In re the Marriage of Grubb

ERICKSON, Justice,

dissenting:

I respectfully dissent. In my view, the majority’s decision to overrule Ellis v. Ellis, 191 Colo. 317 , 552 P.2d 506 (1976), and Marriage of Mitchell, 195 Colo. 399 , 579 P.2d 613 (1978), ignores the doctrine of stare decisis. It also invites the admission of expert testimony regarding the value of contingent contract rights acquired during a marriage.

In Ellis, we held that military retirement pay, which the husband had begun to receive at the time of the dissolution decree, was properly considered in determining maintenance but was not marital property. The Ellis court reasoned that the retirement benefits lacked the attributes of “property” under the dissolution of marriage act because they had no cash surrender value, loan value, redemption value, or value realizable after death. In Mitchell, we held that employee contributions to the Public Employees Retirement Association (PERA) were marital property and distinguished Ellis as follows:

PERA funds have many of the attributes which we found lacking in military retirement pay. Our distinction between the two retirement plans is based on a belief that it would be unwise to consider as property those items which have no present value and which may never acquire value. A military retirement plan of the type discussed in Ellis may never be of any value if the employee dies before he retires. Because its future value is only speculative, and it has no present “exchangeable" value, it cannot be considered marital property.

Mitchell, 195 Colo, at 403, 579 P.2d at 617 (emphasis added) (citing Marriage of Graham, 194 Colo. 429 , 574 P.2d 75 (1978) (holding that an educational degree is not “property” under the Uniform Dissolution of Marriage Act)).

The doctrine of stare decisis imposes a duty on a court to exercise extreme reluctance in overruling settled law, and promotes uniformity, certainty, and stability in the law and in individual rights. Creacy v. Industrial Comm’n, 148 Colo. 429 , 366 P.2d 384 (1961). Thus, where a prior decision has become an established part of jurisprudence, any necessary changes should not come from the courts but from the legislature or from the people. City and County of Denver v. Duffy Storage and Moving Co., 168 Colo. 91 , 450 P.2d 339 , appeal dismissed, 396 U.S. 2 , 90 S.Ct. 23 , 24 L.Ed.2d 1 (1969). Where, as here, *668 property rights are involved, courts should be especially reluctant about changing the law. People ex rel. Bentley v. Le Fevre, 21 Colo. 218 , 40 P. 882 (1895). Because Ellis and Mitchell have constituted a part of Colorado jurisprudence for over a decade, I would not overrule those precedents under the facts of this case. See Creacy, 148 Colo, at 429, 366 P.2d at 384 (no deviation from stare decisis was justified where precedent was in effect for a third of a century and had been generally recognized in practice).

The policies underlying Ellis and Mitchell provide additional support for the application of the doctrine of stare decisis in this case. The holding of Ellis, that contingent pension benefits should be considered in awarding maintenance but not as an item of marital property, substantially decreases the need for expert testimony, and reduces the complexity of divorce proceedings and the costs to the litigants. Ellis also avoids the problems inherent in computing the present value of contingent pension rights. The speculative nature of contingent pension rights complicates their valuation because it substantially reduces, or even eliminates, their marketability. Finally, Ellis avoids inequity to the holder of the contingent pension right because he or she will not be forced to pay for something that may never be received. Other jurisdictions have recognized the merits of this approach and employ similar methodologies. See Savage v. Savage, 176 Ind.App. 89 , 374 N.E.2d 536 (1978); Grant v. Grant, 9 Kan.App.2d 671 , 685 P.2d 327 (1984); Marriage of Faulkner, 582 S.W.2d 292 (Mo.App.1979).

In this case, the policies underlying Ellis are particularly applicable because dicta contained in the majority’s decision will open an avenue to expert appraisal testimony. The majority justified its decision on the grounds that an employee’s pension rights derive from his or her contract of employment and that an employee is fully vested under a pension plan if he or she has a right to receive payment at a future time, even though that right is contingent and not absolute. Under the majority’s reasoning, marital property will include not only all contingent retirement plans held by either spouse but also any contingent contract rights acquired by either spouse during marriage. According to the majority, the nature and probability of the contingency will not alter the characterization of the rights as marital property. In my view, this interpretation will vastly increase the scope of marital property and the amount and complexity of valuation problems confronted by the courts.

Because it is unwise to overrule Ellis and Mitchell under the facts of this case, I dissent and would affirm.