Shill v. Shill

arguments sidered the oral of the presented SHILL, that were to us. Based on this Jeanette T. consideration, Plaintiff-Respondent, review and we concur with Appeals except Cross-Appellant, the decision of the Court of respect. in one minor opinion Ap Douglas SHILL, The of the Court of K. peals states: Defendant-Appellant, Cross-Respondent, opinion The record contains a 1981 letter County Attorney County from the attorney opined Commissioners. The Employees System county authority The Public Retirement that the had no over the Idaho, acting By Through Stanger property. road across the Retirement Board of the Public Em Id. at ployees System, Retirement Defendant. Appeals The letter to which the Court of referred was submitted as an attachment No. 16780. support to an affidavit filed in of a motion Supreme Court of Idaho. summary judgment by Stangers. for The letter was not offered in evidence at Nov. part the trial and did not become record of evidence considered court. It was included in the clerk's record part papers support submitted in summary judgment. of the motion for Appeals including Court of was in error in support this letter as evidence to its conclu- county asserting any sion "that the rights is not beyond Stanger to the road boundary." Id. There is sufficient other support evidence to considering this conclusion without county the letter of the attor- ney. of the trial court is opinion reversed on the basis of the Appeals, excluding Court of reference to county attorney

the letter from the county commissioners. The case is re

mandedto the trial court with directionto judgment granting appellants enter in-

junctive prayed relief as in their counter claim. appellants. attorney Costs to No fees on

review. Smith, Fletcher,

Parsons, Stone & Bur- ley, defendant-appellant, cross-respon- for argued. dent. William Parsons Falls, Stoker, plaintiff-re- Jeff Twin spondent, cross-appellant.

SHEPARD, Chief Justice. proceedings This is a continuation 433, P.2d Shill v. involved a divorce which proper- the determination ty benefits. The remit- 2, 1979, titur of issued October this Court until October and was not respondent an amended filed complaint seeking a redetermination of the interest in the Thereafter the district court benefits. granted summary judgment November on adjudicating prop- erty interest in the retirement ben- efits. We reverse remand. parties Septem- hereto were married early Douglas and in ber department fire employed Idaho, began Burley, contributions Firemen’s wages from his divorc- were Retirement Fund. 1977, ed entered October decree Ramsey, Ramsey See Fund. Douglas completed had time employment 19 ¥2 provisions Department. Fire Under six Inexplicably it was not until statutes, Shill was entitled to later, 10, 1985, October the Idaho Firemen’s Retire- complaint Shill filed an amended Jeanette 14,1.C., Fund, only if ment Title Ch. but seeking a and distribution of recalculation years employ- completed he had such Following the en- the retirement benefits. prior completing ment. If he terminated in try of the of divorce October decree only have the he would received 1977, Douglas chosen to had continue contributions he had made. Department, Fire his work with the decree entered the divorce was make contributions and continued to judg- that of the October Fund. Firemen’s Retirement After com- dealing ment with the division of the service, Douglas Shill retired on munity not until property was entered April By delaying his retirement 1982. March decision court that the continuing past 20-year to work the possessed only held the since retirement, pension benefits increased the the cash surrender value of to receive 40 to fire- ($8,089.24),

