Udall v. Udall

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Udall v. Udall
1980 OK 99
613 P.2d 742
Decided: 06/24/1980
Supreme Court of Oklahoma


Appeal from the District Court of Oklahoma County; Jim Gullett, Judge.

¶0 Appellants appeal from an order of the district court providing for execution upon funds held by the Oklahoma Public Employees Pension Fund which appellants assert are exempt pursuant to 74 O.S. 1971 § 923 .


Jan Eric Cartwright, Atty. Gen. of Oklahoma and Stephen F. Shanbour, Asst. Atty. Gen., for appellants.

David M. Jordan, Moore, for appellee.

HODGES, Justice.

[613 P.2d 743]

¶1 The sole question on appeal is whether the accumulated funds of a member of the Oklahoma Public Employees Retirement System can be executed upon to satisfy a non-delinquent alimony judgment when 74 O.S. 1971 § 923

¶2 Ellis Udall and Lynn P. Udall [wife-appellee] were married in June, 1976. He left her on August 27, 1977, and his whereabouts are still unknown. On August 30, 1977, Lynn Udall petitioned for divorce. During the Udall's marriage, the wife contributed over Eight Thousand Dollars from her own funds to reduce her husband's indebtedness.

¶3 Ellis Udall was employed by state agencies for approximately sixteen years. During the course of his employment, Udall contributed to the Oklahoma Employees Retirement System. Combining the contributions made by Udall and his employers, a total of $2,017.02 was paid into the fund. Ellis Udall has not exercised his option [613 P.2d 744] pursuant to 74 O.S. 1971 § 917 to withdraw these funds on the termination of his employment.

¶4 The District Court of Oklahoma County entered an order for the payment of support money. The court further ordered that the monies held by the Public Employees Retirement Fund be paid to Lynn Udall. The State Treasurer and the Executive Director of the Oklahoma Public Employees Retirement System appeared and asserted that pursuant to 74 O.S. 1971 § 923 , the vested retirement benefit rights of Ellis Udall were not subject to execution, garnishment or attachment. The court, in reliance on 12 O.S. 1971 § 1276 , ordered payment of the funds.

¶5 The appellants contend that the court indulged in weighing the relative merits of legislation, rather than applying the statute as it was clearly written, when it attempted to engraft an exception to the statute where none existed. The wife argues that the pension fund was established to enable employees to accumulate deferred income for themselves


¶6 Although this is a case of first impression in this jurisdiction, the question has been considered in several other states.

¶7 The minority view is to the contrary. Courts advocating the minority view have held that as a matter of statutory construction: 1) Courts are not authorized in the construction of a statute to create exemptions not specifically made; 2) In construing a statute the court must ascertain what is contained therein, but may not insert what has been omitted, or omit what has been inserted; and 3) Where there is no ambiguity in the language used in the statute, the power to construe does not exist.

¶8 Kansas and California each have exemption statutes similar to, Oklahoma. Kansas adopted the so-called majority view in Mahone v. Mahone, 213 Kan. 346, 517 P.2d 131 (1973); California opted for the minority [613 P.2d 745] rule in Ogle v. Heim, 69 Cal. Rptr. 579, 442 P.2d 659 (1968) and Ex parte Smallbone, 16 Cal. 2d 532, 534, 106 P.2d 873, 875 (1940). We are persuaded by the reasoning of the California Supreme Court, and by the dissent by Justice Fromme in Mahone.

¶9 This reasoning is in accord with our decisions in Holeman v. Holeman, 459 P.2d 611, 614 (Okl. 1969); Baker v. Baker, 546 P.2d 1325, 1326 (Okl. 1976); and Umber v. Umber, 591 P.2d 299, 302 (Okl. 1979). This Court in Holeman determined that if a retirement fund is divided at the time of the divorce as jointly owned property, this would, in effect, destroy the husband's future livelihood and means of complying with an alimony or support award. In Baker, we held that a husband's military pension could not be treated as property acquired during coverture subject to division between the parties, although it could be considered in determining the amount of alimony for support. In Umber, we recognized that social security benefits were the separate property of the husband which could not be evaluated in determination of property settlement.

¶10 The California cases also noted pension administrators have a substantial and abiding interest in maintaining the integrity of retirement funds to assure security against profligacy and misfortune. Exemptions are not the only armor designed to protect the funds. To protect the employers' and participants' interests, the pension rights are made unassignable [except as specifically provided] to restrict voluntary and involuntary alienation and to operate as a defense against creditors. The California Court held in Ogle and Smallbone that there was no exception in the exemption laws which would authorize the satisfaction of an alimony judgment from the exempt pension fund, and that it was not within the province of the courts to read an exception into the law where none existed. It determined that, although a spouse cannot be forced to satisfy his support obligation from exempt pension monies, a recalcitrant spouse can be held in contempt where these funds evidence an ability to pay.


¶11 In ascertaining legislative intent, the language of the entire Act should be construed with a reasonable and sensible construction.

¶12 Although we sympathize with a person whose spouse deserts her/him after squandering one's assets, equitable considerations do not come into play on a subject governed by a valid statute.



¶15 IRWIN, V.C.J., dissents.


1 It is provided by 74 O.S. 1971 § 923 :

"No alteration, amendment, or repeal of this act shall affect the then existing rights of members and beneficiaries, but shall be effective only as to rights which would otherwise accrue hereunder as a result of services rendered by an employee after such alteration, amendment, or repeal. Any annuity, benefits, fund, property, or rights created by or accruing to any person under the provisions of this act are hereby made and declared exempt from any tax of the State of Oklahoma or any political subdivision or taxing body thereof, and shall not be subject to execution, garnishment or attachment, or any other process or claim whatsoever, and shall be unassignable, except as specifically provided by this act."

2 The court found in pertinent part:

"Title 12 O.S. Section 1276 granted the court power, jurisdiction, and authority to disburse the assets within the State of Oklahoma of any defendant to a divorce action subsequent to the filing by plaintiff of the Petition for Divorce."

3 See 74 O.S. 1971 § 901 .

Upon the death of the contributing employee, the spouse is entitled to monies in the fund pursuant to 74 O.S. 1971 § 901 .

4 It is provided by 12 O.S.Supp. 1976 § 1276 in pertinent part:

"After a petition has been filed in an action for divorce and alimony, or for alimony alone, the court, or a judge thereof in vacation, may make and enforce by attachment such order to restrain the disposition of the property of the parties or of either of them, and for the use, management, and control thereof, or for the control of the children and support of the wife or husband during the pendency of the action, as may be right and proper . . . ."

5 See Mahone v. Mahone, 213 Kan. 346, 517 P.2d 131, 134 (1973) for cases citing the majority and minority view; and Annot., "Pension Of Husband As Resource Which Court May Consider In Determining Amount Of Alimony," 22 A.L.R.2d 1421 (1952).

6 Personal Loan & Finance Co. of Capitol Hill v. Oklahoma Tax Commission, 437 P.2d 1015 (Okl. 1968).

7 Oklahoma City v. Prieto, 482 P.2d 919 (Okl. 1971).

8 See Okla. Session Laws, Ch. 50 (1963).

9 Seventeen Hundred Peoria, Inc. v. City of Tulsa, 422 P.2d 840 (Okl. 1966).

10 Parks v. Lyons, 183 Okl. 529, 83 P.2d 573, 577 (1938).

11 Salaney v. Ferris, 201 Okl. 236, 204 P.2d 270 (1949).


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