Robbins v. Robbins

Decision Date08 March 1971
Docket NumberNo. 54971,No. 2,54971,2
Citation463 S.W.2d 876
PartiesLillian Kathleen ROBBINS, Appellant, v. Clifford Wayne ROBBINS, Respondent
CourtMissouri Supreme Court

David Q. Reed, Kansas City, for appellant.

S. Richard Beitling, Kansas City, for respondent.

HENRY I. EAGER, Special Commissioner.

Plaintiff, by an amended petition, sought a decree of divorce and alimony, with additional counts for an accounting and a partition of real estate. The latter two counts were dismissed when the Court entered its decree; no contention of error is made. We need consider them no further. For reasons not shown, but uncontested here, the Court at pre-trial struck defendant's answer and dismissed his cross-petition. The cause went to trial as a default case.

Plaintiff and defendant had been married since January 1946. Both had worked continuously for substantially all of that period. Defendant was a detective in the Kansas City Police Department, and hence a member of its Police Pension System as established by Sections 86.010 to 86.193, RSMo 1969, V.A.M.S., and (alternates) 86.370 to 86.497. The first group of these statutes and their predecessors had been in force (in some form) since 1929, or earlier, and the latter group since 1945. Sections 86.370--86.497 provide an alternate set of provisions for cities of 300,000--700,000. While the parties have not been explained which particular group of statutes are applicable here, we shall assume, from the references in evidence and argument, that the alternate statutes, with such later statutes as might be applicable, are the governing laws. Actually, any differences would be minimal on our issues.

At all times in question here the defendant had been a member of the retirement system, and at time of trial his contributions of 5% of his salary (§ 86.470, RSMo 1959, V. A.M.S.) 1 per month totalled $5,191.83. His date of normal retirement was, according to the Secretary of the Retirement System, April 30, 1972, when he would have accrued 25 years of service, although he could retire later. Plaintiff testified, rather vaguely, that her husband had said that he could retire on April 1, 1971, on account of accumulated sick leave; we shall accept the testimony of the Secretary, although he said that he did not know the effect of accumulated sick leave. The difference is really immaterial. Some sections of the statutes seemingly permit retirement on certain conditions and with smaller pensions before 25 years of service have been attained. However, the parties here proceed on the assumption of a regular retirement after 25 years of service. The city had contributed to the fund at rates varying from 4% to 12%, but these contributions were only to be utilized in paying pensions upon actual retirement. If defendant should resign before time of retirement, he could only receive his own actual contributions. Section 86.467, RSMo 1959 and 1969. The statutes provide no benefits for a dependent except upon death or disability of a member. Here plaintiff is seeking to reach the funds solely through the interest of defendant therein. It is also provided that the rights to a pension, or to the return of contributions, shall not be subject to execution, garnishment, attachment or any other process, and 'shall be unassingable' except as otherwise provided. Section 86.493, RSMo 1959 and 1969, V.A.M.S.

There is no need to relate plaintiff's testimony on the merits of her action for divorce. There were undoubtedly grounds for a divorce, on her testimony. While the prayer of her petition was broader, at the trial she asked only for gross alimony. She testified: that she and defendant had, over the period of their marriage, put their earnings into one 'pot' out of which expenses were paid and savings accumulated; that, since her employers had no pension plan, it was the understanding of both that defendant's pension would be used for their mutual security and retirement. Plaintiff had prepared and the Court received in evidence, as an exhibit, a list of the assets of plaintiff and defendant, and she asked gross alimony based on one-half of all the net assets. In this, she valued defendant's interest in his pension at $65,000. She further testified that defendant had stated that he planned to retire on April 1, 1971. (We note again here that this date was based upon some conversation about accumulated sick leave, and it is not otherwise corroborated.) Essentially, plaintiff claims that she is entitled to one-half of the present value of defendant's future pension benefits.

Plaintiff produced two witnesses, one a life insurance underwriter, and the other a life insurance agent, who testified to the value of defendant's anticipated pension benefits as of April 1, 1971. These values were based upon the cost of a single premium annuity purchased on that date at defendant's age, and for the payment monthly of a sum equal to his expected benefits. One testified that the lowest cost would be $59,662, varying upward to $65,738; the other testified that the cost in his company would be $66,136.77. Plaintiff, on the stand, 'rounded off' her total claim for alimony, including this item, at $45,000.

The Secretary of the Retirement System testified: that plaintiff had contributed $5,191.83; that the city also had contributed, but that the use of that money was confined to the payment of pensions; that if plaintiff resigned before his authorized retirement time he would only receive a refund of his contributions; that defendant could retire on April 30, 1972, and receive a pension of 50% of his average compensation for the last five years; that the witness could not compute with assurance the precise amount as of that time, but that on a continuation of his current salary it would be $348.18 per month; that he could not say whether accumulated sick leave time would hasten his eligibility for retirement. He expressed the opinion that defendant's right to a return of his contributions was 'vested.'

The Court, on April 22, 1969, filed its order which included a memorandum listing those assets of the parties which had not already been divided in kind; therein it listed defendant's contributions to the Police Retirement Fund, namely, $5,191.83. One-half of the total of the assets was $15,128.92. The Court ruled therein that plaintiff's claim 'to one-half of the matured value of defendant's retirement pension is disallowed because the pension had not yet vested.' The order continued as follows: 'Plaintiff will be granted a decree of divorce and alimony in gross in the amount of $15,128.92. Counts II and III of the petition will be dismissed without prejudice.'

We note that a general allowance of gross alimony was made. Plaintiff's basic contention is that the gross alimony allowed was approximately $30,000 less than it should have been, due entirely to the Court's evaluation of defendant's interest in the retirement fund. We shall consider that contention, since it does fairly appear of record. Plaintiff has sought to appeal from the judgment 'only as to the amount of alimony awarded * * *'; though somewhat unusual, we shall consider the notice as an appeal from the judgment, as required. Rule 82.08, V.A.M.R.

We reiterate here certain important facts: at the time of trial defendant himself could have derived nothing from the retirement fund except his contributions, even had he resigned; conceivably the defendant may die before his pension rights ever accrue; defendant is not required to retire for several years, and his expression of such an intention is legally meaningless; the city has contributed substantially, and its funds may only be utilized in paying a pension; the right to a pension or to a return of contributions is not subject to levy, attachment or execution and is not assignable. Since the parties have not done so, we shall not consider the action of the Court as an attempt to levy upon the sum of the contributions, for it merely allowed one lump sum as gross alimony.

At the time of trial defendant had a fixed right only to his contributions. The plaintiff is not claiming any greater right as death benefits, for defendant is alive. On what we deem to be the substantial evidence defendant cannot retire until April 30, 1972. The Trustees of the Retirement Fund cannot take away defendant's right to his contributions (if he wants them), but neither can they be required to grant him a pension before his actual retirement, nor could they possibly pay him any sum as the present value of the future pension. Certainly the city did not pay its substantial contributions with the intent (nor does the...

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