Sable v. Sable

BUCHANAN, Judge,

dissenting.

I respectfully dissent. Every amend-atory act is not necessarily remedial. Retroactive application of the recently amended statute involved here, Ind.Code 81-1-11.5-2(d), which was changed to define marital property to include future retirement benefits, is not justifiable. The apparent intent of the legislature is violated.1

One of the long accepted principles of statutory construction is to consider a statute's legislative history, which may include legislation passed either before or after the statute's enactment. Wright v. Fowler (1984), Ind. App., 459 N.E.2d 386. It is also presumed that the legislature considered the history and decisions of the courts on the subject matter of the statute at the time of its enactment. Stith Petroleum v. Department of Audit and Control (1937), 211 Ind. 400, 5 N.E.2d 517.

*498The legislative history surrounding this statute does not suggest any remedial purpose for its recent amendment. Starting in the late 1970s, our courts held that marital property, according to long-standing principles of Indiana law, must consist of assets to which the parties have a vested present interest. See Hiscox v. Hiscox (1979), 179 Ind.App. 378, 385 N.E.2d 1166, trans. denied; Savage v. Savage (1978), 176 Ind.App. 89, 374 N.E.2d 536, trans. denied. The legislature not only acquiesced in our view of marital property, it enacted this view as positive law. 1980 Acts Pub.L. No. 180 § 1 (presently codified at IC 31-1-11.5-2(d)(1)). The legislature was therefore aware its definition would exclude certain kinds of retirement benefits from the definition of marital property. In light of this statutory history, it seems plain to me that the legislature's recent broadening of the definition of marital property is simply a change in policy, and is not an attempt to remedy an unwitting omission or defect in the former statute.

The Indiana Supreme Court recently has gone even further. Even if a statute is remedial in nature, retroactive application will be denied unless there are "compelling reasons" to do so:

Unless there are strong and compelling reasons, statutes will normally be given prospective application. While statutes addressing merely procedural and remedial matters may be applied retroactively, such application is not required.... [Rletroactive application is the exception, and such laws are normally to be applied prospectively absent strong and compelling reasons.

Gosnell v. Indiana Soft Water Serv. (1987), Ind., 503 N.E.2d 879, 880 (emphasis supplied). See also State ex rel. Mental Health Comm'r v. Estate of Lotts (1975), 165 Ind.App. 347, 332 N.E.2d 234. I can ascertain no compelling reason for giving the new and expanded definition of marital property retroactive application.

For these reasons I would not give retroactive effect to the statute and would reverse the judgment.

. No issue of constitutional restraints on retroactive laws is raised here.