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06/21/83 MARRIAGE KENNETH DEMOINE GARRETT AND

June 21, 1983

IN RE THE MARRIAGE OF KENNETH DEMOINE GARRETT AND JOANNE JOSEPHINE GARRETT. KENNETH DEMOINE GARRETT, PETITIONER-RESPONDENT, AND JOANNE JOSEPHINE GARRETT, RESPONDENT-APPELLANT


From the Circuit Court of Jasper County; Civil Appeal; Judge Richard D. Copeland.

Motion for Rehearing Overruled, Transfer Denied July 13, 1983. Application Denied August 16, 1983.

Before Flanigan, P.j., Greene, C.j., Titus, Crow, JJ.

The opinion of the court was delivered by: Greene

Respondent, Joanne Garrett, appeals from that portion of the trial court's judgment in a dissolution of marriage case which declared the retirement benefit of $625 per month of petitioner, Kenneth Garrett, from the Teamsters Health and Welfare Fund, to be non-marital property. Joanne contends that such declaration was erroneous, and caused a grossly disproportionate division of the marital property.

The Garretts were married 18 years. Kenneth had been employed as a truck driver by Yellow Freight Systems for 23 years, and, effective October 19, 1981, had retired for reason of physical disability. Garrett had not contributed to the pension fund, and had not exercised an option that would give his spouse survivor's benefits. The pension benefit was contingent in that it only applied during the life of Garrett, had no cash value, and was subject to divestment if he resumed employment as a truck driver.

Evidence was heard in the case on October 29, 1981, but judgment was delayed until March 16, 1982, primarily because of the mutual desire of the parties and the trial court to obtain guidance as to whether pension plans were marital property from an anticipated Supreme Court of Missouri opinion on the subject. When such opinion was not immediately forthcoming, the trial an anticipated Supreme Court of Missouri opinion on the subject. court entered judgment on the issue, the pertinent portion of which states:

"The pension plan has no cash surrender value and is contingent upon the petitioner living and upon his demise, the monthly payments are terminated. Said pension payments can further be terminated if petitioner becomes employed again as a teamster although the pension would be viable at the time Petitioner makes a final retirement. Petitioner has not exercised his option for spousal survival benefits which would allow payments to continue to petitioner's spouse after petitioner's death. The Court finds that this pension plan is non-marital property and is the sole, separate property of petitioner. The Court has further taken into consideration in dividing the marital property the petitioner's income under this pension plan of $625 per month as a statutory factor in dividing marital property."

On August 2, 1982, the Supreme Court of Missouri, en banc, handed down the opinion in question. Kuchta v. Kuchta, 636 S.W.2d 663 (Mo. banc 1982). *fn1

Mrs. Garrett's principal argument here is that the trial court erroneously declared the law by finding that her husband's pension rights were non-marital property, and that such finding was prejudicial to her for the reason that if such pension right had been declared to be marital property, she had an interest in it, and was, therefore, entitled to a larger percentage of the marital property than she received in the trial court's judgment. *fn2

Kuchta holds that the trial court in that case properly considered "pension benefits" as marital property. However, the opinion goes on to say that it is not mandatory that pension benefits be divided between spouses where other assets are available, and also states that "whether or not present or prospective pension rights are to be classified as marital property is no longer of primary concern, but rather the manner by which the trial court can treat the same in seeking to reach a fair and equitable division thereof if necessary to comply with § 452.330." *fn3 The statute in question provides, in part, that:

"he court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including:

(1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(2) The value of the property set apart to each spouse;

(3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable ...


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