Williams v. Williams

17 S.W.3d 559, 1999 Mo. App. LEXIS 2477, 1999 WL 1256438
Missouri Court of Appeals·Decided December 28, 1999·No. ED 75710·Published·Cited by 11 cases

Opinions

OPINION

GARY M. GAERTNER, Presiding Judge.

Appellant, Roger W. Williams, (“husband”) appeals the judgment of the Circuit Court of St. Charles County, dissolving his marriage to Marilyn E. Williams, (“wife”). We affirm.

Husband and wife were married on November 29, 1974 and separated on May 26, 1995. The marriage was dissolved in 1997. They had one child of the marriage and she was born on July 16, 1979. Wife was 54 years old at time of the dissolution proceeding and was a certified public accountant. Husband was 64 years old1 and had worked for McDonnell Douglas Corporation until his retirement in 1992.

When husband retired in September 1992, he elected to purchase a joint surviv- or annuity option to insure that his wife would continue to receive benefits after his death. In order to purchase this election, husband agreed to have his monthly pension benefit reduced by $623.32 from $2513.37 to $1890.05. At the age of 65 years, husband will receive a total monthly pension benefit of $1990.05 ($1890.05 base benefit + $100.00 additional for life). The non-marital portion of husband’s pension is $300.00, leaving the marital portion of the monthly benefit at $1690.05. Based on [561] this, the trial judge divided the marital property equally, giving the wife $845.00 and the husband $1145.05 ($845.05 marital share + $300.00 non-marital share). In addition, the trial court ordered the parties to hand over certain custodial accounts and bonds each held in trust for the daughter when she turns eighteen on July 16, 1997. Husband appeals.

In a court tried case, appellate courts will affirm the judgment of the trial court if it is supported by substantial evidence, it is not against the weight of the evidence, it does not erroneously declare the law, or it does not erroneously apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). “All evidence and permissible inferences therefrom are considered in the light most favorable to the trial court’s decision, and all contrary evidence and inferences are disregarded.” Chen v. Li, 986 S.W.2d 927, 931 (Mo.App. E.D.1999) (quoting In re Marriage of Gilmore, 943 S.W.2d 866, 871 (Mo.App. S.D.1997)).

The husband raises two points on appeal. The husband argues that the trial court erred: 1) in dividing the marital portion of his pension plan, such that both parties bear the cost of the election of the joint survivor option equally, and 2) in ordering husband and wife to hand over certain custodial accounts and bonds because the trial court lacked “authority to make such orders.”

With regard to his first point, husband argues that the trial court erred in finding that there was no evidence offered to demonstrate that the election was revocable. Husband argues that the parties had stipulated that the election was revocable. A review of the record reveals that the husband did not present evidence indicating his intention to revoke or not to revoke the election. At trial, husband stated that the election has been made and the parties discussed and stipulated that the trial court had the authority to change the election. Black’s Law Dictionary defines revocation as “an annulment, cancellation, or reversal.” BLACK’S LAW DICTIONARY 1321 (7 th ed.1999). We note that revoking the election is different from changing the election. The trial court clearly understood it could change the election but correctly noted that no evidence was presented as to the revocation issue. The joint survivorship annuity option document provided did not stipulate whether the election was revocable or not. Thus, the trial court did not err in finding that there was no evidence offered to prove the election was revocable.

Husband further argues the trial court’s division of the marital portion of his pension incorrectly applies the law, is an abuse of discretion, is against the weight of the evidence and is not supported by the evidence. He argues, although the trial court stated that it intended to make the division of the pension benefits substantially equal, the trial court erred in failing to make his wife bear the entire cost of the election of the joint annuity survivorship option. Husband alleges:

Given Husband’s 14.9-year life expectancy at age 65, see, Table, 42 V.A.M.S. 387, each of the parties will receive marital benefits from the pension plan totaling approximately $151,000 during Husband’s lifetime. On the basis of those same tables, Wife can expect to receive an additional $303,912 in monthly benefits following Husband’s death. Thus, the trial court awarded approximately ¾ of the pension benefits to Wife, assuming the parties live for their actuarially expected lifetimes.2

[562] And by not taking such into consideration in its division of the pension, the trial court therefore did not carry out its intention to divide the pension equally. As the trial' court noted;

Following Husband’s argument, Wife should then receive only $533.37 from Husband’s pension ([ ($2513.37 original benefit + $100.00 additional benefit— $300.00 non-marital portion) divide by 2] — $623.32 = $533.37), while Husband would receive $1456.69 ([ ($2513.37 original benefit + $100,00 additional benefit — $300.00 non-marital portion) divide by 2] + $300.00 non-marital portion = $1456.69).

Husband relies on Conaway v. Conaway, 899 S.W.2d 574 (Mo.App. W.D.1995); and Weiss v. Weiss, 702 S.W.2d 948 (Mo.App. W.D.1986). We disagree.

“The trial court has. wide discretion in dividing marital property.” Gambrel v. Gambrel, 943 S.W.2d 314, 315 (Mo.App. E.D.1997). Appellate courts defer to the trial court’s marital property division unless such division exhibits abuse of discretion or is improper. Tate v. Tate, 920 S.W.2d 98, 103 (Mo.App. E.D.1996). Pension benefits are considered marital property and are subject to division in a dissolution proceeding. Baker v. Baker, 804 S.W.2d 763, 765 (Mo.App. E.D.1990). However, retirement benefits accumulated prior to the marriage are not marital property and are not divisible. Gambrel, 943 S.W.2d at 315. Generally, the date of dissolution is the correct date for valuing property. Tate, 920 S.W.2d at 104 (citing Conaway, 899 S.W.2d at 575).

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Williams v. Williams, 17 S.W.3d 559, 1999 Mo. App. LEXIS 2477, 1999 WL 1256438 (Mo. Ct. App. 1999).

17 S.W.3d 559 (Williams v. Williams) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Williams v. Williams
17 S.W.3d 559 (Missouri Court of Appeals, 1999)