the all of which contributions salary. man’s during marriage, had been contributed the therefore, Upon the trial court on motion community prop- such as was characterized 7, 1986, granted summary judg- November erty equally and ordered divided between Shill. favor of Jeanette Hence, parties. the was the cash awarded one-half of surrender val- appeal principal issue on this is ue of Retire- Shill’s Firemen’s community interest in Mr. whether the ment Fund. be benefits should deter- Shill’s retirement mined, valued, as of the and divided date Upon appeal to this Court the decision Shill v. the are reversed, the or at the time the court was district supra, and for the first actually hold that the trial time contin- received. We gent incorrectly rec- court determined the communi- non-vested benefits were ognized as divisible ty interest the value thereof Idaho. This Court there indicated that a actually time re- benefits were lump as of the date sum award of divorce ceived. distribution, preferred was method of outset, At the note that had the trial we but the Court realized such a cash-out original proceedings court divorce might always be It method feasible. present determined the then value of the was the community held that where owns fund, community property in the assets, present few or when value calcula- spouse could have non-employee' been difficult, appor- tions were inaccurate or an equal That awarded assets value. non-retiring spouse might tionment present pen- value of the be if as and when made effective the actual court, sion fund was before were received the retir- rejected by then the trial court Therefore, ing spouse. decision of reason of erroneous view the law. its reversed, and the trial court was cause was re- That of the trial decision remanded, versed. equitable to effect an dis- ... order [i]n Further, had remand matter pos- position of the retirement benefits then diligently pursued, been trial court community, marital sessed will eq- may have to make such an been able necessary to remand this matter being required to uitable without division the parties to allow trial court attempted division enter the morass of an opportunity present such evidence by the rights. dispo- the issue of the proper it deems reach the trial court for time matter did parties' community property

sition of the time, options were limited Firemen’s the second its Retirement disposition because of the sion benefits which had accrued following assets awarded under original decree. date of divorce. Thus, preferred cash-out method of question presented thus pension division has been thwarted in the impression one of first in Idaho. In a instant action. Such an immediate settle- divorce action in Idaho the trial court has

ment would disentangled parties, have equitably broad discretion to divide the fully would finally have divided community property. However, that dis marital any without contin- strictly cretion is circumscribed our stat gency. utes which delineate and commu nity property interests. All property It is by waiting asserted that six by spouse owned marriage sepa before years following remand, respondent rate property. Property I.C. 32-903. ac § procrastinated in the assertion of her quired during marriage presumed to be rights, and the cause should have been community property. Stanger Stanger, v. prosecution. dismissed for want of A trial (1977); 98 Idaho Speer P.2d 1126 power has inherent to dismiss for Quinlan, v. 96 Idaho 525 P.2d 314 prosecution want of if the fails to Stahl, Stahl v. prosecute with diligence. reasonable (1967). statute, Our I.C. Erickson, McAllister v. 32-906, defines § P. 242 question Such is addressed property acquired all the marriage after to the sound court, discretion of the trial either husband or wife. and its will not be disturbed on I.C. 32-601 provide and 32-602 §§ review in the absence of an abuse of that marriage is dissolved death of one discretion. Co., Ellis v. Twin Falls Canal parties, the or the of a 712 P.2d 611 We competent court of jurisdiction, and the hold that the trial court did not abuse its effect of such a divorce decree is to restore failing discretion in to dismiss for want of the per to the state of unmarried prosecution, nor do we find that the action sons. by any is barred statute of limitation or the doctrine of laches. In the instant case the trial court awarded the one-half of the question presented The in the instant pension benefits, valued at the time of ac case is whether the value of the tual retirement in 1982. That award in benefits should be calculated as of the date cluded