grounds that, while working as an Air Force computer technician for eight years between 1973 and 1981, he had been exposed to "some type of chemical." The VA found his MS was therefore service-related. Due to progression of the disease, his evaluation would rise to one hundred percent disabled by 2012. In 2002, after a particularly severe episode of disability, Mr. Bixler ceased employment.
¶3 Ms. Fassnacht worked until 1995 when the couple's first child was born. After that, she spent time caring for Mr. Bixler in his periods of disability and homeschooling the children, and took temporary and part-time jobs in 2001-2002 when Mr. Bixler's health problems made him entirely unable to work. Ms. Fassnacht testified that she had to end this employment when her daughter developed a neurological disorder. She also testified that an episode of breast cancer in 2006, which resulted in a bilateral mastectomy, limited her ability to work. From 2002 to 2017, the family appears to have received income from a combination of disability benefits, insurance proceeds, various savings, and inheritances.
¶4 In June 2017, Mr. Bixler filed for divorce. Ms. Fassnacht counter-filed. At the time of trial, Mr. Bixler was sixty-two, and Ms. Fassnacht was fifty-five. Mr. Bixler's monthly income consisted of $2,030 in Social Security disability (untaxed); $3,228 in Veterans’ Administration Disability Benefits (untaxed, and to be reduced to $3,057 upon divorce); $1,129 in income from a Unum disability insurance policy (after tax); and $141 from a government pension guarantee plan (his Telex Corp. pension plan having been liquidated as part of a bankruptcy), for a total of $6,357 per month after divorce. Ms. Fassnacht had no job and no immediate source of income.
¶5 The contentious issues at trial, which are here propositions of error, were as follows. First , Ms. Fassnacht argued that she had made substantial contributions to the purchase and remodeling of the family home from inherited funds and requested an equitable adjustment to the property distribution to account for those funds. The court allowed an equitable adjustment of approximately $100,000.
¶6 Second , Ms. Fassnacht argued that the Unum disability policy had been purchased with marital funds and its proceeds should be divisible. Mr. Bixler argued that it constituted indivisible disability payments. The trial court found the proceeds of the policy marital, and ordered Mr. Bixler to pay half the proceeds to Ms. Fassnacht each month as alimony in lieu of property division.
¶7 Third , Ms. Fassnacht argued that contributions to a Fidelity investment account were made with joint funds, and hence the account was divisible. Mr. Bixler argued that the account was started with his separate funds, no contributions were made after marriage, and no increase was due to any form of joint industry. The trial court again found the account was joint and ordered it divided between the parties.
¶8 Fourth , Ms. Fassnacht requested support alimony to allow her to retrain, complete a nursing degree, and adjust to self-sufficiency. Mr. Bixler argued that he was unable to pay alimony as a matter of law because, although his post-divorce income would be $6,357 per month, the newly enacted subsection (K) of 43 O.S. § 134 (hereafter 43 O.S. § 134 (K) or § 134(K) ), would prohibit the court from considering $3,057 of this income because it was derived from VA disability benefits. Hence, even though he had income of approximately $3,000/month above his stated needs, if § 134(K) were applied, he had no available income for the purpose of paying support alimony. The trial court determined the statute could not be applied because it had not been enacted until after the commencement of the divorce.
¶9 Mr. Bixler appeals from the decree as to each of these issues.
STANDARD OF REVIEW
¶10 "A divorce suit is one of equitable cognizance in which the trial court has discretionary power to divide the marital estate." Colclasure v. Colclasure , 2012 OK 97, ¶ 16, 295 P.3d 1123. The division of property acquired during the marriage by joint industry must be fair, just, and reasonable. Id. ; 43 O.S.Supp.2012, § 121(B). "However, a marital estate need not necessarily be equally divided to be an equitable division because the words just and reasonable in § 121 are not synonymous with equal." Colclasure , ¶ 16 (footnote omitted). "The trial court has wide latitude in determining what part of jointly-acquired property shall be awarded to each party." Id. This Court will not disturb the trial court's decision regarding property division unless the trial court abused its discretion or the decision is clearly against the weight of the evidence. Standefer v. Standefer , 2001 OK 37, ¶ 19, 26 P.3d 104. See also Smith v. Villareal , 2012 OK 114, ¶ 7, 298 P.3d 533 () In exercising our general appellate jurisdiction, we review issues that present pure questions of law de novo, however. Lincoln Farm, L.L.C. v. Oppliger , 2013 OK 85, ¶ 12, 315 P.3d 971.
ANALYSIS
THE AWARD OF $100,000 IN ADDITIONAL EQUITY
¶11 Testimony at trial indicated that Ms. Fassnacht inherited approximately $600,000 during the marriage; that she used approximately $243,000 of these funds to make the down payment on the family residence; and that she used another $140,000 of this money to renovate the home, including adding a media room and swimming pool. These renovations were allegedly in part to accommodate Mr. Bixler's disabilities, thus preserving his future right to a one-time payment from the Office of Veteran's Affairs for the same purpose, which Mr. Bixler can now use to renovate another home after the divorce. Ms. Fassnacht requested an equitable adjustment to the property distribution on these grounds.
¶12 Mr. Bixler's first argument is that the court actually declared $100,000 of the home equity to be separate property. Mr. Bixler argues that Ms. Fassnacht's contributions in these areas were not traceable to separate funds, or were co-mingled, or were intended as gifts, and hence could not be classed as separate funds. Separate property is not subject to division, and 43 O.S. § 121 requires that it be identified as such in the decree. This award, however, is evidently not based on a finding that part of the home represented separate property, but based on the power of the court to fashion an equitable (and not necessarily equal) division of property. We find the court's order quite clear that it made this adjustment on equitable grounds as part of its property division, not as a segregation of separate property.
¶13 Mr. Bixler's next argument is that, even if this was not a traditional segregation of separate property, the same factors, plus Mr. Bixler's own situation and contributions, are relevant in considering whether the court should have made a different equitable distribution. A trial court has wide discretion in the division of marital property and the decision dividing such property will not be disturbed on appeal unless contrary to law, against the clear weight of the evidence, or an abuse of discretion. Jackson v. Jackson , 2002 OK 25, ¶ 2, 45 P.3d 418. We find that the amount of the adjustment was within the bounds of equity and not contrary to the clear weight of the evidence here.
THE UNUM DISABILITY BENEFITS
¶14 Mr. Bixler argues that his Unum disability benefits were not jointly acquired property subject to division. He argues that Christmas v. Christmas, 1990 OK 16, 787 P.2d 1267, holds that disability payments are substitutes for post-decree income, rather than deferred benefits accrued during marriage, and hence are not divisible in a divorce decree.
¶15 In Christmas , a wife filed a petition for divorce in December 1987. Two weeks later, her husband, a firefighter, sought disability benefits based on an inability to work because of job stress. In July 1988, he was awarded disability benefits. Id. ¶ 3. The trial court found that these benefits constituted a divisible pension benefit. The Supreme Court reversed the trial court's decision, applying a "replacement analysis" to the facts. A replacement analysis "focuses on the replacement nature of the benefits and classifies benefits according to the nature of the assets they replace." Id. ¶¶ 6-8. The Christmas decision distinguished the divisibility...
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