Waggoner v. Waggoner
846 S.W.2d 704
Ky.
1992
Check Treatment

*1 neces sought though Special was the Fund would be a Although primary the relief AU, the sary party remand the case back the if the case were remanded Special Its Fund would still be affected. the apportionment, AU the liability under at least indirect con was record, party a Special Fund was not a appeal since there was sideration opinion the was least at the time AU’s question AU's regarding the consider rendered, that the first appellant insists the testimony the ation Dr. Primm’s Bank test Salem prong of the was supported claimed its belief However, point, very it is the met. Thus, Special that the Fund was liable. Special Fund to be renamed failure the Special presence the neces Fund’s was party-defendant, that formed the basis as a Republic Braden v. Van sary. See appellant’s appeal to the Board. 241, guard Ins. 657 S.W.2d Life only by resolved consid That issue could be present ering adequacy of the the evidence pointed out Appeals The Court of also Special liability. on Fund ed “[I]t party the a at one Special Fund was on being asked rule where AU, point case the even the before Special liability Special the Fund’s though party when the AU it was a party appeal.” must made a to the Fund affirming the opinion. issued her Distillers, Inc., Ky. Schenley Milligan dismissal, Board’s concluded that the court 751, App., 584 S.W.2d remanded, it the case is reversed and “[i]f of Appeals The decision necessary party before would ap- affirming Board’s dismissal Special the AU and thus the Fund affirmed. peal is party have been named as a Bank, Land Ky. See Salem board. STEPHENS, C.J., LAMBERT, (1939).” [449], LEIBSON, REYNOLDS, SPAIN argues Board WINTERSHEIMER, JJ., concur. upon focus failed to determining process indis- appeal when COMBS, J., dissents. fo- pensableness party, of a and instead trial cused level. question the trial ... is not whether considering par-

court correct in was [the trial

ty] indispensable party an at the question

level. The it is indis- whether appeal.

pensable deciding [the] Republic-Vanguard Braden Insur Life WAGGONER, Appellant, Co., Ky., 657 ance Roberta L. Appellant Special maintains indispensable party Fund was not WAGGONER, Appellee. William E. appeal to the Board because the issue No. 91-SC-440-DG. Special liability was not before Fund presented issues were: Board. The Supreme Court of grounds adequate were shown whether Dec. Special party, make the Fund a Special motion to make the 18, 1993. Rehearing Denied March timely. party Fund a Bank, In Land v. Salem Ky. (1939), relied the Court general that whoever is

upon the rule below, court

party to the record party further necessary

would be judg

proceedings after the reversal of the

ment, Al party appeal. must be *2 Coffman, Walker, B. Ron L.

Jennifer Lexington, appellant. Miller, Grayson, appellee.

Robert W. STEPHENS, Chief Justice. deter- appeal This our asks Court: constitutionality of KRS 161.- mine the 700(2), provision exempts contribu- System the Teachers’ Retirement tions to (hereinafter “TRS”) from division as mari- tal provi- whether the

to determine 1, 2, may applied court find it violative of Sections sion to TRS contributions prior to the statute’s effective date. and 59 of the trial court found that TRS contributions 161.700(2),provides that: privileged were were nonmarital allowance, disability allow- information, were not therefore contributions, *3 ance, any or accumulated discovery. to sys- other under benefit the retirement as tem shall not be classified Waggoner marriage of the Dissolution property pursuant to KRS 5, Following on June 1989. was entered allowance, disability allow- alter, appellee a motion to entry, filed contributions, ance, accumulated or vacate, amend decree. or the dissolution sys- other under benefit the retirement Appellee The was overruled. then motion tem shall not be considered an eco- sought Appeals. of review before the Court during the nomic circumstance division Appeals of held Court of marital in an action disso- 700(2) unconstitutional and unenforce- marriage pursuant lution to KRS 403.- of protection equal it able because denied 190(l)(d). The Court also found the statute law. Appellant, Waggoner, a Roberta L. prohibited special law under Section a County teacher in the Carter Public Schools Kentucky 59 of the Constitution. thirty-six mandatorily years, contribut- judgment reversed ed to the her retirement. TRS toward She the circuit court and directed trial court marriage filed for on October discovery appellant’s contribu- to allow 25, preparing In to divide marital appropriately and to divide the tions to TRS property, appellee, Waggoner, William E. benefits. thereupon deposition a filed notice of Appeals opinion We reverse employee on subpoena served a an of the court and affirm the decision of trial Appellant, response, TRS. filed a mo- challenged provision which found deposition. prohibit taking of the tion prohibited special is neither a law Appellant ex- asserted that KRS Constitution, Kentucky 59 of the Section from cluded contributions TRS consider- rights appellee’s nor is it violative of ation as “economic circumstance” in the equal find no invalid retro- protection. We of marital challenged provi- spective application of the Appellant to KRS 403.190. claimed facts sion contributions made before the surrounding her TRS contributions were ute’s effective date. 26.01, under CR since informa- inadmissible through any sought deposition or tion produce 59 OF THE KENTUCKY discovery process could not SECTION