increases in benefits accru divorce, of the or as of the date of actual ing after the date of and hence not receipt of the benefits. In the acquired during marriage, during instant importance ease the of that issue is appellant time the per unmarried reflected the base monthly value of the such, son. As those increases constituted pension benefits at the various times. separate property appellant, of the and Within six months of the time of divorce to the extent that post- an interest benefits would have been calcu- respon divorce increases was awarded to forty percent lated on a basis of of the dent, it impermissible constituted an inva average wage of an Idaho fireman. I.C. appellant’s separate property. sion of (e) 72-1430(l)(a), (authorizes firemen who § stated, question is of voluntarily retire and who are entitled to Idaho, impression first it has been ruled service, twenty benefits after for- upon by jurisdictions. courts of other ty percent average paid of the fireman’s salary wage, twenty-four and after Arizona, Supreme The Court of same.) years, sixty percent of the Koelsch, As of case of Koelsch v. 148 Ariz. retired, Mr. when had before it a factual sixty percent benefits had risen to pattern part substantially wage. fireman’s The award of present- similar to the case at bar in that it pen- question non-employee spouse trial court included the increase in the ed the of a ployee earnings dissolu- having right spouse’s re- after to share increased If non-employee spouse_ tion following di- tirement benefits accrued pf monthly benefit Appeals in amount The Court Arizona vorce. greater than the non-employee spouse, ruled for the had so employ- have been had the benefit would Supreme re- and the Court of Arizona retire- spouse ee retired at normal versed. court stated: date, due to any increases will be our analysis clearly base estab- We employee labors property principles. lished formu- spouse_ appeals’ The court of First, pension are a form of de- plans adopt proposition la seems to compensation employees ferred deny- right. wrongs two make both rendered, any portion services spouse non-employee immediate during marriage is plan earned communi- separate property ty property subject equitable division spouse awarding that a share of instead (Citations omitted.) dissolution. We employee spouse’s separate property, recognize that retirement are of- appeals two court of has violated ten one a community’s most valuable as- principles fundamental Second, marriage during a hus- sets. disapprove. We law. immediate, equal, and wife have an band present, Berry interest in com- Supreme vested Court Texas omitted.) (Citation When munity assets. Berry, present- 647 S.W.2d 945 dis- is divided at pattern ed with factual and issue. a similar the mandate of ARS pursuant to solution presented question The for consider- sole 25-318, spouse each receives an imme- Berry’s ation of Elna interest § is the value diate, present, separate prop- and vested in the her ex-hus- retirement benefits of erty property interest in the awarded to Berry. judgment band The Giles by her It him or the trial court. is clear Berry trial one-half court awarded Mrs. any spouse that a former loses interest of existed such benefits would have separate proper- in control that over divorce. The court of the time of Finally, ty. appeals it established that is law reversed and held that she expended during while the fruits of labor receive 34.21 entitled to (cita- marriage are received. actually retirement benefits tion) earnings (citation). sepa- dissolution reverse the after are We appeals and the trial property. rate the court of affirm judgment. court's opinion the In its exhaustive court held court, quoting In re Ris Marriage The permit spouse a non-employee that to ter, stated: (Tex.App.1974), 512 72 S.W.2d sharing pension in in the future increases the extent the benefits improper. benefits is that future in- do increase as a result of Appeals attempted to ame- Court earnings, used the formula creased non- liorate the risk of loss faced awarding has the effect of trial court employee spouse by devising a formula accruing appellant after benefits spouse permit which would to share appellee. divorce from in in the the future increases accruing compromise improper is We hold that benefits benefits. This First, for services rendered improperly compensation for several reasons. part of the spouse after a divorce are not a non-employee allows the to share parties subject to division post-dissolution separate property estate of the spouse. earnings employee divorce. then Berry in stated:

