Williams v. Williams , 1999 Mo. App. LEXIS 2477 ( 1999 )

OPINION

GARY M. GAERTNER, Presiding Judge.

Appellant, Roger W. Williams, (“husband”) appeals the judgment of the Circuit Court of St. Charles County, dissolving his marriage to Marilyn E. Williams, (“wife”). We affirm.

Husband and wife were married on November 29, 1974 and separated on May 26, 1995. The marriage was dissolved in 1997. They had one child of the marriage and she was born on July 16, 1979. Wife was 54 years old at time of the dissolution proceeding and was a certified public accountant. Husband was 64 years old¹ and had worked for McDonnell Douglas Corporation until his retirement in 1992.

When husband retired in September 1992, he elected to purchase a joint surviv- or annuity option to insure that his wife would continue to receive benefits after his death. In order to purchase this election, husband agreed to have his monthly pension benefit reduced by $623.32 from $2513.37 to $1890.05. At the age of 65 years, husband will receive a total monthly pension benefit of $1990.05 ($1890.05 base benefit + $100.00 additional for life). The non-marital portion of husband’s pension is $300.00, leaving the marital portion of the monthly benefit at $1690.05. Based on this, the trial judge divided the marital property equally, giving the wife $845.00 and the husband $1145.05 ($845.05 marital share + $300.00 non-marital share). In addition, the trial court ordered the parties to hand over certain custodial accounts and bonds each held in trust for the daughter when she turns eighteen on July 16, 1997. Husband appeals.

In a court tried case, appellate courts will affirm the judgment of the trial court if it is supported by substantial evidence, it is not against the weight of the evidence, it does not erroneously declare the law, or it does not erroneously apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). “All evidence and permissible inferences therefrom are considered in the light most favorable to the trial court’s decision, and all contrary evidence and inferences are disregarded.” Chen v. Li, 986 S.W.2d 927, 931 (Mo.App. E.D.1999) (quoting In re Marriage of Gilmore, 943 S.W.2d 866, 871 (Mo.App. S.D.1997)).

The husband raises two points on appeal. The husband argues that the trial court erred: 1) in dividing the marital portion of his pension plan, such that both parties bear the cost of the election of the joint survivor option equally, and 2) in ordering husband and wife to hand over certain custodial accounts and bonds because the trial court lacked “authority to make such orders.”

With regard to his first point, husband argues that the trial court erred in finding that there was no evidence offered to demonstrate that the election was revocable. Husband argues that the parties had stipulated that the election was revocable. A review of the record reveals that the husband did not present evidence indicating his intention to revoke or not to revoke the election. At trial, husband stated that the election has been made and the parties discussed and stipulated that the trial court had the authority to change the election. Black’s Law Dictionary defines revocation as “an annulment, cancellation, or reversal.” BLACK’S LAW DICTIONARY 1321 (7 th ed.1999). We note that revoking the election is different from changing the election. The trial court clearly understood it could change the election but correctly noted that no evidence was presented as to the revocation issue. The joint survivorship annuity option document provided did not stipulate whether the election was revocable or not. Thus, the trial court did not err in finding that there was no evidence offered to prove the election was revocable.

Husband further argues the trial court’s division of the marital portion of his pension incorrectly applies the law, is an abuse of discretion, is against the weight of the evidence and is not supported by the evidence. He argues, although the trial court stated that it intended to make the division of the pension benefits substantially equal, the trial court erred in failing to make his wife bear the entire cost of the election of the joint annuity survivorship option. Husband alleges:

Given Husband’s 14.9-year life expectancy at age 65, see, Table, 42 V.A.M.S. 387, each of the parties will receive marital benefits from the pension plan totaling approximately $151,000 during Husband’s lifetime. On the basis of those same tables, Wife can expect to receive an additional $303,912 in monthly benefits following Husband’s death. Thus, the trial court awarded approximately ¾ of the pension benefits to Wife, assuming the parties live for their actuarially expected lifetimes.²

And by not taking such into consideration in its division of the pension, the trial court therefore did not carry out its intention to divide the pension equally. As the trial' court noted;

Following Husband’s argument, Wife should then receive only $533.37 from Husband’s pension ([ ($2513.37 original benefit + $100.00 additional benefit— $300.00 non-marital portion) divide by 2] — $623.32 = $533.37), while Husband would receive $1456.69 ([ ($2513.37 original benefit + $100,00 additional benefit — $300.00 non-marital portion) divide by 2] + $300.00 non-marital portion = $1456.69).

Husband relies on Conaway v. Conaway, 899 S.W.2d 574 (Mo.App. W.D.1995); and Weiss v. Weiss, 702 S.W.2d 948 (Mo.App. W.D.1986). We disagree.

“The trial court has. wide discretion in dividing marital property.” Gambrel v. Gambrel, 943 S.W.2d 314, 315 (Mo.App. E.D.1997). Appellate courts defer to the trial court’s marital property division unless such division exhibits abuse of discretion or is improper. Tate v. Tate, 920 S.W.2d 98, 103 (Mo.App. E.D.1996). Pension benefits are considered marital property and are subject to division in a dissolution proceeding. Baker v. Baker, 804 S.W.2d 763, 765 (Mo.App. E.D.1990). However, retirement benefits accumulated prior to the marriage are not marital property and are not divisible. Gambrel, 943 S.W.2d at 315. Generally, the date of dissolution is the correct date for valuing property. Tate, 920 S.W.2d at 104 (citing Conaway, 899 S.W.2d at 575).

