In re the Marriage of Kollmer

870 P.2d 978, 73 Wash. App. 373, 1994 Wash. App. LEXIS 115
CourtCourt of Appeals of Washington
DecidedMarch 17, 1994
DocketNo. 14827-7-II
StatusPublished
Cited by12 cases

This text of 870 P.2d 978 (In re the Marriage of Kollmer) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington 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 Kollmer, 870 P.2d 978, 73 Wash. App. 373, 1994 Wash. App. LEXIS 115 (Wash. Ct. App. 1994).

Opinion

Alexander, J.

— Andrew Kollmer appeals a decree of dissolution which provided that he pay one-third of a disability payment to his ex-spouse. We affirm in part and reverse in part.

Andrew Kollmer and Carolyn Kollmer (now Carolyn Ker-stetter) were married in 1965. Three years later, Kollmer obtained employment as a police officer with the City of Lacey. Kollmer maintained that employment until 1978, when he suffered an injury that prevented him from performing his duties as a police officer. At the time of the injury, Kollmer, who was then 35 years old, was vested in the State of Washington’s Law Enforcement Officers’ and Fire Fighters’ Retirement System, Plan I (LEOFF I)1 by virtue of the fact that he had served over 5 years as a police officer. Although Kollmer was not eligible to retire under LEOFF I until he reached age 50,2 he was eligible to receive disability pay under LEOFF I due to his injury. RCW 41.26.120. Consequently, Kollmer began receiving disability payments of $1,640 per month. Pursuant to the provisions of [375]*375RCW 41.26.130(3), Kollmer was entitled to receive these disability payments for as long as his disability continued.3

Kollmer and Kerstetter’s marriage ended when the Thur-ston County Superior Court entered a decree of dissolution on February 22,1991. In that decree, the trial court ordered Kollmer, who was then 48, to pay Kerstetter one-third of his monthly disability payment, concluding that that portion of his disability pay substituted for retirement pay. The trial court stated:

There is no incentive now for [Kollmer] to ever seek to show he is not disabled because if he were not, his total retired pay entitlement would be less than $750 per month whereas his disability pay is approximately $1640 per month.

Kollmer appeals, claiming that the trial court erred in characterizing his disability pay as a marital asset subject to division.

Characterizing the nature of income is essential to determining whether it is divisible upon dissolution. Disability payments which are solely meant to compensate an individual for lost postdissolution wages are not considered an asset divisible upon dissolution. In re Marriage of Nuss, 65 Wn. App. 334, 343, 828 P.2d 627 (1992); In re Marriage of Anglin, 52 Wn. App. 317, 324, 759 P.2d 1224 (1988). On the other hand, retirement income is properly characterized as deferred compensation for past services and, thus, any portion of retirement income that was earned during the existence of the community is divisible upon dissolution. Nuss, 65 Wn. App. at 343.

In support of his argument that the trial court erred in awarding Kerstetter any portion of his disability pay, Kollmer relies heavily upon Anglin. In that case, Division One of this court determined that a LEOFF I disability payment a husband received due to an injury that prevented him from [376]*376performing his duties as a City of Everett police officer was not subject to division in a dissolution proceeding. Although the Anglin court noted that the husband, who was not yet 50 years of age, was vested under the LEOFF I system, it observed that he could be denied disability pay until he reached age 50 if his disability ceased. The court concluded, therefore, that the disability entitlement was not akin to retirement pay and, thus, was not divisible as a marital asset. Anglin, 52 Wn. App. at 324.

In so ruling, the Anglin court took note of this court’s decision in In re Marriage of Huteson, 27 Wn. App. 539, 619 P.2d 991 (1980), where we concluded that a husband’s LEOFF I disability payment was not a marital asset divisible upon dissolution. In that case, the husband, Gerald Huteson, suffered a heart attack while he was employed as a firefighter for the City of Vancouver. At the time he sustained the injury, Huteson was separated from his wife and, unlike the husband in Anglin, Huteson had not been in service for the 5 years necessary to qualify to receive retirement pay after he was "over the age of 50”. Huteson, at 540. Huteson did, however, qualify for LEOFF I disability benefits. In reaching our determination, we said that there were no retirement elements in his disability award "except for the possibility that [Huteson] may, in the future, return to his fire fighter’s duty and vest a retirement benefit”. Hute-son, at 543. In addition, we said:

[D]isability payments acquired before the disabled spouse has earned a vested right to retirement benefits are designed to compensate solely for loss of future earnings. . . .
We acknowledge that if the disability pension ... is taken in lieu of a vested retirement benefit, circumstances may call for a different characterization.

Huteson, at 543.

On the other hand, in Nuss, Division One of this court characterized payments from a Boeing financial security plan as a divisible asset.4 In doing so, it reasoned that:

[377]*377Where a spouse has elected to receive disability in lieu of retirement benefits, for instance, only the amount of disability received over and above what would have been received as retirement benefits is considered that spouse’s separate property.

Nuss, 65 Wn. App. at 343. Similarly, in In re Marriage of Leland, 69 Wn. App. 57, 847 P.2d 518, review denied, 121 Wn.2d 1033 (1993), Division One determined that a disability plan that had been financed with community funds resembled a pension. It, therefore, characterized the entitlement as a community asset subject to division once the recipient reached the retirement age of 65. The Leland court observed that our Supreme Court, in In re Marriage of Kraft, 119 Wn.2d 438, 451, 832 P.2d 871 (1992), appeared to have modified what Division One characterized as a "sweeping statement” in In re Marriage of Kraft, 61 Wn. App. 45, 49, 808 P.2d 1176 (1991), that "’compensation for loss of future wages is not an asset’ which can be divided, . . . into a less sweeping observation that disability pay 'may be’ separate property when received outside of marriage.”5 (Citations omitted.) Leland, 69 Wn. App. at 67. Additionally, the Leland court, interpreting the Supreme Court’s ruling in Kraft as indicating that Anglin does not stand for the proposition that compensation for lost future wages may never be characterized as community property, said:

Indeed, the Anglin

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870 P.2d 978, 73 Wash. App. 373, 1994 Wash. App. LEXIS 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-kollmer-washctapp-1994.