State Specific Tax Definitions and Cases

Alabama- Private defined benefit pensions are tax exempt. All out-of-state pensions are taxed the same as in-state pensions.

Arizona - All out-of-state pensions are fully taxed.

Arkansas - The total exemption from all pension plans cannot exceed $6,000 per taxpayer. The exemption refers to income from an employer-sponsored pension plan. With annuities and 401k plans, the portion that employers pay is taxable, while the portion the employees pay can be applied to the $6,000 exemption. Persons age 65 and over who do not claim the $6,000 deduction qualify for a $20 tax credit per taxpayer. A surviving spouse qualifies for the pension exemption. All out-of-state pensions are taxed the same as in-state pensions.

California - A senior head-of-household tax credit is available to taxpayers age 65 and over who meet the following qualifications: 1) did not have adjusted gross income over $43,687 for 1996; and 2) qualified as a head of household in 1994 or 1995 by providing a household for a qualifying individual who died during 1994 or 1995. The credit equals two percent of California taxable income up to $823. All out-of-state pensions are fully taxed.

Colorado - Pensioners must be age 55 and over to claim the $20,000 pension and annuity exemption. The $20,000 exemption affects qualified retirement income and includes qualified pensions, qualified annuities, Individual Retirement Account (IRA) distributions, Keogh plans, and Social Security benefits. All out-of-state pensions are taxed the same as in-state pensions.

Connecticut - All out-of-state pensions are fully taxed.

Delaware - Persons under age 60 receive a $2,000 pension exemption; persons age 60 and over receive a $3,000 pension exemption. The pension exemption covers pensions from employers. The total exemption from all retirement plans cannot exceed the $2,000 or $3,000 exemption.

Single taxpayers or married taxpayers filing separately who are 60 and over with an earned income of less than $2,500 and a Delaware adjusted gross income (AGI) of $10,000 or less are eligible to receive an additional $2,000 exemption.

Married taxpayers filing jointly, who are age 60 and over with an earned income of less than $5,000 and a Delaware AGI of $20,000 or less, are eligible to receive an additional $4,000 exemption. All out-of-state pensions are taxed the same as in-state pensions.

District of Columbia - Pensioners must be age 62 and over to qualify for the $3,000 exemption. All out-of-state pensions are fully taxed.

Georgia - Taxpayers age 62 and over or totally disabled can claim an income exemption, which includes all unearned income, such as pension income, annuities, interest, dividends, and capital gains, and the first $4,000 of earned income for a maximum exemption of $12,000 per taxpayer.

With married couples filing jointly, each spouse can exempt up to $12,000. All out-of-state pensions are taxed the same as in-state pensions.

Hawaii - Noncontributory private pension plans are tax exempt. With contributory private pension plans, earnings are taxed, while employee contributions are tax exempt. The private pension exclusion pertains to employer-funded pension plans. This includes profit-sharing, defined contribution, and defined benefit plans. All out-of-state pensions are taxed the same as in-state pensions.

Idaho - Pensioners must be age 65 and over or age 62 to 65 and disabled to qualify for the public pension exemption. Public pension exemption amounts are $14,976 (single filers) and $22,464 (married, filing jointly). These amounts are adjusted annually according to the maximum benefit under Social Security.

The exemption amounts are reduced by Social Security and Railroad Retirement benefits received. Allowable state/local pension exemptions include pensions from a city's police retirement fund or from the state's retirement fund for fire fighters. All out-of-state pensions are fully taxed.

Illinois - Exempt pension/retirement income includes government retirement or disability plans, qualified employee benefit plans (as defined in Section 402 through 408 or 457 of the Internal Revenue Code), Social Security benefits, IRA distributions, redemptions of U.S. retirement bonds, Railroad Retirement income, qualified annuities, and Keogh plans. All out-of state pensions are taxed the same as in-state pensions.

Indiana - Federal civil service pensioners must be 62 and over to claim the $2,000 pension exemption. The amount federal civil service pensioners may exempt is offset by Social Security and Railroad Retirement benefits received. Military pensioners must be 60 and over to claim the exemption. Limited tax credits are available to persons 65 and over. All out-of-state pensions are fully taxed.

Iowa - Taxpayers age 55 and over can claim an exemption of $3,000 (single filers) or $6,000 (married, filing jointly) from retirement plans including pension income. All out-of-state pensions are fully taxed.

Kansas - All out-of-state pensions are fully taxed.

Kentucky - Public pension income is fully tax-exempt, while private pension income is exempt on 50 percent of the pension income, not to exceed $12,500 for tax year 1996. Exempt private pension income includes private employer pension plans, IRA distributions, annuity income, and profit-sharing plan income.

Private pension exemptions will increase to 75 percent of pension income, not to exceed $18,750 in tax year 1997 and $35,000 in tax year 1998. For tax year 1999 and thereafter, the $35,000 exemption will be adjusted for inflation by the Consumer Price Index (CPI).

State, local, and federal employees retiring before January 1, 1998, will receive a full exemption of their public pensions. Those retiring after January 1, 1998, will receive an exemption of their public pension based on the amount of the individual's service time prior to January 1, 1998, compared to their total service time. All out-of-state pensions are fully taxed. At a minimum, public-sector retirees will be eligible for the same pension exemption as private-sector retirees.

Louisiana - Taxpayers must be 65 and over to qualify for the $6,000 (single filers) or $12,000 (married, filing jointly) private pension/retirement exemption. The private retirement exemption pertains to taxable IRA distributions, pension, and annuity income reported on lines 15b and 16b on federal Form 1040. Out-of-state pensions are fully taxed like in-state private pensions.

Maine - Taxpayers qualifying for the federal elderly tax credit may claim 20 percent of the federal credit as a Maine tax credit. All out-of-state pensions are fully taxed.

Maryland - Pensioners must be 65 and over and/or totally disabled to qualify for up to a $14,400 exemption that is reduced by Social Security and Federal Railroad Retirement benefits. Exempt income is pension, annuity, or endowment income from an employee retirement system (not including IRA distributions, Keogh plans, or deferred compensation plans). The exemption amount changes annually according to the maximum benefit received under the Social Security Act.

Military pensioners are eligible for an additional pension exemption of up to $2,500. To qualify, a pensioner must be 55 or over and be an enlisted member of the military at retirement. The exemption amount depends on federal adjusted gross income which has to be under $22,500 to qualify. All out-of-state pensions are taxed the same as in-state pensions.

