Derevere v. Derevere

• Court: Washington Court of Appeals
• Writing for the Court: PETRIE
• Citation: Derevere v. Derevere, 488 P.2d 763, 5 Wn.App. 446 (Wash. App. 1971)
• Decision Date: 28 July 1971
• Docket Number: No. 327-11
• Parties: Clifford F. DeREVERE, Appellant, v. Jean W. DeREVERE, Respondent. Division 2

Page 446

5 Wn.App. 446

488 P.2d 763

Clifford F. DeREVERE, Appellant, v. Jean W. DeREVERE, Respondent.

No. 327-11.

Court of Appeals of Washington,

Division 2.

July 28, 1971.

Note: Opinion Superseded by 491 P.2d 249, 5 Wash.App. 741.

Troup, Christnacht & Herron, George W. Christnacht, Tacoma, for appellant.

Lee, Krilich, Lowry & Thompson, Thomas G. Krilich, Tacoma, for respondent.

PETRIE, Chief Judge.

The primary issue presented by this appeal from a decree of divorce is whether or not the husband's interest in a company retirement plan constituted "property" divisable as such by the court.

The detailed specifications of the retirement plan have not been placed in the record. Accordingly, we make no definitive determination of the rights, in general, of parties to such plan. However, sufficient information does appear in the record to dispose of the issue presented by this appeal.

At the time of trial and entry of the decree, Mr. DeRevere was 58 years of age and had been employed by the American Telephone and Telegraph Company continuously for more than 40 years. His employer had established a non-contributory retirement plan under which, assuming his continuing employment with this company, he will have the option of retiring at or after age 60, but will be required to retire at age 65. The annual amount of his pension is determined by multiplying his years of service by one per cent of the average of his five highest annual salaries. If he should quit work or be fired before age 60, he would receive no pension. If he should become disabled, however, he would be entitled to a pension. Should he pass away before age 60, his widow would receive a benefit under the plan, but this latter provision, however, is terminated upon divorce. Mr. DeRevere testified, and such testimony is not controverted, that his interest in the retirement plan has neither cash value nor cash surrender value. When asked if it had any market value, he replied, merely: "It is non-contributory."

The trial court considered Mr. DeRevere's potential retirement benefits as "property" and made final disposition thereof. He has appealed, assigning error to the court's finding of fact awarding Mrs. DeRevere the sum of $400 per month, effective May 10, 1970, in lieu of her community interest in the retirement plan, and "as further property division."

We start with the proposition that it is the duty of the trial court, in an action for divorce, to dispose, with finality, of all property of the parties which is brought to its attention. Shaffer v. Shaffer, 43 Wash.2d 629, 262 P.2d 763 (1953). Further, it is now firmly established in this jurisdiction that retirement provisions are in the nature of deferred compensation; and, as such, the employee has a vested right in the system which cannot be altered to his detriment, whether such system be a public plan, Bakenhus v. Seattle, 48 Wash.2d 695, 296 P.2d 536 (1956), a private, employee contributory plan negotiated through the collective bargaining process, Dorward v. ILWU-PMA Pension Plan, 75 Wash.2d 478, 452 P.2d 258 (1969), or a voluntary, non-contributory (employer financed) plan, Jacoby v. Grays Harbor Chair & Mfg. Co., 77 Wash.2d 911, 468 P.2d 666 (1970).

Although the employee has a vested right in the system or plan from the date of its inception, he has no enforceable monetary right unless and until the contractual terms for payment of accrued benefits, at present or at some time in the future, have been met. Jacoby v. Grays Harbor Chair & Mfg. Co., supra. In the case at bar, Mr. DeRevere's interest in the retirement plan will not ripen into a vested right to payment of specifically accrued benefits unless and until he continues in employment with the company and he reaches age 60 (or until he is determined to be disabled pursuant to the terms of the contract). Upon the happening of this critical event, his interest becomes matured to the point that he then has a fully vested ¹ interest in the future payment of those benefits. Until that critical event occurs, his interest, although vested in the system, is a mere expectancy. A prospective expectancy of an estate which may come into being in the future, as distinguished from future benefits to be derived from an estate already in existence, does not constitute property in the hands of the divorce court to be fairly and equitably divided. At the time when the court divided property of the parties it was mere speculation that Mr. DeRevere's interest in the retirement plan would mature into a vested right to payment of accrued benefits. Freeburn v. Freeburn, 107 Wash. 646, 182 P. 620 (1919). See also, Storm v. Storm, 470 P.2d 367 (Wy...