Williams v. Williams

JAMES R. DOWD, Judge,

dissenting.

I concur with the majority’s holding in Point II that the trial court did not err in ordering husband and wife to hand over the custodial accounts and bonds to their daughter when she turns eighteen. I respectfully dissent from the majority’s conclusion that the trial court did not abuse its discretion in dividing the marital portion of husband’s pension plan. I would reverse.

The trial court refused to assign the cost of the survivor option to wife because “the parties had elected the joint survivor option over two and a half years before their separation. There was no evidence offered that the election was revocable.” Therefore, it wrote, husband was “receiving exactly what he expected to receive on retirement.” It reasoned that equity prevented it from allocating the cost of the option to wife because of the uncertainty as to revocability.

The trial court concluded that the division of the marital property was “fair and equitable, if not absolutely equal.” This statement implies that the division is almost equal. Indeed, the trial court’s findings would support an- almost equal division. The trial court’s order does not mention marital misconduct or any other reason why there should be an unequal division. The problem is that the division is not even close to equal. Under the decree, Husband is paying $30,0 per month for wife to receive the benefit of the survivor option. This exceeds 25 percent of the amount he would receive from the marital share of the pension plan if he did not have to pay for the option. Over the course of husband’s life, he will pay $53,-640 for wife alone to receive the benefit.1 This division of the marital portion of the pension plan is neither fair nor equitable. Here, the trial court’s decree forces husband to pay half the cost of an option which, by definition, can only benefit wife. Yet, the trial court made no findings justifying an uneven division of the marital portion of the pension.

Moreover, there is no logical reason for making a distinction between the survivor benefit elected before or after divorce. Husband was willing to bear the cost of the benefit while married to wife. There is no logical reason for forcing him to bear this cost after the marriage has been dissolved. The trial court reasoned that he was “receiving exactly what he expected to receive on retirement”; of course, when he made this election, he was also expecting to be married to wife on retirement. His choice of the benefit while married should have no effect on the division of the pension plan at the time of the divorce. Furthermore, when asked by the trial court whether the court could modify the pension plan and the survivor benefit, wife’s trial counsel admitted: “I believe you do have the authority and jurisdiction to do that. And I do believe that McDonnell Douglas would accept such a qualified domestic relations order. They’re simply waiting for directions from the Court.” Indeed, the trial court provides no expla*565nation for its reliance on husband’s electing the option before the divorce.

As noted by the majority, our standard of review is limited to determining if the trial court has abused its discretion in dividing the marital property. Gambrel, 943 S.W.2d at 315. I agree with the majority that the trial court had the discretion to divide the marital assets unequally. On the other hand, I believe that the trial court abused this discretion. It did so by refusing to properly allocate the expense of the survivor benefit at all because of a mistaken belief that “it would instead be inequitable to ignore the fact that ... [hjusband has already retired and has already made his election ” (emphasis added). Pension rights and liabilities, if they are marital property, must be allocated at dissolution. Section 452.330.1. The trial court allocated the entire benefit of the survivor option to the wife while refusing to allocate the entire cost to her because it did not think that it could do so. It made no findings to justify the wife receiving the full benefit of the option while the husband is forced to pay for half of its cost.

Our standard of review does not mean this Court affirms every division of marital property. Rather, we must reverse if the division of the property is not fair and equitable. Pursuant to our Rule 84.14 authority to give such judgment as the trial court ought to give and to finally dispose of the case, I would amend the judgment and order wife to bear the cost of the survivor option.

. Husband’s life expectancy is 14.9 years as noted in 42 V.A.M.S. XII (Supp.1999). We may judicially notice these tables even though not introduced into evidence. Baker v. Baker, 804 S.W.2d 763, 765 (Mo.App.1990).