Lanier v. Lanier

• Decision Date: 24 January 2005
• Docket Number: No. S04F1710.,S04F1710.
• Parties: LANIER v. LANIER.
• Court: Georgia Supreme Court

608 S.E.2d 213

278 Ga. 881

LANIER v. LANIER.

No. S04F1710.

Supreme Court of Georgia.

January 24, 2005.

Kenneth Paul Johnson, Savannah, for Appellant.

Gilbert Laird Stacy, Savannah, for Appellee.

THOMPSON, Justice.

After a bench trial, the trial court entered a final judgment and decree of divorce, terminating the 31-year marriage between appellee Sylvia Lanier and appellant Oscar Lanier, and awarding alimony to Ms. Lanier. In this appeal we are called upon to decide an issue of first impression in Georgia: whether certain retirement benefits Mr. Lanier expects to receive under the Railroad Retirement Act of 1974, 45 USC § 231 et seq., as amended in 1983 ("the Act"), may be considered as income to the recipient, and thus a source of alimony payments. We hold that they may, and we affirm the judgment below.

1. The trial court awarded Ms. Lanier a lump sum alimony payment of $25,000, plus $400 per month as permanent alimony, until she "dies, remarries, or cohabits with another person as contemplated by OCGA § 19-6-19(b), or [Mr. Lanier] begins to receive retirement benefits under either the ILA [International Longshoremen's] Pension and Welfare Plan¹ or the Railroad Retirement Act, whichever first occurs." Another provision relating to Mr. Lanier's railroad retirement benefits awarded Ms. Lanier the sum of $869.50 per month "in the form of alimony" based on Mr. Lanier's eligibility for benefits under the Act, "which payments would not commence until the sixteenth month after Mr. Lanier's initial receipt of such benefits." (Half of Mr. Lanier's expected monthly benefits under the Act amounts to $877.50.)

The evidence established that at age 62, Mr. Lanier will be eligible to receive railroad retirement benefits under the Act. The Act provides for two tiers of benefits which resemble both a private pension program and a social welfare plan. Tier I benefits are equivalent to those the employee would receive if covered by the Social Security Act, 42 USC § 401 et seq. These benefits are not considered marital property subject to division in a divorce action. See 45 USC § 231m (a). Tier II benefits are supplemental annuities which, like a private pension plan, are tied to earnings and career service, and which are subject to distribution as marital property. See 45 USC § 231m (b)(2); Pearson v. Pearson, 200 W.Va. 139(C), 488 S.E.2d 414 (1997). Mr. Lanier expects to receive $1,469 per month in Tier I benefits, and $286 per month in Tier II benefits; a monthly total of $1,755.

Mr. Lanier asserts that under Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), the trial court was without authority to consider his Tier I benefits when calculating alimony. Hisquierdo, however, does not preclude such an award. In that case, the parties "waived their claims to spousal support," 439 U.S. at 579, 99 S.Ct. 802, and the sole issue before the Court was whether a state court could consider an interest in Tier I benefits under the Act for purposes of dividing community property in a divorce proceeding.² Although the Court ruled that distribution of Tier I benefits cannot be considered marital property subject to equitable division, it made a distinction between consideration of those benefits for purposes of spousal support. In so doing, Hisquierdo recognized that a 1977 amendment to the Social Security Act expressly overrides § 231m, in that the amendment "permit[s] and encourage[s] garnishment of Railroad Retirement Act benefits for the purposes of spousal support, and those benefits will be claimed by those who are in need." Id. at 590(IV), 99 S.Ct. 802. In contrast, the retirement benefits may not be reached for community property claims. Id. at 587 (IIIA), 99 S.Ct. 802.

Other courts have interpreted the Act in a similar manner. In In re Marriage of Zappanti, 80 P.3d 889 (Colo.App.2003), the court followed Hisquierdo by holding that Tier I benefits cannot be classified as marital property subject to equitable distribution, but further ruled that the same funds can be "an income source to be considered in determining [the payee's] child support obligation." Id. at 895(III). See also Talutto v. Talutto, 375 Pa.Super. 302, 544 A.2d 482 (1988) (while payee's railroad retirement benefits were specifically excluded by the Act for purposes of property division upon divorce, the trial court considered the benefits as income for alimony purposes); Pearson v. Pearson, supra (Hisquierdo only precludes Tier I benefits from being considered as divisible marital property; it does not preclude the use of Tier I benefits to pay alimony); In re Marriage of Flory, 171 Ill.App.3d 822, 121 Ill.Dec. 701, 525 N.E.2d 1008 (1988) (the Social Security Act contains an express exception to the Railroad Retirement Act's anti-assignability clause with regard to a legal obligation to make alimony payments, 42 USC § 659(a)); Frost v. Frost, 581 S.W.2d 582, 583 (Ky.Ct.App.1979) (Hisquierdo "made clear that while a pensioner's rights cannot be directly assigned, it is permissible to make awards of maintenance and child support which take account of those funds as constituting all or part of the obligor's ability to pay").

In the context of state family law, the Supremacy Clause demands that state law be overridden only when it does "major damage to clear and substantial federal interests. . . . The pertinent questions are whether the right conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition." (Punctuation omitted.) McCarty v. McCarty, 453 U.S. 210, 220, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). As the foregoing authority illustrates, Mr. Lanier's railroad retirement funds may be considered as a source of income for purposes of assessing alimony, and such ruling does not contravene federal law.

2. We also reject Mr. Lanier's assertion that the trial court circumvented the nondivisible nature of his Tier I benefits by awarding alimony in an amount essentially equivalent to half his anticipated future compensation. Here, the trial court expressly acknowledged that Tier I benefits are nondivisible as marital property, and it did not consider those funds in equitably dividing the marital assets. Instead, it considered Mr. Lanier's expectation in receiving his railroad retirement benefits as a future source of income in calculating his alimony obligation. The court carefully considered Ms. Lanier's needs and Mr. Lanier's ability to pay, finding that $400 per month in permanent alimony was appropriate until such time as Mr. Lanier would receive his ILA pension, or 16 months after he begins receiving his railroad retirement benefits. It is of no consequence that the court did not set an event (such as death) to terminate the alimony derived from the income from railroad retirement benefits. The termination of alimony is controlled by OCGA § 19-6-5(b), which provides: "All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided." "This statute applies to alimony obligations created by verdict." Metzler v. Metzler, 267 Ga. 892(1), 485 S.E.2d 459 (1997). For the foregoing reasons, we reject the argument that the trial court circumvented federal law in calculating the award of alimony.

3. Ms....