Marriage of Pope, In re
| Citation | 37 Colo.App. 237,544 P.2d 639 |
| Decision Date | 26 December 1975 |
| Docket Number | No. 75--050,75--050 |
| Parties | In re the MARRIAGE OF Beverly Jean POPE, Appellee, and Reid Duane Pope, Appellant. . II |
| Court | Court of Appeals of Colorado |
Allen, Mitchell, Rogers & Metcalf, Jack D. Vahrenwald, Fort Collins, for appellee.
John E. Kochenburger, Kelsey J. Smith, Fort Collins, for appellant.
Appellant is the husband in this dissolution of marriage action. He appeals from a determination by the trial court, in its property dissolution order, that his contributions on deposit with the Colorado Public Employees Retirement Association (PERA) constitute marital property. The court included these contributions in calculating the total assets subject to division. We affirm.
The PERA fund is a creature of statute. See § 24--51--101 et seq., C.R.S.1973. Under this act, every state employee who is eligible to join PERA is required to pay into the retirement fund a percentage of his salary through the medium of payroll deduction. These contributions are then paid into a retirement fund which consists principally of the accumulated deductions from salaries of members. An individual account is maintained for each employee, equal to the full amount of the accumulated deductions withheld from that employee's salary. In the event that the employee terminates employment for any reason other than death or retirement, the full amount of accumulated deductions in that employee's individual account is refunded. In the event of death prior to termination by retirement, the accumulated deductions are paid in a lump sum to designated beneficiaries or heirs. In the event of retirement or disability, the employee receives a fixed annuity based on his final average salary, although there are other options available.
An examination of this statutory scheme leads to the conclusion that the PERA system treats the accumulated deductions in the husband's account in a manner which makes them marital property. The funds are not subject to forfeiture in any manner, and are in some respects a forced savings account. The husband's interest in these funds was created out of deductions from his salary which otherwise would have been available to the parties during their marriage. His rights in the fund are fully vested and not subject to divestment.
The husband contends, however, that his interest in the fund is exempt under § 24--51--120, C.R.S.1973. That portion of the statute provides as follows:
'None of the moneys, annuities, or other benefits mentioned . . . shall be assignable either in law or in equity or be subject to execution, levy, attachment, garnishment, or other legal process, and they shall be exempt from any state income tax.'
This statutory provision is inapplicable to the present situation. Here, the account itself is not affected, nor are the husband's individual rights in the fund altered. Under the facts before us, the trial court did not divide the accumulations between the parties, but merely considered the amount in determining the amount of other marital property to be retained by each, and no rights to this fund became vested in the wife in any manner. We find this treatment of this asset by the trial court to be neither analogous to an assignment, See Public Employees' Retirement Ass'n v. Johnson, 153 Colo. 239, 385 P.2d 415, nor to a garnishment. See Pueblo Regional Planning Commission v. Spytek, Colo.App., 542 P.2d 88 (announced Sept. 16, 1975).
The husband also argues that this case represents a situation similar to that in Menor v. Menor, 154 Colo. 475, 391 P.2d 473, in that the wife, in effect, is being awarded an interest in a...
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Marriage of Grubb, In re
... ... Drawing on the analysis of the court of appeals in In re Marriage of Pope, 37 Colo.App. 237, 544 P.2d 639 (1975), which addressed this identical issue, we emphasized in Mitchell that there was nothing "speculative or uncertain about the husband's right to the money" and that if he wished he could presently quit work and withdraw his contributions from the fund. 195 ... ...
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