Thielenhaus v. Thielenhaus

• Decision Date: 31 January 1995
• Docket Number: No. 80048,80048
• Citation: 1995 OK 5,890 P.2d 925
• Parties: Eugene F. THIELENHAUS, Plaintiff-Appellee/Counter-Appellant, v. Charlene F. THIELENHAUS, Defendant-Appellant/Counter-Appellee.
• Court: Oklahoma Supreme Court

Page 925

890 P.2d 925

1995 OK 5

Eugene F. THIELENHAUS, Plaintiff-Appellee/Counter-Appellant, v. Charlene F. THIELENHAUS, Defendant-Appellant/Counter-Appellee.

No. 80048.

Supreme Court of Oklahoma.

Jan. 31, 1995.

As Corrected Feb. 1 and 9, 1995.

On Certiorari to the Court of Appeals, Division No. 3.

In a divorce suit brought by the husband, the District Court, Tulsa County, Gordon D. McAllister, Judge, dissolved the marital bond, awarded to the wife support alimony and an attorney's fee, and divided jointly-acquired property, including the in-marriage increase in the husband's retirement fund. The wife appealed for review of the marital-property-division, the alimony and the counsel-fee awards; the husband counter-appealed to challenge the trial court's apportionment of his retirement fund. The Court of Appeals reversed a part of the nisi prius decree and remanded the cause for further proceedings. On certiorari previously granted upon the husband's petition.

THE COURT OF APPEALS' OPINION IS VACATED ONLY INSOFAR AS IT REVERSES THE TRIAL COURT'S DIVISION OF THE PARTIES' MARITAL INTEREST IN THE HUSBAND'S RETIREMENT FUND AND AUTHORIZES THE TRIAL COURT'S POST-REMAND RECONSIDERATION OF SPOUSAL PROPERTY DIVISION AS WELL AS OF SUPPORT ALIMONY; THE TRIAL COURT'S DECREE IS REVERSED ONLY INSOFAR AS IT DEALS WITH THE SPOUSES' MARITAL INTEREST IN THE HUSBAND'S RETIREMENT FUND; EACH PARTY IS ORDERED TO BEAR ITS OWN APPEAL- AND CERTIORARI-RELATED LITIGATION EXPENSES AND THOSE FOR SERVICES OF LEGAL COUNSEL; AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH TODAY'S PRONOUNCEMENT.

Richard A. Wagner, II, Bradley A. Grundy, Richard A. Wagner, II & Associates, Tulsa, for appellant/counter-appellee.

C. Clay Roberts, III, Richard D. Marrs, Helen H. Blake, Roberts, Marrs & Carson, Tulsa, for appellee/counter-appellant.

OPALA, Justice.

This certiorari presses for our decision two first-impression issues: (1) What portion, if any, of the in-marriage¹ increase in the husband's

                retirement fund is divisible as marital property? and if any be divisible, (2) What cut-off date should be set for valuation of this marital asset?   We hold:  (a) that the in-marriage enhancement (or growth) in the husband's retirement fund which is attributable to the employer's participatory payments2 or to either spouse's monetary contribution, skill or effort is a divisible marital asset, but any increase in the husband's separate (pre-marital) interest in that fund, produced by investment (managed by neither spouse), appreciation, inflation, changing economic conditions or circumstances beyond the parties' control is to be deemed the husband's separate property;  and (b) the cut-off date to be set for valuation of the divisible marital interest in the fund is the date the nisi prius court reached this suit for trial that is now on certiorari review.  Because the record is insufficient for this court to determine the value of the divisible in-marriage enhancement component of the marital asset in the retirement fund, we remand the cause for further proceedings
                

I THE ANATOMY OF LITIGATION

Eugene and Charlene Thielenhaus [husband and wife] had been married for ten years when the husband sought a divorce. Both parties brought separate property into the marriage. No children were born of the union. Each spouse was awarded his (or her) separate property; the marital assets were equitably divided.³ The wife was awarded support alimony in the amount of $15,000 and an attorney's fee for trial-related services of $2,500. At the commencement of the proceedings the husband was 60 years old and had worked for Martin Tractor Company for nearly 40 years. He had participated in the company profit sharing retirement plan since 1960. The company retirement account, managed as an independent fund, consisted mainly of certificates of deposit, stocks and other investments. Both the husband and the employer made annual contributions to the fund. Neither spouse had any involvement in the management of this investment. The husband appraised his share of the fund's value on the date of marriage at approximately $76,733.75 and the total in-marriage increase, effective April 15, 1990 (which appears to be the husband-provided date of separation ), at approximately $317,550.99.⁴ Only $79,226.83 of the enhancement, the husband urged, constitutes divisible marital property. The wife, on the other hand, valued the conjugal portion of the pension fund (on the date of trial ) by subtracting the value of the fund on the date of marriage from the value on the date of trial to reach an approximate (total divisible fund enhancement) amount of $300,000. She claimed one-half of this sum as her share of the marital asset.