Massachusetts - Most federal and state/municipal pensions are contributory and therefore, are fully exempt, while military and most private pensions are noncontributory and therefore are fully taxed. Massachusetts does not tax pension income of Massachusetts residents receiving contributory public pensions from other states provided those states do not tax pension income (from a Massachusetts contributory public retirement plan) of former Massachusetts state employees. Out-of-state noncontributory private pensions are fully taxed.

Michigan - Private pension income is exempt up to $31,920 (single filers) and $63,840 (married, filing jointly). Examples of exempt income are qualified pension income, IRA distributions (received after age 59 1/2), Keogh plan income, and qualified annuities (which are paid for life to taxpayers age 65 or older). To qualify for the exemptions, pension plans of private pensioners must define eligibility for retirement and set contribution and benefit amounts in advance.

Taxpayers age 65 or over who do not claim a pension exemption can exempt interest and dividends up to $1,064 (singles) or $2,128 (married, filing jointly) for 1996.

For tax year 1997, taxpayers age 65 or over can exempt interest, dividends, and capital gains up to $3,500 (single filers) and $7,000 (married, filing jointly). The amount of the exemption would be reduced by the amount of any pension exemption claimed.

Michigan has reciprocal agreements with other states. That is, if another state does not tax Michigan public sector pensions (all government levels) of former Michigan employees who are now citizens of another state, then Michigan will not tax Michigan residents who receive public sector pensions from other states. All out-of-state pensions are taxed the same as in-state private pensions.

Minnesota - Although Minnesota does not specifically exempt pension income, persons age 65 and over who qualify can exempt from any income source $9,600 (single filers) or $12,000 (married, filing jointly) less nontaxable Social Security benefits, Railroad Retirement benefits, and one-half of federal adjusted gross income (AGI) over $14,500 (single filers or married, filing jointly; one spouse is under 65 and one is 65 or over) or $18,000 (married, filing jointly; both spouses are 65 or over). Since nontaxable Social Security benefits are subtracted, those who benefit from this exemption are usually not receiving Social Security benefits, such as federal retirees.

To qualify for the above exemptions, one must meet the following economic requirements:
1) the AGI must be less than $33,700, and Railroad Retirement benefits and nontaxable Social Security benefits are less than $9,600 (single filers); 2) the AGI must be less than $42,000, and Railroad Retirement benefits and nontaxable Social Security benefits are less than $12,000 (married, filing jointly; both spouses are 65 or over); 3) the AGI must be less than $38,500, and Railroad Retirement benefits and nontaxable Social Security benefits are less than $12,000 (married, filing jointly; one spouse under 65). All out-of-state pensions are taxed the same as in-state pensions.

Mississippi - Retirement income that qualifies for the exemption includes public pension income, annuity income, IRA distributions, Keogh plan income, Simplified Employee Pension income, and deferred compensation plan income. All out-of-state pensions are taxed the same as in-state pensons.

Missouri - The $6,000 exemption for all state, federal, and military pensions is available if:
1) single filers earn less than $25,000 per year (Missouri AGI less federal taxable Social Security); or 2) married joint filers earn less than $32,000 per year (Missouri AGI less federal taxable Social Security); or 3) married separate filers earn less than $16,000 (Missouri AGI less federal taxable Social Security). All out-of-state pensions are taxed the same as in-state pensions.

Montana - The $3,600 exemption pertains to qualified pensions, annuities, Keogh plans, Simplified Employee Pension plans, deferred compensation, and IRA distributions. The exemption does not include premature distributions.
The $3,600 exemption is reduced by $2 for every $1 that the federal AGI exceeds $30,000. The exemption is entirely phased out when income reaches $31,800 (assuming a retirement income of $3,600 or more). All out-of-state pensions are taxed the same as in-state pensions.

Nebraska - Taxpayers qualifying for the federal elderly tax credit may claim the federal credit as a Nebraska tax credit. All out-of-state pensions are fully taxed.

New Jersey - Taxpayers must be 62 and over or disabled under Social Security to qualify for the pension exemption. Exemption amounts are $7,500 (single filers), $10,000 (married joint filers), and $5,000 (married separate filers). Pension income includes taxable pensions, annuities, and IRA distributions. Taxable pension plans, annuity plans, and IRA distribution income does not include employer contributions, which have already been taxed.

Taxpayers age 62 or over who do not claim the maximum pension exclusion may be able to exclude other types of income, such as wages, interest, and dividends. This retirement exclusion refers to taxpayers whose earned income is $3,000 or less. These taxpayers can use the unclaimed portion of their pension exclusion to exclude other types of income.

Taxpayers age 62 or over who who do not receive Social Security or Railroad Retirement benefits can exempt up to $3,000 (single filers or married, filing separately) or $6,000 (married joint filers) of taxable income. All out-of-state pensions are taxed the same as in-state pensions.

New Mexico - Taxpayers 65 and over may exempt up to $8,000 from any source depending on their adjusted gross income level and filing status. All out-of-state pensions are taxed the same as in-state pensions.

New York - Taxpayers must be 59 1/2 and over to qualify for a $20,000 exemption from private pensions, annuities, IRA distributions, Keogh plans, and disability income. All out-of-state pensions, except for federal pensions, are taxed the same as in-state private pensions.

North Carolina - The $2,000 private pension exemption includes income from IRA distributions, annuities, Keogh plans, and Simplified Employee Pension income. All out-of-state pensions are taxed the same as in-state pensions.

North Dakota - All public-sector pensioners must be 50 and over to qualify for the pension exemption. All public sector pension exemptions are reduced by Social Security benefits received. Pensioners must file the long form to qualify for all public sector pension exemptions. Only highway patrol, city police, and city firefighters qualify to receive the $5,000 exemptions under state/local retirement pension plans. All out-of-state pensions are fully taxed.

Ohio - Tax credits are available for retirement income without age restrictions as follows:

Tax
Retirement Income Credit

$500 or less	none
Over $500 but not more than $1,500	$25
Over $1,500 but not more than $3,000	$50
Over $3,000 but not more than $5,000	$80
Over $5,000 but not more than $8,000	$130
Over $8,000	$200

To qualify for the above retirement income credit, a taxpayer must have received retirement benefits, annuities, or distributions from a pension, retirement, or profit-sharing plan. In addition, a taxpayer must have received this income because of retirement reasons, and the income must be included in Ohio adjusted gross income.

