Woodward v. Woodward

• Decision Date: 04 November 1982
• Docket Number: No. 18089,18089
• Citation: 656 P.2d 431
• Parties: Marvin L. WOODWARD, Plaintiff, Appellant and Cross-Respondent, v. Mildred L. WOODWARD, Defendant, Respondent and Cross-Appellant.
• Court: Utah Supreme Court

Page 431

656 P.2d 431

Marvin L. WOODWARD, Plaintiff, Appellant and Cross-Respondent, v. Mildred L. WOODWARD, Defendant, Respondent and Cross-Appellant.

No. 18089.

Supreme Court of Utah.

Nov. 4, 1982.

Brian R. Florence, Ogden, for plaintiff, appellant and cross-respondent.

Ben H. Hadfield, Brigham City, for defendant, respondent and cross-appellant.

DURHAM, Justice:

The plaintiff husband appeals from that portion of the trial court's decree of divorce which awarded to the defendant wife a portion of his retirement benefits. The husband argues that the court erred in considering, as a marital asset, that portion of his pension which would be contributed by the government at some future date.

The husband has worked as a civilian employee at Hill Air Force Base for fifteen years. Under his government pension plan, he has contributed $17,500 to the pension fund during that time. If he were to leave his job now, he would receive only the amount of his contributions. In order to receive maximum benefits from the plan, the husband would have to participate in it for a total of 30 years. At that time, the government would match the amount of his contributions and the husband could elect to receive the benefits as an annuity or as a lump sum. In its Findings of Fact, the trial court stated that, because one-half of the 30-year period occurred during the marriage and because the wife is entitled to one-half of the amount accrued during that time, the wife was therefore "granted an equity interest of one-fourth of all proceeds which the [husband] receives on his retirement account, to be paid to [the wife] ... as [the husband] receives the proceeds." The husband concedes that the wife is entitled to one-half of the sum he has contributed during the fifteen years of their marriage. However, he claims that she has no right or interest in the amount to be contributed by the government at the time of his retirement because that amount is contingent upon his continued government employment.

The only authority cited by the husband for his position is Bennett v. Bennett, Utah, 607 P.2d 839 (1980). In that case, this Court reversed a trial court's division of the husband's retirement benefits because the government's future contribution to the retirement fund was found to have "no present value." Id. at 840. However, in Dogu v. Dogu, Utah, 652 P.2d 1308 (1982), we commented that "that holding reflected a failure of proof." Id. The wife urges the adoption of the position taken by the California Supreme Court in In re Marriage of Brown, 15 Cal.3d 838, 544 P.2d 561, 126 Cal.Rptr. 633 (1976). There the court held that "[p]ension rights, whether or not vested, represent a property interest; to the extent that such rights derive from employment during coverture, they comprise a community asset subject to division in a dissolution proceeding." Id. at 562-63, 126 Cal.Rptr. at 634-35. This case overruled an earlier California case of long-standing which had distinguished pension rights on the basis of whether the rights had vested. In the context of Utah law, we find it unnecessary to consider whether or not the pension rights are "vested or non-vested." ¹ In Englert v. Englert, Utah, 576 P.2d 1274 (1978), we emphasized the equitable nature of proceedings dealing with the family, pointing out that the court may take into consideration all of the pertinent circumstances. These circumstances encompass "all of the assets of every nature possessed by the parties, whenever obtained and from whatever source derived; and that this includes any such pension fund or insurance." Id. at 1276. To the extent that Bennett v. Bennett, supra, may limit the ability of the court to consider all of the parties' assets and circumstances, including retirement and pension rights, it is expressly overruled.

In the instant case, the husband argues that because he cannot now benefit from the government's promised contributions to his pension at the time of retirement, the wife should not receive any portion of the benefits which are based on the government's participation. This argument fails to recognize that pension or retirement benefits are a form of deferred compensation by the employer. If the rights to those benefits are acquired during the marriage, then the court must at least consider those benefits in making an equitable distribution of the marital assets. " 'The right to receive monies in the future is unquestionably ... an economic resource' subject to equitable distribution based upon proper computation of its present dollar value." Kikkert v. Kikkert, 177 N.J.Super. 471, 475, 427 A.2d 76, 78 (1981) (emphasis and omission in original) (quoting Kruger v. Kruger, 73 N.J. 464, 468, 375 A.2d 659, 662 (1977)), aff'd, 88 N.J. 4, 438 A.2d 317 (1981). Whether that resource is subject to distribution does not turn on whether the spouse can presently use or control it, or on whether the resource can be given a present dollar value. The essential criterion is whether a right to the benefit or asset has accrued in whole or in part during the marriage. To the extent that the right has so accrued it is subject to equitable distribution.

In the instant case, the husband must work for another fifteen years to qualify for the maximum benefits under the pension plan. He will not qualify in the twenty-ninth year or in the next to the last month. Because he must work for a total of thirty years, his pension benefits, including any contribution by the government, are as...