Morrison v. Morrison
| Decision Date | 01 July 1985 |
| Docket Number | No. 85-35,85-35 |
| Parties | Billy Don MORRISON, Sr., Appellant, v. Beverly Rose MORRISON, Appellee. |
| Court | Arkansas Supreme Court |
Tucker & Thrailkill by Danny Thrailkill, Mena, for appellant.
Randell J. Wright, Henry C. Morris, DeQueen, for appellee.
The issue on appeal is whether a spouse's disability retirement benefits are marital property under Ark.Stat.Ann. § 34-1214 (Supp.1983). We affirm the trial court and hold that disability retirement benefits are marital property. Jurisdiction is in this Court to interpret the statute at issue. Rule 29(1)(c).
During the marriage, appellant, Billy Don Morrison, Sr., worked at various jobs until November, 1965, when he was employed by the Los Angeles Fire Department. In 1976, a cyst was discovered on his knee. The cyst was surgically removed, but a disabling infection developed. In December, 1977, the retirement board found that appellant had suffered a 78% permanent physical impairment to his knee and that he must retire. He was awarded disability retirement benefits of $1,165.00 per month. Those monthly benefits are the subject of this appeal. During his period of employment with the Los Angeles Fire Department appellant contributed 11% of his salary, or $21,000.00 to the retirement fund.
The appellee, Beverly Rose Morrison, worked at various jobs intermittently during the marriage, but was unemployed at the time this case was heard.
In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), a longevity retirement benefit case, we stated:
In holding that Dr. Day's interest in the pension plan is properly found to be marital property in this case, we are not attempting to lay down inflexible rules for the future. To the contrary, Section 34-1214 allows leeway for the exercise of the chancellor's best judgment, for it provides that all marital property shall be divided equally "unless the court finds such a division to be inequitable." What we do hold is simply that earnings or other property acquired by each spouse must be treated as marital property, unless falling within one of the statutory exceptions, and neither one can deprive the other of any interest in such property by putting it temporarily beyond his or her own control, as by the purchase of annuities, participation in a retirement plan, or other device for postponing full enjoyment of the property.
Id. at 268, 663 S.W.2d at 722.
Appellant concedes that Day is the general rule for longevity retirement benefits but argues that disability benefits are compensation for impairment to one's body and are not in the nature of an asset acquired during the marital relationship. The fallacy in the argument is that the benefits come from an annuity purchased during the marriage with the income of one spouse. That annuity, which became payable upon disability, is the marital property. There is no meaningful distinction between an annuity payable upon disability and one payable upon longevity.
Appellant next argues that Day is distinguishable because Dr. Day's annuity was based solely upon his contributions to the fund, while in this case the pension fund regulations required that appellant's annuity be paid first out of his payments into the fund and then out of a general fund. We do not find the distinction meaningful. The benefits in the case at bar are paid out of one's own contributions plus the contributions of all others who are not disabled. That part paid out of appellant's contributions is precisely the same as in Day. That part paid out of the general fund is, in effect, paid by a mutual assessment program. We recognize that the California Courts have adopted an analysis of disability benefits by which the benefits are divisible as marital property only to the extent that they match the benefits the employee would have received if his retirement had been based on longevity. The overplus is the separate property of the disabled spouse. See Marriage of Jones, 13 Cal.3d 457, 119 Cal.Rptr. 108, 531 P.2d 420 (1975); Marriage of Stenquist, 21 Cal.3d 779, 148 Cal.Rptr. 9, 582 P.2d 96 (978); Marriage of Webb, 94 Cal.App.3d 335, 156 Cal.Rptr. 334 (1979); Marriage of Mason, 93 Cal.App.3d 215, 155 Cal.Rptr. 350 (1979); and Marriage of Milhan, 27 Cal.3d 765, 166 Cal.Rptr. 533, 613 P.2d 812 (1980).
Illinois has a statute almost identical to the Arkansas statute at issue. Compare Illinois Marriage and Dissolution Act, Ill.Rev.Stat. Ch. 40, Sec. 503(a) (1980) and Ark.Stat.Ann. § 34-1214 (Supp.1983). In construing the Illinois statute in the same manner we construe the Arkansas statute, the Appellate Court of Illinois, Third Division, in In Re Marriage of Smith, 84 Ill.App.3d 446, 39 Ill.Dec. 905, 405 N.E.2d 884 (1982) stated:
... As the subject disability pension does not expressly fall into an excepted category, it constitutes marital property if it can be categorized as property acquired during the marriage ...
Further, in rejecting the concept of overplus being the separate property of the disabled spouse the Illinois court wrote:
... We recognize the analytical contribution of those courts distinguishing disability benefits on the basis of some form of the compensatory element but do not believe the framework of statutory law in Illinois offers us the flexibility of that approach. Section 503(a) of the Illinois Marriage and Dissolution Act (hereinafter the Act) mandates the characterization of all non-excepted property as marital property, and as previously mentioned, longevity pensions constitute marital property in Illinois. The disability pension at bar differs from such longevity pension only in its compensatory element, its mode of inception and possibly its duration. Given the classificatory directive of section 503(a) we hold the disability benefits at bar to similarly constitute marital property.
Likewise, the Arkansas statute does not offer the flexibility of the California approach since our statute simply mandates that all non-exempted property is marital property.
Additionally, appellant contends that Day should be distinguished because Dr. Day's contributions to the annuity were voluntary while appellant's contributions were mandatory. Under our statute, marital property is marital property whether it is voluntarily or involuntarily acquired.
Appellant next argues that a holding that the disability retirement benefits are marital property is inequitable because each spouse will have one-half of the benefits and only one of them is disabled. Under our statute, the chancellor had the discretion to make a division other than equal if an equal division was unfair. Here the chancellor first pointed out that had appellant's medical...
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McDermott v. McDermott
...we held that a husband's civil service retirement benefits were marital property subject to distribution. In Morrison v. Morrison, 286 Ark. 353, 692 S.W.2d 601 (1985), we held that disability retirement benefits were marital property even though such benefits are awarded for personal injury......
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Brinkley v. Brinkley, 0410-86-2
... ... See, e.g., Morrison v. Morrison, 286 Ark. 353, 354, 692 S.W.2d 601, 602 (1985) (disability retirement benefits subject to division); Freeman v. Freeman, 468 So.2d 326, ... ...
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Thompson v. Thompson
...which have addressed this issue. A number of courts have held that disability benefits are a marital asset. Morrison v. Morrison, 286 Ark. 353, 356, 692 S.W.2d 601, 602 (1985) (dividing disability benefits equally not abuse of trial judge's discretion); In re Marriage of Smith, 84 Ill.App.3......
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Ciliberti v. Ciliberti
...(1981). Other courts have held, to the contrary, that disability pensions are to be deemed marital property. See: Morrison v. Morrison, 286 Ark. 353, 692 S.W.2d 601 (1985); Kruger v. Kruger, 73 N.J. 464, 375 A.2d 659 (1977); Hughes v. Hughes, 96 N.M. 719, 634 P.2d 1271 (1981). See also: In ......