Marriage of Sadecki, Matter of

Decision Date17 January 1992
Docket NumberNo. 64945,64945
Citation825 P.2d 108,250 Kan. 5
PartiesIn The Matter of the MARRIAGE OF Diane E. SADECKI, Appellant, and Raymond M. Sadecki, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. In an appeal from the division of property in a divorce action, certain basic principles and statutes applicable to a claim of an inequitable division of property are stated and applied.

2. In an appeal from the division of property in a divorce action, the record is examined, and based upon the evidence presented to the trial court, it is held: The trial court did not abuse its discretion in (1) the manner in which it considered the appellee's retirement plan; or (2) its consideration of the appellee's future earning capacity under K.S.A.1990 Supp. 60-1610(b).

John P. Gerstle, of Gerstle and Wood, Overland Park, argued the cause, and Benjamin C. Wood, of the same firm, was on the brief, for appellant.

James P. Lugar, of Lugar, Harris & Sheeley, Kansas City, argued the cause, and was on the brief, for appellee.

HOLMES, Chief Justice.

Diane E. Sadecki, the original petitioner in an action for divorce from Raymond M. Sadecki, timely appealed from the division of property ordered by the trial court. The Court of Appeals, in a two-to-one decision, affirmed the trial court in an unpublished opinion, In re Marriage of Sadecki, 810 P.2d 749 (1991). We granted a petition for review filed by Diane and now affirm the decisions of the trial court and the Court of Appeals.

The appellant contends that the trial court erred in (1) making a grossly inequitable division of property; (2) failing to consider Raymond's retirement pension as a marital asset subject to division; and (3) failing to consider Raymond's future earning capacity. The facts will be set forth in some detail.

Diane and Raymond Sadecki were married in 1960. Diane filed for divorce in February of 1989. The trial court granted the divorce October 4, 1989. At the time of the marriage, Diane was eighteen years old and Raymond was nineteen years old. Raymond had been a major league professional baseball player for two years and continued to play professional baseball for the next eighteen years of their marriage. The Sadeckis had two children, one born in 1966, the other in 1970.

During the first twenty years of their marriage, Diane had no significant employment outside the home and spent those years of the marriage as a housewife and full-time mother of two children. In 1981, Diane went to work full time for Gerber Products Company.

Raymond retired from baseball in 1977, and in 1986, at the earliest possible opportunity, exercised his right to begin drawing retirement benefits from the professional baseball retirement program. The retirement program is a non-contributory, vested, matured pension which at the time of the divorce paid Raymond $1,919 per month. Although he will continue to receive monthly payments for life, the amount of the payment apparently fluctuates, depending upon market conditions and the economy.

At the divorce hearing, both parties testified about their marital assets and their respective financial conditions. Raymond testified to his ownership of a limited partnership interest in a fast food operation known as "BK's." He valued the interest at $31,750 and stated his income from the partnership was $13,231 in 1988. No evidence was presented by either party as to the present cash value of Raymond's baseball retirement benefits. With the exception of their household goods, the parties were generally in agreement about the value of their other property. Diane thought the household goods were worth only $1,500 while Raymond placed a value of $5,000 on them.

At the time of the hearing, Diane was earning approximately $30,000 per year from her employment at Gerber Products Company. Raymond was unemployed and had last worked for Southwestern Bell selling mobile phones. He testified that he had "been active in the job market," but had failed to secure new employment. Overall, Raymond was unemployed for approximately 17 months of the two-year period preceding the divorce hearing. In 1988, Raymond's adjusted gross income was approximately $40,269, which included $4,700 from the sales job with Southwestern Bell, and the balance in passive income from the baseball retirement plan and the limited partnership. In 1986 he had earned $33,480 and in 1987 he earned $23,000. His employment with Southwestern Bell was terminated in September 1987.

