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

Page 506

552 P.2d 506

191 Colo. 317

Eleanor ELLIS, Petitioner, v.Donald D. ELLIS, Respondent.

No. C--769.

Supreme Court of Colorado, En Banc.

July 26, 1976.

Carew & Birch, William Lamont Carew, Colorado Springs, for petitioner.

Blakemore McCarty, Colorado Springs, for respondent.

GROVES, Justice.

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 surrender value; loan value;...