A $50 senior citizen credit is available to taxpayers 65 and over; only one $50 credit is available for each return, even for married taxpayers filing jointly. All out-of-state pensions are taxed the same as in-state pensions.

Oklahoma - Starting in tax year 1997, private pensions will gradually be exempted up to $5,500 by phasing the exemption in with $1,100 increments over five years as follows: $1,100 exemption in 1997; $2,200 exemption in 1998; $3,300 exemption in 1999; $4,400 exemption in 2000; and a $5,500 exemption in 2001. Oklahoma law is specifically tied to the Oklahoma retirement systems. Therefore, all out-of-state pensions are fully taxed.

Oregon - Taxpayers 60 and over whose household income is less than $45,000 (married, filing jointly) or $22,500 (other filing statuses) and who have not received more than $7,500 ($15,000 if married, filing jointly) in Social Security and/or Tier 1 Railroad Retirement benefits are eligible for the retirement income tax credit.

This credit can be as much as nine percent of retirement income depending on the level of total income, Social Security benefits, and Tier 1 Railroad Retirement benefits. The credit can be applied to the following income: public pensions, employee pensions, individual retirement plans, deferred compensation plans, and employee annuity plans. The minimum eligibility age will gradually increase each year until age 62 for tax year 1999.

Oregon also offers an elderly tax credit equal to 40 percent of the federal elderly tax credit; however, taxpayers can apply for either this credit or the retirement income tax credit, but not both. All out-of-state pensions are taxed the same as in-state pensions.

Pennsylvania - Taxpayers must be 59 1/2 or over to exempt retirement income. Exempt retirement income includes private pensions, public pensions, annuities, Keogh plans, Simplified Employee Pension income, deferred compensation plans, and IRA distributions. All out-of state pensions are fully exempt.

Rhode Island - All out-of-state pensions are fully taxed.

South Carolina - Effective tax year 1993, pension exemptions increased from $3,000 to $10,000 per retiree for pensioners 65 or over. Exempt income involves plans defined in IRC sections 401, 403, 408, and 457, public pensions plans, IRA distributions, Keogh plans, and military retirement (for persons with 20 or more years of active military duty).

Pensioners under the age of 65 who are just starting to receive retirement income in tax year 1993 or beyond can elect to take either the pre-1993 deduction of $3,000 for the rest of their lives or defer any deduction until the age of 65 (66 for people born between 1943 and 1959; 67 for people born after 1959).

If pensioners defer the deduction to age 65, they are then allowed a $10,000 annual deduction for the rest of their lives. Only one retirement benefit exemption is allowed per pensioner. All out-of-state pensions are taxed the same as in-state pensions.

Utah - Pensioners under the age of 65 may exempt up to $4,800 on pensions, annuities, and Social Security benefits (taxable on federal form). Pensioners age 65 and over may exempt up to $7,500 on all income sources. Since 1988, exclusions have been subject to a $1 reduction for every $2 of AGI in excess of $25,000 (single filers), $32,000 (married, filing jointly), and $16,000 (married, filing separately). All out-of-state pensions are taxed the same as in-state pensions.

Vermont - Taxpayers age 65 and over are eligible for an elderly tax credit equal to 25 percent of the federal elderly tax credit. All out-of-state pensions are taxed the same as in-state pensions.

Virginia - Taxpayers 62 to 64 years of age receive a $6,000 exemption from any income source, while those 65 or over receive a $12,000 exemption from any income source. Married, joint filers qualify for twice the exemption amount even if one spouse earns less than the exemption amount of $6,000 or $12,000. All out-of-state pensions are taxed the same as in-state pensions.

West Virginia - Pensioners receive up to a $2,000 pension exclusion (except for private pensioners and some small municipalities that do not participate in West Virginia's retirement system). Some public safety officials, i.e., any state or local police or firefighters, receive a full pension exemption.

Taxpayers age 65 and over or permanently disabled qualify for up to a $8,000 exemption from any income source. However, the $2,000 pension exemption, the full pension exemption for public safety officials, and interest or dividends on U.S. obligations that are already tax-deductible count toward the $8,000 ceiling. All out-of-state pensions are fully taxed.

Wisconsin - Only military, federal, and certain state/municipal pensioners who retired prior to January 1, 1964, or became a member of the retirement system as of December 31, 1963, and then retired at a later date, qualify for a tax exemption on their pension income. However, for state and local government retirees, only certain Milwaukee city, Milwaukee county, and the Wisconsin teachers' retirement systems qualify for exemptions subject to the aforementioned conditions. In addition to the pension exemption, a $25 tax credit is offered to taxpayers 65 and over. All out-of-state pensions are fully taxed.

listed chronologically

Iowa Reports

IN RE MARRIAGE OF GAHAGEN, 4-272/03-1731 (Iowa App. 8-11-2004)

No. 4-272/03-1731

Filed August 11, 2004

James Gahagen appeals from the trial court's denial of his motion to modify an order dividing his military pension following the dissolution of his marriage to Mary Ann Gahagen. He contends the order grants Mary Ann a portion of his veterans' disability benefits in violation of the United States Code and Supreme Court precedent. We affirm.

Michigan Supreme Court Reports

NATIONAL WILDLIFE FEDN. v. CLEVELAND CLIFFS IRON CO., 471 Mich. 608 (2004)

No. 121890.

Decided July 30, 2004.

This case presents the question of whether plaintiffs have standing to bring a suit on behalf of their members under the Michigan Environmental Protection Act (MEPA), MCL 324.1701 et seq. We conclude that, under the particular circumstances of this case, plaintiffs have standing. We affirm the decision of the Court of Appeals and remand this case to the trial court for further proceedings.

Michigan Supreme Court Reports

NATIONAL WILDLIFE FEDERATION v. CLEVELAND CLIFFS IRON CO., 121890 (2004)

No. 121890.

Decided July 30, 2004.

New York Miscellaneous Reports

PEOPLE v. GREENLEAF, 24267 (2004)

24267.

Decided July 13, 2004.