other then filed a Appellee admissible evidence. CONSTITUTION compel discovery by court motion to order. Kentucky of the Constitution appellee’s The trial court overruled motion. pass- prohibits the General concerning any of Appellee, January special filed mo- Acts local or asserting (28) subjects tion was un- are twenty-eight alternative, constitutional, if or Section 59 fur- specifically enumerated. valid, statute was declared all other cases ther that “[i]n right portion he had a of the vested applica- general can be where a law TRS contributions made before ble, special law shall be enacted.” the effective date of KRS persons or general A law relates General, Attorney properly noti- while class, re things special while challenge fied of constitutional things particular lates to statute, failed to intervene. Commonwealth, 291 class. Johnson v. appellee’s mo- The trial court overruled (1942). Ky. 165 S.W.2d 820 tion and that KRS 161.700 was not The fact that the General Assem Amendment of violative of the Fourteenth Constitution, subject bly nor with a does did the deals the United States is to per responsibility se Ken of this Court make it implica tucky Milk inferences and Mktg. & Anti-Mon. Com’n draw all reasonable Borden, thereby Ky., 456 S.W.2d 831 as a whole and tions from act Mills, Classifications based reasonable validity. its Graham v. sustain logically natural distinctions relate Citing Tabler purpose Act do Sec not violate (1986), Wallace, Ky., appel Kentucky tion 59 of the Constitution. title, lee asserts that because statute’s Kling Geary, Ky., specify preamble, matter fail to forms, justification for the classification it Legislation, pass in order consti invalid 59 of it is under Section tutional muster under Section Tabler, stated we the requirements meet set forth Schoo that to sustain a classification under Sec *4 Rose, 940 Schoo tion 59 that equal requires apply justifi- there must be a substantial and ly to all in distinctive a class have appar- reason the support able inducing and natural reasons [for classification] history, ing legislative the ent from from the classification. Schoo at 941. title, preamble mat- statute’s Appellant asserts 161.- that KRS ter, or from some other authoritative is not a law because it meets source. prongs both the test found Schoo. statute, Tabler, rea appellant The class created the Unlike where substantial argues, presented rationally justify to cre includes all the teachers within the son was special class, history spouses. ating Commonwealth and their the the Since behind 161.700(2)applies KRS to every member enactment of the Teachers’ Retirement Act appellant this class equally, the explains purpose underlying reasons the the prong first the 161.700(2) Schoo test is satisfied. classification that KRS creates. Security Act When the Social was amended The prong second also the test is voluntary enter into to allow states to satisfied, claims, the agreement provide Security cover Social General had a rea- distinct and age employees, Kentucky their the Gen enacting sonable basis for KRS Assembly passed KRS 61.410 that ex eral Reasons appellant postures enact- for the coverage cepted Security of Social for state 1) ment of the are: statute that the TRS employees already sys a retirement Security was created to mirror the Social tem. were therefore excluded Teachers system plan since teachers are the participating Security Social employees state not covered by Social Secu- they program because were covered the 2) rity; plan the TRS seq. TRS. 61.410 et Thus there See KRS incentive for teachers to field remain in the As is a reasonable General basis and to attract new it instructors because sembly distinguish between classes 3) adequate compensation; assures challenged provision. Kentucky Milk society TRS removes from Mktg. & Anti-Mon. Com’n Borden responsibility providing total financial Furthermore, asserts, the TRS as assistance to retired teachers. as an retain serves incentive attract and appellant’s teachers, as systems other retirement have definition of the class that KRS Hisquierdo found to His been do. See being covers to narrow. quierdo, 439 59 U.S. S.Ct. agreed with assertion (1979); Haunost, Hyde L.Ed.2d 1 per- included all married S.W.2d 374 sons with retirement benefits who are seek- 161.700(2) applied equal- Because Appellee KRS divorce. that be- asserts all, prong test is challenged ly first cause statute took a natural Schoo persons, prong test is arbitrarily class of divided satisfied. second them nat- govern and enacted different rules each also satisfied because a distinctive and faction, 161.700(2) prohibited special supports reason KRS ural exists which clas- sification. therefore find that even We it though up express does not the intent that KRS sets teachers special class, provision does not vio- applied to the TRS contributions should be late Constitu- Appellee made its effective date. before tion. argues applying KRS July 15, contributions EQUAL PROTECTION violates KRS Legislation upheld will 446.080(3)provides that “[n]o equal protection principles of federal ute construed to be retroactive shall be if the law is ration state constitutions expressly so unless declared.” objective. ally legitimate related to a “A retrospective is one which creates Maryland, 366 U.S. McGowan State of respect imposes duty a new to trans- 425-426, 1104-1105, 81 S.Ct. already past.” actions or considerations (1961); Kentucky L.Ed.2d 393 Ass’n of Distillery, Ky.App., Peach v. 21 Brands Chiropractors, County Inc. v. Jefferson (1979). The fact that Ky., 549 S.W.2d Society, Medical enacted at the time constitutionality of a statute began appellant first contribute to the upheld if its classification is not will arbitrary, solely or if it founded sub dispositive TRS not of whether suggesting stantial the necessi invalidly distinction applied statute was *5 ty, propriety, or of such by court. the trial retrospectively, previously We that the basis for noted Assembly, in The General its discre challenged provi- classification tion, authority to determine what has is founded on the fact that sion creates enacting property. marital constitutes employees public teachers are the not 161.700(2), ex Assembly KRS General Security system. by covered the Social and determined that ercised this discretion enacted Assembly, General therefore ... shall not be “accumulated contributions forming TRS to ensure that circumstance considered as economic teachers, retirement, upon provid- would be property.” marital during the division of By adequately. enacting ed for KRS KRS Assembly pro- the General further 161.700(2),the To effect of even the KRS group insulating tected this their retire- Assembly KRS General enacted during ment from attachment allowances This that: section marital chal- property. the division of (1) spouse If benefits of one retirement lenged section, 161.700(2), KRS is rational- excepted from as mari- are classification legitimate objective ly to the related or as an eco- property, tal not considered upon protecting teachers retirement. KRS during the division nomic circumstance 161.700(2) rationality does not fail the test then retirement equal protection doctrines. marital spouse the other shall also be benefits of find Because we considered, as case excepted, or not legitimate rationally ute is related to a ob- ... may be infringement appellee’s rights jective, no present. equal protection 161.700(2) KRS and The combination of 403.190(4) protects KRS CONTRIBUTIONS MADE BEFORE plan. covered the TRS teacher DATE OF KRS EFFECTIVE recognize ac We 161.700(2) quired marriage should deemed after application Appellee asserts in of a statute to absence provision found in KRS Davis, contrary. e.g. See Davis re exempts contributions to a Jones, (1989) Jones mar system tirement consideration as S.W.2d 921 action, property in a is ret ital enacting in KRS Assembly, The General rospective. funds de Because some were ac- 161.700(2),expressed the intention that posited the statute was effective its ex- retirement contributions are cumulated application here invalid. purely prop- “A arti- eluded as marital classification based from consideration ficial, imposes arbitrary no or fictitious conditions erty. provision Because the permitted.” respect not duty new to transactions con- unreasonable and will past, we siderations find invalid Yount, Ky., Or Gillis retrospective application of KRS (1988): case bar. permit a nature which “Differences of governmental func- for one CONCLUSION permit clas- tion are not transferable reverse the We function.” sification a different [Em- that: is not an hold phasis added.] legislation; (2) invalid it does not Wallace, Ky., As stated Tabler v. Equal appellee’s rights violate under the (1986),the issue consti- Clause, application its Protection tutionality Kentucky Constitution 15, 1980 contributions made before turn invalidly retrospective. not affirm the We “on had a General holding determination the circuit court creating a justification spe- rational that, 161.700(2), appel to KRS conferring special privi- cial class lant’s contributions to the TRS are sub leges immunity on that class.... ject discovery. present- No reason has been substantial ed to us.” COMBS, LAMBERT, REYNOLDS, WINTERSHEIMER, JJ., SPAIN and explanation security” for this “social concur. security statute will not wash. Social ben- exempt efits from consideration are LEIBSON, J, separate dissents *6 dissolution actions. Roberts v. marital dissenting opinion. Roberts, Ky.App., LEIBSON, Justice, dissenting. from Many teachers earn income other Respectfully, I dissent. teaching are entitled sources as well as Many security to social benefits. other Majority recognize Opinion fails to persons qualify well do not as teachers that while an appropriate sep- teachers are in security for in whole or social benefits purposes, arate class for education related part, get special treatment mari- but it is purely arbitrary when KRS special of tal dissolution as a class because treats purpose them such for the of it. “division of an action marriage.” of facts will show

