Grant v. Grant, 55835

Decision Date09 August 1984
Docket NumberNo. 55835,55835
Citation685 P.2d 327,9 Kan.App.2d 671
PartiesJackie Lee GRANT, a/k/a J.L. Grant, Appellee, v. Shirley M. GRANT, Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

1. Federal law no longer precludes a Kansas court from dividing military retirement pay pursuant to K.S.A. 60-1610(b ). Following 10 U.S.C. § 1408 (1982).

2. Kansas law does not require an equal split of all property acquired during the marriage, but rather gives the trial court discretion to consider all property to arrive at a just and reasonable division.

3. In divorce actions, the trial court is vested with broad discretion in adjusting property rights, and its exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse.

4. To determine what property is subject to division, the trial court looks to all property which is jointly or individually held by the parties when the divorce is filed.

5. Military retirement pay does not have a present value which becomes part of the marital property divisible at divorce.

6. In a divorce action, it is held: The trial court did not err in dividing the marital property, and in refusing to value and divide plaintiff's military retirement pay.

John E. Bohannon, Topeka, for appellant.

Hal E. Desjardins and Paul D. Post, Topeka, for appellee.

Before FOTH, C.J., and PARKS and BRISCOE, JJ.

BRISCOE, Judge:

This is a divorce action wherein the defendant, Shirley M. Grant, appeals the trial court's division of property.

The plaintiff, Jackie Lee Grant, had been in the Air Force for three and one-half years when he married the defendant in 1955. He retired from military service in 1972 and at the time of trial he was receiving net monthly military retirement pay in the amount of $750.59. The couple had four children, two of whom were then minors, ages 15 and 17.

Plaintiff operated his own security service which showed a loss of $9,000 in 1982, part of which was attributable to depreciation and mileage. The business paid the plaintiff $6,895.39 in expense reimbursement during the same period. Plaintiff's living expenses totaled $926.33 per month.

The defendant is employed as an office clerk and earns a net monthly income of $538.50. During most of the marriage she did not work outside of the home, except for babysitting, ironing and selling Avon products. Her living expenses totaled $1,077.90 per month for herself and the two children.

The trial court, in granting the divorce, awarded the defendant custody of the two minor children and $200 monthly child support. She received in the division of property the family residence, a 1977 Chevrolet Nova, most of the household items, an insurance policy and the savings accounts. She also was awarded $150 monthly maintenance for 36 months.

The plaintiff received a 1975 Ford pickup and camper, a motorboat, the security firm and its checking account, some household items, an insurance policy and his military retirement pay.

Both of the issues raised on appeal challenge the trial court's treatment of the husband's military retirement pay. The first issue is whether the trial court abused its discretion in dividing the marital property by not valuing and dividing the husband's military retirement pay. The second issue is whether the trial court was required to make more detailed findings of fact as requested in the defendant's motion to alter and amend judgment. Specifically, the defendant is here again concerned with the military retirement pay and the court's failure to assign a value to it.

As regards the first issue, the defendant contends the trial court in its division of the marital property failed to comply with the requirements of K.S.A. 60-1610(b ). The factors to be considered by the trial court and its discretionary powers in the division of property, as well as the scope of appellate review of property divisions, are summarized in Bohl v. Bohl, 232 Kan. 557, 561, 657 P.2d 1106, appeal after remand 233 Kan. 725, 665 P.2d 775 (1983):

"There is no disagreement on the rules governing division of property pursuant to divorce. The trial court is under a duty to divide the marital property in a 'just and reasonable manner.' K.S.A. 1981 Supp. 60-1610(d ). In determining a just and reasonable division of the property the trial court should consider: (1) the ages of the parties; (2) the duration of the marriage; (3) the property owned by the parties; (4) the present and future earning capacities of the parties; (5) the time, source and manner of acquisition of property; (6) family ties and obligations; (7) the question of fault when determined; and (8) the allowance of alimony or the lack thereof. [Citations omitted.]

" 'In a divorce action the district court is vested with broad discretion in adjusting property rights, and its exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse.' [Citations omitted.] '[D]iscretion is abused only where no reasonable [person] would take the view adopted by the trial court. If reasonable [persons] could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion.' [Citations omitted.]"

Defendant contends that the plaintiff's military retirement pay should have been valued at $97,600. Defendant bases this valuation upon the testimony of a life insurance actuary who testified as an expert witness at trial. The actuary compared the plaintiff's monthly retirement payment to an annuity paying the same monthly amount. He concluded that retirement pay of $881 per month, if purchased as an annuity to pay the same monthly amount, would cost $97,600. Defendant includes this valuation of the retirement pay in her computation of the percentage of net worth distributed to her. By her analysis, she received 28.5 percent of the net worth and the plaintiff received 71.5 percent. By plaintiff's computation, which assigns no value to retirement pay, the defendant received 93 percent of the net worth; the plaintiff, 7 percent.

The defendant urges this court to find an abuse of discretion in the trial court's failure to consider the military retirement pay as marital property with a determinable value. In addition, the defendant contends the pension should have been divided between the parties to allow the defendant 41 percent of each pension check. Defendant reaches this percentage by determining the percentage of plaintiff's military service which was completed during the marriage and then dividing that percentage in half.

K.S.A. 60-1610(b ) states in pertinent part:

"The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in the spouse's own right after marriage or acquired by the spouses' joint efforts...."

Kansas law does not require an equal split of all property acquired during the marriage, but rather gives the court discretion to consider all property to arrive at a just and reasonable division. LaRue v. LaRue, 216 Kan. 242, 250, 531 P.2d 84 (1975); Zeller v. Zeller, 195 Kan. 452, 459, 407 P.2d 478 (1965). To determine what property is subject to division, the court looks to all property which is jointly or individually held by the parties when the divorce is filed. Cady v. Cady, 224 Kan. 339, 344, 581 P.2d 358 (1978).

There is no definitive Kansas authority on whether military retirement pay is marital property and, if so, how it is to be valued. This court in Gronquist v. Gronquist, 7 Kan.App.2d 583, 644 P.2d 1365 (1982), concluded that the division of military retirement pay was prohibited under the federal law then in effect, noting the ruling in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). However, the court in Gronquist approved consideration of military retirement pay as income in awarding alimony, or as property the value of which may be considered in dividing the remaining property. 7 Kan.App.2d at 585, 644 P.2d 1365.

Since Gronquist, however, Congress has responded to the McCarty decision and enacted 10 U.S.C. § 1408 (1982), which provides in part:

"(c)(1) Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.

"(2) Notwithstanding any other provision of law, this section does not create any right, title, or interest which can be sold, assigned, transferred, or otherwise disposed of (including by inheritance) by a spouse or former spouse.

"(3) This section does not authorize any court to order a member to apply for retirement or retire at a particular time in order to effectuate any payment under this section.

"(4) A court may not treat the disposable retired or retainer pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court."

With the passage of this statute the prior prohibition against the division of military retirement pay is removed. Therefore, if found to be marital property with determinable value under Kansas law, military retirement pay is subject to division in accordance with 10 U.S.C. § 1408.

Other jurisdictions have generally reached one of two results on the issue. Some have found a military pension not to be marital property, although, it may be considered in ordering division of the property. Ellis v. Ellis, 191 Colo. 317, 552 P.2d 506 (1976), is illustrative. In Ellis, the court summarized and held:

"The husband retired after 29 years of...

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