Marriage of Roark, In re, 4997-0-II

• Decision Date: 14 March 1983
• Docket Number: No. 4997-0-II,4997-0-II
• Parties: In re the MARRIAGE OF Dell ROARK, Appellant, and Beverly J. Roark, Respondent.
• Court: Washington Court of Appeals

Page 252

34 Wn.App. 252

659 P.2d 1133

In re the MARRIAGE OF Dell ROARK, Appellant,

and

Beverly J. Roark, Respondent.

No. 4997-0-II.

Court of Appeals of Washington,

Division 2.

March 14, 1983.

M.H. Hemmen, Tacoma, for appellant.

J. Rex Behrhorst, Ronald Richards, Port Angeles, for respondent.

REED, Judge.

Dell Roark appeals the property division and the award of maintenance to his wife in a decree of dissolution. His assignments of error raise the following issues: (1) whether the trial court improperly considered his retirement benefits and severance allowance from the railroad in its distribution of the property; (2) whether the trial court undervalued various community assets awarded to his wife; and (3) whether the trial court abused its discretion by awarding spousal maintenance to his wife. We find no reversible error and affirm the trial court in all respects.

Dell and Beverly Roark were married in May 1952. The marriage was dissolved in August 1980. At the time of dissolution Mr. Roark had just been paid off by the Milwaukee Railroad because of reorganization of its lines. He was, however, entitled to severance pay of $25,000 and retirement benefits of over $600 per month upon reaching retirement. Except for a slight hearing loss, he was in good health and his future employment prospects were favorable.

Mrs. Roark, on the other hand, had annual earnings of only $8,374 with no likelihood of a substantial increase in the near future. Moreover, she had previously undergone an operation for cancer and was under observation for a possible recurrence.

Prior to trial the court denied Mr. Roark's motion in limine to exclude any evidence regarding the value of his retirement benefits from the Milwaukee Railroad. The court indicated that although these benefits could not be divided, they could be considered in determining the relative economic circumstances of the parties at the time of dissolution. The court ultimately awarded Mr. Roark $29,750 worth of community property. This award included the $25,000 of severance pay he was entitled to receive from the railroad. Mrs. Roark received community assets valued at $49,600, including the family home and a 1976 Saab automobile, as well as a maintenance award of $300 per month for a period of 4 years.

In his initial assignment of error Mr. Roark contends that the trial court abused its discretion by considering his railroad retirement benefits as an economic circumstance of the parties in apportioning the community assets. He cites Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), and In re Marriage of Larango, 93 Wash.2d 460, 610 P.2d 907 (1980), for the proposition that railroad retirement income cannot be considered by a trial court in any manner whatsoever in a dissolution action.

Mr. Roark's reliance on Hisquierdo and Larango is misplaced. These cases held that certain provisions of the Railroad Retirement Act of 1974, 88 Stat. 1305, 45 U.S.C. § 231 et seq. conflict with State community property principles and prohibit the division of railroad retirement benefits in a dissolution action. Hisquierdo v. Hisquierdo, supra; In re Marriage of Larango, supra. ¹ However, the Washington Supreme Court has subsequently indicated that these cases did not specifically address the issue of whether railroad retirement benefits can properly be considered as one of the economic circumstances of the parties in making an equitable distribution of the community assets. In re Marriage of Dessauer, 97 Wash.2d 831, 650 P.2d 1099 (1982). ²

This issue has been confronted and resolved in the area of military retirement benefits. In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court concluded that federal statutes governing military retirement benefits were sufficiently analogous to the Railroad Retirement Act to prohibit the division of such benefits in a dissolution action. ³ Nevertheless, the Washington State Supreme Court subsequently ruled that these statutes do not prohibit a trial court from considering the actual or anticipated receipt of military retirement income as one of the economic circumstances of the parties when making an equitable distribution of the other community assets. In re Marriage of Dessauer, 97 Wash.2d at 838, 650 P.2d 1099. In view of the judicially recognized similarities between the military retirement legislation and the Railroad Retirement Act, we believe the Dessauer holding is equally applicable in the context of railroad retirement income. Accordingly, we hold that the railroad retirement benefits involved in the instant case were appropriately considered as an economic circumstance of the parties at the time of dissolution.

Mr. Roark next contends that the trial court improperly characterized his severance allowance from the Milwaukee Railroad as a presently available community asset. He maintains that he had to remain unemployed to receive this allowance and that it was too speculative to be included in the property distribution. This argument is not well taken. The record contains testimony by Mrs. Roark that her husband was entitled to the separation benefits without regard to future employment. Although disputed, this testimony was sufficient to support the court's finding that the severance pay was available for distribution in the property division. ⁴

In his next assignment of error Mr. Roark contends that the trial court undervalued the family residence and the 1976 Saab automobile which were awarded to his wife in the property distribution. We disagree. Evidence presented at trial indicated that the family home had a net value of between $37,000 and $60,000. This evidence clearly supported the trial court's valuation of the residence at $48,000. The testimony at trial regarding the value of the Saab was equivocal. At one point Mr. Roark stated that he believed the vehicle had a value of $4,675. He subsequently testified, however, that the car was so old that...