The court continued: court case from the record in this problem disposition It clear The second fol- additional of work assets twelve of the retirement divorce, some which included appeals lowing is that court and the court of raises, plus pay union em- twelve to fourteen award a share both formulas 120 negotiations

contract improved for an which would have been received if the em plan, brought benefits about the increase ployee spouse had taken retirement at his paid in retirement Berry. i.e., benefits to Mr. eligibility, April first Berry post-divorce These increases cannot be supra; Berry, Marriage of Rister, v. In re Berry, awarded to Mrs. for to do so. supra; Rogers Rogers, supra; v. Graham Berry’s separate would prop- invade Mr. Graham, supra; v. In re Marriage Gill erty, more, which cannot be done. 29 Cal.3d Cal.Rptr. 493, 174 In the instant case that date A similar decision was reached in Madrid only six months after the decree of di Madrid, v. 101 N.M. 684 P.2d 1169 vorce, and hence the difference value is (N.M.App.1984). The held that the significant. not deemed may, There course, arise cases the future in which determined, must be valued and distributed lapse of time between divorce and first divorce, as of the time of the and that eligibility for retirement is of substantial benefits, increases “... com- length, and in prob which therefore the divorce, ing after the date of the are the lems will be exacerbated. It is suffice to separate property husband’s At the ... say explore that we problems do not time of the divorce the increases were not today, them case-by-case but leave to a coming even existence. The increases resolution the future. divorce, ‘acquired’ after the were not until after the and were the Many of the above-cited cases deal with property of the Rogers husband.” See also the “risks” which will be encountered Or.App. P.2d Rogers, v. spouses each of the under various theories (1980), modified, Rogers Rogers, v. Or. of distribution of App. Graham divorce. It is clear that there can be no Graham, Or.App. might amelioration of all risks which presented by possible the enumerable sce- If, stated, previously lump narios. as a aware, argued by respondent, are We utilized, sum cash-out method were that the courts of have taken a California case, possible seems in the instant the risks approach different and arrived at different non-employee spouse would have Marriage Freiberg, results. In re been eliminated. the risk to the 304, (1976).1 Cal.App.3d Cal.Rptr. employee spouse preventing him death However, it is view that the our decisions benefits, receiving any would remain. cited, particularly that of the Arizona Su- Nevertheless, such solution would have the Koelsch, preme Court in constitute the bet- disentangling merit of and their authority, ter reasoned and we decline to point affairs at a finite time. approach. follow the California argued requiring It is also the non- In the instant case the decree of employee spouse to receive a share of divorce was entered October 1977. The employee- if and when eligible employee-spouse’s first retire, spouse option chooses to leaves the 14, April date was 1978. His actual retire solely employee-spouse. with-the We need April As noted ment date was 1982. assertion, not address that since in the herein, we have held that the determination employee-spouse has re- instant case the of, of, and the bene valuation tired, ma- and the benefits have fits should occur at the date of the decree payable. tured and are and an of divorce. Since such valuation herein, made, lump to our discussion award of a sum was not Pursuant is reversed appears possible, now to be not an award is of the district court purports as it to award necessary based sum insofar ployee spouse the time at which the 1. To the that it conflicts with In re Mar- can control extent Gillmore, riage Cal.3d Cal.Rptr. non-employee payments will retirement commence, Marriage In re of Frei- disapproved. dictum, berg, suggests, that the em- paid, said sum has been pension bene- hence we assume a share of the Jeanette Shill gone post-April appeal 1978. has forward. valued at a time since fits record, clarity lack of Because of the and remanded for The cause is reversed may re- adjustments which be and the proceedings in accordance here- further court, by the trial we are unable quired with. No costs allowed. specific a sum to be awarded delineate is directed the trial court. The trial court BAKES, J., McQUADE, J. Pro ap- her plaintiff, to award Tern., concur. benefits, cal- propriate share of the BISTLINE, Justice, specially April culated as of concurring. the consideration We further remand for case, involving same and others This possible offset to the of the trial court issues, have been a source of $4,044.62. Again, or similar judgment sum of difficulty membership. Jus clear, for the Court suggests the record is not however my tice Bakes authored I. view he that there was disbursed to the 21,1979, $27,898.55. opinion, It wrote an excellent well-fortified on the sum of June authority. respectable in that sum was Notwithstand is asserted that included $4,044.62,representing Ramsey Ramsey one-half of the cash he had dissent,1 I, Fireman’s Retire- he vigorous surrender value of the written a mind, If assertion is pension. put Ramsey ment Fund such dissent out of his correct, of the cash commendably and since the award 4-1 Ramsey said of for a pension fund has surrender value of the majority, reversed and remanded the “We reversed, respondent been Jeanette Shill [Ramsey case to the trial court for a \ may overcompensated in the sum of lump appropriate calculation of an sum $4,044.62. The trial court on remand is of her share of the award to the wife to ascertain the facts and make directed property portion of the retire adjustments, any. appropriate present pension computed val pension, interest ue of the wife’s Lastly, by respondent it is asserted He ...” 100 Idaho at 599 P.2d 1004. cross-appellant that accrued Jeanette Shill recited the courts of the what on her share of the fund Arizona, California, New property states of disagree. allowed. We The trial should be Mexico, done, and Texas had and concluded held, agree, and we that to so assess opinion with this observation: Court’s penalize appellant interest would be to the time for retirement where diligence in respondent’s for the lack of is uncertain and where the value of timely pursuing the cause. While she has depend- employee’s right a to her share of not waived receive employ- upon ent number benefits, delay has her she retirement, may ment at a factor which any her to claim waived the time of the not be known at argued by thereon. either maintenance of the and where party, the record demonstrates that an or from the benefits after divorce will be ordering der of the trial court was issued spouse’s separate property, or Shill) employee (Douglas pay defendant to subsequent community, (Jeanette Shill) $12,- property of a the sum of 000.00, reasonably accurate calculation of such a payment and that on the rights de- amount, present value of the execution community may effort not be stayed pending appeal. That rived from would be cases, trial court parties, possible. and In these matter is not discussed ways give finan- paragraph "There are other conclusion in the final He added: 1. His ultimate wife, controlling Ramsey opinion dispropor- security of his High was that the cial such as a Wissner, U.S. Court case of Wissner v. 338 her of the remain- favor] tionate distribution [in 655, 398, (1950) precluded 70 S.Ct. 94 L.Ed. 424 alimony.” ing community property, Ida- and 96 dealing with an Idaho state district court from 684, P.2d at 65. ho at 535 military pension. United States the husband's 122 withholding length gone

