Sable v. Sable

• Decision Date: 22 April 1987
• Docket Number: No. 64A03-8607-CV-196,64A03-8607-CV-196
• Citation: 506 N.E.2d 495
• Parties: Billie Lee SABLE, Respondent-Appellant, v. Jean SABLE, Petitioner-Appellee.
• Court: Indiana Appellate Court

Page 495

506 N.E.2d 495

Billie Lee SABLE, Respondent-Appellant, v. Jean SABLE, Petitioner-Appellee.

No. 64A03-8607-CV-196.

Court of Appeals of Indiana Third District.

April 22, 1987.

John M. Lyons, Lyons and Truitt, Valparaiso, for respondent-appellant.

Eugene C. Ryding, Portage, for petitioner-appellee.

GARRARD, Presiding Judge.

This is a marriage dissolution case in which the husband appeals that portion of the final decree awarding the wife half of the future pension payments to be received by the husband. It is undisputed that the husband's survival was a necessary condition to receipt of future payments.

Under prior versions of the marriage dissolution act it seems clear the award could not be sustained. See, e.g., Sadler v. Sadler (1981), Ind.App., 428 N.E.2d 1305; Hiscox v. Hiscox (1979), 179 Ind.App. 378, 385 N.E.2d 1166.

In 1985, however, the legislature again amended the statutory definition of property, IC 31-1-11.5-2, to provide:

"(d) The term 'property' means all the assets of either party or both parties, including:

(1) A present right to withdraw pension or retirement benefits;

(2) The right to receive pension or retirement benefits that are not forfeited upon termination of employment, or that are vested, as that term is defined in Section 411 [26 U.S.C. Section 411] of the Internal Revenue Code, but that are payable after the dissolution of marriage; and

(3) The right to receive disposable retired or retainer pay, as defined in 10 U.S.C. 1408(a), acquired during the marriage, that is or may be payable after the dissolution of marriage."

Since the amendment expressed no effective date and contained no emergency clause, it became effective upon the promulgation of the Acts on September 1, 1985.

The wife commenced this action on July 25, 1985. Final hearing was had and the decree was entered April 9, 1986. Since the husband does not dispute the court's power to enter the order made under the 1985 amendment, the question is whether the court could properly apply that amendment to this proceeding. The husband urges it could not.

One of the traditional exceptions to the general rule that statutes operate prospectively is that a remedial statute must be construed to effect the evident purpose for which it was enacted. Connecticut Mut. Life Ins. Co. v. Talbot (1887), 113 Ind. 373, 14 N.E. 586. Accordingly, remedial statutes will be applied retrospectively to carry out their legislative purpose unless to do so violates a vested right or constitutional guarantee. Malone v. Conner (1963), 135 Ind.App. 167, 189 N.E.2d 590; In re Smith (1945), 115 Ind.App. 494, 60 N.E.2d 147. A statute will usually be regarded as remedial when it is plainly intended to cure a defect or mischief which existed in a prior statute. W.H. Dreves, Inc. v. Oslo School Twp. (1940), 217 Ind. 388, 28 N.E.2d 252; see also 73 Am.Jur.2d Statutes Section 11, pp. 275-76.

Considering the history of the definition of property in the Dissolution Act and its interpretation by the courts, ¹ we are led to the clear conviction that the 1985 amendment is remedial legislation. Accordingly, the wife was entitled to its benefit unless its application would deny some vested right of the husband's.

The statute, of course, has no application to the pension rights between the husband and his former employer. It operates only as to the remedy the court may utilize. ²

Husband's right was to have the court divide the property of the parties in a just and reasonable manner considering the factors enumerated in the statute. IC 31-1-11.5-11. ³

He had no vested right to have his pension payments considered as non-property, or more precisely, as property not acquired prior to final separation. Although it is not controlling, it need not be ignored that because of the nature of dissolution proceedings, the wife might have dismissed her action and then recommenced it after the effective date of the amendment. Had she done so the amendment would clearly apply even though the separation date remained the same as before.

The amendment is remedial and was properly considered and applied by the trial court.

The judgment is affirmed.

STATON, J. concurs.

BUCHANAN, J., dissents and files separate opinion.

BUCHANAN, Judge, dissenting.

I respectfully dissent. Every amendatory act is not necessarily remedial. Retroactive application of the recently amended statute involved here, Ind.Code 31-1-11.5-2(d), which was changed to define marital property to include future retirement benefits, is not justifiable. The apparent intent of the legislature is violated. ¹

One of the long accepted principles of statutory construction is to consider a statute's legislative history, which may include legislation passed either before or after the statute's enactment. Wright v. Fowler (1984), Ind.App., 459 N.E.2d 386. It is also presumed that the legislature considered the history and decisions of the courts on the subject matter of the statute at the time of its enactment. Stith Petroleum v. Department of Audit and Control (1937), 211 Ind. 400, 5 N.E.2d 517.

The legislative history surrounding this statute does not suggest any remedial purpose for its recent amendment. Starting in the late 1970s, our courts held that marital property, according to long-standing principles of Indiana law, must consist of assets to which the parties have a vested present interest. See Hiscox v. Hiscox (1979), 179 Ind.App. 378, 385 N.E.2d 1166, trans. denied; Savage v. Savage (1978), 176 Ind.App. 89, 374 N.E.2d 536, trans. denied. The legislature not only acquiesced in our view of marital property, it enacted this view as positive law. 1980 Acts Pub.L. No. 180 Sec. 1 (presently codified at IC 31-1-11.5-2(d)(1)). The legislature was therefore aware its definition would exclude certain kinds of retirement benefits from the definition of marital property. In light of this statutory history, it seems plain to me that the legislature's recent broadening of the definition of marital property is simply a change in policy, and is not an attempt to remedy an unwitting omission or defect in the former statute.

The Indiana...