Marriage of Edwards, In re, s. 17626

• Decision Date: 16 September 1992
• Docket Number: Nos. 17626,17637,s. 17626
• Citation: 838 S.W.2d 494
• Parties: In re the MARRIAGE OF Joyce Ann EDWARDS and Hugh Kingston Edwards. Joyce Ann EDWARDS, Petitioner-Respondent-Appellant, v. Hugh Kingston EDWARDS, Respondent-Appellant-Respondent.
• Court: Missouri Court of Appeals

Page 494

838 S.W.2d 494

In re the MARRIAGE OF Joyce Ann EDWARDS and Hugh Kingston Edwards.

Joyce Ann EDWARDS, Petitioner-Respondent-Appellant, v. Hugh Kingston EDWARDS, Respondent-Appellant-Respondent.

Nos. 17626, 17637.

Missouri Court of Appeals,

Southern District,

Division One.

Sept. 16, 1992.

Christopher J. Stark, Springfield, for Hugh Kingston Edwards.

Kay S. Graff, Springfield, for Joyce Ann Edwards.

CROW, Presiding Judge.

By an amended decree entered June 12, 1991, the trial court dissolved the 28-year marriage of Joyce Ann Edwards and Hugh Kingston Edwards.

Among its provisions, the decree (a) awarded Hugh ¹ primary physical custody of the parties' 17-year-old daughter, (b) ordered Joyce to pay Hugh $115 per month child support for the daughter, (c) ordered Hugh to pay Joyce $500 per month maintenance, (d) ordered Hugh to pay Joyce's lawyer $3,000, and (e) awarded Joyce $1,000 per month as her share of Hugh's pension "under the terms of the Qualified Domestic Relations Order entered herein."

Hugh brings appeal 17626 from the decree, averring the trial court erred in: (I) finding the younger of the parties' two sons (born May 12, 1971) was emancipated, (II) awarding Joyce maintenance in that she failed to meet the eligibility requirements of § 452.335, ² (III) setting the maintenance at $500 per month in that such sum is excessive under the standards of § 452.335, and (IV) awarding Joyce an interest in his pension.

Joyce brings appeal 17637 from the decree, maintaining the trial court erred in: (I) setting the maintenance at $500 per month in that such sum is insufficient under the standards of § 452.335, and (II) awarding her lawyer just $3,000 in that the evidence supported a greater amount.

The scope of our review of this judge-tried case is established by Rule 73.01(c) ³ as construed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The decree of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. at 32. Credibility of the witnesses and the weight to be given their testimony was a matter for the trial court, which was free to believe none, part, or all of their testimony. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988). We do not substitute our judgment for that of the trial court on credibility issues. In Interest of J---- M----, 812 S.W.2d 925, 934 (Mo.App.1991); Strauss v. Strauss, 755 S.W.2d 742, 743 (Mo.App.1988); Stratton v. Stratton, 694 S.W.2d 510, 512 (Mo.App.1985).

Applying these principles to the record here, we find no error in any respect complained of by Hugh in points I, II and III in his appeal, and likewise find no error in any respect complained of by Joyce in either of the points in her appeal. As to all such issues, the decree is supported by substantial evidence, is not against the weight of the evidence, and no error of law appears. An opinion fully discussing the law and evidence pertinent to such issues would have no precedential value. Accordingly, the portions of the decree attacked by those points are affirmed in compliance with Rule 84.16(b). The remainder of this opinion is devoted exclusively to point IV of Hugh's appeal, which assails the portion of the decree pertaining to his pension.

Hugh is employed by ROLM Company. At trial, he identified Petitioner's Exhibit 2 as a statement of his pension benefits under the "ROLM Retirement Plan" ("the Plan"). The pension is the primary marital asset.

According to Exhibit 2, Hugh's vested pension rights as of December 31, 1989, will yield him an estimated annual retirement income of $13,410. Hugh testified, "[T]hat's the amount of money that I will receive at age sixty-five should I leave the company today."

Exhibit 2 sets forth certain "Retirement Income Assumptions." One of them is:

The retirement figures shown in this statement are based on your age, earnings and service through December 31, 1989 and on continued service to the ages indicated. Your annual salary at year end 1989 was used as the starting point for all projected future earnings.

                Exhibit 2 then shows
                Estimated Annual Retirement Income (Single Life Basis)
                Ages                        65             62             60            55
                Estimated Retirement         $35,149        $32,435       $30,623       $23,130
                  at 0% Salary
                  Growth
                Social Security*             $23,592        $17,316            NA            NA
                Total                        $58,741        $49,751       $30,623       $23,130
                Value in Current             $28,172        $26,969       $18,012       $16,685
                  Dollars
                

Note: Value in current dollars was derived using a 4 percent discount rate....