should consider the retire- of time that case has undecid rights property disposition Court, ed I have concluded to now decreeing and that the hold the doubt, Shepard. vote with Justice When rights to the tenants com- leadership I am reminded that it employee spouse mon. If and when the Shepard displayed Justice his 80 does obtain retirement benefits the trial opinion unanimous in Cheney v. Palos court can then determine what of Verdes, 897, (1983), 104 Idaho 665 P.2d 661 community were derived from put which the shackles on the ill-starred payments and divide the accord- companion cases of v. Stolwor Cox ingly. 683, thy, 94 Idaho Shill, 433, 439, v. P.2d Shill Jolley Puregro, 94 Idaho 496 P.2d Shepard, Justice who had also dissented

pears been since we heard oral ings tered to Justice Bakes in Shill I. Obvious- vember guidance given ably puts to reach a consensus authored Shill which was Shill Ramsey dissent and also with Justice may majority Bakes’ expressed his disfavor with Justice Bakes’ Today, today Justice no more able today’s majority in Ramsey with Justice I would add that the well surmise that it has not been II I, to have vigorous supra, at is before Ramsey and in than at the time of and holds out of almost ten Bakes, notwithstanding 1987. Counsel for both sides was over and closely I, opinion: the trial court for doing mind the dissent of the author of us, and, case, again which the Shepard, agree it, opinion. followed, so in one fell with his very long, taunting argument majority holding notwithstanding actual and commend- trial court since Shill explicit in I find Ramsey. commands a dissented is now vot- reasoning fact, proceed- adminis- that he on myself swoop easy No- has ap- is. I, ity down at fortably get doctrines are sought. and the “law of the case.” property asset property interest attributable to those vidual’s service and is also a pensation accrued during coverture. other than fire Douglas Shill’s contributions to the fund were made from his Kohny v. contributions attributable to fund income from sources The Justices who HUNTLEY, Justice, dissenting. have gratuity ^[******] fighter’s rules of frequently pages I the Dunbar, but a form of deferred com employee ignored I.C. interest in the res following is a §§ judicata, pages comprise today’s major- been the extent 32-903 and 906. because way contributions reason strong proponents wages, 436 and 1008: rules were laid of the result stare Today they of the indi acquired decisis, uncom- is not asset. 12 P. fund any A in ly Justice Bakes now sees more merit Factors which will affect the value of espoused by Shepard the views Justice community property couple’s contingent previously, presently he and sees than did fund include the interest Shepard’s merit in views than more Justice employee-spouse will possibility that the Huntley’s. in Justice satisfying the change jobs die or before vesting; requirements for time position delivering of Cast fact employee might that the divorced vote, swing help impressed cannot defer op- that an beyond retirement the date open-mindedness and with Justice Bakes monthly with early tional comprehend the ability fully his to now available; and the fact that pension is that here- Shepard’s merit in Justice views maintenance of him, subsequent to the divorce myself as well. escaped tofore and interest Therefore, employee’s of being cognizant full well likely average per year fund will be made from the em- benefits at the rate of 2% or, ployee’s separate property, if he or wage of state for the first remarries, property she from the of a (40% total), twenty years of service subsequent community. per year years rate increases to 5% ^[******] 21-25 (65% total). proach ties the risk that the is to reserve division of the actual over benefit The other method and when ^[******] advantage and divide the actual allocates when received. pension rights they jurisdiction equally accrue is that this reserving jurisdiction dividing monetary rights may between until effecting monetary retire- never par- ap- whether the added enhancement $240 four more end of the 20th The issue I would affirm the whether, per benefit and 4/24 month) when a divorce occurs near the years, primarily (here amounting year separate property. by thereby increasing $240 and the fireman works separate property about raised is 2%4 $400,1 by of the trial to about the 3% appeal court that the community interest is deter- vest and enables the court to better de- proportion termine the actual years the mined a ratio with the service that were derived commu- while married as the numerator and the from nity property. (Emphasis supplied.) years of total service as the denominator. importantly, Most Justice Bakes as au- quoted approval

