Pruitt v. Pruitt, 43176

• Decision Date: 15 September 1981
• Docket Number: No. 43176,43176
• Citation: 622 S.W.2d 767
• Parties: Edwin PRUITT, Jr., Petitioner-Respondent, v. Earline PRUITT, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 767

622 S.W.2d 767

Edwin PRUITT, Jr., Petitioner-Respondent, v. Earline PRUITT, Respondent-Appellant.

No. 43176.

Missouri Court of Appeals, Eastern District, Division Three.

Sept. 15, 1981.

Robert A. Hampe, Donna M. White, St. Louis, for respondent-appellant.

Forriss D. Elliott, John C. Maxwell, St. Louis, for petitioner-respondent.

REINHARD, Judge.

Wife appeals from a Decree of Dissolution entered by the Circuit Court of St. Louis County. We have examined the record and applied the standards set out in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and we affirm.

Husband and wife were married for some 28 years. They have two children, both now emancipated. Husband retired from the Army after more than 20 years service, and is now employed by the St. Louis Urban League. Wife is employed by the Jefferson Bank and Trust as manager of the bookkeeping department.

The terms of the decree are, briefly, as follows: Husband was awarded his military retirement pay ($13,792 yearly) certain items from the parties' house (valued at $14,536) one of the parties' two cars (1974 Chevrolet Monte Carlo) and 45% of the proceeds of the sale of the parties' house (valued at approximately $90,000) after payment of an outstanding mortgage ($26,000), and a home improvement loan ($9,500). Wife was awarded her interest in her profit sharing plan at work, all household goods not awarded to husband, the other car (1971 Toyota Corona) and 55% of the proceeds of the sale of the house. Each party was to retain any bank account held in his or her name (wife $350.27; husband $288.53). Husband was ordered to pay certain jointly incurred debts amounting to $8,852. Costs were assessed 1/2 to each party and no award of attorney's fees was made.

The first point raised by wife is that the court erred in finding husband's military retirement pay to be separate rather than marital property. She contends that such a determination is contrary to the ruling in other Missouri cases. See In Re Marriage of Weaver, 606 S.W.2d 243 (Mo.App.1980); Daffin v. Daffin, 567 S.W.2d 672 (Mo.App.1978).

The U.S. Supreme Court recently held that the states are precluded from dividing military nondisability retirement pay under community property laws. McCarty v. McCarty, --- U.S. ----, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). The court held that such a division conflicts with federal statutes to the injury of the federal military retirement program. Id.

We feel McCarty likewise prohibits the treatment of husband's retirement pay as martial property in Missouri. Treatment as marital property would conflict with the designation of retirement pay as a "personal entitlement." Id. at 2737. This is true whether the pay is actually divided (as was the case in McCarty ) or used as an offset to other marital property awarded to the other spouse. Id. at 2739 n.22; Hisquierdo v. Hisquierdo, 439 U.S. 572, 588-89, 99 S.Ct. 802, 811-812, 59 L.Ed.2d 1 (1979). Treatment of retirement pay as marital property would also frustrate the goals of the military system discussed in McCarty, "to provide for the retired service member, and to meet the personnel management needs of the active military forces." 101 S.Ct. at 2741. In short we feel the analysis used in McCarty prohibits treatment of federal military nondisability retirement pay as marital property as well as community property.

In spite of the previous Missouri cases, we are bound by the U.S. Supreme Court decision, and hence we rule wife's first point against her.

Wife argues in her second point that the court failed to consider the factors enumerated in § 452.330(1), RSMo. 1978 which must be considered by the court prior to dividing the marital property. Wife fails to substantiate her bald assertion that these factors were not considered. Instead she argues,...