Elliott v. Elliott, 47813.

CourtSupreme Court of Minnesota (US)
Writing for the CourtKELLY, Justice
Citation274 NW 2d 75
PartiesRobert A. ELLIOTT, Respondent, v. Virginia ELLIOTT, Appellant.
Docket NumberNo. 47813.,47813.
Decision Date20 October 1978

274 N.W.2d 75 (1978)

Robert A. ELLIOTT, Respondent,
Virginia ELLIOTT, Appellant.

No. 47813.

Supreme Court of Minnesota.

October 20, 1978.

James P. Rorris, Minneapolis, for appellant.

Lindquist & Vennum and David Newhall, Minneapolis, for respondent.

Heard before KELLY, TODD, and YETKA, JJ., and considered and decided by the court en banc.

KELLY, Justice.

This is an appeal in an action for dissolution of a 36-year marriage. Appellant wife attacks only that portion of the Amended Judgment and Decree which is concerned with the division of the coverture property. We reverse and remand.

Appellant wife, now age 59, and respondent husband, now age 60, were married in 1941. They adopted and raised two children who both reached majority prior to the initiation of this dissolution proceeding. During their married life respondent worked full-time. From 1951 until his forced retirement in 1974, he worked as a salesperson for Frigidaire Division of General Motors. After retiring from Frigidaire, he was employed by Acme Personnel Service as an employment recruiter, a job he was holding at the time his dissolution petition was heard. Appellant, by contrast,

274 NW 2d 76
has had no significant work experience.1 Except for a brief period during the early years of her marriage when she worked as a salesperson, she has had no full-time employment experience outside the home and has spent her time keeping house and raising the children.2

In 1974, the parties separated and respondent petitioned the court for dissolution of their marriage. At that time the parties' assets included an unencumbered homestead owned in joint tenancy worth approximately $50,000, two automobiles, and some household furnishings. Respondent received from his job at Acme Personnel Service a monthly draw of $500 against commissions plus reimbursement for verified expenses up to $100 per month. He also received $632.46 monthly in pension benefits from Frigidaire,3 and his social security base was high enough to ensure that he would receive maximum payments if he waited until age 65 to claim them. Appellant was not employed and had no independent source of income.

The dissolution judgment and decree divided the equity in the homestead and the automobiles equally between the parties and awarded appellant $250 per month in alimony. Appellant then requested amended findings or a new trial on the ground that the trial court had failed to include respondent's pension and social security rights within the coverture property to be divided.4 In response to this motion, the court amended its findings to include appellant's "repeated drunkenness * * * over many years" as the cause of the breakdown of the marriage and stated that this finding had a bearing on the property distribution and alimony award. Nowhere in the court's findings were respondent's pension benefits or expected social security payments mentioned directly.

Appellant argues that her problem with alcoholism should neither have been labeled marital fault nor considered by the court in making its property distribution under Minn.St. 518.58. She also seeks a reversal of the amended findings of fact on the ground that the trial court erred in not considering respondent's pension benefits and his future right to receive social security payments as property for purposes of Minn.St. 518.54, subd. 5, and § 518.48.5

274 NW 2d 77

Appellant's contention that the trial court incorrectly considered her alcohol problems as marital fault in the property distribution decision is not supported by the trial record or by the law of this state. A number of courts and commentators reject the introduction of fault into the property distribution decision.6 Nevertheless, we believe that Peterson v. Peterson, 308 Minn. 365, 242 N.W.2d 103 (1976), was correctly decided. As we stated in Peterson v. Peterson, 308 Minn. 365, 373, 242 N.W.2d 103, 108:

"We anticipate that the court will, consistent with our past pronouncements of suggested enumerated factors, consider evidence of marital misconduct as only one of many factors upon which it bases its decision."

The appellant's alcoholic problems were uncontroverted and long-standing. Although alcoholism should not be given much weight, it is one aspect of marital misconduct which the court is free to consider. The trial court's consideration of appellant's alcoholism was consistent with our standard and thus cannot be labeled an abuse of discretion. If appellant is dissatisfied with Peterson, the proper forum for her complaint is the legislature and not the courts.7

Appellant's second contention is that the trial court adopted an overly restrictive definition of property for purposes of its distribution upon marital dissolution. It is well settled in this state that the trial court's award of alimony or division of property will only be reversed on appeal if the court abused its discretion. Hertz v. Hertz, 304 Minn. 144, 146, 229 N.W.2d 42, 45 (1975) and cases cited therein. We cannot say that the court's actual distribution of property and award of alimony was an abuse of discretion whether respondent's pension and social security benefits are treated as property or income. However, it would have been appropriate for the court to have considered pension benefits as property for the purposes of distribution under Minn.St. 518.58. Other...

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