Wilder v. Wilder

• Citation: 85 Wn.2d 364,534 P.2d 1355
• Decision Date: 15 May 1975
• Docket Number: No. 43501,43501
• Parties: Jeannette Margaret WILDER, Respondent, v. Larry Eugene WILDER, Appellant.
• Court: Washington Supreme Court

Page 364

85 Wn.2d 364

534 P.2d 1355

Jeannette Margaret WILDER, Respondent, v. Larry Eugene WILDER, Appellant.

No. 43501.

Supreme Court of Washington, En Banc.

May 15, 1975.

John Wold, Oak Harbor, for appellant.

Zylstra & Pitt, Richard L. Pitt, Oak Harbor, for respondent.

ROSELLINI, Associate Justice.

Judgment was entered in this marriage dissolution proceeding on December 10, 1973. In dividing the property of the parties, the court awarded the respondent wife a portion of the appellant's military pension which he would be eligible to receive upon retirement after June 1, 1975, provided that he reenlisted at the expiration of his current enlistment, as he indicated his intention of doing.

The parties were married in 1956, the year that the defendant enlisted in the Navy. The appellant's pay at the time of the trial of this case was $1,031.25 per month and this is the monthly pay which he would be entitled to receive after June 1, 1975, if he reenlisted but elected not to retire. His retirement pay would amount to $438 per month.

The court made the following provision regarding the pension:

The interest in his potential retirement from the United States Navy which he would be eligible to collect on or about June 1st, 1975, and which he will receive as retirement income from the United States Government. The petitioner is hereby awarded the sum of $180.00 per month of said retirement income as and for property and not alimony, which payments shall continue as long as respondent is receiving, or is eligible to receive retirement from the United States Navy. If the respondent should choose to stay in the Navy beyond June 1, 1975, he shall pay the petitioner the sum of $180.00 per month. If the respondent's monthly amount of military pension should be reduced by an Act of Congress, the payments to petitioner shall be reduced on a pro-rata basis. If the respondent should, through no deliberate act of his own, his weight excepted, not be on active duty with the United States Navy or not receive, or be eligible to receive retirement benefits, then any rights of petitioner herein in the pension shall terminate.

The case was certified to this court from the Court of Appeals. The only question raised concerns the propriety of the award of an interest in the pension. The appellant's arguments are: that the pension was not a property right properly before the court for consideration because it had not 'vested' at the time of the award, that the provision improperly penalizes the appellant for exercising his right not to reenlist, and that the court could not properly require the appellant to pay the respondent $180 per month if he elected to remain in the Navy past his retirement date.

RCW 26.09.080 provides that in a proceeding for dissolution of a marriage, the court shall make such disposition of the property and liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to the nature and extent of the property, the duration of the marriage, and the economic situation of the spouses at the time the division of the property is to become effective. This statute obviously gives the court as wide a discretion as it enjoyed under its predecessor. The breadth of that discretion has been repeatedly observed. Edwards v. Edwards, 47 Wash.2d 224, 287 P.2d 139 (1955), Holm v. Holm, 27 Wash.2d 456, 178 P.2d 725 (1947).

This court has held a military pension is not a gratuity but an asset acquired during coverture. Morris v. Morris, 69 Wash.2d 506, 419 P.2d 129 (1966). It is an asset which the court can consider in making a division of the property. Edwards v. Edwards, 74 Wash.2d 286, 444 P.2d 703 (1968). ¹ A federal military pension is subject to certain contingencies and as such is not a fixed asset but is an emolument or economic advantage of office and is an income resource which should be considered by the court in fixing the amount of alimony. Roach v. Roach, 72 Wash.2d 144, 432 P.2d 579 (1967).