On March 6, 2004, in New Paltz, New York, two ordained ministers of the Unitarian Universalist Church performed marriage ceremonies for 13 same-sex couples who did not have marriage licenses. They are charged with a crime for solemnizing marriages without licenses being presented to them, in violation of section 17 of the Domestic Relations Law ("DRL"). Conviction could result in a maximum fine of $250 and/or incarceration for a maximum of one year.

Texas Case Law

KENT v. HOLMES, 06-03-00071-CV (Tex.App.-Texarkana [6th Dist.] 2004)

No. 06-03-00071-CV

Decided: June 30, 2004.

The dispute in this case concerns the distribution of a retirement annuity from the Teacher Retirement System of Texas (TRS) accumulated by Linda Ann Holmes McWhorter. After McWhorter retired from her teaching career, she and her husband, Tommy Joe Holmes, obtained a divorce. The divorce decree granted McWhorter sole right to the retirement benefits and divested Holmes of any right to the benefits. TRS refused to recognize the divorce decree as a court order which changed the beneficiary of the annuity and determined the form on which McWhorter attempted to change beneficiaries did not suffice. McWhorter died before TRS approved a beneficiary change. On McWhorter's death, TRS began making annuity payments to Holmes. Alan Brad Kent, individually and as independent executor of the estate of Linda Ann McWhorter, deceased, and Cassie Elizabeth Kent (collectively "the Kents") appeal from a partial summary judgment in Holmes' favor. The Kents raise nine issues on appeal. We affirm in part, reverse in part, and remand for a trial on the merits consistent with this opinion.

Indiana Case Law

MAHL v. AARON, 809 N.E.2d 953 (Ind.App. 2004)

No. 46A03-0307-CV-283.

June 14, 2004.

Susan Mahl (a/k/a Susan Scott), a South Carolina resident, appeals the trial court's order allowing Jim Aaron to execute a judgment against individual retirement accounts ("IRAs") that she opened in Indiana. We find that the trial court properly applied Indiana law to resolve the dispute and that as a non-domiciliary Mahl is not entitled to exempt her IRAs from execution under Indiana Code § 34-55-10-2(b)(6). Moreover, we find that Mahl waived her Equal Privileges and Immunities challenge to Indiana Code § 34-55-10-2(b)(6) and that her Full Faith and Credit challenge to that section fails. Finally, we find that Mahl does not have standing to challenge Indiana Code § 34-55-10-2(b)(6) based on South Carolina's legitimate interests. Consequently, we affirm.

Texas Case Law

KENT v. HOLMES, 06-03-00071-CV (Tex.App.-Texarkana [6th Dist.] 2004)

No. 06-03-00071-CV

Decided: June 9, 2004.

Tennessee Unpublished Opinions

ELLIOTT v. ELLIOTT, M2003-00492-COA-R3-CV (Tenn.App. 4-8-2004)

No. M2003-00492-COA-R3-CV.

Filed April 8, 2004.

This appeal involves a post-divorce dispute regarding stock options that were part of the marital estate. The Circuit Court for Davidson County approved a marital dissolution agreement in which the husband agreed to transfer one-half of his employee stock options to the wife as part of the division of the martial estate. After the husband's employer and the employer's brokerage firm declined to transfer the stock options to the wife, she orally requested the husband to exercise the options on her behalf. The value of the employer's stock fell after the husband did not exercise the options. The wife sought to hold the husband in contempt or to modify the divorce decree. The trial court declined to hold the husband in contempt but found that he had impermissibly impeded the division of the martial estate. Accordingly, the court awarded the wife $59,759.25, the stock options' before-tax value had they been exercised on the day the divorce decree was entered. In addition, the court ordered the husband to immediately sell the options originally awarded to the wife and to pay her the proceeds as a credit against the judgment. The court also ordered the husband to pay the wife's attorney's fees, as well as prejudgment interest. The husband has appealed. We have determined that the trial court properly concluded that the husband unreasonably impeded the wife's acquisition of the value of the stock options. However, we have determined that the trial court erred by valuing the stock options as of the time of the divorce rather than the time the wife and the husband orally agreed to exercise the options and that the court erred by requiring the husband to exercise his options to pay the judgment. We have also determined that the court erred by awarding the wife prejudgment interest but properly awarded the wife her attorney's fees.

Oklahoma Case Law

NELSON v. NELSON, 2003 OK CIV APP 105

No. 98,604

Decided: August 19, 2003 Certiorari Denied December 1, 2003

1 Neil E. Nelson (Husband) appeals from provisions in a decree of divorce dividing marital assets including military retirement pay. The issue on appeal is whether the Trial Court abused its discretion in dividing the marital estate and in stating that it retained jurisdiction regarding the payment of the retirement pay. Upon review of the record and applicable law, we find that it did not and affirm.

Nebraska Reports

GASE v. GASE, 266 Neb. 975 (2003)

No. S-02-1115.

Filed November 14, 2003.

This is an appeal from an order modifying a divorce decree awarding child support. Theresa Ann Gase filed a petition for modification of decree, seeking to modify the support being paid by John Charles Gase for the minor children of the parties. The district court for Sarpy County entered an order increasing John's monthly support obligation. Theresa appeals the trial court's order. She claims that the trial court erred in calculating the parties' respective incomes, in incorrectly crediting John twice for the children of his second family, and in failing to retroactively apply the modification of child support. John cross-appeals, contending that the trial court erred in failing to add depreciation claimed on Theresa's federal income tax returns back to her income.

Nevada Supreme Court Reports

SHELTON v. SHELTON, 119 Nev. Adv. Op. No. 55, 37483 (2003)

No. 37483.

October 29, 2003.

The principal issue in this appeal is whether relief is available to a former spouse when a veteran unilaterally waives his military pension in order to receive disability benefits, resulting in the former spouse's loss of her community share in the pension. We conclude that, although courts are prohibited by federal law from determining veterans' disability pay to be community property, state law of contracts is not preempted by federal law. Thus, respondent must satisfy his contractual obligations to his former spouse, and the district court erred in denying former spouse's motion solely on the basis that federal law does not permit disability pay to be divided as community property.

Colorado Case Law

In Re the Interest of A.M.D., 78 P.3d 741 (Colo. 2003)

Case No. 02SC333.

October 20, 2003.

