*1 MORRISON, MORRISON Sr. Bеverly Don Billy 85-35 Court of Arkansas
Supreme 1, July delivered Opinion Thrailkill, Danny Tucker & Thrailkill, for appellant. by: Wilson, Corum, & Engstrom appellee. Dudley, is whether
Robert H. Justice. The issue on appeal are marital property retirement benefits spouse’s disability 1983). We affirm Ann. 34-1214 (Supр. under Stat. § are marital trial court and hold that statute at interpret is in Court to Jurisdiction this *2 29(l)(c). issue. Rule Morrison, Sr., Don
During marriage, Billy the appellant, November, 1965, when he was jobs worked at various until Fire In a Angeles cyst the Los еmployed by Department. removed, was but cyst was discovered on his knee. The surgically December, 1977, the retire- a In disabling infection developed. a permanent had suffered 78% appellant ment board found that he retire. He was to his knee and that must physical impairment $1,165.00 month. benefits of per awarded During of this his subject Those benefits are the monthly appeal. Los Fire Angеles Department of with the period employment $21,000.00 11% his or to the contributed of salary, retirement fund. Morrison, various jobs worked at Beverly
The appellee, the but was at the intermittently during marriage, unemployed time case heard. this was 719 (1984), 663S.W.2d a Day Day,
In case, retirement benefit we stated: longevity In that Dr. interest in the holding Day’s pension plan case, to is found be marital this we are рroperly the not down inflexible rules for future. attempting lay leeway To Section 34-1214 allows for the contrary, it exercise of the chancellor’s best for judgment, provides all shall divided “unless thаt marital equally be court finds such division to be What we inequitable.” earnings do hold that or other simply property acquired must as marital unless each be treated by property, within one of thе and neither falling statutory exceptions, one can of interest in such any other deprive control, or beyond it his her own by putting temporarily annuities, of in a retirement by purchase pаrticipation device for full of the postponing enjoyment other plan, property.
Id. at 663 S.W.2d 722. at that is the rule for
Appellant
Day
general
concedes
but
argues
retirement benefits
that
longevity
not
are
and are
in the
impairment
body
one’s
compensation
nature
asset
of an
marital
The
relationship.
fallacy
argument
is that the benefits come from an annuity
during with the
purchased
marriаge
income of one That
which
annuity,
payable
became
is the
upon disability,
There is meaningful
no
distinction between an
annuity
one
payable upon disability
payable upon longevity.
next
argues
Appellant
distinguishable because
Dr.
was based
Day’s annuity
solely upon
contributions to the
fund,
fund
while in this case the pension
regulations required that
out of his
annuity be
first
into the
paid
payments
fund
and then
of a
fund. We do not
general
find the distinction
meaningful.
benefits in the case at bar are
out of one’s
paid
own contributions
the contributions of all
who
plus
others
are not
*3
disabled. That
of
part
contributions
paid
appellant’s
precisely
Day.
the same as in
That
out of the
part paid
general
is,
effect,
fund
in
a mutual
paid by
assessment
We
program.
the
recognize that
California Courts have
an
of
adopted
analysis
benefits which
as
by
the
are divisible marital
only to the
property
extent that
match the benefits
they
the
would have
employee
received if
retirement had been based on
is the
the
longevity.
overplus
separate
of
disabled
property
Jones,
108,
See
119
Appellant because retirement benefits are inequitablе and one of them each will have one-half spouse only of.the statute, is disabled. Under our the chancellor had the discretion make division other if an division was unfair. than equal equal Here the chancellor first out that had medical pointed severe, been more it would have been that impairment unlikely would have awarded one-half of the disability court appеllee The chancellor then considered the fact pension. with
was a farmer and was self-employed appellee unemployed out other income and divided the We сannot pension equally. say was erroneous. decision clearly
Affirmed.
Purtle, J., dissents.
George Smith, J., not participating. Justice, dissenting.
John I. I with strongly disagree Purtle, in majority opinion treating benefits as marital In the first аre not insofar place they acquired as future It is our benefits are concerned. fault that the chancellor ruled as we although he did have not so held. In previously Day Day, 281 we did hold that earned However, retirement benefits were marital property. we were able to an exact dollar and cents place valuation on the retirement benefits awardеd to the Contributions to the had been made from plan Day marital funds. benefits are as
Disability personal as can be. They to the disabled of his represent payment person having part hеr or mental taken physical ability To show the away. unjust results, a 25 inequitable suppose year-old receives spouse injuries in that resulting becoming a and the person quadriplegic healthy obtains a divorce and is spouse awarded half the disability benefits the injured half the spouse receiving. Possibly will not be the invalid enough keep alive. In such a case spouse the state would be with the left burden of maintaining injured party. then remarries and Suppose healthy spouse also continues gainful even more employment, earning than the injured receives. party receives all his healthy ex-spouse half former earnings plus benefits and spouse’s possibly new earn even more than spouse may either of the others.
Furthermore if the remarried dies thеn his heirs are owners of half the disability payments due the If we injured party. simply acknowledged these benefits have not been there is no problem. The common sense and is to equitable approach treat benefits as income when received. Such benefits should be considered when awards for making support alimony.
Even before this court has decided the issue some trial courts are treating such benefits as on hand. It is true the *5 statute does not require to be divided and we equally have pointed in our provision opinions. We should now correct any errоneous our have impressions created. opinions Trial courts should not divide mechanically disability between the as if were certificates of parties they deposit. injured spousе’s half of the
If we are
to award
going
well
and award
we
ahead
may
go
benefits to the other
disability
be received
which are
to
apt
security
half the social
too.
the burial insuranсe
the lifetime and add half
from
taking
make in
the income
What difference does it
community
if the state is a
benefits from a
disability
person
one? There are
or one that is in all practiсality
state
states which do not
decisions from community property
many
v. Bugh,
See Bugh
treat
benefits as marital
disability
1980) and Hicks v.
(Ariz.
125 Ariz.
(1983), Day, yet and supra, from classified аs marital being received were not exempt deny if were with the intent acquisition delayed non-injured other benefits. In the case the spouse just present obtaining will not contribute in manner in future аny nor to award the just equitable benefits. It neither work, half the who is able and healthy spouse, qualified for payments injured receiving pain party suffering. judge-made
If there is ever law this is not the justification case for it. I would reverse and remand with directions to consider awarding alimony such benefits in support.