The need for from the an attractive retirement receive a distribution system security just she plan to “serve as an incentive to attract social regardless years, is not a his of KRS retain teachers” reason. wife for essentially pur- is Teaching is not different from The reason this that occupation Security other the terms of the contributes to suant to Social Act, society. spouse of is over welfare The issue not a divorced receives earnings of occupations whether such should have an benefits based on the the for- system, mer if is divorced and is not spouse attractive retirement but whether she security occupations get spe- in such her social benefits should entitled to own cial treatment when it is to make an her work record. See Social time based on own Medicare; equitable Security division of marital with U.S.C.S. Section 161.700(2), their 402. In KRS the General As- spouses. The reasons advanced justify special protecting has Majority sembly treatment enacted law up security equivalent cannot to the test of of social bene- stand constitution- teacher’s fits, gets ality still share of the stated Board while wife of Educ. Jefferson of Louisville, security v.Co. Board Educ. 472 non-teacher husband’s social bene- of of (1971): fits. “the Majority Opinion states impact exemp- applying ASSOCIATION, BAR KENTUCKY tion in KRS balanced COMMISSION, Movant, CLE 403.190(4).” provisions But found in KRS balancing teach- no such occurs unless the spouse er’s has benefits retirement BEYER, Respondent. William Donald value,