[1] In this child support case, we address whether and to what extent an inheritance may be included in a parent's gross income for purposes of determining child support obligations. The trial court concluded that the principal of an inheritance can be included in gross income, but only to the extent that the beneficiary relies on the principal as a source of income. The remainder of the principal, the court held, should be counted as an asset, and any interest generated by this asset should be included in the parent's gross income. The court of appeals disagreed, holding that while the interest generated from an inheritance qualifies as gross income, the inheritance's corpus, or principal, never does. In re A.M.D., 56 P.3d 1184 (Colo.App. 2002).

South Dakota Supreme Court Reports

ARNESON v. ARNESON, 2003 SD 125

No. 22639

Opinion Filed October 15, 2003

[ 1.] This appeal concerns whether the circuit court improperly considered the father's physical limitations resulting from his cerebral palsy in deciding child custody between the parents. The father challenges three aspects of the court's decision: the child custody award to the mother, the use of his structured personal injury settlement as a "source of income" for child support, and the award of attorney's fees to the mother. Because the court considered the appropriate factors in determining child custody, child support, and attorney's fees, we affirm on all issues.

New Mexico Case Law

ARNOLD v. ARNOLD, 2003-NMCA-114

Docket No. 22,765.

Filing Date: July 14, 2003.

{1} Richard Neel Arnold (Husband) appeals the district court's final decree on dissolution of marriage awarding Pamela Jean Arnold (Wife) one-half of Husband's accrued vacation and sick leave benefits. Husband contends that his accrued vacation and sick leave hours are not community property. If they are, Husband contends the district court improperly calculated the sick leave hours and their value. We affirm.

South Dakota Supreme Court Reports

ROBERTS v. ROBERTS, 2003 SD 75

No. 22440

Opinion Filed July 2, 2003

[1.] Bart Roberts (Bart) appeals a circuit court decision adopting a report by a child support referee recommending an increase in Bart's child support obligation. In calculating the increase, the referee included "pass-through income" from a subchapter S corporation in Bart's income and extrapolated his support to a level above the child support guidelines based upon the pass-through income. We reverse and remand.

Tennessee Unpublished Opinions

DUNLOY v. DUNLOY, M2000-03103-COA-R3-CV (Tenn.App. 5-27-2003)

No. M2000-03103-COA-R3-CV.

Filed May 27, 2003.

This appeal involves a dispute over the interpretation of a provision in a marital dissolution agreement dealing with the method of distribution of the husband's defined benefit plan. The trial court interpreted the provision as calling for deferred distribution pursuant to the coverture fraction method. The husband appeals arguing that the net present value method, rather than the deferred distribution method, is proper. We reverse the trial court.

Massachusetts Supreme Judicial / Appeals Courts

KRAPF v. KRAPF, 439 Mass. 97 (2003)

SJC-08872

April 2, 2003.

Albert H. Krapf (defendant) appealed from a declaratory judgment ordering him to pay to his former spouse, Constance E. Krapf (plaintiff), an amount equal to the military pension income she would have received pursuant to the parties' separation agreement (agreement) had the defendant, after the divorce, not voluntarily and without the plaintiff's consent waived his military retirement benefits in order to receive Veterans Administration (VA) disability payments. The defendant also appealed from the judge's order that he pay the plaintiff's appellate attorney's fees pendente lite. The Appeals Court affirmed the declaratory judgment with modifications. Krapf v. Krapf, 55 Mass. App. Ct. 485, 492 (2002). We granted the defendant's application for further appellate review. We conclude that the judge acted properly in construing and specifically enforcing the agreement and in awarding the plaintiff appellate counsel fees, pendente lite. Accordingly, we affirm the declaratory judgment, as modified by the Appeals Court, see id., and the award of attorney's fees.

Arizona Case Law

ARIZONA DEPT. OF REVENUE v. RABY, 204 Ariz. 509 (App. 2003)

No. 1 CA-TX 01-0004

Filed March 27, 2003

1 William L. Raby and Norma S. Raby ("the Rabys") appeal from a summary judgment that dismissed their claim for a refund of Arizona individual income taxes attributable to a claimed subtraction that the Arizona Department of Revenue ("ADOR") disallowed in the Rabys' amended joint return for tax year 1994. The issue is whether the Rabys, who had equal community property interests in the sums that the Arizona State Retirement System ("Retirement System") paid as a result of Mr. Raby's retirement from state employment, were each entitled under Arizona Revised Statutes ("A.R.S.") section 43-1022(2)(b) (1994) to exclude $2,500.00 of those payments in computing their Arizona adjusted gross income for 1994. As did the tax court, we conclude that the Rabys were only entitled to one $2,500.00 subtraction. Accordingly, we affirm.

Illinois Appellate Court Reports

CRESS v. RECREATION SERVICES, INC., 341 Ill. App.3d 149 (2003)

No. 2-01-1350

January 28, 2003.

Defendants, Recreation Services, Inc. (RSI), Larry Donovan, and Recreational Services, Inc., Deferred Compensation Plan (Plan), appeal from a judgment entered in favor of plaintiff, Donald Cress, on his claims for breach of contract and tortious interference with contract, which were tried to a jury, and his claim for declaratory relief under the Employment Retirement Income Security Act (ERISA) (29 U.S.C. § 1001 et seq. (1994)), which was tried to the bench. Defendants appeal on various grounds. Plaintiff cross-appeals. We affirm in part and reverse in part and remand for further proceedings consistent with this opinion.

California Courts of Appeal Reports

SETTLEMIRE v. SUPERIOR COURT, 105 Cal. App. 4th 666 (2003)

B158416

Filed January 22, 2003; on rehearing Certified for Publication

The trial court assigns an order to show cause hearing involving a domestic restraining order and several other related issues to a commissioner for hearing. The attorney representing one of the parties will not stipulate to the commissioner and moves the court to vacate the assignment. The trial court denies the motion and assigns the case to the same commissioner "for a hearing, and findings on any matter of fact upon which information is required by the Court."

Tennessee Reports

WADE v. WADE, 115 S.W.3d 917 (Tenn.App 2002)

No. M2002-00555-COA-R3-CV.

Filed December 31, 2002. Publisned Pursuant to Tenn. Ct. App. Rule 11.

This appeal arises from a change in child support, increasing the Appellant's monthly support obligation and awarding Appellee one half of all un-reimbursed medical and dental expenses while Appellant is in the military. Concerning child support, we affirm in part, with modification, and reverse and remand in part. Concerning un-reimbursed medical and dental expenses, we affirm.

