Englert v. Englert

• Decision Date: 23 February 1978
• Docket Number: No. 14978,14978
• Citation: Englert v. Englert, 576 P.2d 1274 (Utah 1978)
• Parties: Hedwig Camacho ENGLERT, Plaintiff and Respondent, v. Edwin ENGLERT, Jr., Defendant and Appellant.
• Court: Utah Supreme Court

Page 1274

576 P.2d 1274

Hedwig Camacho ENGLERT, Plaintiff and Respondent, v.Edwin ENGLERT, Jr., Defendant and Appellant.

No. 14978.

Supreme Court of Utah.

Feb. 23, 1978.

Jimi Mitsunaga, Salt Lake City, for defendant and appellant.

Harley W. Gustin and Paul H. Liapis, Salt Lake City, for plaintiff and respondent.

CROCKETT, Justice:

DefendantEdwin Englert, Jr., appeals attacking only certain aspects of the award and property disposition in a divorce decree.

The parties were married on September 5, 1948, and had two children: Robert, born 1952, thus now 25, and Diane, born 1965, thus now 12.

During the 28 years of marriage the parties acquired a residence in Salt Lake City Utah, valued at approximately $40,000 with a mortgage of $7,500.They also accumulated other substantial assets consisting of savings accounts, land in Duchesne County, insurance policies and defendant's retirement fund through the Veterans Hospital, where he is Chief of the Gastro-Intestinal Section, from which he receives a gross income of $2,002.04 per month.

The trial court appears to have made a fair and equitable disposition of these assets between the parties and with respect to the alimony and support money, with the exceptions discussed below.

In regard to his duty to his children, appellant's brief states that: "He is voluntarily paying $150 to his son."As noted above, the son Robert is now 25 years old.Even though he is still attending Utah State University, there is no showing that he is disabled or limited in his ability to support himself.Therefore any contribution defendant makes to Robert is indeed voluntary ¹ and does not diminish the amount which the decree requires him to pay the plaintiff as alimony and child support for herself and the daughter Diane.

Defendant's principal remonstrance against the judgment is that the court erred in considering as a family asset his "accrued retirement fund . . . at the Veterans Administration Hospital," amounting to $29,717.For the purpose of getting to that main contention of the defendant, we spare the admittedly somewhat complicated conditions the decree places upon the disposition of this fund in an apparent effort to assure payment of the alimony and support money provided therein.Defendant argues that his retirement fund is not "property" within the meaning of our statutes and should not be so considered in determining the rights of the parties under the divorce decree.He reasons that because that fund was accumulated as a result of his service and tenure, it is inequitable to permit the plaintiff to participate therein.He cites: In re Marriage of Ellis, 36 Colo.App. 234, 538 P.2d 1347(1975), where the Colorado Court of Appeals stated:

We hold that the husband's army retirement pension and the future retired pay to be received thereunder do not constitute 'property' and are, therefore, not subject to division under the Colorado statute.

He also cites Baker v. Baker, Okl., 546 P.2d 1325(1976) to the same effect.

By way of comparison defendant states in his brief that "Community-property states, notably California, Idaho, New Mexico and Oregon, have held that retirement funds and pensions that have accrued during the marriage are community property and subject to division between the parties upon dissolution of the marriage."Citing e. g.Smith v. Lewis, 13 Cal.3d 349, 118 Cal.Rptr. 621, 530 P.2d 589(1925) and other cases.He argues therefrom that because those courts refer to that fact in holding that retirement benefits are community property and thus subject to allocation between the spouses when a marriage is dissolved, that that indicates that it should not be so in states, such as Utah, where the community-property status does not exist; and urges that holdings in community-property state cases are not controlling here and should not become our law.Further implementing his argument, he points to U.C.A.1953, Sec. 49-10-48 which provides for the nonassignability and exception from legal process of benefits under insurance.

With...