Thus it is settled in this jurisdiction that a military pension is community property to the extent that community funds have been invested in it and that it is before the court for consideration in a dissolution proceeding. The defendant acknowledges this. He contends however that the court cannot consider such a pension unless the right to receive it has matured. He cites no Washington case to support this proposition but relies upon two cases decided in Texas. These are Davis v. Davis, 495 S.W.2d 607 (Tex.Civ.App.1973) (holding that a wife could not be awarded an interest in the pension rights of an Air Force officer who had served only 11 years because they had not vested), and Miser v. Miser, 475 S.W.2d 597 (Tex.Civ.App.1971) (holding that an enlisted man who had served 18 1/2 years had a vested right in the pension he would be eligible to receive after 20 years). An examination of the Texas cases will show that the courts in that state adopt a conservative view regarding the nature of pension rights and tend to take the position that pension rights do not vest and cannot be considered by a divorce court unless it is certain that they will mature.

This court has not subscribed to the doctrine that a pension right does not vest until it is certain that benefits will be paid. Rather, we have said that an employee has a vested right with respect to pension benefits from the date of his employment, where a pension plan is in effect and is part of the compensation which he earns, and that this right cannot be altered by the legislative body to his disadvantage unless the change is accompanied by corresponding advantages. Bakenhus v. Seattle, 48 Wash.2d 695, 296 P.2d 536 (1956), Tembruell v. Seattle, 64 Wash.2d 503, 392 P.2d 453 (1964). Our approach is in accord with that taken by the majority of courts. See Annot., Vested right of pensioner to pension, 52 A.L.R.2d 437 (1957).

Two California cases are cited by the appellant, Brown v. Brown, 27 Cal.App.3d 188, 103 Cal.Rptr. 510 (1972), and Bensing v. Bensing, 25 Cal.App.3d 889, 102 Cal.Rptr. 255 (1972). In each of these the husband was eligible to retire but had not done so, and in each the court held that a property right had vested because the only act to be performed was a decision of the husband to retire. It will be seen that these cases tend to support the trial court's action in the case before us.

However, it does appear that the California courts lay stress on the element of certainty of receipt of benefits when considering whether pension rights are community property. See Williamson v. Williamson, 203 Cal.App.2d 8, 21 Cal.Rptr. 164 (1962), and French v. French, 17 Cal.2d 775, 112 P.2d 235 (1941).

This court has taken a more flexible and what we believe to be a more realistic approach to the question of equitable distribution of pension benefits between divorced spouses.

In the recent case of Payne v. Payne, 82 Wash.2d 573, 577, 512 P.2d 736, 738 (1973), we sustained an award to the wife of a portion of her husband's military pension which he would be entitled to receive 1 year from the date of the divorce decree. We said:

Courts today regard military retirement plans and retirement pay as a mode of employee compensation. It is an earned property right which accrues by reason of a specified number of years of service in a particular branch of the armed services.

The Court of Appeals, Division Two, in DeRevere v. DeRevere, 5 Wash.App. 741, 491 P.2d 249 (1971), a case involving the same question presented in this case, correctly construed our opinions and held that though the husband's right to a pension had not matured at the time of the divorce, the Superior Court properly considered his contingent retirement benefits as property to be taken into account in making the property division. See that case for a scholarly and well-reasoned discussion of the theory and principles upon which this doctrine rests.

These cases do not quite reach the question whether the court can take the expectancy of a pension into account where the right to receive it depends upon the husband's reenlistment for a period of 1 year or less. We think the proper rule is that the court must consider all the circumstances and evaluate the probability that the party who has a contingent right to a pension will eventually enjoy that pension. The length of time remaining before eligibility matures is a factor for the court to consider; also, the other options open to the person and the likelihood that he may, in the exercise of a reasonable judgment, decide to pursue some other career and abandon his pension rights. Also, the court must take account of the community's investment in the pension system and determine whether, in the event the party entitled to the pension decides to abandon his rights, the community's contribution should nevertheless be considered an asset under his control and be balanced against other assets awarded to the other party. There can be no set rule for determining every case and as in all other cases of property distribution, the trial court must exercise a wise and sound discretion.

Here, the appellant husband had served nearly 19 years of a 20-year minimum required for retirement. Not only did he have no other reasonable prospect of an employment that would make the abandonment of his pension...