New Hampshire Case Law

IN THE MATTER OF SUTTON AND SUTTON, 148 N.H. 676 (2002)

No. 2001-531

Opinion Issued December 17, 2002

The petitioner, Anne C. Sutton, appeals from the final divorce decree recommended by a Master (Larry B. Pletcher, Esq.) and approved by the Family Division (Cyr, J.). We affirm.

West Virginia Supreme Court Reports

SMITH v. FIRST COMMUNITY BANCSHARES, 212 W. Va. 809 (2002)

Nos. 30623, 30624

Filed: December 9, 2002

In case number 30623, the appellants and plaintiffs below, Ann Tierney Smith, Ann Barclay Smith, and Laurence E. Tierney Smith, sued the appellees and defendants below, First Community Bancshares, Inc. (formerly known as FCFT, Inc.), First Community Bank, Inc., Gentry Locke Rakes & Moore, and W. William Gust, for alleged wrongful invasion of the corpus of a marital trust. The appellants now appeal three orders of the Circuit Court of Mercer County dated February 16, 1999, November 28, 2000, and December 28, 2000, in which the circuit court ruled against the appellants. After careful consideration of the issues, this Court affirms the rulings of the circuit court.

Kansas Case Law

IN RE MARRIAGE OF WHERRELL, 274 Kan. 984 (2002)

No. 86,791

Opinion filed: December 6, 2002.

This case comes before the court on a petition for review pursuant to K.S.A. 20-3018(c). Based upon the terms of the journal entry of divorce, the district court awarded ex-wife 50 percent of the military severance pay received by her ex-husband, plus prejudgment interest. Ex-husband appealed, contending the military severance pay was a disability benefit, not a retirement benefit subject to division. Ex-wife asserted the district court was correct in finding she (1) was entitled to 50 percent of the military severance pay; (2) was entitled to prejudgment interest; and (3) was entitled to relief under K.S.A. 60-260(b)(6). The Court of Appeals determined the severance pay was an indivisible disability benefit and reversed the district court.

New Mexico Case Law

STATE v. LONGACRE, 2002-NMSC-033

Docket No. 27,135.

Filing Date: November 19, 2002.

{1} Defendant-Appellant, Lawrence Longacre (Lawrence), appeals from the decision in State ex rel. Public Employees Retirement Ass'n v. Longacre, 2001-NMCA-076, 131 N.M. 156, 33 P.3d 906, in which the Court of Appeals declared NMSA 1978, § 10-11-4.2(A) (1997) unconstitutional. We reverse the Court of Appeals, holding that Section 10-11-4.2(A) is a constitutional statute of repose.

Hawaii Case Law

TELLER v. TELLER, 99 Haw. 101 (2002)

No. 22440

August 30, 2002. Reconsideration Denied September 19, 2002.

Defendant-Appellant Howard Teller ("Howard")[fn1] appeals from the post-decree orders of the family court of the first circuit, the Honorable Dan T. Kochi presiding, recalculating the amount of the marital estate and denying prejudgment interest. On appeal, Howard argues that the family court erred in: (1) rejecting the Sullivan/Scott appraisal of his pre-marital intellectual property; (2) finding that his pre-marital intellectual property did not depreciate; (3) finding that $1,058,945 of the approximately $3 million earned in the sale of his business was equally divided between pre-marital intellectual property and post-marital property; (4) ruling that payments from the sale of the "latching detector" patent constituted marital income; and (5) ruling that prejudgment interest pursuant to Hawai`i Revised Statutes (HRS) § 636-16 (1993) may not be awarded in family court cases. As an initial matter, we note that Howard submitted a brief that is nonconforming with the Hawai`i Rules of Appellate Procedure (HRAP) Rule 28 requirement that the opening brief contain a concise statement of the points upon which the party alleges as error, properly identify where in the record the alleged errors can be found, and the specific finding of fact or conclusion of law that is being contested. In this case, we reach the merits of four of Howard's points of error because, despite the nonconformity, the record and the opening brief sufficiently established the merits. Inasmuch as Howard's brief falls woefully short of compliance with HRAP Rule 28 in regard to the issue of prejudgment interest, we decline to address this point. We affirm the judgment of the family court in all respects.

Pennsylvania Commonwealth Reports

DEVLIN v. CITY OF PHILADELPHIA, 809 A.2d 980 (Pa.Commw. 8-29-2002)

No. 2568 C.D. 2000.

Filed: August 29, 2002.

William and Nancy Devlin, Mary Campbell, William and Dottie Free, and Dave and Esther Miller (Appellants), who are residents and property owners in the City of Philadelphia (City), appeal to this Court from two orders of the Philadelphia County Court of Common Pleas. The first order, entered June 22, 1999, granted the preliminary objections of the City to Counts I and II of Appellants' complaint for declaratory and injunctive relief, and the second order, entered October 5, 2000, granted the City's application for summary judgment on the remaining three counts of their complaint.

California Courts of Appeal Reports

MEJIA v. REED, 97 Cal.App.4th 277 (2002)

H020771

Filed March 29, 2002 Modified April 24, 2002 REVIEW GRANTED June 12, 2002

In this appeal, we are called upon to decide whether a marital property division may be subject to fraudulent transfer law. Resolving that issue requires us to harmonize two independent statutory schemes, one that governs fraudulent transfers and another that controls property division on divorce.

South Carolina Case Law

WIDMAN v. WIDMAN, 348 S.C. 97 (Ct.App. 2001)

Opinion No. 3416.

Filed December 10, 2001. Rehearing Denied January 17, 2002. Certiorari Denied May 16, 2002.

This is a cross appeal in a divorce action. The issues on appeal concern identification and valuation of marital property, equitable apportionment, child support, and contempt. We affirm in part, reverse in part and remand.

Florida Case Law

JANOVIC v. JANOVIC, 814 So.2d 1096 (Fla.App. 1 Dist. 2002)

Case No. 1D00-3463

Opinion filed March 15, 2002. Rehearing Denied April 25, 2002.

