specially concurring.
While agreeing with the result and most of the language in the majority opinion, I cannot agree with that portion which states that ORS 237.201 prohibits the trial court from requiring husband to assign a one-half interest in his retirement fund to his wife. ORS 237.201, as it existed at all times material here, provided as follows:
"The right of a person to a pension, an annuity or a retirement allowance, to the return of contribution, the pension, annuity or retirement allowance itself, any optional benefit or death benefit, or any other right accrued or accruing to any person under the provisions of ORS 237.001 to 237.315, and the money in the various funds created by ORS 237.271 and 237.281, shall be exempt from all state, county and municipal taxes heretofore or hereafter imposed, except as provided under ORS chapter 118, shall not be subject to execution, garnishment, attachment or any other process or to the operation of any bankruptcy or insolvency law heretofore or hereafter existing or enacted, and shall be unassignable.”
The general rule concerning statutory provisions such as ORS 237.201 is stated in 24 Am Jur 2d, Divorce and Separation 753-54, § 632 (1966), as follows:
"A pension received by the husband may be considered as a resource in determining the amount of permanent alimony to be awarded, whether the pension is received from the government or from some other source. Although frequently the contention has been made that the amount of pension received by a husband may not be taken into consideration as a resource in determining the amount of alimony, on the ground that the particular pension is exempt *541from claims of creditors, or from legal process, the courts have uniformly held that such pensions may be taken into account despite their exempt character, upon the various grounds that exemption laws were not designed to protect pensions from claims in the nature of alimony, that the protection is at an end when the husband has received the pension, or that the pension may be taken into account as a resource of the husband, in any event, even if the particular exemption law is considered to be applicable with respect to the enforcement of alimony awards. Indeed, in several cases alimony has been allowed where the only income of the husband was a pension. The fact that the husband is likely to be retired on pension has also been taken into consideration in fixing the amount of alimony to be awarded to the wife.” (Footnotes omitted.)
While the above rule is stated in terms of alimony payments, I believe that under ORS lOT.lOSdXe),1 it should be equally applicable to a property division incident to a dissolution of marriage. In other words, husband’s vested retirement benefits under the Public Employes’ Retirement System are a resource, and are not exempt from consideration in the property division by the trial court under ORS 107.105(l)(e). Further, I do not think there is any need for the State Treasurer to be a party, as the majority indicates.
Roberts, J., joins in this specially concurring opinion.ORS 107.105(l)(e) provides:
"(1) Whenever the court grants a decree of annulment or dissolution of marriage or of separation, it has power further to decree as follows:
« * * *
"For the division or other disposition between the parties of the real or personal property, or both, of either or both of the parties as may be just and proper in all the circumstances. The court shall view the contribution of a spouse as a homemaker in the contribution of marital assets. There is a rebuttable presumption that both spouses have contributed equally to the acquisition of property during the marriage. The court shall require full disclosure of all assets by the parties in arriving at a just property division.
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