Carpenter v. Carpenter

• Citation: 657 P.2d 646,1983 OK 2
• Decision Date: 11 January 1983
• Docket Number: No. 56314,56314
• Parties: Richard E. CARPENTER, Appellant, v. Olga Y. CARPENTER, Appellee.
• Court: Supreme Court of Oklahoma

Page 646

657 P.2d 646

1983 OK 2

Richard E. CARPENTER, Appellant, v. Olga Y. CARPENTER, Appellee.

No. 56314.

Supreme Court of Oklahoma.

Jan. 11, 1983.

As Corrected Jan. 21, 1983.

Rehearing Denied Feb. 15, 1983.

Appeal and cross-appeal from the District Court, Oklahoma County; Jon L. Hester, Trial Judge.

Appeal and cross-appeal from a divorce decree as to division of jointly acquired property, support alimony, and attorneys' fees.

AFFIRMED.

S. Thomas Adler, Short Barnes Wiggins Margo Adler & Worten, Oklahoma City, for appellant.

Fagin, Hewett, Mathews & Fagin, Warner E. Lovell, Jr., Betty J. Garrett Pherigo, Oklahoma City, for appellee.

LAVENDER, Justice:

Both parties appeal from a divorce judgment wherein a decree of divorce was rendered to each of the parties on the grounds of incompatibility. The parties will be referred to as they appeared below, Richard E. Carpenter being plaintiff, and Olga Y. Carpenter the defendant.

At the time of trial, plaintiff was sixty-two years of age and defendant sixty-one, the parties having been married to each other for some thirty-six years. At the time of the marriage, plaintiff was completing his qualification to become a practicing physician and a specialist in the field of neurology. Plaintiff was one of the founders and president of Medical Neurologists, Inc. (MNI) which corporation employed plaintiff and other physicians in an Oklahoma City, Oklahoma, based firm. Defendant was briefly employed during the early years of the marriage and in clerical work since the separation of the parties, from which she now receives pre-tax earnings of $614 per month. In the interim, defendant devoted herself to the rearing of children, running the home, and volunteer work. Plaintiff's income from his profession has varied over the years, attaining a maximum during the year 1979 of $91,796.

In 1970, plaintiff developed angina, a heart disease also known as coronary arteriosclerosis, and a recent heart attack, and has been advised by his physician to take a leave of absence and retire from medical practice. Defendant has been undergoing psychoanalysis since the end of September 1978.

On November 14, 1980, a decree was entered by the trial court.

Defendant was granted support alimony, terminable on defendant's death or her remarriage, in the total amount of $162,000, payable $1,500 a month commencing December 1, 1980, and a like sum monthly thereafter for 48 months, said monthly payments to be adjusted to $1,250 for the next 72 months.

The separate property of the parties was set aside to each.

Out of the total property determined to be jointly acquired during the marriage of $633,485, plaintiff was awarded 47.4% and defendant 52.8%, as follows:

                TO PLAINTIFF
                Savings account                   $    968
                Checking account                     6,000
                Physicians & Surgeon debenture
                 bonds                              23,000
                Life insurance, John Hancock        11,975
                Life Insurance, U.S. Govt.  Life      2,479.
                Boat                                 3,000.
                Twin Hills stock                     3,000.
                M.N.I. stock                        30,707.
                Physicians & Surgeons Building
                 Investments,                       26,403.
                M.N.I. receivables                  22,863.
                1976 Volvo                           6,700.
                Pension and Profit Sharing Plans   163,278.
                

                TO DEFENDANT:
                Republic Bank account             $ 10,673.
                Eufala Bank account                  2,310.
                Certificates of Deposit             13,016.
                Money Market Certificate            10,000.
                Home                               135,000.
                Bonds, Harris County, Texas          8,850.
                Okla. City Series B                 19,300.
                Okla. Industrial Authority           6,475.
                Oklahoma Turnpike Authority          8,100.
                Valdez, Alaska                       7,512.
                Williamson, Texas,                   4,325.
                Life Insurance:
                 Prudential                          7,185.
                 Prudential                          7,393.
                 New York Life                       3,753.
                 John Hancock                        6,677.
                 John Hancock                        6,173.
                 John Hancock                       12,080.
                 John Hancock                        2,666.
                Connecticut Mutual                     750.
                Eufala property                     60,700.
                Mower and rototiller                 1,000.
                1977 Dasher                          4,190.
                

