Campbell v. Campbell

668 S.W.2d 580, 1984 Mo. App. LEXIS 3504
CourtMissouri Court of Appeals
DecidedFebruary 7, 1984
DocketNo. WD 34541
StatusPublished
Cited by6 cases

This text of 668 S.W.2d 580 (Campbell v. Campbell) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Campbell v. Campbell, 668 S.W.2d 580, 1984 Mo. App. LEXIS 3504 (Mo. Ct. App. 1984).

Opinion

PRITCHARD, Presiding Judge.

In this dissolution case, trial began on December 21, 1982, the parties having separated on May 9, 1982. Their marriage took place in May, 1960, at Nicosia, Cyprus, where the husband was a sergeant in the U.S. Marine Corps and the wife was the acting secretary to the Charge d’ Affairs of the U.S. Consulate.

In 1962, the couple returned to the United States, and lived in Independence, Missouri. The husband was first a dispatch clerk for a transportation company, and then obtained employment on a production line at the General Motors Fairfax, Kansas, plant, where he worked up to a supervisor position. He remained there until 1966, at which time their two daughters were ages one and seven. During a part of this time, the wife worked at Berry Tour and Travel in Kansas City, and for others as an executive secretary.

The husband then took employment with the CIA, and the family moved to Washington, D.C., for his training. He then left for Southeast Asia, and the wife and children followed him about six months later, but lived in a separate country from his duty station which was several hundred miles away. The husband was permitted to visit the family up to five days each month, and he extended his stay and service to 6½ or 7 years. His duties were rigorous. He was required to live in the jungle and in caves, and was under enemy siege at one time for 4V2 months. During this time, because of the nature of his duties, the wife reared the children during their formative years, and was responsible for handling of the family finances.

In the summer of 1973, the family returned to the United States, and lived on the east coast until 1978, when they relocated to Clinton, Missouri, where they acquired an older home and proceeded to renovate it. The husband left the home in May, 1982, and at the time of the dissolution proceedings, he was still employed by the CIA, but was on sick leave, and he planned to retire in March, 1983, on reaching the age of 50 years.

Appellant’s first point is that the trial court erred in apportioning his potential pension benefits as marital property. He first says that no evidence was presented as to whether or not the retirement plan was vested, but he himself testified that it was vested, and there was evidence that he [582]*582had, at the time of trial, contributed a total of $22,558.55 to the plan. If he could start receiving retirement pay on March 31, 1983,. it would surely be then matured. He further contends that such evidence would have established that his potential pension benefits were separate property.

Exhibit 13, received by the husband, shows his benefits apparently as of October, 1982. In addition to his contributions, supra, it recites, “Mr. Campbell has indicated his intention to retire on his fiftieth birthday, in March 1983. Under the current formula, calculated on the basis of Mr. Campbell’s service including sick leave as of 30 October 1982, should Mr. Campbell retire on 31 March 1983, he will receive a retirement annuity of $1,584 per month. This calculation is without a survivor annuity. Should Mr. Campbell elect to provide a standard survivor annuity, his retirement annuity (calculated on the basis stated above) would amount to $1,448 per month with a survivor annuity of $871 per month.” The recital goes on to say that if Mr. Campbell reaches age 62, his annuity will be reduced: without survivor benefit, $1,314.00; with survivor benefit, $1,205 (the survivor benefit being $722, but these reductions could be avoided by his paying $681 during the year of his retirement).

That part of the decree dealing with retirement benefits awarded each of the parties 50% thereof, or $724 each (from the total, $1,448 per month at the husband’s fiftieth birthday), and it further ordered him to elect an irrevocable survivor annuity in favor of the wife, and to direct his employer, in writing, to appoint one-half of his retirement benefits to be paid to her on his retirement, and to pay $681 or such sum as is ultimately necessary to avoid reduction of the retirement benefits at age 62. He was allowed to pay that full amount and deduct the wife’s one-half from the maintenance payment.

The husband was ordered to pay the wife $750 per month, beginning January 1, 1983, as maintenance to the time of his retirement. Upon retirement, the maintenance was to be reduced to $125 per month (at which time, under the decree, the wife would have started receiving $724 from the retirement benefits).

The evidence shows that the husband’s contributions to the retirement plan were made while the parties were married. Under Kuchta v. Kuchta, 636 S.W.2d 663, 666[2, 3] (Mo. banc 1982), his retirement benefits were properly considered to be marital property. He testified that they were vested, and his Exhibit 13 indicates that to be true—it shows what he would definitely receive on his retirement at age 50, with no contingencies other than a reduction of benefits upon the appointment of a surviving annuitant, and possibly a reduction of benefits at age 62 if he did not pay the $681 to prevent a reduction for social security benefits then receivable. The trial court did not have before it any uncertainties which could not be resolved with respect to the retirement benefits, and it did not err in dividing them as marital property. See these further cases where pension rights were divided as marital property: Hurtgen v. Hurtgen, 635 S.W.2d 69 (Mo.App.1982), where the present value of the husband’s pension plan was divided equally, with a provision that he pay the wife’s share in installments until paid in full; Walker v. Walker, 631 S.W.2d 68 (Mo.App.1982), where the court erroneously listed the husband’s vested retirement account as his separate property, but even adding that amount to the marital property did not make its distribution unjust; and note also Busch v. Busch, 618 S.W.2d 244 (Mo.App.1981), holding that the trial court erred in not considering whether a wife’s interest in a profit sharing plan and a retirement plan had vested, necessitating a dismissal and remand (appeal after remand, 639 S.W.2d 864 (Mo.App.1982)); Coates v. Coates, 650 S.W.2d 307 (Mo.App.1983), holding that the court did not err in treating the husband’s non-disability military pension plan as marital property and awarding the wife a portion of the pension in view of subsequent enactment of the Uniformed Services Former Spouses protection Act, 10 U.S.C.A. § 1408, the pur[583]*583pose of which enactment was to reverse the effect of McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). The Kuchta case, supra, 636 S.W.2d at 666, states a solution to the division of retirement benefits is to pay the other spouse a portion thereof when the other retires and begins receiving them, which is what was done here, and the trial court did not err in so decreeing.

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Bluebook (online)
668 S.W.2d 580, 1984 Mo. App. LEXIS 3504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-campbell-moctapp-1984.