Wilborn v. Wilborn

• Decision Date: 16 September 2014
• Docket Number: No. WD 76447.,WD 76447.
• Citation: 445 S.W.3d 629
• Court: Missouri Court of Appeals
• Parties: Raymond Lee WILBORN, Appellant, v. Tracey Lee WILBORN, Respondent.

445 S.W.3d 629

Raymond Lee WILBORN, Appellant

v.Tracey Lee WILBORN, Respondent.

No. WD 76447.

Missouri Court of Appeals, Western District.

Sept. 16, 2014. Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 28, 2014.

Julie Danielle Hixson–Lambson, St. Louis, MO, for Appellant.

Douglas Fowler Pugh, Columbia, MO, for Respondent.

Before Division Two: VICTOR C. HOWARD P.J., JAMES E. WELSH, ANTHONY REX GABBERT JJ.

Opinion

ANTHONY REX GABBERT, Judge.

Raymond Lee Wilborn (Husband) appeals the circuit court's judgment dissolving his marriage to Tracey Lee Wilborn (Wife). Husband asserts five points on appeal. First, he alleges that the court erred and misapplied the law in classifying as marital property and awarding $19,967 which represented Husband's contribution to his railroad retirement pension during the marriage because 45 U.S.C.A. 231m preempts state action and explicitly prohibits courts from anticipating the receipt of any such retirement benefit, forbids the court from entering any “offset” award which considers any present value or anticipated value of Husband's pension, and because the court treated Husband's railroad retirement as a private pension with an ascertainable value which could be awarded or divided and none such exists. Second, Husband charges that the court erred and misapplied the law in holding that Wife's pre-marital contributions to the marital residence were her separate, non-marital property not subject to division because the court's reliance on the “source of funds” rule was misplaced. Third, Husband argues that the court abused its discretion and erroneously applied the law in entering a parenting plan because the court's provisions regarding summer parenting time were vague, indefinite, and incapable of enforcement. Fourth, Husband contends that the court abused its discretion and erroneously applied the law in entering its parenting time schedule for parenting time during the school year. Fifth, Husband alleges that the court erroneously applied the law in awarding the federal dependency tax exemptions because it did not follow federal guidelines and order the parents to complete the necessary IRS form to relinquish rights to the exemption. We affirm with modifications.

Husband and Wife were married on March 7, 2003, and three children were born of the marriage. Husband filed a petition to dissolve the marriage on September 7, 2011, and Wife filed an answer and counter-petition on October 6, 2011. Trial was held August 24, 2012, and the court entered an order and judgment dissolving the marriage on October 15, 2012. Husband filed a motion to set aside the judgment on November 14, 2012, which was sustained by the court on January 16, 2013. The court entered a new dissolution judgment on February 7, 2013. Therein the court dissolved the marriage, divided the marital property and debt, and established a parenting plan. Husband appeals that judgment.

“Our standard of review in a dissolution action is governed, as in any court-tried case, by the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).” Schollmeyer v. Schollmeyer, 393 S.W.3d 120, 122 (Mo.App.2013). We will affirm the court's decision unless it is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Id. at 122–123. We view the evidence and all reasonable inferences in the light most favorable to the court's judgment. Id. The party challenging the judgment has the burden of proving error. Beckham v. Beckham, 41 S.W.3d 908, 911 (Mo.App.2001). We apply de novo review to questions of law and give no deference to the trial court's conclusions regarding such questions. Pearson v. Koster, 367 S.W.3d 36, 43–44 (Mo. banc 2012).

In Husband's first point on appeal, he argues that the circuit court erred and misapplied the law in classifying as marital property and awarding $19,967 which represented Husband's contribution to his railroad retirement pension during the marriage because 45 U.S.C.A. 231m, as explicated by Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), preempts state action and explicitly prohibits courts from anticipating the receipt of any such retirement benefit. Husband contends that federal law also forbids the court from entering any “offset” award which considers any present or anticipated value of Husband's railroad pension. Husband argues that the court should not have treated Husband's railroad retirement as if it were a private pension with an ascertainable value which could be awarded or divided because none such exists. We find no error.

