In re the Marriage of Jones

791 P.2d 1173, 13 Brief Times Rptr. 1374, 1989 Colo. App. LEXIS 329, 1989 WL 138992
CourtColorado Court of Appeals
DecidedNovember 16, 1989
DocketNo. 88CA0561
StatusPublished
Cited by3 cases

This text of 791 P.2d 1173 (In re the Marriage of Jones) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Jones, 791 P.2d 1173, 13 Brief Times Rptr. 1374, 1989 Colo. App. LEXIS 329, 1989 WL 138992 (Colo. Ct. App. 1989).

Opinion

Opinion by

Judge HUME.

David Jones (husband) appeals the property distribution portion of a judgment dissolving his marriage to Patricia L. Jones (wife). We affirm in part, reverse in part, and remand with directions.

During the parties’ eleven-year marriage, the wife became the beneficiary of a testamentary trust created under the will of her deceased mother. The will named the wife and her father as primary beneficiaries of the trust and designated wife’s father and a bank as co-trustees. The trustees are granted absolute discretion to distribute as [1174]*1174much of the trust income and principal as necessary for the support and maintenance of the primary beneficiaries “without the necessity of equalization or proration among them” and with no “obligation to the ultimate beneficiaries to accumulate income or to preserve the principal.” Upon termination of the trust, the remaining corpus is to be distributed to the wife’s living descendants, or if no descendants are then living, to the deceased mother’s heirs at law.

During the parties’ marriage, the wife received trust income of approximately $38,000. Wife testified that most of this income was used to renovate and make mortgage payments on the residence in which the parties lived.

The residence was purchased by the wife’s father in June 1981 for $138,500. Thereafter, it was extensively remodeled, and both husband and wife performed a substantial amount of the physical work involved in the remodeling.

In March 1983, after the renovation was largely completed, wife’s father deeded the property to the wife as her sole and separate property. The evidence establishes that the property was then worth between $160,000 to $177,000. From March 1983 to July 30, 1987, when the decree of dissolution was entered, the residence appreciated in value by an additional $15,000.

The parties stipulated that the trust corpus of which wife is a beneficiary appreciated in value by approximately $45,000 during the marriage, in addition to the $38,000 in income distributions made to the wife.

The trial court valued the marital estate at $55,000, excluding both the increase in principal in the testamentary trust and the appreciation in value of the wife’s residence prior to March 1983, when wife’s father conveyed title to her. The trial court then apportioned one-half the marital assets to each party.

I.

Husband first contends that the trial court erred in not treating the appreciation in the trust corpus as marital property subject to division. We find no error.

This issue was decided adversely to the husband’s position in In re Marriage of Rosenblum, 43 Colo.App. 144, 602 P.2d 892 (1979). In Rosenblum, we observed that the beneficiary of a discretionary support trust has no legal or equitable right to control, consume, alienate, or otherwise dispose of the trust corpus. See 2 A. Scott, Trusts § 128.3 (Fratcher 4th ed. 1987). We therefore held that a spouse’s beneficial interest in a discretionary trust has none of the attributes of “property” as that term is used in § 14-10-113, C.R.S. (1987 Repl.Vol. 6B).

Here, the discretionary trust was created for the benefit of two or more individuals without a division of interests. Under these circumstances, the beneficial interest is a collectively held expectancy, and neither a voluntary alienee nor a creditor of any individual beneficiary can compel the trustee to pay over to him any principal or income. See In re Estate of Brooks, 42 Colo.App. 333, 596 P.2d 1220 (1979). Thus, our holding in Rosenblum is directly applicable to the facts here.

The husband argues, however, that Rosenblum is no longer controlling precedent in view of more recent decisions holding that a spouse's vested but contingent interest in an employee retirement plan constitutes marital property that is subject to equitable distribution. See In re Marriage of Gallo, 752 P.2d 47 (Colo.1988); In re Marriage of Grubb, 745 P.2d 661 (Colo.1987). Husband argues that the wife’s vested interest in the trust can be equated to a spouse’s vested interest in a pension plan and that, therefore, the holdings in Gallo and Grubb require the appreciation in the trust corpus to be treated as marital property. We do not agree.

First, we reject the contention that pension benefits derived from employment during the marriage can be equated to a spouse’s undivided beneficial interest in a discretionary support trust. A fundamental consideration noted in Gallo was that retirement benefits constitute an “important part of an employee’s compensation [1175]*1175package which he or she brings to the marriage unit.” The same cannot be said of a discretionary support trust established as a gift or bequest for the benefit of one spouse and other named beneficiaries.

Further, the “controlling consideration” in Gallo and Grubb was that an employee’s interest in a vested pension plan constitutes a current asset which the spouse has a contractual right to receive. In contrast, the wife here, as life beneficiary of a discretionary support trust, has no present or future right to gain access to, or invade, the trust corpus.

Hence, we conclude that the Rosenblum ruling remains dispositive of this issue.

II.

Husband next asserts error in the trial court’s valuation and distribution of the marital equity in the parties’ residence. Husband does not dispute that wife received the residence as a gift from her father. However, he argues that wife’s trust income was used to make improvements on the residence and to reduce the mortgage debt on the property. He asserts that the payments actually made to wife from the trust constituted marital income and that investments of such income are thus property subject to division. We agree with this contention.

The question of whether income derived from non-marital property is marital property has not been addressed in Colorado. However, under the Uniform Marriage and Divorce Act (UMDA), the model act on which § 14-10-113 is based, income from both marital and non-marital property received during the marriage is deemed to be marital property. See Uniform Marriage and Divorce Act, 9A Uniform Laws Annot. § 307 (1987) (Note 92). Accordingly, courts in jurisdictions that have adopted property distribution statutes based on the UMDA, or similar to that of the UMDA, have held that income derived from non-marital property during the marriage is marital property. See In re Marriage of Williams, 639 S.W.2d 236 (Mo.Ct.App.1982); Brodak v. Brodak, 294 Md. 10, 447 A.2d 847 (1982); In re Marriage of Reed, 100 Ill.App.3d 873, 56 Ill.Dec. 202, 427 N.E.2d 282 (1981); Sousley v. Sousley,

Related

In Re the Marriage of Burford
26 P.3d 550 (Colorado Court of Appeals, 2001)
In Re Marriage of Jones
812 P.2d 1152 (Supreme Court of Colorado, 1991)

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791 P.2d 1173, 13 Brief Times Rptr. 1374, 1989 Colo. App. LEXIS 329, 1989 WL 138992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-jones-coloctapp-1989.