A trial court erred in ordering a man’s future railroad retirement benefits subject to a division of marital assets in a divorce case, a divided panel of the Indiana Court of Appeals ruled Monday.
The panel affirmed the division of the estate as equal, but split on the question of whether future distributions of Tier I railroad retirement benefits should be factored into the division of the marital estate following a marriage of less than five years.
Tier I benefits, unlike Tier II benefits, are not divisible, but the trial court ordered the husband to write a check offsetting half those benefits as part of its order on distribution of assets. “(W)e conclude that Benny’s Tier I benefits are his and his alone and are not marital property subject to division,” Judge Michael Barnes wrote in a majority opinion joined by Judge Edward Najam in Benny Harris v. Tonya Harris (n/k/a Keith), 49A05-1409-DR-434.
The majority remanded the matter to Marion Superior Court to strike the language concerning distribution of Tier I benefits but otherwise affirmed the order and denied Tonya Harris’ request for appellate attorney fees.
Judge James Kirsch concurred in part but took issue with the majority’s determination that Benny’s future receipt of the benefits could not be considered. “(I)t is entirely appropriate for the trial court to consider Husband’s exclusive right to the Tier I benefits as it impacts his overall economic circumstances in dividing the remainder of the marital estate,” he wrote.