Thompson v. Thompson

• Decision Date: 16 June 1994
• Docket Number: No. 93-292-APPEAL,93-292-APPEAL
• Citation: 642 A.2d 1160
• Parties: Carole Ann THOMPSON v. Thomas Callie THOMPSON.
• Court: Rhode Island Supreme Court

Page 1160

642 A.2d 1160

Carole Ann THOMPSON v. Thomas Callie THOMPSON.

No. 93-292-APPEAL.

Supreme Court of Rhode Island.

June 16, 1994.

Allen Kirshenbaum, Warwick, for plaintiff.

Karen Lynch, Warwick, for defendant.

OPINION

SHEA, Justice.

This is an appeal from an amended interlocutory decision pending entry of final judgment entered in the Family Court in which the trial master granted the wife's complaint and the husband's counterclaim for absolute divorce based upon irreconcilable differences. The husband appeals from the trial master's assignment of property and from the awards of alimony, health insurance coverage, and counsel fees to the wife. The wife also appeals from the property assignment. We affirm in part and reverse in part.

The trial master made the following findings of fact. The plaintiff, Carole Ann Thompson (wife), and defendant, Thomas Callie Thompson (husband), were married on August 23, 1958. The parties had three children, all of whom were emancipated adults at the time of trial. The wife filed a complaint for an absolute divorce based upon irreconcilable differences, and the husband answered and counterclaimed for divorce on the same grounds. The parties' differences led to the irremedial breakdown of the marriage. Testimonial and photographic evidence depicted violence by both parties, and the husband admitted to striking his wife on three separate occasions. The parties testified about the bad conduct of each, the abuse of alcohol by each, and the husband's infidelities during the marriage. Throughout the marriage an upgrading of assets occurred due to the efforts of the husband as a firefighter for the city of Warwick and then as an employee of Griggs & Browne, and the wife as a mother and homemaker.

The trial master awarded the wife 65 percent of the marital assets, including 65 percent of the husband's disability pension from the Warwick Fire Department. He gave the wife the option of selling the marital home, valued at $325,000, and paying the husband 35 percent of the sale proceeds, or staying in the home and paying him $42,339.85. Additionally the court ordered the husband to pay alimony to the wife in the amount of $200 per week for one year and to maintain health insurance coverage for her for five years or until she secures employment which provides it. Lastly the husband was ordered to pay $12,548.18, which represented 65 percent of the wife's attorney's fee.

The husband asserts that the trial master committed five errors of law. His first ground for appeal is that the trial master erred in awarding the wife 65 percent of the marital assets. He asserts that the master considered only the husband's bad conduct in reaching his decision and ignored the other statutory factors enumerated in G.L.1956 (1988 Reenactment) § 15-5-16.1, as amended by P.L.1992, ch. 269, § 2. That statute directs the court to consider "(1) The length of the marriage; (2) The conduct of the parties during the marriage; (3) The contribution of each of the parties in the acquisition, preservation, or appreciation in value of their respective estates; [and] (4) The contribution and services of either party as a homemaker," among other factors. Section 15-5-16.1. The wife also objects to the equitable distribution, arguing that she is entitled to more than 65 percent of the marital estate.

The equitable distribution of marital assets is within the discretion of the trial justice. Stevenson v. Stevenson, 511 A.2d 961, 964 (R.I.1986); Wordell v. Wordell, 470 A.2d 665, 667 (R.I.1984). In reviewing the findings of the trial court, it is not this court's "function to arrive at de novo findings and conclusions of fact based on the evidence presented at trial." Moran v. Moran, 612 A.2d 26, 33-34 (R.I.1992) (quoting Casey v. Casey, 494 A.2d 80, 82 (R.I.1985)). If the trial master did not overlook or misconceive material evidence, and if he considered all the requisite statutory elements, this court will not disturb the trial court's findings. Cok v. Cok, 479 A.2d 1184, 1189 (R.I.1984).

The trial master clearly considered all the criteria before dividing the assets and addressed each statutory element. He found that the parties had a marriage of "long duration, although rocky." He concluded that although the husband was a good financial provider, he physically and emotionally abused his wife. However, the trial master did not accept that the wife was without fault in the breakdown of the marriage, specifically finding that she belittled the husband's earning and sexual abilities. He further found that the wife contributed to the increase in marital assets and that she was a good homemaker and mother. While the three-admitted incidents of physical abuse by the husband against the wife may have influenced the master, there were many factors upon which his decision was based. We find, therefore, that the husband's argument on this issue is without merit.

