State ex rel. Neuhausen v. Nachtsheim

• Decision Date: 29 June 1992
• Docket Number: No. 91-348,91-348
• Citation: 833 P.2d 201,253 Mont. 296
• Parties: STATE of Montana, ex rel. Patricia D. NEUHAUSEN, Petitioner and Respondent, v. Lawrence P. NACHTSHEIM and the Department of Administration for the State of Montana, Respondents and Appellants.
• Court: Montana Supreme Court

Page 201

833 P.2d 201

253 Mont. 296

STATE of Montana, ex rel. Patricia D. NEUHAUSEN, Petitioner and Respondent, v. Lawrence P. NACHTSHEIM and the Department of Administration

for the State of Montana, Respondents and

Appellants.

No. 91-348.

Supreme Court of Montana.

Submitted on Briefs Nov. 21, 1991.

Decided June 29, 1992.

Paul A. Smietanka, Dept. of Admin., Helena, for respondents and appellants.

Allan M. McGarvey, McGarvey, Heberling, Sullivan & McGarvey, Kalispell, for petitioner and respondent.

GRAY, Justice.

The appellants, Lawrence Nachtsheim and the Department of Administration, appeal from the Judgment and Peremptory Writ of Mandate entered by the District Court of the Eleventh Judicial District, Flathead County, which directed the appellants to divide Highway Patrol Retirement System (HPRS) benefits and pay one- half of those benefits directly to the respondent, Patricia Neuhausen, in accordance with a decree of dissolution of marriage. We reverse and remand.

The dispositive issue on appeal is whether the appellants have a clear legal duty to pay HPRS benefits directly to the respondent.

On August 14, 1990, the marriage between HPRS member Martin Neuhausen and Patricia Neuhausen was dissolved by entry of a Final Decree of Dissolution in Flathead County Cause No. DR-88-533(A). Pursuant to the decree, HPRS administrators were directed to issue two checks each month in payment of Martin's disability retirement benefits. One check, representing one-half of the benefits, was to be paid directly to Martin; the second check was to be issued directly to Patricia.

Subsequent to the August 14, 1990 dissolution decree, Patricia's former attorney contacted the Public Employees' Retirement Division (Division) of the Department of Administration to arrange for the issuance of two drafts on the HPRS pension fund account in accordance with the terms of the dissolution decree. The Division's administrator, Lawrence Nachtsheim, refused to issue separate checks, asserting that the Division was statutorily prohibited from making such a disbursement.

On November 30, 1990, an Amended Final Decree of Dissolution was entered which also contained provisions to divide Martin's disability retirement benefits and for the issuance of separate checks. On March 11, 1991, the Division received correspondence from Patricia's present attorney demanding conformity with the Amended Final Decree of Dissolution. The Division refused, again asserting that it had no legal authority to make a divided distribution of a member's HPRS disability retirement allowance.

On March 13, 1991, Patricia filed an application for writ of mandate in the District Court to compel the Division to make distributions of Martin's disability retirement benefits in accordance with the dissolution decree. On April 9, 1991, the court held a show cause hearing in which the parties argued the propriety of the writ. That same day, the District Court issued its Judgment and Peremptory Writ of Mandate ordering Lawrence Nachtsheim and the Department of Administration, Public Employees' Retirement Division, to immediately execute a draft upon the account of the HPRS pension fund for all amounts due Patricia since August 14, 1990 under the terms of the original dissolution decree and to issue subsequent drafts payable to her as the benefits periodically come due thereafter. The court also awarded the respondent $1,500 in attorney's fees and $220 in costs.

On April 16, 1991, the Division paid to Patricia one-half of all benefits that accrued to Martin from August 14, 1990 to that date in compliance with the writ of mandate. In addition, the Division has continued to pay one-half of the accrued benefits to Patricia as they come due. This appeal was filed on June 14, 1991.

Do the appellants have a clear legal duty to pay HPRS benefits directly to the respondent?

The granting of a writ of mandate is a discretionary act which will be upheld absent a showing that the district court abused its discretion. Hovey v. Dep't of Revenue (1983), 203 Mont. 27, 34, 659 P.2d 280, 284. The writ will lie where the party seeking to invoke it is entitled to the performance of a clear legal duty by the party against whom the writ is directed and there is no speedy and adequate remedy in the ordinary course of law. Section 27-26-102, MCA; State ex rel. Galloway v. City of Great Falls (1984), 211 Mont. 354, 358, 684 P.2d 495, 497. However, unless the performance is one which the law specifically enjoins upon a party as a duty of the office, trust or station, the writ does not lie. State ex rel. Swart v. Molitor (1981), 190 Mont. 515, 523, 621 P.2d 1100, 1105. Nor does the writ lie to compel the performance of an act which would be beyond the power of the party to which it is directed. State ex rel. Judith Basin County v. Poland, et al. (1921), 61 Mont. 600, 203 P. 352.

