Kansas Attorney General Opinion 1992-141

ROBERT T. STEPHAN
ATTORNEY GENERAL November 6, 1992
ATTORNEY GENERAL OPINION NO. 92-141
Meredith Williams
Executive Secretary
Kansas Public Employees Retirement
System
Capitol Tower, Suite 200
400 S.W. 8th Avenue
Topeka, Kansas 66603-3925
Re: State Boards, Commissions and Authorities--Public
Employees Retirement Systems; Kansas Public
Employees Retirement System--Benefits and Rights
Nonassignable and Exempt From Taxes and Legal
Process, Exception for Decrees for Support and
Maintenance; Effect of Decree for the Division of
Property Following Dissolution of Marriage
Synopsis: The whole purpose and policy of Kansas' exemption
laws has been to secure to an unfortunate debtor
the means to support himself and his family, to
keep them from being reduced to absolute
destitution and thereby public charges. The spouse
of a member of the Kansas public employees
retirement system is not to be regarded as one of
the parties subject to the anti-alienation
provisions set forth in K.S.A. 1991 Supp. 74-4923,
as amended by L. 1992, ch. 321, § 10. Therefore,
any annuity or benefit earned pursuant to K.S.A.
74-4901 et seq. may be subject to a decree for the
division of property following dissolution of
marriage. Cited herein: K.S.A. 74-4901; K.S.A.
as amended by L. 1992,
427, § 23; L. 1974, ch.
S 24; L. 1990, ch. 282,
1991 Supp. 74-4902; 74-4923,
ch. 321, § 10; L. 1961, ch.
338, § 1; L. 1982, ch. 152,
§ 11; L. 1991, ch. 238, § 3.

Dear Mr. Williams:
As executive secretary for the Kansas public employees
retirement system (KPERS), you request our opinion regarding
whether any annuity or benefit earned under K.S.A. 74-4901 et
seq. is subject to a decree for the division of property
following dissolution of marriage. You raise this issue
because of the decision of the Kansas Court of Appeals in In
re Marriage of Sedbrook, 16 Kan.App.2d 668 (1992).
In Mahone v. Mahone, 213 Kan. 346 (1973), the Kansas Supreme
Court "concluded that the statutory exemption contained in
K.S.A. 74-4923 is not applicable when in conflict with the
enforcement of a decree or claim for child support." Id. at
350.
"In arriving at this conclusion we have
applied the principle that a statute is
not to be given an arbitrary construction,
according to the strict letter, but one
that will advance the sense and meaning
fairly deducible from the context. 'It is
not the words of the law but the internal
sense of it that makes the law; the letter
of the law is the body; the sense and
reason of the law is the soul.' [Citation
omitted.] The whole purpose and policy of
our exemption laws has been to secure to
an unfortunate debtor the means to support
himself and his family, to keep them from
being reduced to absolute destitution and
thereby public charges. [Citation
omitted.] In construing statutory
exemptions this court has consistently
taken into consideration this purpose and
policy. We have by judicial construction
excepted from the application of certain
statutory exemptions, persons and
situations not falling within that
purpose." Id. (emphasis added).
"In construing the exemption provision
under 74-4923 we should consider the other
sections of the statute which created and
maintain [KPERS]. The purpose of the act
is set forth in K.S.A. 74 - 4901. One of
its purposes is to enable public employees
to accumulate reserves for themselves and

their dependents. [Emphasis in
original.] Under 74-4902(7) a member's
dependent child is specifically included
as a beneficiary of the program. In view
of these provisions it seems clear to us
that [KPERS] is designed to protect the
minor dependents of a member as well as
the member himself.
"This court as a matter of public policy
has always vigorously protected the right
of a dependent child to receive support
from his father. The denial of relief to
the minor children in cases such as this
might well cast upon the public the burden
of supporting a pensioner's children and
relieve him and his property of that
obligation. Such a holding in our
judgment would be perversive of the true
purpose and policy of our exemption laws
and the intent of the legislature in
providing the exemption contained in
K.S.A. 74-4923." Mahone, 213 Kan. at
351-52 (emphasis added).
The Kansas Court of Appeals determined in In re Marriage of
Sedbrook, 16 Kan.App.2d 668 (1992) that municipal pension
benefits are marital property subject to equitable division
upon the dissolution of marriage. The court then addressed
the effect of an anti - alienation provision contained within
the retirement plan for firefighters of the city of Wichita.
City of Wichita, Charter Ordinance No. 131, § 16 provides:
"EXEMPTIONS. The right to a service
retirement annuity, disability annuity,
death annuity or any annuity or benefit
under the provisions of this ordinance by
whatsoever name called, or a refund, is
personal with the recipient thereof, and
the assignment or transfer of any such
annuity or benefit or any part thereof
shall be void, except as may be provided
herein. Any such annuity or benefit shall
not answer for debts contracted by the
person receiving the same, and it is the
intention of this ordinance that they
shall not be subject to execution,