After hearing all of the evidence, the trial court divided the property by awarding Diane the residence valued at $65,000, the bulk of the household goods, her 401K retirement plan with Gerber Products Company, her IRA account, and a checking account of approximately $1,000. In addition, she was granted a money judgment against Raymond of $8,500. The total value of the property and judgment exceeded $90,000.

The trial court awarded a small portion of the household goods to Raymond, along with his 1986 Chrysler automobile and his limited partnership interest in "BK's," all of which had a total value of approximately $40,000. In addition, Raymond was ordered to pay all of the indebtedness of the parties, including two mortgages on the residence and one on the automobile, in the total amount of $24,050, as well as the judgment granted to Diane. The net value of the property granted to Raymond, after deduction of the indebtedness and judgment, was $7,950.

Before turning to the issues raised by the appellant, we deem it appropriate to review certain basic principles and statutes applicable to a claim of an inequitable property division in a divorce case.

K.S.A.1990 Supp. 60-1610(b) governs the division of property in divorce proceedings and provides in pertinent part:

"(1) Division of Property. The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in the spouse's own right after marriage or acquired by the spouses' joint efforts, by: (A) a division of the property in kind; (B) awarding the property or part of the property to one of the spouses and requiring the other to pay a just and proper sum; or (C) ordering a sale of the property, under conditions prescribed by the court, and dividing the proceeds of the sale. In making the division of property the court shall consider the age of the parties; the duration of the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of property; family ties and obligations; the allowance of maintenance or lack thereof; dissipation of assets; and such other factors as the court considers necessary to make a just and reasonable division of property."

"Marital property" is defined in K.S.A. 23-201(b) as follows:

"All property owned by married persons, including the present value of any vested or unvested military retirement pay, whether described in subsection (a) or acquired by either spouse after marriage, and whether held individually or by the spouses in some form of co-ownership, such as joint tenancy or tenancy in common, shall become marital property at the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate maintenance, or annulment. Each spouse has a common ownership in marital property which vests at the time of commencement of such action, the extent of the vested interest to be determined and finalized by the court, pursuant to K.S.A. 60-1610 and amendments thereto."

The rules of appellate review governing the division of property in a divorce proceeding are well settled:

" ' "In a divorce action the district court is vested with broad discretion in adjusting property rights, and its exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse." [Citations omitted.] "[D]iscretion is abused only where no reasonable [person] would take the view adopted by the trial court. If reasonable [persons] could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion." ' " Reich v. Reich, 235 Kan. 339, 341, 680 P.2d 545 (1984) (quoting Bohl v. Bohl, 232 Kan. 557, 561, 657 P.2d 1106 (1983).

In Stayton v. Stayton, 211 Kan. 560, 561-62, 506 P.2d 1172 (1973), we stated:

"The discretion of the trial court is, of course, subject to appellate review and correction where there has been a clear-cut abuse of discretion. In its exercise a judge may not be arbitrary or whimsical. We have held on a number of occasions that abuse of judicial discretion, as that term is ordinarily used, implied not merely an error in judgment, but perversity of will, passion or moral delinquency when such discretion is exercised to an end or purpose not justified by and clearly against, reason and evidence."

Further, the trial court in its exercise of discretion in dividing the property is not required to divide the property on a 50-50 basis. In LaRue v. LaRue, 216 Kan. 242, 250, 531 P.2d 84 (1975), this court stated: "Nowhere in any of our decisions is it suggested that a division of all of the property of the parties must be an equal division in order to be just and reasonable...."

Diane, in asserting that the property division constitutes an abuse of discretion on the part of the trial court, makes several arguments which are commingled in her brief. However, her principal allegation is that the court erred in not considering the baseball retirement plan as a marital asset subject to division. She contends that it was only considered as an income item in comparing the relative incomes of the parties and not as a marital asset. Raymond, on the other hand, asserts that there was no evidence of the value of the retirement plan and that the trial court did consider the plan as a marital asset.

At the outset, it should be noted that if...

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