Vicki Tarbet v. Robert B. Tarbet, 94-LW-0380

• Decision Date: 30 November 1994
• Docket Number: 16651,94-LW-0380
• Parties: VICKI TARBET, Appellant v. ROBERT B. TARBET, Appellee C.A.
• Court: Ohio Court of Appeals

VICKI TARBET, Appellant v. ROBERT B. TARBET, Appellee

No. 16651

94-LW-0380 (9th)

Court of Appeals of Ohio, Ninth District Summit

November 30, 1994

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF SUMMIT, OHIO CASE NO. 92 8 1969

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

DECISION

DICKINSON J.

Plaintiff Vicki Tarbet has appealed from a judgment of the Summit County Domestic Relations Court that granted her and defendant Robert Tarbet a divorce from each other. She has argued that the trial court incorrectly determined that certain retirement benefits based upon Mr. Tarbet's employment were not marital property. This Court affirms the judgment of the trial court because the benefits at issue "Tier I" benefits under the Railroad Retirement Act of 1974, are not marital property.

I.

The parties were married on February 15, 1969. Mrs. Tarbet filed a complaint for divorce on August 13, 1992, and Mr. Tarbet answered and filed a counterclaim for divorce on September 15, 1992.

At the time this matter was heard by the trial court, Mr. Tarbet had been employed in the railroad industry for 26 years. The Railroad Retirement Act of 1974, 45 U.S.C. 231 et seq., provides a system of retirement and disability benefits to railroad industry employees and their families. That benefits system has a number of components, including "Tier I" and "Tier II" retirement benefits. Tier I retirement benefits are based upon a railroad employee's employment, both within the railroad industry and outside the railroad industry. They roughly approximate social security benefits and include monthly pension payments that are made directly to a nonemployee spouse. The parties stipulated that, at the time of the hearing before the trial court, the then current value of Mr. Tarbet's entitlement to Tier I monthly pension payments upon his retirement was $38,000. They further stipulated that the then current value of Mrs. Tarbet's entitlement to Tier I monthly pension payments directly to her was $20,000. In order to collect the monthly payments to be paid directly to her, Mrs. Tarbet must be unmarried at the time Mr. Tarbet reaches age 62.

Tier II retirement benefits are based only upon a railroad employee's employment within the railroad industry. They are comparable to pension benefits paid over and above social security benefits to workers in other industries. The parties stipulated that, at the time of the hearing before the trial court, the then current value of the Tier II benefits based upon Mr. Tarbet's employment was $12,000.

The parties were able to agree to resolution of most of the issues between them, including that the Tier II pension benefits based upon Mr. Tarbet's railroad employment were marital property. The trial court included the value of those benefits in its division of marital property, offsetting that value against other items of marital property awarded Mrs. Tarbet.

The parties were unable to agree, however, on the proper treatment of the Tier I pension benefits based upon Mr. Tarbet's employment. Mrs. Tarbet argued that those benefits were also marital property and should be divided between the parties. Mr. Tarbet argued that, pursuant to federal law, those benefits were separate property and were not subject to division between the parties.

The trial court determined that the Tier I benefits based upon Mr. Tarbet's employment were not marital property subject to division between the parties. Mrs. Tarbet timely appealed that determination to this Court.

II.

Mrs. Tarbet's sole assignment of error is that the trial court incorrectly determined that the Tier I benefits based upon Mr. Tarbet's employment were not marital property. Normally, vested pension benefits based upon a spouse's employment during marriage are marital property. Bisker v. Bisker (1994), 69 Ohio St.3d 608, 609; Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, syllabus. Mr. Tarbet has argued, however, that federal law precludes treatment of Tier I railroad retirement benefits as marital property.

In Hisquierdo v. Hisquierdo (1979), 439 U.S. 572, 59 L.Ed.2d 1, the United States Supreme Court determined that pension benefits earned pursuant to the Railroad Retirement Act of 1974 could not be treated as marital property and divided when a railroad employee became divorced. As noted by the Court, the then current version of Section 231m, Title 45, U.S. Code provided:

Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity [payable under the Railroad Retirement Act] shall be assignable or be subject to any tax or to garnishment,

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