Michael Janovic (former husband) raises three issues in this appeal from an order entitled "Qualifying Court Order" rendered on July 18, 2000. We find no merit in the third issue concerning the calculation of retirement pay awarded to Dora Janovic (former wife) and affirm as to that issue without further discussion. We restate the other two issues as follows: 1) Whether entry of the Qualifying Court Order violates the United States Supreme Court's holding in Mansell v. Mansell, 490 U.S. 581 (1989), concerning the distribution of military disability retirement benefits; and 2) whether entry of the Qualifying Court Order constitutes an impermissible post-judgment modification of the equitable distribution scheme contained in the parties' dissolution of marriage judgment. We conclude that the order on appeal does not violate the holding in Mansell, as interpreted by the Florida Supreme Court in Abernethy v. Fishkin, 699 So.2d 235 (Fla. 1997), because the order does not distribute disability retirement benefits nor does the record demonstrate that the husband will be required to utilize his disability benefits in order to comply with the Qualifying Court Order. We also conclude that the order constitutes permissible enforcement of an existing final judgment as it does nothing more than enforce the parties' property settlement agreement, which was incorporated into the consent final judgment of dissolution of marriage. We therefore affirm.

Maryland Court of Special Appeals Reports

MILLER v. MILLER, 142 Md. App. 239 (2002)

No. 93, September Term, 2001

Filed: January 10, 2002

Although the instant appeal emanates from a divorce proceeding, the principal issue raised is the authority of the Chancellor to determine whether legal fees accrued and owed to the guardian ad litem constitute child support or simply legal fees, no different from legal fees awarded by the court to a husband or wife in any divorce proceeding in which issues involving the best interest of minor children are litigated. Recognizing that the authority to make this determination reposes with the legislature, should this Court construe a statutory enumeration of what constitutes child support as a statement that a conspicuous and substantial expense omitted from that list, i.e., the legal fees payable to a guardian ad litem, was not intended to be child support? Should we decide that the General Assembly's action evidences an intent to relegate guardian ad litem fees to the status of other legal fees, would any designation that such fees are child support by this Court constitute establishment of public policy, which is only within the purview of the legislature, in the first instance, and, in the absence of legislative pronouncement, the Court of Appeals?

Arkansas Cases

McWHORTER v. McWHORTER, 346 Ark. 475 (2001)

01-76

Opinion Delivered November 8, 2001

Appellant Gene McWhorter (Gene) appeals from an Amended and Supplemental Order by the chancery court, which determined his average net monthly income based on averaging income for the years 1995, 1996, and 1997 and assessed an arrearage for retroactive child support for February 1997 through May 31, 1998. Gene raises five points on appeal: (1) gambling winnings are not income for child-support purposes; (2) if gambling winnings are properly included for child support purposes, these winnings should be reduced by gambling losses; (3) the chancery court's calculations of his income are flawed for child support purposes; (4) the chancery court's averaging of income over three years was clearly erroneous; and (5) the chancery court's retroactive award of child support from February 19, 1997, was also clearly erroneous. We affirm in part and reverse and remand in part.

Indiana Case Law

CARMICHAEL v. SIEGEL, 754 N.E.2d 619 (Ind.App. 2001).

No. 29A02-0011-CV-740.

August 31, 2001.

Debra Siegel Carmichael ("Mother" or "Respondent") appeals the trial court's calculation of her child support obligation for her children, R.S. and S.S., pursuant to a petition to modify child support brought by Michael Siegel ("Father" or "Petitioner"). Mother also appeals the granting of sole legal custody of R.S. and S.S. to Father, the trial court's visitation order regarding S.S., and its refusal to find Father in contempt of court. We affirm in part, reverse in part, and remand.

Oklahoma Case Law

DORN v. HERITAGE TRUST CO., 2001 OK CIV APP 64

No. 93448

Decided: April 27, 2001 Modified: June 5, 2001 Mandate Issued: May 25, 2001

1 After the Decree of Divorce was filed dissolving the fifty-three year marriage of Bertha Z. Dorn (Wife) and Ralph Dorn (Husband), Wife filed this appeal, alleging error in the trial court's determination, valuation and division of marital property and its retroactive modification of her temporary support alimony. In his counter-appeal from the same decree, Husband alleges only that Wife's long-term care insurance proceeds should have been treated as marital property.[fn1]

Tennessee Unpublished Opinions

HILLYER v. HILLYER, M1998-00942-COA-R3-CV (Tenn.App. 3-13-2001)

No. M1998-00942-COA-R3-CV.

Filed March 13, 2001.

This appeal involves issues relating to military retirement pay. Federal law authorizes state courts to treat the "disposable retired pay [of a service member] . . . either as property solely of the member or as property of the member and his spouse," 10 U.S.C. § 1408(c)(1),[fn1] thus allowing division of such retirement benefits as marital property upon the dissolution of a marriage. However, "disposable retired pay" does not include amounts deducted from that pay as a result of a waiver of retired pay . . . in order to receive compensation under . . . title 38 [disability pay]." 10 U.S.C. § 1408(a)(4)(B). In order to receive disability pay, a former service member must waive a corresponding portion of his or her retirement pay. 38 U.S.C. § 5305. Disability pay is exempt from federal, state and local taxation, and this exemption provides an incentive for a former service member to make the waiver which otherwise would have no economic impact. Mansell v. Mansell, 490 U.S. 591, 583-84, 109 S.Ct. 2023, 2026 (1989).

Wisconsin Case Law

IN RE THE MARRIAGE OF WETTSTAEDT, 2001 WI App 94, 242 Wis.2d 709

Case No. 00-3061.

Opinion Released: March 8, 2001. Opinion Filed: March 8, 2001.

Diane Wettstaedt appeals an order which reduces the amount of maintenance her former husband must pay to her by the amount of pension benefits she receives under a Qualified Domestic Relations Order (QDRO)[fn1] entered at the time of the divorce. She claims the trial court erred in reducing the amount of Gary Wettstaedt's maintenance obligation because her receipt of pension benefits does not constitute a substantial change in circumstances, and because the trial court's order results in the impermissible "double-counting" of the pension benefits as both an asset for property division and as income for the maintenance determination. We disagree and conclude the trial court did not erroneously exercise its discretion in modifying the maintenance obligation in light of Diane's receipt of pension benefits under the QDRO.

Washington Supreme Court Reports

DEAN v. LEHMAN, 143 Wn.2d 12 (2001)

No. 68281-0.