thor of Shill I II. THE BACKGROUND an Arizona case on all with the in- fours approved stant fact situation and the for- proceedings This is a continuation of the mula which the district court used in this in Shill v. is, case as ordered on one-half (1979), which involved a divorce of the fraction years marriage community proper- the determination of the years over the number of of service. ty interest benefits. Loan, In Van Loan v. Van 116 Ariz. complaint Shill filed an amended on Octo- the Arizona 10, 1985, seeking ber a redetermination of Supreme Court affirmed the trial court’s pen- award to the wife divorce of a sion benefits. share of her military husband’s retire ment benefits. The joined husband had Douglas Jeanette Shill and Shill were Air prior Force marriage to the September April, married continued to work with the Air Force 1958, Douglas City Shill was hired during the year entire seventeen mar Idaho, Burley, department fire and com- riage. prior divorced making menced contributions from his time the payment husband’s un wages to Re- the State of Idaho Firemen’s der the terms vested. The trial Fund, pursuant tirement to Ti- established court awarded the wife “an interest chapter tle of the Idaho Code. On pay equal the retirement in an amount 24, 1977, appellant October one-half fraction 17 over the num were divorced. At the time ber of served [husband] Douglas completed Shill had nineteen-and- Air Force if and when received him.” employment City one-half with the 100 Idaho at department fire and had been promoted position of Fire Chief.

I. THE ISSUE pension Douglas Shill was entitled to Under the Idaho Firemen’s Retirement Fund, a fireman accumulates retirement benefits from the Idaho Firemen’s Retire- illustration, twenty years $800 an 1. For ease of I use state fit accrued in the first was $2,000 (The wage per figure actual month. $400. the last four was and that accrued in Thus, $1,896). the time of retirement was bene- Fund, 14,1.C., past Title work only twenty year ch. the threshold re- twenty ye^rs had completed employ- quirement, he Mr. Shill’s benefits in- ment as a fireman. If he had terminated creased from 40 to of the aver- prior completing twenty years, to he age would salary, approximate- fireman’s or from only have actual received the ly $1,200 contributions per to per $800 month month. portion he had In origi- made. that judgment dealing nal with the division of III. 1, 1978, the of March Mr. by waiting Shill asserts that six the trial court held that since Mr. Shill years following pro Mrs. Shill possessed only to receive the cash rights, crastinated in the assertion of her surrender value of contributions and the cause should have been dismissed ($8,089.24),all of which had been contribut- prosecution. for want of either during ed such marriage, was charac- party could the case have noticed for trial community property terized as and ordered A following the remand. trial court has equally. divided was award- power pros inherent to dismiss want of ed one half the cash surrender value of Mr. prosecute ecution if fails to rights in Shill’s fund. diligence. v. reasonable McAllister That decision of the District Court was Erickson, (1927). 45 Idaho 261 P. 242 upon Court, appeal reversed to this “Shill question Such is addressed to the sound supra. I, In we held that contin- court, discretion of the trial and its gent non-vested benefits are to be will not be on review in the ab disturbed community property considered divisible in sence of an of that discretion. abuse Ellis Idaho. Court this indicated that 910, 712 Co., v. Twin Falls Canal lump a sum award of the date of (1985). P.2d 611 I hold that the would trial preferred divorce is the method of distribu- failing court did its not abuse discretion in tion, the Court realized that such a cash-out to prosecution, dismiss for want and always might