The record reflects that Wife listed her IRA held by City Bank and Trust as marital property in her Statement of Marital and Non–Marital Assets and Debts (Statement). She listed its present fair market value as $56,426 and recommended that the IRA be awarded to her.¹ Wife also listed Husband's railroad pension as marital property in her Statement, but put a question mark by its present fair market value and gave no recommendation as to whom it should be awarded. Husband did not list his railroad pension in his Statement, however Husband testified with regard to his pension on direct examination. Husband testified that he commenced employment with the railroad in June of 1994. He testified that, after he worked seven and a half years with the railroad, his social security earnings transferred over to the railroad retirement system. He testified that he will not be eligible for retirement with the railroad for another 17 years. He testified that, if he quit working for the railroad tomorrow, he would not be eligible to receive “Tier II” benefits but would draw benefits under “Tier I” which are equivalent to what he would receive with social security and subject to social security guidelines. Husband stipulated that $19,967 was contributed to his railroad pension during the marriage. The court, in its ultimate judgment, considered this $19,967 amount in its overall division of marital property and awarded Husband the entire sum of the “marital contributions” of his railroad retirement.²

Husband argues that the Railroad Retirement Act of 1974, as codified at 45 U.S.C.A. § 231 and interpreted by Hisquierdo, prohibited the court from considering Husband's railroad pension as property subject to division in the dissolution. We disagree. Hisquierdo was penned in 1979. Therein the United States Supreme Court overturned a decision by the California Supreme Court which had concluded that railroad retirement benefits were community property subject to consideration in a marital dissolution. Hisquierdo, 439 U.S. at 580, 99 S.Ct. 802. The high Court disagreed with the California decision based on the following language in 45 U.S.C.A. 231 m:

Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated....”

439 U.S. at 576, 99 S.Ct. 802. The Hisquierdo Court concluded that, by enacting 45 U.S.C.A. 231m, Congress purposefully disqualified railroad retirement benefits from being characterized as community property subject to division in a dissolution. 439 U.S. at 585, 99 S.Ct. 802.

This portion of the Railroad Retirement Act of 1974, however, was significantly amended in 1983. While 45 U.S.C.A. § 231m(a) continues to state that “no annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated,” this language is now preceded by “[e]xcept as provided in subsection (b) of this section.” Subsection (b) states:

This section shall not operate to prohibit the characterization or treatment of that portion of an annuity under this subchapter ... as community property for the purposes of, or property subject to, distribution in accordance with a court decree of divorce, annulment, or legal separation or the terms of any court-approved property settlement incident to any such court decree.

45 U.S.C.A. § 231 m(b)(2). This new provision has been construed in other jurisdictions and by the Railroad Retirement Board to mean that Tier II benefits may now be treated as marital property subject to division. An Ohio appeals court stated:

Following the Supreme Court's decision in Hisquierdo, Congress amended Section 231m. In doing so, it removed the shield that the section had provided to the treatment of certain railroad retirement benefits as marital property. Section 231 m(b)(2) now specifically provides that federal law does not prohibit treatment of certain pension benefits payable based upon employment in the railroad industry, including Tier II benefits, as marital property. Significantly, however, Congress did not change the law regarding Tier I benefits.³ The Supreme Court's conclusion in Hisquierdo that Tier I benefits may not be treated as marital property subject to division remains the law.

Tarbet v. Tarbet, 97 Ohio App.3d 674, 647 N.E.2d 254, 256 (1994) ; See also Martin v. Martin, 385 Pa.Super. 554, 561 n. 1, 561 A.2d 1231, 1235 n. 1 (1989) ; Olson v. Olson, 445 N.W.2d 1, 7 (N.D., 1989) ; Elkins v. Elkins, 854 S.W.2d 787, 789 (Ky.App.1993) ; Mahoney v. Mahoney, 425 Mass. 441, 681 N.E.2d 852, 855 n. 7 (1997) ; Thibodeaux v. Thibodeaux, 712 So.2d 1024, 1027 n. 3 (La.App. 1 Cir., 1998) ; et al.

Consequently, 45 U.S.C.A. § 231m and Hisquierdo would only exempt Husband's $19,967 in railroad retirement contributions from being considered marital property in the dissolution if these contributions represent Tier I, rather than Tier II, benefits. Here, Husband testified that he vested in his railroad retirement benefits approximately seven and a half years after commencing employment.⁴ This vesting allowed Husband...