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In re Marriage of Leland3/15/1993
Robert Leland appeals the trial court's characterization of such disability payments as he may receive after he reaches the age of 65 as pension benefits to be divided equally with his former spouse Linda Leland. We affirm.
Facts
Robert and Linda Leland were married in July 1965. They separated in April 1989. Robert became fully disabled, as the result of a hereditary eye defect, in 1985. The defect is incurable and Robert's vision continues to deteriorate. He has been unemployed since 1985. He is not likely to become reemployed. He was 48 years old at the time of the trial.
During the marriage the parties purchased three disability insurance policies, using community funds to pay the premiums. At the time of trial, Robert was receiving a monthly income of $7,435, from the following sources:
$4,000 Prudential policy, payable for Robert's lifetime,
so long as he remains disabled
1,100 Massachusetts Mutual policy, payable until
Robert is 65, so long as he remains disabled
970 Massachusetts Mutual policy, payable until
Robert is 65, so long as he remains disabled
464 Social Security payment for the parties' daughter
Kari (age 13 at the time of trial)
901 Social Security disability income
$7,435 Total
Under current tax laws these monthly payments are tax free. The privately purchased insurance contracts do not provide for any increases for cost of living. All three policies contain premium waiver clauses while Robert remains disabled. All payments will cease at the time of Robert's death. Under the terms of the Prudential policy, had Robert become disabled after the age of 50, rather than before reaching that age, the payments would have ceased when he turned 65. Because he became disabled before the age of 50, the Prudential payments will continue for his lifetime, provided only that he remains disabled from all employment for which he is reasonably fitted by education, training and experience.
Linda Leland was 47 years of age at the time of trial. She served primarily as a homemaker during most of the marriage. In 1986, after taking some courses at Bellevue Community College, she commenced a career as a real estate agent and earned $9,700 that year. In 1989, which was an exceptional year for real estate sales in the Seattle area, she earned $26,000. Linda intends to remain in real estate sales. The trial court found that she is "fully qualified to make a fair income in this pursuit." At the time of trial, Linda's net monthly income was $1,725.
The parties acquired certain real and personal community property having a net value of $280,000 at the time of trial. The trial court divided this property equally between the parties, noting that, if Robert had not been disabled and on a fixed income, a disproportionate award in Linda's favor would have been justified.
The court characterized all of Robert's privately purchased disability income to be received until he is 65 as "income replacement" in which the marital community has no interest. To the extent that Robert may receive income under the Prudential policy after he turns 65, the court characterized the payments as "pension" income in which the marital community retains an interest. Linda was awarded 50 percent of all such "pension" payments, the payments to be divided on a monthly basis as Robert receives them.
Robert appeals, arguing that the monthly payments he may receive from Prudential after the age of 65 retain their character as disability income in which the marital community has no interest, as
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