method be feasible. In further hold that the action is not barred cases: these by any statute of limitations or the doctrine the trial court consider should withhold- of laches. ing rights prop- the retirement from the erty disposition decreeing and IV. rights hold to the benefits as I, this held that a Court tenants in If common. and when the fund, non-vested, a whether vested is employee-spouse does obtain retirement compensation, form of deferred benefits the trial court can then deter- employment period prior attributable to the mine what were accumulated, in which it and which is a community property derived from community asset to extent that commu payments accordingly. divide the nity efforts ben contributed efits. Shill v. It light that this Court re- also, Griggs See manded this matter to court for a Griggs, 107 Idaho determination of the Ramsey v. Ramsey, the Firemen’s Retirement Fund. Holdings par California cases propo allel these Idaho cases state 9, 1985,

On October Jean- sition as follows: complaint filed an ette Shill amended seek- a recalculation distribution of Where the total number served Douglas employee-spouse substantial retirement benefits. Shill chose to computing factor in the amount of retire- continue his work with fire de- entry ment benefits be received partment after the the divorce decree, spouse, is entitled to have and continued make contribu- length Retirement Fund. its share based of ser- tions Firemen’s continuing performed vice behalf of the commu- By postponing retirement

125 asset to the extent community property length of proportion to the total nity acquired during coverture. necessary to earn those benefits. service community years between of The relation Guy, 98 Guy 1007. also 599 P.2d at See provides years to total of service service Travelers retirement gauge a fair of that of Johnson, 336, 544 P.2d Ins. Co. v. community ef- benefits attributable fort. deciding puts the issue as one When Judd, Cal.App.3d Marriage In re (from percent to forty whether the increase 522-23, Cal.Rptr. wage) is average state sixty percent of the bar, in this Returning to the case at during marriage or whether part earned in appeal we are asked to review product of the husband’s totally it is court which ruled: the district efforts, that that issue it is clear entitled, as a mat- is [T]hat I. I already decided Shill has been law, community ter of to one-half of increase from post-divorce found that fund, interest in the defendant’s forty percent value to mere cash surrender and that such interest is to be deter- months after six which accrued benefits mined the husband’s per- of work product was multiplied by received a fraction which nineteen-and-a-half during the formed has as its numerator the total number of marriage. years of years employed the defendant was high- Similarly, equally clear that it Burley Department during Fire the mar- only by virtue percentage er was earned riage, and as its denominator the total work; years of the first nineteen-and-a-half number of of the defendant’s em- nineteen-and-a-half first without ployment Department. at the Fire be no years during marriage, there would applied The formula the district court higher at the ability to accumulate benefits operated in this case as follows to deter- Indeed, through level for one-half mine Jeanette’s we now face was very contingent which interest: Bakes I when Justice anticipated Skill 7,128 days fireman married as the court: wrote for ½ x fireman 8,176 employed as days the value of the will affect Factors which contingent couple’s or fund include the interest employee-spouse will possibility that the ½ .8137 40.7% x satisfying the change jobs before die or vesting; fact requirements time Thus, fixed at Jeanette's share was might defer employee that the divorced (or each month of the total benefits 40.7% op- beyond the date that month) per approximately $488.40 monthly pen- early retirement with tional (or approximately Douglas’ share at 59.3% available; sion is ... month). per Approximately $711.60 80% were held to be addition, I states “[t]he sepa- property, being Mr. Shill’s 20% dividing is to other method the for- approve I property. rate would and di- until retirement jurisdiction reserve applied by the district court. mula monetary when the actual vide benefit premise of The fundamental received.” that: monetary added). The “actual (emphasis firefighter’s A approximately in this case benefit” income from attributable to fund fund 60%), per (or $1,200 $800 month per employee contribu- other than sources (40%). month a form of gratuity is not a tions correctly followed The district accrued reason compensation deferred ruled that four-fifths and is also a Skill I when service of the individual’s 126 subject divi- to the final level twenty- of benefits as is the ¿hill’s