The appellants contend that they owe no clear legal duty to pay HPRS benefits directly to the respondent because of numerous statutory restrictions on the use of HPRS funds and the payment of benefits. They argue that, in light of the statutory restrictions, the direct payment of HPRS benefits to the respondent would be beyond their statutory power. The respondent, in turn, asserts that the HPRS statutes do not preclude the payment of benefits directly to her and that the appellants' clear legal duty to make such payments arises from the directive contained in the dissolution decree.

The HPRS statutes are contained in Title 19, Chapter 6, MCA. Before discussing those statutes which are relevant to the issue at hand, we note that our function in construing and applying statutes is to effectuate the intention of the legislature. State ex rel. Roberts v. Public Service Comm'n (1990), 242 Mont. 242, 246, 790 P.2d 489, 492. If the legislature's intent can be determined from the plain meaning of the words used in a statute, we will go no further. Phelps v. Hillhaven Corp. (1988), 231 Mont. 245, 251, 752 P.2d 737, 741. In addition, it is the function of the courts to ascertain and declare what in terms or substance is contained in a statute; it is not our function to insert what has been omitted. State v. Crane (1989), 240 Mont. 235, 238, 784 P.2d 901, 903.

We conclude that no clear legal duty requires the appellants to pay one-half of Martin's disability retirement benefits directly to Patricia. Notwithstanding the dissolution decree, direct payment of benefits to anyone other than a statutorily recognized recipient is prohibited under the HPRS statutes.

The plain language of Sec. 19-6-406, MCA, provides that HPRS assets cannot be used for any purpose other than the exclusive benefit of HPRS members and their beneficiaries and paying reasonable administrative expenses associated with the retirement system. A member is defined as a person who has accumulated salary deductions standing to his or her credit in the HPRS pension trust fund. Section 19-6-101(9), MCA. A beneficiary is defined as a surviving spouse or a dependent child, or if there is no surviving spouse or dependent child, a person nominated to receive benefits under Sec. 19-6-602, MCA. Section 19-6-101(4), MCA.

The respondent is not a member of the retirement system as defined in Sec. 19-6-101(9), MCA. As a result of the dissolution decree, the respondent is not, and never can be, a surviving spouse beneficiary of HPRS member Martin Neuhausen as defined in Sec. 19-6-101(15), MCA. Under these facts, the diversion of the HPRS assets to the respondent in the manner directed by the District Court is prohibited; the diversion would constitute a use of those assets other than for the purposes authorized by Sec. 19-6-406, MCA.

In addition to the restrictions on the use of the HPRS assets discussed above, Sec. 19-6-702, MCA, provides that HPRS benefit payments may not be modified in any way without legislative action.

19-6-702. Payments to be monthly and fixed. The retirement allowances granted under the provisions of this chapter shall be paid in equal monthly installments and may not be increased, decreased, revoked, or repealed unless by act of the legislature of the state of Montana.

The legislature's intent to exercise exclusive control over the operation of the HPRS could not be stated more clearly. Thus, pursuant to this section, divided benefit payments payable directly to a former spouse of a HPRS member can be established only by an act of the legislature and not as part of a judicial decree.

Finally, Sec. 19-6-705, MCA, exempts HPRS benefits from legal process.

19-6-705. Exemption from taxes and legal process. Any money received or to be paid as a member's annuity, state annuity, or return of deductions or the right of any of these is:

. . . . .

(2) exempt from levy, sale, garnishment, attachment, or any other process ...

. . . . .

(Emphasis added.) By enacting this section, the legislature has insulated the retirement system assets from actions taken directly against a member's benefits. The court's action in ordering the direct payment of HPRS benefits to the respondent, in both the dissolution decree and writ of mandate, constitutes prohibited legal process against money to be paid by the retirement system.

The respondent cites several Montana dissolution cases as support for her argument that the appellants should pay her portion of Martin Neuhausen's HPRS benefits directly to her. Her reliance on those cases is misplaced. The cases hold only that retirement benefits are a marital asset which must be considered by the court when equitably distributing the marital estate; they do not hold that the public retirement systems in charge of administering the various retirement funds are obligated to make divided and separate distributions of benefits or any other distributions that are beyond the statutory parameters of those systems. See In re the Marriage of Keedy (1991), 249 Mont. 47, 813 P.2d 442, 48 St.Rep. 572; In re the Marriage...