Olson v. Olson

VANDE WALLE, Justice,

concurring in result.

Because of the context in which the issues were presented to the court I concur in the result reached by the majority opinion. I agree that Constance’s Social Security benefits may not be divided as marital property nor may Gerald’s Highway Patrol retirement benefits be offset by the value of Connie’s Social Security benefits in arriving at the value of Gerald’s pension.

■ Much of the case law upon which the majority opinion relies involves cases from community-property States in which the property is either considered community property to be equally divided between the parties or it is the property of the individual not subject to the community-property laws. In those instances I agree the Social Security benefits are not to be considered ás community property. 1 But North Dakota is not a community-property State and we have consistently held that a division of property need only be equitable, not necessarily equal. E.g., Williams v. Williams, 302 N.W.2d 754 (N.D.1981). Therefore, we are not required to divide property in as rigid a formula as community-property States.

I do not, therefore, believe that Social Security retirement benefits must be entirely ignored in an equitable distribution of the property. The guidelines enumerated in Ruff v. Ruff, 78 N.D. 775 , 52 N.W.2d 107 (1952), and Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966), permit the court to consider such matters as the circumstances and necessities of each party, their financial circumstances, and such other matters as may be material. I do not conclude that the trial court must close its eyes to Social Security retirement benefits in making an equitable division of the property, nor do I *15 read the pertinent Federal statutes or prevailing case law as requiring that conclusion. Rather, I believe Social Security benefits may be considered as part of the entire financial condition of the party receiving the benefits although they may not be divided or used as a direct offset by the trial court. In many instances the consideration of the benefits would appear in the context of consideration of a need for spousal support by the Social Security recipient. Thus I do not read the majority opinion as establishing so rigid a rule that Social Security benefits must be entirely ignored in reaching an equitable division of property.

’ Finally, I add a word about the Highway Patrol Retirement. A study of the history of this Fund, and this writer was at one time a member of the North Dakota Highway Patrol Retirement Board (see Section 39-03.1-03, N.D.C.C., prior to its repeal in 1983), reveals that a decision was made to increase the contribution of the State and the members to that Fund rather than include the Highway Patrolmen within the Social Security System. This is indicated by the fact that in 1971 the Legislative Assembly amended Section 39-03A-27(l), N.D.C.C., now Section 39-03.1-27, to provide:

“The legislative assembly in recognition of the value of good employer-employee relationships and the need to recruit and retain qualified highway patrolmen in this state, hereby declares its intent that the state should provide the comparable contribution for retirement of highway patrolmen’s retirement system members as it provides for other state employees. It is the further intent of the legislative assembly that because of the increase in state contributions to the North Dakota highway •patrolmen’s retirement system, the members of such system shall not obligate the state to additional payments for federal social security benefits to such members.” [Emphasis supplied.] 1971 N.D.Laws, Ch. 353, sec. 1.

Thus in 1971 a decision was made whereby the State would pay to the Highway Patrol Retirement Fund the same payroll percentage as it paid for other State employees to the other retirement funds and to Federal Social Security combined. The members of the Fund were thus treated comparably to other State employees but their benefits would all derive from the Fund and not from Social Security. Had the State divided its contributions between the Fund and Social Security, as it did for other State employees, both parties would be covered by Social Security, and presumably the trial court, following its rationale, would not have considered the potential benefits from Social Security of either party in dividing the marital assets. However, Gerald’s equity in the Highway Patrol Retirement Fund would have been considerably less than the $40,137 value found by the trial court because the State would have been making reduced contributions to the Fund as a result of making simultaneous contributions to Social Security in Gerald’s behalf. Whether or not the trial court, faced with a reduced value of Gerald’s retirement fund, would have made a different equitable division of the assets of the parties may be speculative, but Gerald’s Highway Patrol retirement was a considerable portion of the property awarded to Gerald by the trial court. To refuse to recognize the peculiar position of members of the Highway Patrol Retirement Fund vis a vis Social Security recipients might well create an inequity in some circumstances and trial courts should be cognizant of that possibility.

. I also agree that our courts cannot direct the Social Security Administration to pay retirement benefits of one party to another or to otherwise directly offset those benefits against an otherwise equitable division of the property.