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06/27/83 SUSAN J. ROMMELFANGER v. DEAN P.

June 27, 1983

SUSAN J. ROMMELFANGER, PETITIONER-RESPONDENT,
v.
DEAN P. ROMMELFANGER, APPELLANT



Appeal from a judgment of the Circuit Court for Milwaukee County: Robert M. Curley, Judge.

Wedemeyer, P.j., Decker and Moser, JJ.

The opinion of the court was delivered by: Moser

Dean P. Rommelfanger (Dean) appeals from a judgment of divorce entered in the trial court on June 18, 1982. He raises two issues on appeal: (1) whether the trial court abused its discretion by considering Dean's retirement benefits under the Railroad Retirement Act of 1974 *fn1 when dividing the marital estate; and (2) whether the division of the estate was so excessive and unreasonable as to constitute an abuse of discretion. We reverse the trial court's division of the marital estate.

A trial court's division of property in a divorce action involves the exercise of discretion and will not be set aside on appeal absent an abuse of that discretion. *fn2 An abuse of discretion occurs when the trial court fails to consider proper factors, makes mistakes with respect to the facts upon which the division is based, or makes an award to a party which is either excessive or inadequate under the circumstances. *fn3

In dividing the marital estate in this case, the trial court considered Dean's federal railroad retirement pension and his wife's, Susan J. Rommelfanger's (Susan), pension from Milwaukee county. Each party was awarded his or her own pension. The shared estate was divided in a manner which awarded each party one-half the value of their total property, both shared and separate. The parties' retirement benefits were included in determining the total value of their property.

Dean argues that a nonemployee's spouse's right to a railroad pension terminates upon divorce. We agree.

The Railroad Retirement Act gives a worker's spouse the right to a separate benefit; *fn4 however, this right terminates upon divorce. *fn5 Indeed, the United States Supreme Court has recognized in Hisquierdo v. Hisquierdo *fn6 that, upon divorce, this pension becomes the employee's exclusively. *fn7 The Supreme Court ruled that, upon divorce, this pension is exclusive because to allow any diminution of that amount would frustrate the congressional objectives behind the Railroad Retirement Act, i.e., to support an employee's old age and to encourage the employee to retire. *fn8

To facilitate this objective, Congress inserted an antigarnishment provision in the Act. That provision is contained in 45 U.S.C. § 231m, which states:

§ 231m. Assignability; exemption from levy

Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated: Provided, however, That the provisions of this section shall not operate to exclude the amount of any supplemental annuity paid to an individual under section 231a(b) of this title from income taxable pursuant to the Federal income tax provisions of the Internal Revenue Code of 1954 [26 U.S.C.A. § 1 et seq. ]. [Emphasis in original.]

The Supreme Court, recognizing the importance of 45 U.S.C. § 231m, stated: "ection 231m goes far beyond garnishment. It states that the annuity shall not be subject to any 'legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated.' Its terms make no exception for a spouse." *fn9 [Emphasis added.]

The trial court here did not directly award Susan a portion of Dean's railroad pension; however, the trial court did consider it in its division of the marital estate, stating:

While the case law seems to say the petitioner cannot be awarded any portion of the Railroad Retirement Annuity, this court knows of no case law which states that the court may not consider the same in making a division. Therefore, each will be awarded their pension plans free and clear of any claim from the other.

Numerous courts from other jurisdictions, both common law and community property states, have dealt with the issue of whether a state divorce court can indirectly consider a railroad pension in dividing the marital estate. The Montana Supreme Court, dealing ...


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