Decided February 8, 2001. Page 13

Suzanne Dean (Dean), wife of a Department of Corrections (DOC)[fn1] inmate, sent money to her husband during his incarceration. She represents a class of similarly situated persons (Class) challenging the validity of RCW 72.09.480, which mandates the deduction of 35 percent of all funds received by prison inmates. The deductions are allocated in the following manner: 10 percent to an inmate savings account; 20 percent to contribute to the cost of incarceration; and 5 percent to a victims' compensation fund.

Louisiana Case Law

HANSEL v. HOLYFIELD, 2000-0062 (La.App. 4 Cir. 12/27/00); 779 So.2d 939

No. 2000-CA-0062.

December 27, 2000.

Stephen Arthur Hansel and Sarah Holyfield Hansel were married in Florida on November 16, 1985. At the time of the marriage, both Mr. and Mrs. Hansel were employed by Barnett Bank in Jacksonville, Florida. Mrs. Hansel left her employment with Barnett the year following the marriage in order to stay home and help raise Mr. Hansel's children from a previous marriage.[fn1]

Louisiana Case Law

KELLY v. KELLY, 99 2478, (La.App. 1 Cir. 12/22/00); 775 So.2d 1237

No. 99 CA 2478

December 22, 2000.

The father appeals the judgment of the trial court ordering him to pay $162.00 a month in child support for the care of his two minor children, in addition to sums received by the children from the Social Security Administration because of the father's disability, and ordering him to pay 31 percent of the children's private school tuition.

Tennessee Unpublished Opinions

KING v. KING, M1999-02556-COA-R3-CV (Tenn.App. 8-22-2001)

No. M1999-02556-COA-R3-CV

Filed August 22, 2001 December 7, 2000 Session

This is a divorce case. Brenda King ("Wife") and Danny King ("Husband") married in 1967. The parties had a tumultuous marriage marked by Husband's alleged physical and emotional abuse of Wife. After 30 years of marriage, in September 1997, Wife filed for divorce. The case was tried over two days in April, 1999. At the time of trial, Wife and Husband were 51 and 53 years old, respectively.

Rhode Island Supreme Court Case Law

OLIVIERI v. OLIVIERI, 760 A.2d 1246 (R.I. 2000)

No. 99-253-Appeal. (P 97-1887)

Filed: November 1, 2000

This case came before the Court for oral argument on September 27, 2000, pursuant to an order directing both parties to appear in order to show cause why the issues raised by this appeal should not be summarily decided. After hearing the arguments of counsel for Mario Olivieri, Jr. and Sherrie L. Olivieri and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by this appeal should be decided at this time.

Rhode Island Supreme Court Case Law

DIORIO v. DIORIO, 751 A.2d 747 (R.I. 2000)

No. 98-592-A.

May 17, 2000.

A Family Court magistrate granted Bernadine R. DiOrio's petition for divorce from Ronald C. DiOrio, and thereafter proceeded to distribute the marital estate, pursuant to G.L. 1956 § 15-5-16.1. Ronald C. DiOrio appeals, arguing that the magistrate erred in apportioning and distributing the marital estate. For the reasons hereinafter set out, we sustain the appeal in part and remand the case to the Family Court for redetermination of the marital portion of the plaintiff's retirement pension; for a redetermination of the amount of any tax reduction to be made on that pension, and for adjustment of the value of the Martha's Vineyard property.

South Dakota Supreme Court Reports

PETERSON v. PETERSON, 2000 SD 58

No. 20979

Reassigned March 6, 2000. Opinion Filed May 3, 2000.

[1] In this divorce case, the trial court ordered David to pay $600 monthly alimony to Gayle. David appeals and we affirm. Additionally, the referee determined that alimony was not to be deducted from the income of payor Father nor included in the income of the payee Mother for the purpose of determining child support. The trial court affirmed. We reverse and remand and hold that, for the purpose of determining child support, alimony payments are deducted from the payor's income and included in the payee's income.

Virginia Court of Appeals Unpublished Opinions

IVERSON v. IVERSON, Va. App. Unpublished (2000)

Record No. 0314-99-2.

April 25, 2000.

Ronald Iverson ("husband") appeals certain portions of a divorce decree entered by the Circuit Court of Madison County. Incorporated into that court's November 4, 1998 decree were the findings of fact and conclusions of law from an opinion letter dated September 10, 1998.

Florida Case Law

AMENDMENTS TO THE RULES REGULATING FLORIDA BAR, 763 So.2d 1002 (Fla. 2000)

No. SC95365.

Opinion filed March 23, 2000.

The Florida Bar, pursuant to Rule Regulating the Florida Bar 1-12.1, has filed its annual proposed changes to the Rules Regulating The Florida Bar. We have jurisdiction. Art. V, § 15, Fla. Const. The Board of Governors of The Florida Bar has approved all of the substantive changes presented in this petition; and all the proposals, except several purely technical revisions, were published for comment in accordance with rule 1-12.1(g).[fn1] Only two comments were filed.

Florida Case Law

AMENDMENTS TO THE RULES REGULATING THE FL. BAR, SC95365 (Fla. 2000)

No. SC95365.

Opinion filed March 23, 2000 CORRECTED OPINION

Florida Case Law

AMENDMENTS TO THE RULES REGULATING THE FL. BAR, SC95365 (Fla. 2000)

No. SC95365.

Opinion filed March 23, 2000

Florida Case Law

AMENDMENTS TO THE RULES REGULATING THE FL. BAR, SC95365 (Fla. 2000)

No. SC95365.

Opinion filed March 23, 2000.

Rhode Island Supreme Court Case Law

GOODSON v. GOODSON, 744 A.2d 828 (R.I. 2000)

No. 98-503-Appeal.

January 21, 2000

This case came before us on the appeal of the defendant, George Osborn Goodson, Jr., from an order of the Family Court that found him in contempt of a prior order of that court with respect to payments from defendant's military retirement pension to the plaintiff, Diana Goodson. This case was assigned for oral argument, wherein the parties were ordered to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown. Therefore, we shall decide the issues raised by the parties at this time.

Tennessee Unpublished Opinions

SMITH v. SMITH, M1998-00937-COA-R3-CV (Tenn.App. 3-13-2001)

No. M1998-00937-COA-R3-CV.

Filed March 13, 2001. May 4, 1999 Session.

Tennessee Reports

HILLYER v. HILLYER, 59 S.W.3d 118 (Tenn.App. 2001)

No. M1998-00942-COA-R3-CV.

Filed March 13, 2001. April 15, 1999 Session.

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