Foster v. Foster
| Decision Date | 24 August 1979 |
| Citation | 589 S.W.2d 223 |
| Parties | Charles H. FOSTER, Appellant, v. Wanell Baize FOSTER, Appellee. Wanell Baize FOSTER, Cross-Appellant, v. Charles H. FOSTER, Cross-Appellee. |
| Court | Kentucky Court of Appeals |
Freeman B. Blackwell, Louisville, for appellant and cross-appellee.
George B. Walton, Louisville, for appellee and cross-appellant.
Before GANT, COOPER and HOWERTON, JJ.
The parties hereto divorced after 30 years of marriage, the lower court awarding one-half of the marital property to each spouse, providing for maintenance for the wife for five years, and further granting the wife one-third of the future benefits received by the husband in his pension upon retirement. This appeal and cross-appeal are primarily concerned with the division of the pension benefits.
The husband, 58 years of age, has worked for American Synthetic Rubber Co. for 19 years. His pension plan provides monthly payments upon retirement based on $10.00 multiplied by the number of years of continuous service. Although contribution to the fund was made solely by the employer, the plan had been amended to comply with the requirements of the Employee Retirement Income Security Act (ERISA), and was fully vested under the provisions of that Act and the plan itself because of the length of service and the age of the husband. The plan further provided for disability benefits and for reduced monthly benefits upon early termination of employment.
There is a conflict among the states which have faced the question of whether a noncontributory retirement or pension plan is marital or nonmarital property. See Phillipson v. Board of Admin. Pub. Emp. Ret. Sys., 3 Cal.3d 32, 89 Cal.Rptr. 61, 473 P.2d 765 (1970); In re Marriage of Fithian, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449 (1974); In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976), all holding said funds marital property and subject to division; In re Marriage of Ellis, 538 P.2d 1347 (Colo.App.1975), and Ellis v. Ellis, 552 P.2d 506 (Colo.1976), both holding said plans nonmarital. We feel that the direction of the Kentucky courts has been set by Beggs v. Beggs, Ky., 479 S.W.2d 598 (1972). Although that case concerned a contributory fund, in contrast to the noncontributory fund in the instant case, the vested rights, not the contribution of the teacher, were determinative. Even though this pension plan was noncontributory, it was a part of the consideration earned by the husband during marriage. In...
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