sion, fourth.2 separate and one-fifth Mr. was property. Accordingly, I would affirm the trial methodology court’s entry remand for The increases in the fund in the judgment of in accordance therewith. years instant case over of the final four remand, computation on the employment completely are not due to the should take into the consideration extent separate employee-spouse, efforts of the that the to increase benefits due a con- rather, the the to increase from tinuation of after work divorce was the forty sixty percent to state higher upon of result income based more wage years was built first twenty the greater responsibility, work or because work, during of marriage. which were The of the enhancement forty increase from sixty percent to was separate remand, property. would be On not earned the years four of work last the trial court should be to ascer- directed alone. tain whether there was an increase in work Sixteen more work did not in and or responsibility after divorce which influ- of produce itself fifty percent bene- more the enced ultimate level of benefits and increase, instead, fits. The is a deferred portion, any, sepa- calculate that the compensation for aggregate twenty- of rate of the husband. years, four years not four alone. trial On court should also straight- The issue the instant ease is $4,044.62 sum consider whether the of is an forward: Was enhancement in to entered in offset to be postponed benefits due to of favor Jeanette. the record is product aggregate total of service clear, totally suggests that there was (i.e., twenty-four years) during both to disbursed on June marriage, after or it solely was the result $27,898.55. 1979, the sum of Included in years four employ- last of Mr. Shill’s $4,044.62 represented sum which ment? proposition stands for the one-half of the cash surrender value benefits, that the enhancement in whether Firemen’s pension. Retirement Fund If 40%, from cash surrender value to fromor correct, and since the award of the per year per year, product is the 2% 5% cash surrender value fund aggregate employment. first I, may has been reversed in Shill year job equally important overcompensated sum ways mathematically nity property, 2. There two are com- second and result, pute (used court) simpler first of demonstrates formula reach- logic apportionment between commu- the same mathematical result. METHOD I

Community Separate of H years: The $800 from 1st 20 $800 -0- years $400 last 4 x x (a) $2,000 = 4 2% or 8% $160 X -0- 40(4/24) or 12% x (b) $2,000 = 200(2%i) $240 3% $1,000 $200 500(wife) Community 500(husb) Property to each ‘A Separate Property to Husband -0- TOTAL to each $500Wife $700Husb

METHOD II Wife Husband 20/24 5A x = $1,200 $1,000 = Prop. Com. or '/óx = $1,200 = Sep. Prop. V24 -0- $500 $700 $4,044.62 adjustment is made unless

the final order. The trial court should and make

directed facts ascertain adjustments, any. appropriate INTEREST

V. cross-appeal from

As to Jeanette’s previously paid bene-

denial

fits, I would reverse the remand.

court on this issue further of the time

The record establishes that as order, Douglas entry of the trial court’s $24,146.25 bene-

had received

fits, part paid he no which over to Jean-

ette. delay in though there was

Even some following

noticing this case to trial right to re-

Jeanette has not waived her previously paid her share of benefits.

ceive money had

Because husband use wife, legitimately owing pay not even over to her

and did due under his

amount which would be even case,

theory of the wife should be previ-

awarded interest on her share of the paid

ously benefits. analysis totally foregoing consist- is, ought

ent with what law what

be, and with the law of case as settled may wonder I. The bench bar

why majority fails to or distin- address

guish or the law of as set overrule this case question. —I

forth Shill I have same Idaho, Plaintiff-Respondent,

STATE STILLWELL,

Dennis G.

Defendant-Appellant.

No. 17195. Appeals of

Court of Idaho.

Nov.

Case Details

Case Name: Shill v. Shill

Court Name: Idaho Supreme Court

Date Published: Nov 30, 1988

Citation: 765 P.2d 140

Docket Number: 16780

Court Abbreviation: Idaho