Gates v. Albin, 58298
| Decision Date | 26 April 1983 |
| Docket Number | No. 58298,58298 |
| Citation | 662 P.2d 1370,1983 OK 42 |
| Parties | Goldie Marie Albin GATES, Appellant, v. Bob R. ALBIN, Appellee. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Kay County, Roger Mullins, Judge.
The appellant appeals from the refusal of the trial court: to award alimony; to consider the husband's retirement fund in the division of jointly acquired property; and to award attorney fees.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.
Jones, Gungoll, Jackson, Collins & Dodd by Stephen Jones and Susan McNaughton, Enid, for appellant.
Phipps, Johnson, Holmes & Hermanson by Kent C. Phipps, Ponca City, for appellee.
The questions presented are: whether the trial court erred because it did not award alimony; whether the retirement fund of the husband should be considered in the division of jointly acquired property; and if the husband should be required to pay the wife's attorney fees.
After a marriage which lasted approximately nine years, 1 the parties, Goldie Marie Albin Gates, appellant, and Bob R. Albin, appellee, were granted a divorce and their jointly acquired property was equally divided. However, the trial court expressly excluded the husband's pension fund. 2 The wife asserts that this was error and that the court should have considered the pension fund when it divided the couple's jointly acquired property. We agree.
Subsequent to the trial of this case, this Court determined in Carpenter v. Carpenter, 657 P.2d 646, 650-51 (Okl.1983) that a pension fund which has been acquired during the marriage may become jointly acquired property subject to division in accordance with 12 O.S.1981 § 1278. 3
The exigencies of a particular case can best be determined by the trial court. 4 We, therefore, remand this cause with directions to the trial court to effect a just and reasonable division of the property pursuant to 12 O.S.1981 § 1278 and Carpenter v. Carpenter, supra. The trial court may find, however, a fair and equitable division in this case may not necessarily be an equal division. 5 The court may consider that: the fund represents thirty years of service by the husband to his employer; the parties were married during only a portion of this time; and that, although the fund accrued the major portion of its total during coverture, funds usually accrue larger amounts in later years which reflect early years of contribution.
The appellant contends that she should have been awarded alimony, but that she is willing to forego an alimony award if the court orders a division of the husband's pension fund. Based on the wife's position, and because this cause is being remanded for a division of the pension fund, we find no error in the failure of the trial court to award alimony.
The wife also argues that she should have been awarded attorney fees at the trial level and on appeal. The trial court did not abuse its discretion in requiring the wife to pay her own attorney fees at the trial level. We further deny her request for attorney fees on appeal.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED WITH DIRECTIONS.
All the Justices concur.
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...and as such the pension became jointly acquired property. Carpenter, 657 P.2d at 651. On April 26, 1983, this Court in Gates v. Albin, 662 P.2d 1370 (Okla.1983), remanded with directions to the trial court to effect a just and reasonable division of the husband's pension The first case whic......
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