equal exempt. equally No. 92-SC-1042-KB. de- does cure the constitutional Supreme Court of fect. Fair is fair. are not entitled Teachers Feb. 1993. can privileges in divorce court. One ORDER spe- that KRS conclude prohibited by 3.669, finds

cial Section to SCR this Court Pursuant Beyer, respondent, has that William Donald comply shown for his failure cause Furthermore, Majority Opinion errs continuing legal edu- the minimum with 161.700(2)retroactively to in applying KRS 3.661. requirements cation SCR 1980, its contributions made before sus- Respondent hereby notified his date. A statute should not effective twenty pension practice (1) given impairs effect if it vested such order, pur- this days from the date of rights or does not statute 3.668(2), unless before suant SCR effect. state it should have retroactive requirements of complies he with the date 446.080(3); Gregory, See KRS Dean application for 3.667(2), including his Asher, SCR (1958); Taylor 318 S.W.2d 549 filing payment of the time and extension of fee. has a vested interest timely comply Upon failure to with Teacher’s benefits accumulated under the order, respondent, William terms System the effective suspended prac- from the Beyer, Donald question. date Under statute “ to SCR tice of law property’ ‘marital means property acquired by all either sub- February Entered: *7 stat- sequent marriage” with certain Stephens F. /s/ Robert exceptions applicable ed are not Chief Justice spouse’s deciding here. whether the pre-1980 Retire- interest the Teachers

ment the issue Fund marital interest the teacher had a vested retirement benefits when the these passed,

ute not whether the teacher’s interest. had such an ASSOCIATION, BAR KENTUCKY apply- Majority Opinion has erred COMMISSION, Movant, CLE prop- retroactively to a erty which classifies as interest CRASS, Kay Respondent. date acquired effective Susan of the statute. No. 92-SC-1043-KB.

Supreme Feb.

ORDER 3.669, this finds Pursuant to SCR Crass, respondent, has not Kay that Susan