In re the Marriage of Monaghan

CAMPBELL, J. In this dissolution of marriage case, the husband has appealed from those parts of the trial court’s decree awarding the wife permanent spousal support in the amount of $400 per month and one-half of the cash balance accrued under the husband’s account with the Public Employes’ Retirement System (PERS). We modify the decree. This was a 32-year marriage. At the time the decree was entered the husband was 56 and the was 53 years of age. The four children bom of the marriage are all emancipated. The husband has been employed as an elementary school teacher for thirty years. To supplement his annual salary he has been coaching three sports. He is also regularly employed during a part of the year at two different nonacademic jobs. His total annual gross income is approximately $25,000. The husband’s health is good. There was no testimony as to the husband’s monthly living expenses. The wife worked off and on during the marriage. She worked at jobs which did not require special training, including two and one-half years as a hostess-cashier and seven years as a clerk in a trading stamp redemption store. At the time of trial she was arranging evening meals at the Marylhurst Educational Center. She was working 24 hours per week at the rate of $3.35 per hour, amounting to a gross pay of $334 per month. Her living expenses are in the range of $560 to $690 per month. The wife has some health problems. The chief asset of the parties was their residence. Prior to trial they had sold it and were holding a net of approximately $45,500. The trial court divided the assets of the parties, including the sale price of the house, approximately 50-50. The wife’s share of the property award was $42,256. She was awarded attorney fees in the amount of $800. [538] In addition to the property settlement, the wife was awarded permanent spousal support in the amount of $400 per month. The trial judge in a letter opinion said: "Permanent spousal support is awarded on the basis of 26 years of marriage prior to separation of the parties and six years since the separation. Respondent bore four sons and spent most of their married life caring for her husband and the four sons. Respondent has no outside job experience or training and although it is imperative that she now earn some additional income on her own, her age and health are factors which will prevent her from earning any substantial income on her own.” [539] "The right of a person to a pension, an annuity or retirement allowance * * * under the provisions of ORS 237.001 to 237.315 * * * shall not be subject to execution, garnishment, attachment or any other process or to the operation of any bankruptcy or insolvency law heretofore or hereafter existing or enacted * * * and shall be unassignable.”1 The state treasurer, who is the custodian2 of the husband’s retirement fund, is not a party to this case.3 The trial court only had jurisdiction of the husband and wife. It could only enforce its decree by requiring the husband to assign a one-half interest in his retirement fund to his wife. Such an assignment is prohibited by ORS 237.201. To award the wife a judgment against the husband for the sum of $9,750 without reference to the retirement fund is not justified. When the husband retires he may elect to receive a monthly pension or cash lump sum settlement. In either event the husband will need money received from PERS to help him pay the permanent spousal support to the wife. To allow the wife permanent support beyond the husband’s retirement date would not be justified except for the vested funds in PERS. To award the wife both a judgment equal to one-half of the cash balance accrued in PERS and permanent spousal support would in effect allow the wife a double benefit from the same financial fund. Roth and Roth, 31 Or App 65, 569 P2d 693 (1977). The decree of the trial court is modified to delete the following provision: [540] "8. Respondent is awarded one half of Petitioner’s accrued retirement benefits as of March 7, 1979 in the Public Employees Retirement System.” Affirmed as modified. No costs to either party. Footnotes [1] Chapter 85, Oregon Laws 1979, amended ORS 237.201 to except " * * * execution, garnishment or other process upon a support obligation or an order entered pursuant to ORS 23.777 to 23.783 * * * .” [2] ORS 237.271(4). [3] We do not intend to imply that the result would be different if the state treasurer was a party.