McGraw v. McGraw

• Decision Date: 01 November 1991
• Docket Number: No. 19758,19758
• Citation: 186 W.Va. 113,411 S.E.2d 256
• Court: West Virginia Supreme Court
• Parties: Wanda June McGRAW, Appellant, v. William Raymond McGRAW, Appellee.

Page 256

411 S.E.2d 256

186 W.Va. 113

Wanda June McGRAW, Appellant, v. William Raymond McGRAW, Appellee.

No. 19758.

Supreme Court of Appeals of

West Virginia.

Submitted Oct. 1, 1991.

Decided Nov. 1, 1991.

Syllabus by the Court

1. The Railroad Retirement Act of 1974, 45 U.S.C. § 231m, expressly precludes from consideration as divisible marital property the basic railroad retirement annuity, which provides benefits equivalent to benefits under the Social Security Act. The Railroad Retirement Solvency Act of 1983, 45 U.S.C. § 231m(b)(2), allows any supplemental railroad annuity to be considered as divisible marital property.

2. "A measure of discretion is accorded to a family law master in making value determinations after hearing expert testimony. However, the family law master is not free to reject competent expert testimony which has not been rebutted. This statement is analogous to the rule that '[w]hen the finding of a trial court in a case tried by it in lieu of a jury is against the preponderance of the evidence, is not supported by the evidence, or is plainly wrong, such finding will be reversed and set aside by this Court upon appellate review.' Syllabus Point 1, in part, George v. Godby, 174 W.Va. 313, 325 S.E.2d 102 (1984), quoting Syllabus Point 4, Smith v. Godby, 154 W.Va. 190, 174 S.E.2d 165 (1970)." Syllabus Point 1, Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990).

3. " 'Questions relating to alimony and to the maintenance and custody of the children are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused.' Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977). Syllabus, Luff v. Luff, 174 W.Va. 734, 329 S.E.2d 100 (1985)." Syllabus Point 8, Wyant v. Wyant, 184 W.Va. 434, 400 S.E.2d 869 (1990).

James M. Cagle, Charleston, for appellant.

Susan H. Hewman, Lewisburg, for appellee.

NEELY, Justice.

Wanda June McGraw appeals certain aspects of the final order of the Circuit Court of Summers County that granted Mrs. McGraw and her former husband, William Raymond McGraw, a divorce on the grounds of irreconcilable differences. On appeal Mrs. McGraw contends that the circuit court failed to include as marital property certain of Mr. McGraw's railroad retirement benefits, failed to value properly Mr. McGraw's early retirement and "buy-out" benefits and certain stock, and that the court erred in his award of alimony. Because the evidence does not substantiate Mrs. McGraw's assignments of error, we affirm the decision of the circuit court.

In 1989, after a thirty-four year marriage, Mr. and Mrs. McGraw were divorced on the grounds of irreconcilable differences. In 1986 Mrs. McGraw sought a divorce claiming that Mr. McGraw's alcoholism contributed to the break down of their marriage and, in February 1987, the parties separated. In 1986, Mr. McGraw accepted a buy-out of his railroad seniority rights, valued at approximately $50,000 and paid at $1804 per month until he became eligible for retirement. In addition to the buy-out benefits, Mr. McGraw had railroad retirement benefits consisting of a basic annuity, which is comparable to the benefits available under Social Security retirement (Tier I benefits, having a value of $97,922), and a supplemental annuity (Tier II benefits, having a value of $55,350).

Although Mr. McGraw had retired, Mrs. McGraw continued to work as a hairdresser and had recently obtained her real estate license. In addition, during the marriage the parties had acquired some real estate, 1559 shares of CSX stock and other assets.

The case was heard by a family law master who excluded from marital property Mr. McGraw's Tier I retirement benefits but included as marital property 87.4 percent of Mr. McGraw's Tier II retirement benefits. The family law master excluded from marital property Mr. McGraw's buy-out benefits, evaluated the CSX stock at $30 per share and refused to grant Mrs. McGraw alimony. The circuit court overruled the family law master in part, and held that Mr. McGraw's buy-out benefits were marital property and that Mrs. McGraw was entitled to alimony. The circuit court then adopted the other recommendations of the family law master.

Mrs. McGraw appeals to this Court assigning the following errors: (1) The circuit court should have classified Mr. McGraw's Tier I railroad retirement benefits as marital property; (2) The circuit court should have awarded Mrs. McGraw part of Mr. McGraw's buy-out benefits; (3) The circuit court should have reevaluated the CSX stock, which had been awarded to Mr. McGraw, because the stock had a $5 per share increase in value by the time of the final divorce order; and (4) The circuit court should have awarded more alimony and not have terminated the alimony at age 62. Because the circuit court did not err in these matters, we affirm the decision of the circuit court.

