Silcox, v. Silcox

• Citation: 6 S.W.3d 899
• Parties: (Mo.banc 1999) . Sara Beth Silcox, Respondent, v. Amberis David Silcox, Appellant. David Amberis Silcox, Jr., Third Party Respondent. Case Number: SC81836 Supreme Court of Missouri Handdown Date:
• Decision Date: 21 December 1999
• Court: United States State Supreme Court of Missouri

6 S.W.3d 899 (Mo.banc 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Sara Beth Silcox, Respondent, v. Amberis David Silcox, Appellant. David Amberis Silcox, Jr., Third Party Respondent.

Case Number: SC81836

Supreme Court of Missouri

Handdown Date: 12/21/99

Appeal From: Circuit Court of Greene County, Hon. Thomas Mountjoy

Counsel for Appellant: Thomas L. Williams

Counsel for Respondent: John S. Pratt, Jr. and Susan S. Jensen

Opinion Summary:

In a marital dissolution, the trial court awarded the wife her public school retirement benefits as separate property and failed to place any value on them. The husband appeals.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

Court en banc holds:

(1) (A) Section 169.572.2 provides that a Missouri teacher's retirement must be treated the same as social security benefits. As such, the retirement may not be considered marital property in a marital dissolution.

(B) Section 452.330, which creates a presumption that all property acquired during the marriage is marital, lists non-exclusive exceptions that overcome the presumption. It does not prohibit or conflict with section 169.572's operation.

(C) The husband has no standing to assert his equal protection claim. Furthermore, the statute survives rational basis review, as it is sufficiently tailored to carry out the state's goal of providing retirement to teachers not covered by social security.

(D) The husband has no vested right in the retirement benefits affected by section 169.572. Thus, the statute does not violate the constitutional prohibition on applying a law retrospectively.

(2) The trial court should have considered the value of the wife's pension when dividing the marital property. The cause is remanded for that determination.

(3) The court has great discretion in awarding attorney's fees and costs. The mere imbalance of the property distribution by itself does not constitute an abuse of discretion.

Opinion Author: Ronnie L. White, Judge

Opinion Vote: AFFIRMED IN PART; REVERSED IN PART; REMANDED. Price, C.J., Limbaugh, Holstein, Wolff and Benton, JJ., and Otten, Sp.J., concur. Covington, J., not participating.

Opinion:

Amberis David and Sara Beth Silcox were married on September 19, 1980, in Franklin County, Missouri. After thirteen years of marriage, they separated on October 1, 1993. Mrs. Silcox filed a dissolution action on November 22, 1993. The marriage was ordered dissolved by the trial court on March 19, 1996. This ruling was appealed twice to the court of appeals. In the first appeal, the southern district remanded the case "for entry of a judgment containing no discrepancies in the valuation and distribution of the property." The second appeal was transferred to this Court on July 30, 1999, for consideration of various constitutional issues as required by article V, section 3 of the Missouri Constitution. The trial court's opinion is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

Prior to their marriage, Mrs. Silcox owned a home in Sullivan, Missouri, located at 7 Golf Drive. The estimated fair market value of the home ranged from $20,000 (Mrs. Silcox's estimate) to $35,000 - $40,000 (Mr. Silcox's estimate). Prior to the marriage dissolution, the home had an outstanding mortgage between $11,000 to $15,000. Mr. Silcox brought into their marriage a KOA Campground valued at $155,000 with a mortgage of $8,000 outstanding. He also took his retirement benefits from his job at Atlantic Richfield Oil Company as a lump sum of $25,000. This retirement money was placed in the parties' joint checking account and used to pay off the mortgage obligations on the Golf Drive home and the KOA Campground.

During their marriage, the Silcoxes sold their Golf Drive home for between $54,000 and $68,000. They also sold the KOA Campground for over $155,000 and deposited these funds into their joint accounts. Sometime thereafter, the parties jointly acquired a home on 1.7 acres of lakefront property in Branson, Missouri, valued at $204,000 and a condo in Florida for $40,000 to $50,000.