The trial court found that the wife was entitled to an equitable portion of the husband's profit-sharing and pension fund. It awarded her one-half interest in the marital component in that property, valuing her share at $50,000.00. No exact valuation date was ever identified, either by the proof or by the judge's direction, and none appears on the record. The wife appealed and the husband counter-appealed.

The Court of Appeals' Pronouncement

A.

The wife argued on appeal that the trial court erred in failing (a) to make an equitable

allocation of the marital debt, (b) to find that the husband had "depleted" the marital estate by secreting some assets, (c) to find that certain industrial bonds are marital property, (d) to award sufficient support alimony, and (e) to award her a reasonable counsel fee. The Court of Appeals affirmed the trial court's resolution of all these disputed issues, holding that it is not clearly contrary to the weight of the evidence. The correctness of the appellate court's pronouncement upon these issues is not before us now. None is tendered for corrective relief by the husband's petition for certiorari.⁵

B.

The wife next argued on appeal that the trial court erred in its distribution of the divisible portion of the enhanced value in the husband's retirement fund. The parties disagreed on both (a) the method for valuation of the jointly-acquired fund component and (b) the valuation date to be set for that asset's appraisal (i.e., whether its worth is to be calculated from the date of marriage to the date of separation or beyond this point to the date of trial). The husband's counter-appeal urged error in the trial court's "overvaluing" the marital portion of the retirement fund. The Court of Appeals agreed with the latter contention and reversed this decretal element of nisi prius decision, directing that on remand the trial court (a) determine the value of the pension fund at the time of marriage as well as at the time of trial and (b) treat the entire difference between the two figures as a divisible asset of the marital estate. Because the appellate court was concerned that its pronouncement might have a significant impact upon the previously effected nisi prius division of other spousal assets and upon the award of support alimony, its opinion directed the trial court to reconsider on remand both its alimony grant and the distribution of all joint assets.

The husband's certiorari challenges the appellate court's (a) view of what is the retirement fund's divisible in-marriage enhancement; (b) adoption of the wrong date for appraisal of the fund's divisible component; and (c) undue enlargement of post-remand proceedings to include reconsideration of the alimony grant and of the entire marital estate whose division was found to be clearly supported by the weight of the evidence.

II THE DIVISIBILITY OF THE PENSION FUND'S ENHANCED VALUE

The husband asserts that only those in-marriage increases in the net worth of his retirement fund, which are attributable to the personal effort, skill or monetary contributions by either spouse, would constitute a divisible conjugal asset. He urges that any enhancement in the net worth of the fund's pre-marital balance, produced (a) by the growth of the fund's investment managed by neither spouse or (b) by appreciation, inflation, changing economic conditions or circumstances beyond the parties' control must be characterized as his separate property, even though the growth in value did actually occur during coverture.⁶ The formula he fashions and tenders for determining the non-divisible enhanced value of his separate property (as distinguished from the divisible marital portion) is: (1) multiply the fund's beginning balance ($76,733.75, rounded off to $76,734)⁷ The wife asserts the appellate court correctly determined that the total in-marriage increase in the retirement fund (the growth of the fund) is divisible marital property. She makes no claim to the retirement fund's non-divisible pre-marital balance, apparently conceding on certiorari that it had a value of $76,733.75.¹¹ The wife claims an equal share of the total in-marriage increase (or enhancement) in the retirement fund for the period between the date of marriage and the trial date.

at the date of marriage (March 6, 1980) (2) times the average earning of the pension account from 1980 to 1991 (12.36%, rounded off to 12%) and (3) compound annually the interest until the date of separation (April 15, 1990), arriving at a total of $238,324.16 (the non-divisible enhanced value of his separate property), (4) subtract that amount from $317,550.99 (the value of the fund on April 15, 1990) to arrive at a divisible marital asset of $79,226.83.⁸ The latter figure, the husband argues, represents the divisible enhanced value of the fund and urges that the distinction between enhanced/separate (non-divisible) and enhanced/marital (divisible) property is consistent with statutory law, 43 O.S.1991 § 121,⁹ and extant jurisprudence.¹⁰

Section 121¹² requires a fair and equitable division of property acquired during the marriage by the joint industry of the husband and wife. Jointly-acquired property is that which is accumulated by...