The wife's argument is equally unpersuasive. She urges that she deserves more than 65 percent of the marital estate because the husband was solely responsible for the failure of their marriage. We find that the trial master's award was generous and well considered. As discussed above, the trial master weighed the evidence, considered the statutory factors, and found that although the wife suffered emotional and physical abuse by her husband, she was not faultless in the breakdown of the marriage. It was well within the trial master's discretion to reject the wife's testimony that she was blameless. See Casey, 494 A.2d at 82 (citing In re Randy B., 486 A.2d 1071, 1073 (R.I.1985)). Even assuming arguendo that the husband was completely responsible for the failure of the marriage, a trial justice may not award all the marital assets to one spouse. Sattari v. Sattari, 503 A.2d 125, 127 (R.I.1986). After reviewing the record, we find no evidence that the trial master abused his discretion by awarding the wife 65 percent of the marital assets.

The husband next argues that the trial master erred by considering his disability pension from the city of Warwick a marital asset and therefore erred by awarding the wife 65 percent of the monthly benefits. He urges that his firemen's disability pension is statutorily exempt from attachment under G.L.1956 (1985 Reenactment) § 9-26-5. ¹ The wife, relying upon this court's recent holding in Moran, argues that the disability pension is marital property and is not statutorily exempt from equitable distribution.

The issue of whether the husband's municipal disability pension is a marital asset subject to equitable distribution is one of first impression in Rhode Island. The husband suffered a serious back injury in 1975 and was forced to retire from the Warwick Fire Department after ten years of service. As a result of his injury, the husband began receiving biweekly payments from the firefighters' disability pension fund. These moneys were used to pay household expenses and to increase the marital assets. The payments continued despite husband's subsequent employment with Griggs & Browne, and the income was used to support the family until the parties' separation.

There is a split of authority among those jurisdictions which have addressed this issue. A number of courts have held that disability benefits are a marital asset. Morrison v. Morrison, 286 Ark. 353, 356, 692 S.W.2d 601, 602 (1985) (dividing disability benefits equally not abuse of trial judge's discretion); In re Marriage of Smith, 84 Ill.App.3d 446, 455, 39 Ill.Dec. 905, 911, 405 N.E.2d 884, 890 (1980); In re Marriage of Cooper, 243 Mont. 175, 179, 793 P.2d 810, 812 (1990); Kruger v. Kruger, 73 N.J. 464, 472, 375 A.2d 659, 663 (1977) (military disability benefits marital property). The Maryland court has labeled a contributory disability pension a marital asset but assigns to it a lesser value than a service retirement pension because of the contingent nature of the former plan. Lookingbill v. Lookingbill, 301 Md. 283, 291-92, 483 A.2d 1, 5 (1984).

Other jurisdictions have declared disability pensions separate property to be considered by the court only in awarding alimony and child support. In re Marriage of Franz, 831 P.2d 917, 918-19 (Colo.App.1992); Freeman v. Freeman, 468 So.2d 326, 328 (Fla.Dist.Ct.App.1985); see also In re Minnis, 54 Or.App. 70, 72, 634 P.2d 259, 260 (1981). These courts view the disability payments as compensation to the disabled spouse for lost earning capacity, injuries, and pain and suffering.

Still other courts examine the nature of the disability benefits and may consider some portion of the payments marital property. Villasenor v. Villasenor, 134 Ariz. 476, 479, 657 P.2d 889, 892 (1982) (all sums received in excess of those attributable to deferred compensation for past employment deemed separate property); Dunn v. Dunn, 35 Ark.App. 89, 93, 811 S.W.2d 336, 338-39 (1991) (benefits paid in return for husband's services as company executive were consideration earned during marriage and not awarded as benefits for permanent disability or future medical costs); Queen v. Queen, 308 Md. 574, 586-87, 521 A.2d 320, 327 (1987) (only portion of husband's disability award compensating for loss of earning capacity during marriage marital property); West v. West, 115 A.D.2d 601, 602, 496 N.Y.S.2d 263, 264 (1985) (benefits constituting deferred compensation are marital property); In re Hoag, 122 Or.App. 230, 236, 857 P.2d 208, 211-12 (1993) (if disability benefits intended to provide something other than wage replacement, may be appropriate to treat benefits as marital asset); Ciliberti v. Ciliberti, 374 Pa.Super. 228, 233-34, 542 A.2d 580, 582 (1988) (portion of disability benefits intended as retirement benefits marital property).

We are of the opinion that a disability pension is not a marital asset and is therefore not subject to equitable distribution. "Such benefits are intended to compensate the employee spouse for lost earning...