At the time of their marriage, both parties were employed. Mr. Silcox had retired from Atlantic Richfield Oil Company prior to their marriage. During the marriage, he owned and operated the KOA Campground and worked with his son for a short time at Branson Heating and Cooling. Mrs. Silcox was employed as an elementary school teacher in Sullivan, Missouri. She taught kindergarten full time until March 1989. She then retired and began receiving a monthly paycheck from her retirement fund.

The primary dispute in this case involves the proper treatment of Mrs. Silcox's public school teacher's retirement benefits. Mrs. Silcox claims that section 169.572 requires her retirement benefits be treated as non-marital property. Mr. Silcox claims that either her retirement benefits were marital property or, if the retirement benefits are to be considered nonmarital property, the trial court failed to give him proper credit in the marital property distribution for those benefits. After remand from the southern district, the trial court awarded Mrs. Silcox her public school retirement benefits as separate property. The trial court failed to place any value on her retirement benefits.

II. Retirement Benefits as Nonmarital Property

In his first assertion of error, Mr. Silcox claims that Mrs. Silcox failed to prove that her retirement benefits are nonmarital property pursuant to section 452.330.2 and .3, RSMo.¹ In support of this assertion, he advances four distinct premises maintaining that the retirement benefits must be considered marital property.

In his first premise, Mr. Silcox looks to the language of section 169.572.2. That section provides that courts shall not divide or set aside retirement benefits in dissolution of marriage actions under chapter 169. Mr. Silcox argues that the language of section 169.572 makes no reference to whether teacher's retirement benefits are marital or nonmarital property within the meaning of section 452.330. He admits that the court's decision in Gismegian v. Gismegian² determined that such benefits are nonmarital property, but he argues that Gismegian and the cases that followed it have strayed from the plain language of the statute.

Mr. Silcox argues that the plain meaning of the term "divide" as used in section 169.572 does not prohibit those benefits from being considered marital property; it only requires that those benefits themselves not be divided between the parties.³ He also addresses use of the term "set apart" as used in section 452.330.1. Random House Dictionary of the English Language, Unabridged, 1966, defines "set apart" as "to reserve for a particular purpose." The term "set aside," as used in section 169.572, is defined as "to put to one side" or to reserve. According to Mr. Silcox, the definitions of these terms require that they be treated as synonyms. Thus, he argues it is inconsistent to read the term "set aside" in section 169.572 as forbidding the inclusion of the retirement benefits as marital property and the term "set apart" in section 452.330.1 as reserving those benefits as nonmarital property.

This argument is unpersuasive. Section 169.572.2 provides that a Missouri teacher's retirement account must be treated in the same manner as social security benefits. The Social Security Act provides:

The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.⁴

Construing this statute, the United States Supreme Court has held that this statute imposes "a broad bar against the use of any legal process to reach all social security benefits."⁵ As sec. 169.572 requires that teacher's benefits be treated identically to social security, a teacher's retirement fund may not be considered marital property in a marital dissolution.⁶ In fact, the court in Kieninger v. Catlett⁷ rejected this very argument regarding the construction of section 169.572 and determined that the public school teacher's benefits were nonmarital property.

In his second premise, Mr. Silcox argues that if section 169.572 requires teacher's retirement benefits to be nonmarital property in a marriage dissolution proceeding, then section 452.330 is effectively amended or repealed by implication. Repeals by implication are not favored.⁸ If by any fair interpretation both statutes may stand, there is no repeal by implication and both statutes must be given their effect.⁹ Section 452.330.3 creates a presumption that all property acquired during the marriage is marital. This presumption may be overcome by showing that the property was acquired in accordance with one of five exceptions listed in subsection 2.¹⁰ However, this list is not exclusive. Thus, section 452.330 does not prohibit section 169.572 from treating teacher's retirement benefits in the same manner as social security benefits. As there is no conflict, both statutes remain in full force.

Mr. Silcox's third premise claims that section 169.572 violates the equal protection clause as applied.¹¹ He claims that the court violates the equal protection clause by its interpretation of section 169.572. Statutes are presumed to be constitutional and will be held otherwise only if they clearly contravene a constitutional provision.¹² Where feasible to do so, the statute will be interpreted to be consistent with the constitution with all doubts to be resolved in favor of validity.¹³

Because both social security and section 169.572 cover non-teachers employed in the public school system, Mr. Silcox contends that there is no...