* Since the earliest eligibility date to receive social security retirement

income benefits is normally age 62, these benefits are not applicable at

earlier ages.

The trial court's findings regarding the Plan appear in paragraph 12 of the amended decree, which reads:

That the monthly marital pension benefits available to [Hugh] through ROLM Company ... would be $1927.50 at age 55, $2551.92 at age 60, $2702.92 at age 62 and $2929.00 at age 65 and the portion due [Joyce] as her marital property is $1000.00 per month to be paid pursuant to a Qualified Domestic Relations Order.

In conjunction with the decree, the trial court signed and filed a four-page document captioned "Qualified Domestic Relations Order" (of which more later).

In arriving at its findings (quoted above), the trial court evidently assumed Hugh (a) would continue working for ROLM Company until at least age 55 ⁴, and (b) would have zero percent salary growth. In computing Hugh's monthly pension benefits for the respective ages of 55, 60, 62 and 65, the trial court obviously used the estimated annual retirement income on the first line of the above chart for those ages, divided by 12.

Hugh's point IV reads:

The trial court erred in finding that the monthly marital pension benefits available to [Hugh] through ROLM Company ... would be $19,027.50 [sic] at age 55, $25,051.92 [sic] at age 60, $27,002.92 [sic] at age 62 and $29,029.00 [sic] at age 65, and the portion due [Joyce] as her marital property is $1,000.00 per month to be paid pursuant to a Qualified Domestic Relations Order in that the finding by the court is unsupported by competent evidence, and the Qualified Domestic Relations Order does not comply with section 414(p)(C) [sic] of the Internal Revenue Code.

Rule 84.04(d) reads, in pertinent part:

The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous....

The purpose of the rule and the necessity of obeying it are extensively discussed in the leading case of Thummel v. King, 570 S.W.2d 679, 684-88 (Mo. banc 1978).

Hugh's point IV yields no clue as to wherein and why the trial court's findings regarding the pension are unsupported by competent evidence, and furnishes no hint as to wherein and why the Qualified Domestic Relations Order (henceforth "QDRO") does not comply with "section 414(p)(C)" ⁵ of the Internal Revenue Code. The point therefore presents nothing for review. Carthen v. Jewish Hospital of St. Louis, 694 S.W.2d 787, 796 (Mo.App.1985); Best v. Culhane, 677 S.W.2d 390, 394 (Mo.App.1984); Tripp v. Harryman, 613 S.W.2d 943, 950 (Mo.App.1981).

However, because the pension is the primary marital asset, we have, ex gratia, scrutinized the argument portion of the brief in an attempt to extract the hypotheses of error.

Hugh's first complaint, as we divine it, is that the pension "is contingent upon his surviving until age 65." Consequently, the pension "is subject to divestment or is contingent upon some future event." Thus, argues Hugh, "there is no property to divide."

Pertinent to this contention, we note Exhibit 2 shows Hugh's "date of hire" as November 17, 1969. Accordingly, at time of trial he had accrued 21 years and 5 months service. Exhibit 2 states:

If you leave ROLM before retirement with at least 5 years of service, you will have vested rights (that is, you will be entitled) to a retirement income at age 65. With 15 years of service, reduced benefits are available as early as age 55....

It is thus certain that Hugh's pension rights are vested. He conceded this at trial and in his brief. Additionally, it appears that should he elect, he can begin collecting a pension as early as age 55, albeit a lesser amount than if he retires later.

In Kuchta v. Kuchta, 636 S.W.2d 663 (Mo. banc 1982), the Supreme Court of Missouri addressed the division of pension rights constituting marital property, categorizing them in three "stages." Id. at 665. Hugh's pension rights fall in the "Stage II" category:

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." Id.

Hugh's vested pension rights are non-matured in that he has not yet reached the age at which benefits are payable. Hugh's pension rights are nonetheless marital property, having been acquired in toto during the marriage. Id. at 666; Klenke v. Klenke, 742 S.W.2d 621, 623 (Mo.App.1987); Lynch v. Lynch, 665 S.W.2d 20, 23 (Mo.App.1983). Hugh's theory that there was "no property to divide" in his Stage II pension rights is without merit. The two cases cited by Hugh in support of that theory, Delay v. Delay, 612 S.W.2d 391 (Mo.App.1981), and In re Marriage of Faulkner, 582 S.W.2d 292 (Mo.App.1979), antedate Kuchta. Since Kuchta, it is settled that a spouse's interest in a pension plan acquired during marriage is marital property even though such interest is contingent or subject to divestment. Hahn v. Hahn, 732 S.W.2d 545, 546 (Mo.App.1987); Mills v. Mills, 663 S.W.2d 369, 372 (Mo.A...