attachment, garnishment, or affected by
any judicial proceedings."
After acknowledging the purpose of anti-alienation provisions
as determined in Mahone, the Court of Appeals stated:
"We believe a spouse must be considered as
a dependent to be granted protection under
the plan and not treated as a creditor. A
spouse is a member of the family unit the
retirement plan is designed to protect.
We hold the anti-alienation provisions, in
particular those relating to exemption
from garnishment, attachment, and
prohibition of assignment, do not apply to
the claims of a spouse at the time of the
marital dissolution." Sedbrook, 16
Kan.App.2d at 683-84.
With this in mind, we review the provisions of the
anti - alienation clause contained in KPERS. Subsection (b) of
K.S.A. 1991 Supp. 74 - 4923, as amended by L. 1992, ch. 321, §
10 states:
"(b) Any annuity, benefits, funds,
property or rights created by, or accruing
to any person under the provisions of
K.S.A. 74-4901 et seq. or 74-4951 et seq.,
and any acts amendatory thereof or
supplemental thereto, shall be exempt from
any tax of the state of Kansas or any
political subdivision or taxing body of
the state; shall not be subject to
execution, garnishment or attachment, or
any other process or claim whatsoever,
except such annuity or benefit or any
accumulated contributions due and owing
from the system to such person are subject
to decrees for child support or
maintenance, or both, as provided in
K.S.A. 60 - 1610 and amendment thereto; and
shall be unassignable, except that within
30 days after the death of a retirant the
lump-sum death benefit payable to a
retirant pursuant to the provisions of
K.S.A. 74-4989 and amendments thereto may
be assignable to a funeral establishment
providing funeral services to such

retirant by the beneficiary of such
retirant. The Kansas public employees
retirement system shall not be a party to
any action under article 16 of chapter 60
of the Kansas Statutes Annotated and is
subject to orders from such actions issued
by the district court of the county where
such action was filed. Such orders from
such actions shall specify either a
specific amount or specific percentage of
the amount of the pension or benefit or
any accumulated contributions due and
owing from the system to be distributed by
the system pursuant to this act."
(Emphasis added).
The emphasized portion of the anti-alienation provision has
been in existence since enactment of the statute in 1961. L.
1961, ch. 427, § 23. Following the court's decision in
Mahone, the legislature amended the anti-alienation provision
to provide that KPERS benefits were not subject to "any other
process or claim whatsoever, including decrees for support or
alimony. . . ." L. 1974, ch. 338, § 1 (emphasis denotes new
language). In 1982, the term "maintenance" replaced
"alimony." L. 1982, ch. 152, § 24. After amendments in L.
1990, ch. 282, § 11 and L. 1991, ch. 238, § 3, the
anti-alienation provision stated that any annuity, benefit, or
funds "shall not be subject to execution, garnishment or
attachment, or any other process or claim whatsoever, except
such annuity or benefit or any accumulated contribution due
and owing from the system to such person are subject to
decrees for child support or maintenance, or both, as provided
in K.S.A. 60-1610 and amendments thereto. . . ." At no time
has the anti-alienation clause expressly addressed the effect
of a decree for the division of property following dissolution
of marriage.
As evidenced in Sedbrook, courts have increasingly
acknowledged that retirement benefits are essentially deferred
compensation and, when earned during marriage, constitute
marital property that may be subject to a decree for division
of property. See Sedbrook, 16 Kan.App.2d at 679-80. We find
no distinguishing feature in KPERS which would permit us to
reach a different conclusion regarding any annuity or benefit
earned under KPERS. A spouse of the member of KPERS is a part
of the unit the retirement plan is designed to protect. The
spouse is not to be treated as a creditor of the member. The
spouse is not to be regarded as one of the parties subject to

the anti - alienation provision set forth in K.S.A. 1991 Supp.
74-4923, as amended. Therefore, any annuity or benefit earned
pursuant to K.S.A. 74-4901 et seq. may be subject to a decree
for the division of property following dissolution of marriage.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. Smith
Assistant Attorney General
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