Charles v. Charles , 1985 Okla. Civ. App. LEXIS 83 ( 1985 )

STUBBLEFIELD, Judge,

concurring in part and dissenting in part.

I agree with that part of the majority opinion that vacates the award of temporary alimony and reverses the award of attorney fees. I, however, do not agree with the modification of the trial court’s property division order.

I believe the figures used by the majority to justify the deletion of the $19,500 judgment, are erroneous. The property division amounts are reached by allowing a double credit to husband for the $19,500 — deducting it from his property award and then adding it to wife’s side of the ledger. More realistic figures would be $65,755 for wife and $51,020¹ for husband, and even this does not take into consideration various valuable tools, a coin collection, and antiques, all of which were granted to husband, but for which values were not established. Husband's testimony leaves the impression that the tools are quite valuable. Under the circumstances, I do not believe this property division to be inequitable, and I would affirm it.

I also disagree with that part of the majority opinion which vacates the award to wife of an interest in husband’s non-vested contingent pension.² I do not believe the authorities cited by the majority prohibit such an award as was made by the trial court.

In Carpenter v. Carpenter, 657 P.2d 646, 651 (Okla.1983), the Oklahoma Supreme Court specifically addressed the issue of division of a contingent pension. The court said:

“The practical problems inherent in ‘dividing’ a pension which is unmatured or contingent at the time of a divorce are resolved within the language of 12 O.S. 1981 § 1278 itself. It must be divided between the parties ‘as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof.’ The exigencies of a particular case can be best determined by the trial court, and unless the division of jointly acquired property made by the trial court in a divorce action is against the weight of the evidence and is inequitable, it will not be reversed or modified on appeal.” (Citation omitted.)

I believe the division of the pension effected by the trial court is authorized by Carpenter, and I do not believe it is inequitable. I would affirm that portion of the trial court’s award.

1 . The only change in this figure from that given by husband in his brief is the value of his equity in a home purchased after the parties’ separation. Husband had removed $39,000 from a Super Saver account upon his separation from his wife. He purchased a new home with $37,-000 applied as a down payment, and $2,000 for closing costs. It is reasonable to believe the trial court valued his interest as the entire $39,-000 marital assets invested.

2 . The recent widely publicized closing of the Miami, Oklahoma, B.F. Goodrich plant, may render this issue moot. The closing was apparently prior to husband’s completion of the period of employment needed to vest retirement benefits. Public pronouncements have been that no employees would be relocated or rehired.