Kuchta v. Kuchta

Decision Date02 August 1982
Docket NumberNo. 62439,62439
Citation636 S.W.2d 663
PartiesE. Arlene KUCHTA, Appellant, v. Eustis KUCHTA, Respondent.
CourtMissouri Supreme Court

Joan M. Krauskopf, Columbia, Charlotte P. Thayer, Grandview, for appellant.

Dennis G. Muller, Kansas City, for respondent.

Barbara J. Gilchrist, Barbara Wallace, Clayton, Rony Ellinger, Hannibal, M. Margaret O'Hare, Kansas City, Phyllis N. Segal, Legal Director, Judith I. Avemer, Anne E. Simon, National Center on Women and Family Law, New York City, for amicus curiae.

MORGAN, Judge.

On December 6, 1978, the trial court entered a decree of dissolution which terminated a marriage of some nineteen years between appellant and respondent. That portion of the decree pertaining to the division of marital property has been a subject of concern on appeal for much too long and particularly insofar as it relates to the "pension rights" of one spouse resulting from employment of the other. The record, however, reflects that the delay has not resulted from neglect but exhaustive efforts 1 to resolve a very complex problem, i.e., the extent to which pension rights, and specifically those designated as "non-matured" and possibly subject to "forfeiture," shall be considered while dividing marital property as dictated in § 452.330, RSMo 1978 (as amended by Laws 1981); 2 which, in part, provides that: "In a proceeding for dissolution of the marriage ... the court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including: (1) The contribution of each spouse to the acquisition of the marital property including the contribution of a spouse as homemaker; (2) The value of the property set apart to each spouse; (3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and (4) The conduct of the parties during the marriage."

On reflection, it becomes apparent that whether or not present or prospective pension rights are to be classified as marital property is no longer of primary concern, but rather the manner by which the trial court can treat the same in seeking to reach a fair and equitable division thereof if necessary to comply with § 452.330.

In this further effort to resolve the issues presented, made under a recent reassignment, extended portions of previously prepared opinions will be utilized without benefit of quotation marks.

At the time of the decree there were three minor male children, ages 18, 17 and 16, whose custody was awarded to the respondent (father). Neither the award of custody nor the dissolution itself are now challenged.

The decree divided assets as follows:

                To Appellant:                         Valuation
                ------------------------------------  ---------
                1978 Monte Carlo, net of $2,200 lien     $2,800
                IBM typewriter                              450
                Household furnishings                       125
                Credit Union account                      2,856
                Debt to Park College                      (625)
                To Respondent
                Residence, net of $5,000 mortgage  $25,000
                Household furnishings                  375
                Shop equipment                         100
                1965 Volkswagen                         50
                Savings accounts                    14,035
                Life insurance, cash value           4,881
                TWA retirement plan                 11,505

However, the court also awarded appellant $30,000, identified as "maintenance in gross," payable by a lump sum of $5,000 and monthly payments of $300 per month until satisfied. In the initial review, the court of appeals determined that factually appellant was not entitled to maintenance 3 and that the award of $30,000 in cash clearly was an effort to equalize the property distribution. In oral argument before this Court, both parties tend to agree with that characterization. Thus, in total, the respondent (husband) was awarded $55,946 and the appellant (wife) $35,606, with the former being charged with the expense of providing a home and rearing the three teen-aged sons, a factor for consideration under § 452.330.1(3). Being unable, with any degree of certainty, to rule that the financial obligation placed on respondent for the care of the three sons did not equal or possibly exceed the difference between the awards, we now consider the extent to which the TWA pension was for the trial court's consideration.

Pension benefits, in recent years, have assumed an increasingly important role in the economic security of employees. See Bonavich, Allocation of Private Pension Benefits as Property in Illinois Divorce Proceedings, 29 DePaul L. Review 1, 3-4 (1979) in which the author points out that in 1950, private retirement plans held about $12 billion in assets and covered about 10 million workers. In 1975, non-insured private retirement and pension plans held $145 billion in assets and retirement plans covered 30 million workers. The 1979 Statistical Abstract of the United States published by the Bureau of the Census lists, at 340, the assets of private pension funds in 1978 as $564.9 billion dollars. A spouse's retirement benefits may often be the most valuable asset belonging to a married couple. See Bloomer v. Bloomer, 84 Wis.2d 124, 267 N.W.2d 235, 238 (1978); Krauskopf, Marital Property at Marriage Dissolution, 43 Mo.L.Rev. 157, 171 (1978). In fiscal 1980, there were approximately 40,000 dissolution proceedings filed in the circuit courts of Missouri. Thus, making it certain that in many such proceedings the past, but now dissipated hopes of the spouses to enjoy together the future benefits of a pension plan constituted their greatest asset. As has been so often said, a pension is not earned on the last day of employment prior to retirement, but "is a form of deferred compensation which is attributable to the entire period in which it was accumulated." Shill v. Shill, 100 Idaho 433, 599 P.2d 1004 (1979). An untold number of cases 4 have made similar declarations, including the appellate courts of this state. Daffin v. Daffin, 567 S.W.2d 672 (Mo.App.1978); Anspach v. Anspach, 557 S.W.2d 3 (Mo.App.1977); Jaeger v. Jaeger, 547 S.W.2d 207, 212 (Mo.App.1977) and In re Marriage of Powers, 527 S.W.2d 949, 957 (Mo.App.1975). This Court's holding, partially to the contrary, in Robbins v. Robbins, 463 S.W.2d 876 (Mo.1971), should no longer be followed.

In passing, we do note 1978 amendments to the federal civil service retirement laws which expressly permit a division of retirement payments as marital property. In 5 U.S.C.A., Section 8345(j)(1) provides, in part, that: "Payments ... which would otherwise be made to an employee ... based upon his service shall be paid (in whole or in part) ... to another person if and to the extent expressly provided for in the terms of any court decree of divorce...." Further recognition of the status of retirement benefits may be found in recent federal legislation designed to encourage individual retirement accounts by offering specified tax advantages for creating the same.

In past efforts to resolve the issues presented, we have sought to identify those distinctive periods of "time" during the employment of a spouse when a dissolution could occur. Recital thereof tends not only to emphasize the problem but, in fact, may provide some general guidance for considering the same. In essence they are:

Stage I-If the employment were terminated, and the spouse had no right to receive anything, presently or in the future, except the amount he had contributed to the plan (plus interest), retirement benefits would be "non-vested" and "non-matured."

Stage II-If the employment were terminated, and the spouse was entitled to receive certain benefits beyond prior contributions, but only after reaching a designated retirement age, such retirement benefits would be "vested" but "non-matured."

Stage III-If the employment were terminated, and the spouse was entitled presently to certain benefits, beyond prior contributions, such retirement benefits would be "vested" and "matured."

Even a casual reading of the somewhat artificially designed "time-periods" makes it apparent that a trial court, if it deemed proper in the first instance, could act with a relative degree of certainty during Stage I or Stage III, with more lingering doubts in the latter.

However, speculative and perhaps insoluble questions often will be present in cases arising during Stage II that do not lend themselves to rigid and fixed rules. Because of the untold number of "pension plans" which appear to have their own singular and unique requirements for meeting "vesting" and "maturing" provisions, it is imperative that trial courts be authorized to apply a flexible approach to accommodate the particular facts of each case. Nevertheless, the threatened presence of contingencies which may create differing degrees of "risk of forfeiture" does not change the fact that many potential pension benefits have been...

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