Broadhead v. Broadhead, 86-110

CourtUnited States State Supreme Court of Wyoming
Citation737 P.2d 731
Docket NumberNo. 86-110,86-110
PartiesDouglas M. BROADHEAD, Appellant (Plaintiff), v. Verdene N. BROADHEAD, Appellee (Defendant).
Decision Date12 May 1987

Timothy J. Bommer, Jackson, for appellant.

Dennis L. Sanderson, Afton, for appellee.


URBIGKIT, Justice.

Husband appeals from a divorce decree-property settlement, with these stated issues:

1. Did the trial court err in entering a judgment inconsistent with its decision letter?

2. Did the trial court err and/or abuse its discretion in reconsidering and changing its initial decision before entry of the final judgment?

3. Did the trial court err in granting to the wife a continuing and appreciating future interest in the husband's retirement fund?

We affirm as to issues one and two, and affirm in part and reverse in part on the retirement-fund division in issue three.


Verdene N. and Douglas M. Broadhead, married for approximately 19 years and blessed with six children, had jointly acquired an array of both real and personal property before embarking on a divorce contest.

Shortly after their 1967 marriage, the husband, plaintiff-appellant Douglas Broadhead, began attending college to obtain a teaching degree. While he worked part time, defendant-appellee Verdene Broadhead worked full time in support of the family. Upon graduation, Douglas started teaching and continued graduate studies in education while Verdene began attending college and worked part time. Eventually, through a combination of work and attendance at various educational institutions by both parties, Douglas received a master's degree, and Verdene completed three years of undergraduate studies. In 1974, the family moved to Star Valley, Wyoming, where the husband took his present employment with the Lincoln County School system as a teacher and coach, while the wife was a full-time homemaker and mother.

In January of 1985, when both parties were in their early forties, Douglas filed for divorce. Responsively, Verdene asserted an affirmative defense and counterclaimed. The evidence at the June trial established that the husband had obtained, through employment with the Lincoln County School system, a vested interest in the state retirement fund with a present value of $15,434.98, as employee attributed contributions. Additionally, the present allocable amount from employer contributions (nonvested ) was of approximately the same amount.

After trial, the judge tendered a provisional decision letter requesting suggestions or approval. Both parties answered, and the trial judge responded by a second decision letter. Due to changed circumstances after trial, Verdene had asked the trial court to reconsider its first proposed decision, and upon stipulation by both litigants the court informally held a further hearing on the reconsideration request and content of the final divorce decree.

Thereafter, the trial court entered the divorce decree substantially different from provisions of the decision letters. The decree included as terms relevant to this appeal that:

"Subject to the provisions of paragraph (8-B-2) 1 on page 8 of this decree, the "(E = Total Employee Contributions; T = Total of Employer and Employee Contributions)

Defendant [Verdene] will have an interest in the Plaintiff's [Douglas] retirement when he is either terminated or retired which ever first occurs. The wife's interest shall be determined as follows:

"The Plaintiff will instruct the appropriate personnel at the Wyoming Retirement system of the contents of this order and direct it to make the appropriate division at the appropriate time."

This formula effectuated a future division of both vested and nonvested retirement benefits by percentage distribution.


The trial judge's decision letters, discussing legal principles and expressing his conclusions of law, did not constitute a judicial determination which may be considered a final order. We analogize that, if a trial court in exercise of its discretion may modify tentative decisions until entry of the final order, it does not err in rendering a decree with changed provisions.

Rules 58(b) and 54(a), W.R.C.P. state, respectively:

"A judgment or final order in any case shall be deemed to be entered whenever a form of such judgment or final order, signed by the trial judge, is filed in the office of the clerk of the court in which the case is pending." (Emphasis added.)

"A judgment is the final determination of the rights of the parties in action." (Emphasis added.)

The court's first decision letter expressly stated that it was a "tentative disposition" and that the court wished to receive comments from counsel "[b]efore reducing the Court's conclusions to final judgment." Additionally, while the second decision letter conveyed more finality, the court thereafter issued its decree of divorce which considered all evidence and issues presented, including both decision letters and the second hearing, as the final order under Rule 58(b), W.R.C.P. It is noteworthy that the decision letters were in business-letter form and not a form customary for judgments and orders.

