APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY. The Honorable David W. Russell, Judge
Before Breckenridge, P.j., Kennedy and Lowenstein, JJ.
The opinion of the court was delivered by: Breckenridge
Deanna Kay Mallams (Wife) appeals from the trial court's decree dissolving her marriage to Robert Doyle Mallams (Husband). Wife raises two points on appeal arguing that the trial court erred in distributing the marital assets of the parties because: 1) the distribution was an abuse of the trial court's discretion in that it was heavily and unduly weighted in favor of Husband; and 2) the trial court erroneously applied § 169.572, RSMo Cum. Supp. 1992 *fn1, by designating the parties' respective Missouri Teachers' Retirement accounts as marital property. The judgment is reversed.
Husband and Wife were married on July 31, 1976 in Liberty, Missouri. The parties were separated on August 20, 1991 and the marriage was dissolved on September 9, 1992.
At the time of the dissolution, Wife had been employed by the Liberty Public School System as a teacher for fifteen years, and had contributed approximately $40,000 to the Missouri Teachers' Retirement Fund which was deducted from her salary in lieu of social security. Upon Wife's retirement, the school district will match the amount accrued in her retirement account if she is still employed with the Liberty Public School System.
During the marriage, Husband was employed as a teacher and then as an elementary principal in the Liberty Public School System. Husband made contributions to a Missouri Teachers' Retirement account during his employment with the Liberty Public School System. Prior to the dissolution trial, Husband resigned his position with the Liberty Public School System to begin working as an elementary principal for the Fort Leavenworth School District. Husband's employment with the Fort Leavenworth School District, however, made him ineligible for the matching funds from the Liberty Public School System upon retirement. Upon his resignation from the Liberty Public School System, Husband removed $20,000 from the account and rolled it over into an American Legacy account. At the time of the dissolution, Husband's American Legacy account was worth $27,600 and the balance remaining in his Missouri Teachers' Retirement account was approximately $12,000.
This court will begin by addressing Wife's Point II because it is dispositive of the appeal. Wife claims in Point II that the trial court erroneously declared or applied the law when it characterized the parties' respective Missouri Teachers' Retirement accounts as marital property. Pursuant to Murphy v. Carron, 536 S.W.2d 30, 36 (Mo. banc 1976), an appellate court must affirm the judgment in a court-tried case unless there is no substantial evidence to support it, it is against the weight of the evidence or the trial court erroneously declared or applied the law. Law v. Law, 833 S.W.2d 17, 18 (Mo. App. 1992).
The statutory provisions governing the retirement benefits for Missouri teachers are set forth in Chapter 169, RSMo. Specifically, § 169.572 states:
1. No court shall divide or set aside any federal old-age, survivors or disability insurance benefit provided to any party pursuant to the federal Social Security Act, 42 USC Section 200 et seq., in any proceeding for dissolution of marriage.
2. Subsequent to August 28, 1991, a court of competent jurisdiction may divide the pension, annuity, benefits, rights, and retirement allowance provided pursuant to this chapter between the parties to any action for dissolution of marriage, to the same extent and in the same manner the court may divide any federal old-age, survivors or disability insurance benefit of the parties provided pursuant to the federal Social Security Act.
In adopting § 169.572 in its present form, the legislature repealed § 169.142, RSMo Cum. Supp. 1989. That section read:
Notwithstanding any other provision of law to the contrary, a court of competent jurisdiction may divide the pension, annuity, benefits, rights, and retirement allowance provided pursuant to this chapter between the parties to any action for dissolution of marriage, to the same extent and in the same manner the court may divide the marital property of the parties.
After the legislature's adoption of § 169.572 and repeal of § 169.142, RSMo Cum. Supp. 1989, this court's Eastern District held in Gismegian v. Gismegian, 849 S.W.2d 201, 204 (Mo. App. 1993), that a public school teacher's retirement account is not marital property and, thus, is not subject to division by the trial court in a dissolution of marriage action. The facts of Gismegian are quite similar to those of the instant case, except that only one spouse had contributed to a teachers' retirement account in Gismegian . Id. The Gismegian court found that the erroneous inclusion of the wife's $47,000 teachers' retirement account in the division of marital property was reversible error, because its exclusion would materially impact the total value of the property received by the parties. Id. The Western District followed Gismegian in Kieninger v. Catlett, 854 S.W.2d 59, 60 (Mo. App. 1993).
The provision of the decree addressing the teachers' retirement accounts does not specifically articulate whether the trial court found the accounts to be marital or non-marital property. When construing an ambiguous judgment, it is to be construed in the same manner as a written instrument. McDougal v. McDougal, 279 S.W.2d 731, 739 (Mo. App. 1955). The court's intention is to be determined from considering the judgment as a whole. Id. It is apparent from the judgment, when viewed as a whole, that the trial court considered the retirement accounts to be marital property. In addition, Husband does not argue on appeal that the court determined the retirement accounts to be non-marital property. In view of Gismegian and Kieninger , the trial court's ...