Ellis v. Ellis
| Decision Date | 26 July 1976 |
| Docket Number | No. C--769,C--769 |
| Citation | 191 Colo. 317,552 P.2d 506 |
| Parties | Eleanor ELLIS, Petitioner, v. Donald D. ELLIS, Respondent. |
| Court | Colorado Supreme Court |
Carew & Birch, William Lamont Carew, Colorado Springs, for petitioner.
Blakemore McCarty, Colorado Springs, for respondent.
We granted certiorari to review the opinion of the Colorado Court of Appeals in which the designation of the parties is the same and which appears in Colo.App., 538 P.2d 1347.
The husband retired after 29 years of military service and not long after his commencement of a dissolution of marriage proceeding. The parties had been married for the last 20 years of his military duty. After his retirement, he was receiving both retirement pay and compensation from employment. The trial court took into consideration these two sources of income in ordering the husband to make payments to the wife for the support of herself and their minor children. The court declined to grant the wife's request that the retirement pay which would be payable to the husband in the future was 'property' subject to division in the dissolution of marriage proceeding. The court of appeals affirmed, as do we.
With one possible minor exception, we approve generally of the majority opinion of the court of appeals. 1
'Notwithstanding any other provision of law, effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States (including any agency or instrumentality thereof and any wholly owned Federal corporation) to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments.' 42 U.S.C. § 659 (Supp. IV 1974).
The statute provides that the court shall 'divide the marital property.' It further provides:
'All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property.' Section 14--10--113, C.R.S. 1973.
The court of appeals has mentioned that the statute goes no further in the definition of property. We hold, as did the court of appeals, that military retirement pay is not 'property' under the dissolution of marriage act. Our reason is that it does not have any of the following elements: cash...
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Marriage of Gallo, In re
...M. Kent, Aurora, for respondent. ROVIRA, Justice. In this case, we return to an issue last addressed by this court in Ellis v. Ellis, 191 Colo. 317, 552 P.2d 506 (1976): Whether military retirement pay is property subject to division in a dissolution of marriage proceeding. In an unpublishe......
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...parties. We have previously considered whether particular forms of retirement benefits qualify as marital property. In Ellis v. Ellis, 191 Colo. 317, 552 P.2d 506 (1976), for example, we held that military retirement pay, which the husband had just begun to receive at the time of the dissol......
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...does not have any "cash surrender value; loan value; redemption value; . . . [or] value realizable after death." Ellis v. Ellis, 191 Colo. 317, 319, 552 P.2d 506, 507 (1976). See Fenney v. Fenney, 259 Ark. 858, 537 S.W.2d 367 16 A number of state courts have held that military retired pay i......
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ARTICLE 10
...App. 294, 616 P.2d 177 (1980). Colorado is not a community property state. In re Ellis, 36 Colo. App. 234, 538 P.2d 1347 (1975), aff'd, 191 Colo. 317, 552 P.2d 506 (1976). The statutory mandate to distribute property equitably does not require equality. In re Warrington, 44 Colo. App. 294, ......
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ARTICLE 10 UNIFORM DISSOLUTION OF MARRIAGE ACT
...App. 294, 616 P.2d 177 (1980). Colorado is not a community property state. In re Ellis, 36 Colo. App. 234, 538 P.2d 1347 (1975), aff'd, 191 Colo. 317, 552 P.2d 506 (1976). The statutory mandate to distribute property equitably does not require equality. In re Warrington, 44 Colo. App. 294, ......
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Degrees of Losing: a Challenge to the Federal "frozen Benefit Rule"
...retirement pay . . . is comparable to the pension which a retired employee is receiving under a private plan.").40. E.g., Ellis v. Ellis, 552 P.2d 506, 507 (Colo. 1976) (en banc) (holding that "military retirement pay is not property under [Colorado's] dissolution of marriage act" (internal......
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