"[I]t has long been the rule in this jurisdiction that findings of fact and conclusions of law 'not in the form of an order' cannot be considered as a final order for purposes of appeal as that term was first defined in the Code of Civil Procedure. Gramm v. Fisher, 3 Wyo. 595, 29 P. 377, 378; School Dist. No. 3, Carbon County v. Western Tube Co., 13 Wyo. 304, 80 P. 155, 159 * * *.

"The memorandum opinion, as we view it, did nothing more than express the trial judge's conclusion of law, which could be changed at any time prior to the entry of an order based thereon in keeping with Rule 58, W.R.C.P." Wyoming State Treasurer, ex rel. Workmen's Compensation Department v. Niezwaag, Wyo., 444 P.2d 327, 329 (1968).

While it is true that

"[o]nce a court has entered a decree dividing the marital property, the order is final and not subject to revision because of a change in circumstances." Barnett v. Barnett, Wyo., 704 P.2d 1308, 1309 (1985), citing Paul v. Paul, Wyo., 631 P.2d 1060 (1981),

it is apparent that a final order was only then entered by filing the March 25, 1986 decree of divorce. United States v. Evans, 365 F.2d 95 (10th Cir.1966).


In the major argument, appellant contends that nonvested retirement benefits In this case, although contributions made by the employee can be withdrawn, no portion constituted matured benefits. For an excellent discussion differentiating between vested, nonvested, and matured retirement benefits, see In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561, 94 A.L.R.3d 164 (1976). For basic terminology, see Blumberg, Marital Property Treatment of Pensions, Disability Pay, Worker's Compensation and Other Wage Substitutes: An Insurance, or Replacement, Analysis, 33 U.C.L.A. L.Rev. 1250 (1986).

are not divisible property and, in the alternative, if considered to be marital property, that the trial court erred in granting a "continuing, appreciating and future interest" to the wife.

A majority of jurisdictions have adopted the view that pensions and/or retirement funds, whether vested, nonvested, or not matured, are marital property divisible upon divorce. 2 Blumberg, supra. Additionally, retirement funds earned during marriage represent a form of deferred compensation.

"To the extent that they [retirement funds, pensions] result from employment time after marriage and before commencement of a matrimonial action, they are contract rights of value, received in lieu of higher compensation which would otherwise have enhanced either marital assets or the marital standard of living and, therefore, are marital property." Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15 (1984).

"From an economic point of view, the employee funds his own pension regardless of whether he or his employer is the nominal payor. The burden of the employer's contribution is passed back to the employee in the form of reduced wages. Thus, legal doctrine characterizes the pension as deferred compensation and assumes that, absent the pension, the employee would have received a commensurately greater salary during his working years." Blumberg, supra, at 1258.

See also, In re Marriage of Brown, supra, Jerry L.C. v. Lucille H.C., Del., 448 A.2d 223 (1982); In re Marriage of Hunt, 78 Ill.App.3d 653, 34 Ill.Dec. 55, 397 N.E.2d 511 (1979); Hatcher v. Hatcher, 129 Mich.

App. 753, 343 N.W.2d 498 (1983); Kikkert v. Kikkert, 177 N.J.Super. 471, 427 A.2d 76, aff'd, 88 N.J. 4, 438 A.2d 317 (1981); Copeland v. Copeland, 91 N.M. 409, 575 P.2d 99 (1978); Foster, A Practical Guide to the New York Equitable Distribution Divorce Law, pp. 159-188, 191-200; and extended Annot., 94 A.L.R.3d 176.


Section 20-2-114, W.S.1977, 1986 Cum.Supp., states:

"In granting a divorce, the court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired and the burdens imposed upon the property for the benefit of either party and children. The court may decree to either party reasonable alimony out of the estate of the other having regard for the other's ability and may order so much of the other's real estate or the rents and profits thereof as is necessary be assigned and set out to either party for life, or may decree a specific sum be paid by either party." (Emphasis added.)

We acknowledge the language enunciated in Storm v. Storm, Wyo., 470 P.2d 367, 370 (1970):

" * * * With respect to future property, we think the rule must be that, when a court divides property incidental to the granting of a divorce, the court is limited by the amount of property in its hands for...

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