In addition, the plaintiff was ordered to pay one-half of the attorney fees of defendant's attorney, the total fee being $17,500.

The several issues raised on the appeal and cross-appeal will be considered.

I.

IS PLAINTIFF'S INTEREST IN MEDICAL NEUROLOGISTS, INC.

PENSION AND PROFIT SHARING PLAN PROPERTY ACQUIRED

BY THE PARTIES JOINTLY WITHIN THE

MEANING OF 12 O.S.1981, § 1278?

At the time of the divorce and prior thereto, Medical Neurologists, Inc. maintained a pension and profit sharing plan in which plaintiff was a participant. All contributions to the plan are made by the employer, with benefits being payable to a participant only upon his death, disability, or retirement. The value of the participant's share in the plan fluctuates from time to time, depending in part upon the success of the plan's investment program. Under the terms of plaintiff's employment agreement with Medical Neurologists, Inc., plaintiff is forced to retire at age 70, or continue employment under an arrangement whereby plaintiff's income is greatly reduced while maintaining his full proportionate share of overhead and operating expenses to such a degree that his continued employment after reaching age 70 would be highly unlikely. Upon retirement, the plan permits optional withdrawals therefrom by plaintiff, such withdrawals constituting ordinary income taxable to plaintiff during the year when withdrawn. The value attributable to plaintiff's proportionate part in the plan at the time of the divorce was $163,278. The trial court held that plaintiff's interest in the plan was property jointly acquired by both parties during the marriage, and awarded the same to plaintiff with an off-setting equivalent being made to defendant in other properties.

Section 12 O.S.1981, § 1278, in pertinent part, provides:

"As to such property, whether real or personal, which has been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the parties as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof."

This Court has on five occasions considered various aspects of pension plans in their relation to division of property and alimony in divorce proceedings.

In Roberts v. Roberts, Okl., 357 P.2d 980 (1960), the plan under consideration was a so-called "Provident Fund" whereby the husband contributed 10% of his monthly salary to the fund with match contributions by his employer. No withdrawal from the fund could be made unless defendant leaves his employment or retires. We held: "Of course, defendant could not withdraw and pay over to plaintiff in a lump sum any of the $30,000 and more accumulated in the Provident Fund with his employer. However, plaintiff could have been awarded an allowance payable monthly as alimony in lieu of a division of this fund. We believe plaintiff is entitled to such an allowance in the total sum of $12,100" (payable in 121 equal monthly installments of $100 each).

In Holeman v. Holeman, Okl., 459 P.2d 611 (1969), an appeal was brought on the question of whether the trial court awarded an excessive and unwarranted amount of alimony to plaintiff, and whether the award of the jointly acquired property to the defendant was inequitable and unfair to the plaintiff.

The plaintiff had worked for the railway mail service for some 14 years and had accumulated a retirement fund of $2,375. Upon changing to the Postal Service he continued his retirement fund contributions for the next 11 years and was still contributing at the time of trial. On whether the retirement fund accumulations were to be treated as jointly acquired property, the Court said: "If the retirement fund is divided at this time as jointly acquired property this would in effect destroy the plaintiff's future livelihood and means of complying with the alimony award. The trial court obviously took into consideration the retirement fund in regard to setting an award for alimony out of plaintiff's future income or earning capacity. It would be unfair to divide the retirement fund and then make a provision for payment of the majority of the alimony award out of his monthly retirement income."

In Baker v. Baker, Okl., 546 P.2d 1325 (1976), appellant was a Second Lieutenant in the U.S. Army at the time of the marriage. After 17 years of marriage, divorce proceedings were instituted, at which time appellant was a retired Lieutenant Colonel receiving $812.85 army retirement benefits per month. The court granted each party a divorce from the other on the grounds of incompatability.

Primarily on the authority of Holeman, it was determined that the trial court erred in considering the husband's pension for determination of jointly acquired property, but was correct in considering the pension in setting support alimony.

However, upon further consideration, we now find that our reliance in Baker (at p. 1326) upon Holeman and the cases cited in Heuchan v. Heuchan, 38 Wash.2d 207, 228 P.2d 470, 22 A.L.R.2d 1410 for the observation that: "All of these cases would, by implication, rule out the consideration of a pension as property acquired during coverture and subject to division between the parties," is misplaced as being too broad for the reasons hereinafter set forth. Holeman is certainly authority for the proposition that a pension may not be divided between spouses as jointly acquired property and in addition be the basis for...