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Walswick-Boutwell

June 17, 2003

ANGELA MICHELLE WALSWICK-BOUTWELL, PETITIONER, RESPONDENT,
v.
WILLIAM THURSTON BOUTWELL, JR., APPELLANT.



Polk County District Court File No. F901877

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.

SYLLABUS BY THE COURT

1. A disability annuity paid out under the Public Employees Retirement Association statute, Minn. Stat. § 353 (2002), for which the recipient became eligible during the marriage, is marital property subject to an equitable division in a dissolution action.

2. The portion of a disability annuity not awarded to the other party as marital property may be treated as income to the recipient for purposes of awarding child support.

3. In a dissolution action, a party's contribution to child-care expenses is determined based on net income as defined in Minn. Stat. § 518.551, subd. 5(b) (2002).

The opinion of the court was delivered by: Klaphake, Judge

Affirmed in part, reversed in part, and remanded

OPINION

Appellant William Boutwell challenges the district court's amended judgment awarding a portion of his disability annuity to respondent Angela Walswick-Boutwell as marital property, while basing child support on the remainder of the annuity, as well as the district court's calculation of his contribution to child-care expenses. Because the district court did not err in determining that appellant's disability annuity is marital property, but that the portion reserved to appellant is income for purposes of child support, we affirm in part. Because the district court erred by not subtracting the cost of appellant's dependent health insurance from his gross income in calculating net income, we reverse in part and remand for recalculation of appellant's child-care contribution.

FACTS

The parties were married on September 21, 1991, and have two minor children. Respondent filed for marriage dissolution in June 2001. Appellant worked for 12 years as a policeman, including 10 years during the marriage, until he suffered a severe work-related back injury on March 1, 2000. He was unable to successfully return to work and in March 2001 was awarded $573 per week in workers' compensation temporary total disability benefits. In April 2001, he began receiving $795 per month in disability income benefits as well from Minnesota Public Employees Retirement Association (PERA).

In October 2001, appellant entered into a stipulated settlement of his workers' compensation claim, agreeing to a lump-sum payment of future retraining benefits in the amount of $57,000 net. He also stipulated to the discontinuance of temporary total disability benefits. As a result, his PERA disability income benefit increased to $2,123 per month. As a former police officer, respondent had the option of receiving a statutory disability benefit equal to 60% of his average salary, with various adjustments, or an optional annuity. He chose to receive the optional annuity, a single life benefit with no survivorship benefit. This disability annuity will become a retirement benefit at age 65. Upon his death prior to age 65, any lump sum remaining will be paid to a surviving current spouse, dependent children, or a designated beneficiary.

The district court awarded respondent $400 per month from appellant's disability benefits as marital property. Because of appellant's disability, however, the district court limited the award to $400 per month as an equitable, rather than equal, division of marital property. The district court also awarded respondent a marital interest in appellant's retirement pension, to be paid when appellant turns 65. The district court did not award any part of the workers' compensation settlement to respondent. In addition, appellant was ordered to pay child support based on his net ...


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