Missouri does not have a rule that requires the spouse who is entitled to a proportionate share of the other spouse’s survivor benefit option, to solely pay for the cost. In Conaway, the trial court determined that the wife is entitled to a proportionate share of the husband’s pension benefits. Conaway, 899 S.W.2d at 576. The wife requested the survivor benefit option and testified she would be willing to pay for the cost of the option. Id. The trial court refused to award her the survivor benefit option in her husband’s pension plan and the wife appealed. Id. The Court of Appeals reversed in part and held wife was entitled to the same proportionate share of the survivor benefit option, at her own cost. Id.

In Weiss, the, trial court ordered the husband to elect the survivor annuity benefit option at the request and imploration of his wife. Weiss, 702 S.W.2d at 953. The trial court ordered the husband to designate the wife as the beneficiary. Id. at 952. The court also, using a flexible approach in its division of the pension benefits, reduced the wife’s share of the husband’s pension plan, to offset the reduction in monthly benefits that would occur by reason of election of the survivor annuity benefit option. Id.

In Campbell v. Campbell, 668 S.W.2d 580, 583 (Mo.App. W.D.1984), the Court of Appeals affirmed the trial court’s judgment which ordered the husband to nominate his wife as the recipient of a potential survivor’s annuity under his pension plan. The trial court also ordered the husband to pay $681 to preclude a reduction of benefits at age 62. Id. The decree also provided that the husband might deduct one-half of that amount from the maintenance payments. Id. The trial court’s order had the effect of allocating the cost of the benefit to both husband and wife.

These cases do not establish a rule that the spouse designated as a beneficiary of a survivor’s benefit option bears the entire cost. Rather, this determination is left to the trial court’s discretion, taking into consideration all the relevant factors surrounding the distribution of marital property.

In the case at bar, unlike in the above cases where the trial court ordered the husbands to elect the survivor benefit options for their wives, husband, prior to the dissolution, voluntarily chose to elect the survivor benefit option for his wife. On the date of the trial, both husband and wife had already elected the option and had received the reduced benefit for three and one-half years. Husband requested the trial court to allocate the cost of the survivor benefit option solely to the wife. The trial court, exercising its discretion, rejected husband’s request and held that Conaway and Weiss were inapplicable.

At the time of the dissolution, the value of the marital portion of the monthly benefit was $1690.05. Tate demonstrates that the date of the dissolution is the correct date for valuing property. The trial court took the pension as it was on the date of dissolution and split the marital portion of the pension benefit equally, awarding the wife $845.00 and the husband $845.05. Such division had the effect of apportioning the cost of the option between the husband and the wife. However, as we noted above, there is no rule requiring the spouse who benefits from the election to solely pay for it and the trial court has discretion on how to allocate the cost. Therefore, the trial court’s division was substantially equal. Husband’s argument regarding equitable distribution of the pension benefit is without merit because the trial court exercised its discretion when it apportioned the cost of the option to both parties and split the monthly benefit equally.

With regard to the second point, husband argues:

The trial court erred in ordering the parties to hold the “daughter’s custodial accounts and bonds” in trust for their daughter until her eighteenth birthday and thereafter to deliver said bonds and custodial accounts to their daughter because, to the extent said property was given to their daughter pursuant to the Uniform Transfers to Minors Act or was held in trust for their daughter, it was not property of the parties, and to the extent the funds were held in joint tenancy with the daughter, they could not be awarded to her unless she was joined as a party, but she was not so joined.

The husband relies on Daniels v. Daniels, 675 S.W.2d 29 (Mo.App.1984). We disagree.

The Daniels case is inapplicable to this case. In Daniels, the trial court ordered husband and wife to hold certain certificates of deposit in trust for their child and that they should deliver them to child upon request to pay for college and other educational costs. Id. at 86. This Court noted the order created a twofold problem.

First, the record is not clear whether some or all of these certificates are held by the husband and wife as trustees for their daughter or whether the husband, wife and daughter held these certificates as joint owners. If the husband and wife are trustees for the daughter, that part of the court’s order effecting the trusteeship is void. Placing the certificates in trust divested the settlers, the husband and wife, of their interest in the funds so transferred.... If the daughter is a joint owner of any of the certificates, she must be joined as a party, and the joint interests of the daughter, husband and wife properly evaluated and distributed.

Id.

In the present case, the record supports the trial court’s finding that the parties held certain custodial accounts and bonds in trust for their daughter. The trial court ordered: “Daughter’s custodial accounts and bonds ... shall continue to be held by the parties in trust for Daughter until her eighteenth birthday on July 16, [1997], at which time each party shall deliver the bonds and custodial accounts in their respective possessions to daughter.” The trial court did not create or modify the terms of the trust. The record does not indicate that the parties and their daughter are joint owners. Thus, the Daniels ease is not applicable to the present case.

Additionally, the Uniform Transfers to Minors Act is not applicable to this case because the record does not indicate that the trust was set up in accordance to Section 404.047, RSMo 1994. Thus, the trial court did not err in its order.

Based on the foregoing, the judgment of the trial court is affirmed.

PAUL J. SIMON, J., concurs. JAMES R. DOWD, J., dissents in a separate opinion.

1 . Husband was within 3 weeks of his 65 th birthday.

2 . The record does not support that husband presented this allegation or evidence before the trial court. Appellate courts do not review matters complained of on appeal, which are not present in the record. State ex rel. Callahan v. Collins, 978 S.W.2d 471, 474 (Mo.App. W.D.1998). Appellate courts cannot review issues never offered in evidence nor included in the transcript on appeal. Wofford v. Wofford, 991 S.W.2d 194, 196 (Mo.App. W.D.1999). Thus, our review is limited to the record on appeal. Also, we agree with the dissent that we could take judicial notice of life expectancy and annuity tables even though not introduced into evidence, but we decline to review husband’s allegation regarding the trial court’s failure to take into consideration the differences between his life expectancy and the wife’s life expectancy, because the record demonstrates that it was not raised before the trial court.