I

Mrs. McGraw's allegation that Mr. McGraw's Tier I railroad retirement is marital property is without merit. We note that section 101 of the Railroad Retirement Act of 1974, 45 U.S.C. § 231m and an amendment thereto under the Railroad Retirement Solvency Act of 1983, Pub.L. No. 98-76, § 419(a), 97 Stat. 438, precludes considering Mr. McGraw's Tier I railroad retirement benefits as marital property.

Under the railroad retirement system, benefits are calculated based on several statutory components. See 45 U.S.C. § 231b. The basic component (Tier I benefits) is described in § 231b(a), and is designed to provide benefits equivalent to the "old age insurance benefit or disability insurance benefit" that would have been received under the Social Security Act. See H.R.Rep. No. 30(I), 98th Cong., 1st Sess., reprinted in 1983 U.S.Code Cong. & Ad.News 729, 730-34. The statute, 42 U.S.C. § 231m, provides that "no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated." In Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), the United States Supreme Court held that § 231m prohibited the division of benefits payable under the Railroad Retirement Act by a state court in a divorce. See LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312, 331 (1983) (Neely, J. concurring); Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex.1979); Padezanin v. Padezanin, 341 Pa.Super. 26, 491 A.2d 130 (1985); Belt v. Belt, 398 N.W.2d 737 (N.D.1987); Larango v. Larango, 93 Wash.2d 460, 610 P.2d 907, 908 (1980); Kendall v. Kendall, 106 Mich.App. 240, 307 N.W.2d 457, 458-59 (1981); In re Marriage of Knudson, 186 Mont. 8, 606 P.2d 130, 131 (1980); Rommelfanger v. Rommelfanger, 114 Wis.2d 175, 337 N.W.2d 851, 853 (Ct.App.1983); Matter of Marriage of Swan, 301 Or. 167, 720 P.2d 747 (1986). But see In re Marriage of Roark, 34 Wash.App. 252, 659 P.2d 1133, 1135 (1983) (allowing the railroad retirement benefits to be considered as an "economic circumstance" of the parties when apportioning community property in a divorce) construed in, In re Marriage of Bishop, 46 Wash.App. 198, 729 P.2d 647, 650 (1986).

In the Railroad Retirement Solvency Act of 1983, cited above, Congress amended § 231m. The amendment expressly permits characterization of the supplemental annuity (Tier II benefits) as "community property" subject to distribution upon a divorce. ¹

In the present case, the circuit court classified 87.4% (Mr. McGraw was married for 31 years of his 35.5 years of pension earning employment) of Mr. McGraw's Tier II benefits, valued at $55,350, as marital property and this portion was part of the distribution of marital property. Mr. McGraw's Tier I benefits, valued at $97,922, were excluded from distribution. The record contains Railroad Retirement Board form G-177c, which indicates that a divorced spouse is eligible for an annuity under the Railroad Retirement Act beginning at age 62, provided certain conditions have been met.

We find Mrs. McGraw's assignment of error concerning the exclusion from marital property of Mr. McGraw's Tier I railroad retirement benefits is without merit because federal law excludes Tier I benefits from consideration as divisible marital property.

II

Next, Mrs. McGraw maintains that she did not receive an equal share of Mr. McGraw's "buy-out" benefits, valued at $50,000. Because Mr. McGraw's buy-out benefits consisted of a monthly payment of $1804, the family law master balanced the incomes of the parties during the pendency of the divorce. In addition to her earnings, Mrs. McGraw was awarded $400 per month in temporary alimony and all of the rental income from the parties' real estate, estimated at $500 per month. During most of the time that Mr. McGraw received his buy-out benefits, his monthly income was $1400 ($1800 less the alimony payment of $400) and Mrs. McGraw's monthly income was about $1500 (earnings of $600, rental income of $500 and alimony of $400). ² In addition, when Mr. McGraw began receiving his buy-out benefits in 1986, the parties were still living together.

Because of the income nature of Mr. McGraw's buy-out benefits, the circuit court concluded that the economic effect of the buy-out had been fully accounted for in the family law master's determination of income and the award of temporary alimony during pendency of the divorce. In Syllabus Point 1, Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990), we said:

"A measure of discretion is accorded to a family law master in making value determinations after hearing expert testimony. However, the family law master is not free to reject competent expert testimony which has not been rebutted. This statement is analogous to the rule that '[w]hen the finding of a trial court in a case tried by it in lieu of a jury is against the preponderance of the evidence, is not supported by...