Burns v. Burns, 92-863
Decision Date | 15 February 1993 |
Docket Number | No. 92-863,92-863 |
Citation | 847 S.W.2d 23,312 Ark. 61 |
Parties | Harold J. BURNS, Jr., Appellant, v. Janet L. BURNS, Appellee. |
Court | Arkansas Supreme Court |
David L. Rush, Paris, for appellant.
Jeanne Anne Whitmire, Fort Smith, for appellee.
The primary issue in this divorce case is whether we continue to hold, as we did in Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986), that the language of our marital property statute does not include nonvested military retirement benefits. We again construe the statute in the same way. The chancellor did not follow the Durham case, and, on that point, we modify. We affirm on all other points of appeal.
The appellant husband, Major Harold J. Burns, received a commission in the United States Army in May 1977. He and appellee, Janet Burns, married in June 1980, separated in May 1991, and divorced in January 1992. The chancellor found that on the date of the divorce the appellant had been in the Army almost fifteen years, but that his military pension will not vest until he has served twenty years. The chancellor awarded the wife an interest in the nonvested retirement benefits that the husband may receive. The husband filed a post-trial motion citing Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986), and asking the chancellor to reconsider the issue of the nonvested retirement benefits. The wife responded with a brief that began: "If Defendant's interpretation of Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986), is correct, it is bad law," and continues, "Plaintiff welcomes a review of this Court's ruling by an appellate court." Apparently the chancellor was persuaded that a review of our decision should be had since he ruled that the husband "will" have retirement benefits and the "wife ... is entitled to her interest therein as a wife of the defendant and a dependent of a military service person, but this interest shall be only for that period of time that the parties were married during the defendant's military service." The husband appealed. The court of appeals certified the case to this court. Understandably, the husband's first assignment of error is that the trial court erred in awarding the wife a part of the nonvested military retirement. The assignment of error is well taken.
In 1979, the General Assembly enacted the current marital property statute. "Marital property" means "all property acquired subsequent to marriage," with certain enumerated exceptions not applicable to this case. Ark.Code Ann. § 9-12-315(b) (Supp.1991). Prior to our decision in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), we had not recognized pension benefits as marital property. However, in Day, we held that vested pension benefits acquired during a marriage are marital property and subject to division. In that case the husband's interest was vested as it could not be diminished by his employer, and it was not dependent upon continued employment with that employer. The husband contributed 10% of his salary into a retirement program, and that contribution was matched by his employer. At the time of the divorce, the husband and the employer together had contributed $62,498.10 into the program, and the accumulated value of his interest was $95,425.03. The contributions were divided in two funds. One was invested in bonds and mortgages to provide guaranteed fixed annuities for participants in the plan, and the other was invested in stocks to provide a variable annuity. The amount of the annuities were based upon the accumulated value of the employees' interest in each of the funds. At the time of the divorce the husband could stop making contributions and begin receiving his annuities. We construed this pension annuity benefit to be property under the statute. We reasoned that it was comparable to the husband taking part of his salary and depositing it in a savings account each month, or paying part of his salary on an annuity each month. It was property. We said that neither spouse could deprive the other of an interest in property simply by placing it temporarily beyond his or her control, such as by the purchase of an annuity.
Two years later, in Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986), we held that a nonvested right in military retirement did not constitute property as contemplated by the marital property act. We wrote:
The proof is that Durham will not be entitled to a pension until he has served for at least 20 years. Until then, unlike the professor in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), Major Durham has no vested right that must be recognized as marital property. He is employed by the United States; so Congress could at any time change his retirement plan or abolish it. Durham's expectancy is more like the expectancy of termination pay that we considered in Lawyer v. Lawyer, 288 Ark. 128, 702 S.W.2d 790 (1986). The appellant relies upon the Uniformed Services Former Spouses' Protection Act, 10 USCA § 1408 (1983), but that federal statute merely provides that the military authorities may treat a serviceman's retirement pay as the property of him and his spouse in accordance with state law. No independent property right is created in the spouse by the federal act. In this instance no such right exists under Arkansas law.
Id. 289 Ark. at 5, 708 S.W.2d at 619 (emphasis supplied.)
Nonvested military retirement benefits lack the following characteristics of property: cash surrender value, loan value, redemption value, lump sum value, and a value realizable after death. Baker v. Baker, 120 N.H. 645, 421 A.2d 998 (1980).
The general rule in states with statutes similar to ours is set out in American Law Reports as follows:
Retirement or pension benefits that have not vested at all have been held explicitly or implicitly by the courts, in noncommunity property states having statutes providing for equitable division of the spouses' property upon divorce, not to be property subject to division or direct consideration in making such equitable property divisions.
Charles C. Marvel, Annotation, Pension or Retirement Benefits as Subject to Award or Division by Court in Settlement of Property Rights Between Spouses, 94 A.L.R.3d 176, § 13(c) (1979).
In sum, our marital property statute requires that all property acquired subsequent to the marriage be divided, with certain exceptions not applicable. We have construed the statute to mean that nonvested military retirement benefits to which the serviceman or servicewoman may become entitled in the future are not property. This interpretation of the statute has now become a part of the statute itself, and we should not now reinterpret it. In E.C. Barton & Co. v. Neal, 263 Ark. 40, 43, 562 S.W.2d 294, 295 (1978), we explained: "That construction of the statute became as much a part of the statute as the words of the statute itself, and change is a matter that addresses itself to the General Assembly, not this court." See also Gibson v. Gibson, 264 Ark. 418, 572 S.W.2d 146 (1978).
Accordingly, we decline to reverse our construction of the marital property statute and leave change, if any, in the word "property" to the General Assembly. Accordingly, we modify the trial court's final order to provide that the wife is not entitled to an interest in whatever military pension the husband may be entitled to receive in the future.
The husband makes several other arguments, but none have merit. In the first of these he argues that the chancellor erred in giving the wife custody of the children. The wife's expert witness, a clinical psychologist, testified that she had a stable personality, and another expert testified that the father had a stable personality. We have held that, even in a de novo review, we will not set aside a chancellor's decision unless it is "clearly wrong." Pinkston v. Pinkston, 278 Ark. 233, 644 S.W.2d 930 (1983). We cannot say the decision in this case is clearly wrong.
The husband's main contention is that the chancellor's decision is erroneous because the wife admitted having intercourse with another man on two occasions. Fault in the divorce is not necessarily the determining factor in awarding custody since an award of custody is neither a reward nor a punishment for a parent. Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975). The children's welfare is the controlling consideration. Id. Here, the wife candidly admitted the affair and stated that it was a regrettable mistake. She also stated that it was not conducted in front of the children, and that she has not been involved with anyone else. Under these facts we cannot say the chancellor erred. Accord, Hoing v. Hoing, 28 Ark.App. 340, 775 S.W.2d 81 (1989).
The husband contends the chancellor erred in ordering child support and alimony, as well as ordering him to make house payments. In the original decree the husband was ordered to pay $1,090.00 per month child support. He was also ordered to make house payments of $769.00 per month until the wife moved from the home, at which time the $769.00 monthly payment was to be converted to alimony for a period of twelve months. After the post-trial motion, the chancellor amended the order to make it clear that the...
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