Morris v. Morris
| Decision Date | 06 October 1966 |
| Docket Number | No. 38192,38192 |
| Citation | 69 Wn.2d 506,419 P.2d 129 |
| Parties | Clarence R. MORRIS, Respondent, v. Marion D. MORRIS, Appellant. |
| Court | Washington Supreme Court |
E. Albert Morrison, Tacoma, for appellant.
Sterbick, Manza, Moceri, Gustafson & Narigi, by Henry Haas, Tacoma, for respondent.
This appeal is an aftermath of a divorce action in which both parties, married since January 21, 1945, sought a dissolution of their marital relationship.
The trial court granted both the appellant wife and the respondent husband a divorce. The wife was given custody of the two minor children, and, under the decree, the husband was required to pay to the wife the sum of $130.00 per month for support of the minor children. Under the provisions of RCW 26.08.110, the trial court made the following distribution of property:
The appellant wife was awarded
The 1964 automobile, valued at ...................................... $1,000.00
Household goods, valued at ............................................. 500.00
A real estate mortgage balance valued at ............................. 1,447.66
A bond ................................................................. 500.00
A life insurance policy on her life of no appreciable cash value
The respondent husband was awarded
An equity in a service station business, including a truck, valued
at apporximately .................................................. $3,330.00
A bond ............................................................... 1,000.00
A promissory note for .................................................. 150.00
A real estate lot worth ................................................ 400.00
The decree requires the husband to pay the sum of $20.58 per month premium on the educational and life insurance policies upon the lives of the two minor children, and the $27.50 per month premium on a life insurance policy on his own life for the benefit of the two minor children.
The above provisions of the decree as to distribution of property and payments to be made by the husband are not in dispute. However, the trial court also awarded the husband the entire Gross amount of his military retirement pension: $347.50 per month. Apparently, it was the trial judge's reasoning that the pension is a gratuity to the husband from the federal government and not a community asset. In lieu of any pro rata portion of the pension, the trial court awarded alimony to the appellant wife in the amount of $125.00 per month until she either remarries or becomes employed and is earning $300.00 or more per month.
The appellant wife's principal contention on appeal is that the trial court erred in characterizing the military pension as a gratuity from the government (and, as such, the husband's separate property) rather than an asset of the marital community. We are inclined to agree with the appellant as to characterization or legal classification respecting the pension. In Loomis v. Loomis, 47 Wash.2d 468, 479, 288 P.2d 235, 241 (1955), we noted in passing that a military pension 'is not in the nature of 'future earnings,' but is an asset acquired during coverture.' In considering the same problem of characterization, the Court of Civil Appeals of Texas, in Kirkham v. Kirkham, 335 S.W.2d 393, 394 (1960), said:
This is an appeal from a judgment granting a divorce to appellee, Bonnie Jean Kirkham, from appellant John S. Kirkham, awarding custody of the minor child to appellee, providing for support of such child, dividing certain community property, and awarding to appellee a thirty per cent interest in and to the retired pay account of appellant, earned by him as a member of the Armed Forces of the United States of America over a period of twenty-two and one-half years of military service.
* * * * * *
It appears from the record that the parties accumulated little community property during their marriage, other than the retirement pay of appellant. The retirement pay account is not a gift or gratuity accruing to appellant, but is an earned property right which accrues by reason of his years of service in military service. The earnings of the husband during marriage are community property. Art. 4619, Vernon's Ann.Civ.Stats.
* * * * * *
In regard to that part of the judgment which provides for a money judgment against appellant for appellee's share of future retirement payments, we find that the trial court, in the exercise of his discretion, has authority to enter such a judgment. Berg v. Berg, Tex.Civ.App., 115 S.W.2d 1171; Keton v. Clark, Tex.Civ.App., 67 S.W.2d 437. (Italics...
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