Kirkman v. Kirkman, 53S04-9007-CV-451
| Decision Date | 06 July 1990 |
| Docket Number | No. 53S04-9007-CV-451,53S04-9007-CV-451 |
| Parties | Sandra S. KIRKMAN, Appellant (Respondent Below), v. Danny B. KIRKMAN, Appellee (Petitioner Below). |
| Court | Indiana Supreme Court |
K. Edwin Applegate, Applegate Law Offices, Bloomington, for appellant.
Michael L. Carmin, Cotner, Andrews, Mann & Chapman, Bloomington, for appellee.
Sandra S. Kirkman appealed following the entry of a decree dissolving her marriage with Danny B. Kirkman. In a memorandum decision the Court of Appeals declined to find error as to child support and attorney fees but remanded for an evidentiary hearing and findings regarding Danny's pension, and for specific findings and reconsideration of the property distribution.
We grant Danny's petition to transfer to address two of the issues presented therein:
1. Whether Danny's unvested military pension should have been considered "property" subject to division by the trial court.
2. Whether the trial court is required to state its reasons for deviation from an equal division of marital property.
The parties were married on July 23, 1968. A dissolution proceeding was initiated on February 12, 1988, with the final hearing held on July 8, 1988, and the decree entered on July 18, 1988. Danny joined the National Guard in 1969. Because of his continuing accumulation of military service, Danny was expecting a military retirement pension to vest upon completion of 20 years of service. However, at the time of the dissolution decree, Danny had no vested military pension rights, and vesting was still approximately one and one-half years in the future.
The National Guard pension was not included in the division of marital property ordered by the dissolution decree. While its exclusion was not an issue raised in Sandra's appeal, the Court of Appeals sua sponte asserted that Danny's National Guard pension would be includable in the marital estate pursuant to In re Marriage of Adams (1989), Ind., 535 N.E.2d 124, and remanded for further evidence on this issue.
We disagree. The husband's entitlement to future benefits in Adams was found to be "property" in accordance with Ind.Code Sec. 31-1-11.5-2(d)(2) as a right to pension or retirement benefits not forfeited upon termination of employment because he had become qualified for certain retirement benefits by reason of his 20 years of service completed prior to the final dissolution decree. In contrast to Adams, Danny Kirkman's right to pension benefits was neither vested nor had it become "not forfeited upon termination" prior to the entry of the dissolution decree. Therefore, without deciding whether Adams should be applied retroactively, we hold that the trial court did not err in excluding Danny's pension from the property division.
Apart from the pension issue, Sandra urges that the trial court should be required to justify by express findings any deviation from an equal division of property. The Court of Appeals advises that, had it not been for its conclusion that the pension should be included as property subject to distribution, it would have affirmed the trial court without remanding for specific findings to explain an unequal division of marital property. (Memorandum decision, p. 6).
In Luedke v. Luedke (1985), Ind., 487 N.E.2d 133, this Court vacated a decision of the Court of Appeals which would have created a rebuttable presumption favoring the...
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