Hann v. Hann , 655 N.E.2d 566 ( 1995 )

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

This is an interlocutory appeal wherein Respondent-Petitioner Sandra Eve Hann (Sandra) appeals the trial court's determination regarding the division of marital property between herself and Petitioner-Appellee Daniel Patrick Hann (Daniel) in their pending marriage dissolution proceeding. We are asked to consider whether Daniel's accrued but unmatured stock options are marital property subject to division.

We affirm.

ISSUE

The following issue of first impression is raised in this appeal: Whether the trial court properly divided the marital property of the parties, particularly Daniel's unvested stock options acquired during the marriage, but not exercisable until dates subsequent to the final decree of dissolution.

FACTS AND PROCEDURAL HISTORY

The parties were married on May 27, 1979, and separated on or about January 17, 1994. Daniel filed his petition for dissolution on January 31, 1994. Although there were two children born of the marriage, this appeal involves property division issues only. On August 19, 1994, Daniel filed a motion for summary judgment seeking a determination, as a matter of law, that only vested stock options which were exercisable on the date of filing the dissolution petition should be considered as marital property subject to division pursuant to IND.CODE 31-1-11.5-11 (1994). Contemporaneous with his motion, Daniel submitted supporting affidavits and various stock option plans and grants of stock made pursuant to such plans.

The parties filed their waiver of final hearing requesting the court to enter a dissolution decree and approve their written agreed Partial Property Settlement, Custody and Support Agreement (hereinafter "Agreement"). The parties further requested that the court bifurcate the proceeding and enter a summary disposition as to the issues settled in the Agreement, holding open for further consideration the division of the remainder of the marital property. On September 12, 1994, the court entered the dissolution decree incorporating the parties' Agreement.

On October 6, 1994, the parties entered into a stipulation of fact to be included in the court's consideration of the pending motion for summary judgment. The parties stipulated that Daniel was employed by Biomet, Inc. as Vice-President, Secretary and General Counsel on July 3, 1989. On October 21, 1994, the court granted Daniel's motion for summary judgment. The court's order in the chronological case summary provided as follows:

... The court finds that there is no material issue of fact necessary for the Court's decision and therefore that the granting of summary judgment is appropriate in this matter and the Court finds upon the facts before it that only the vested stock options granted to the petitioner by employer, Biomet, Inc. that are exercisable upon the date of filing or that become exercisable before the entry of the decree of dissolution on September 12, 1994, are marital property subject to division by the Court pursuant to 1.C. 31-1-11.5-11 and further that in making distribution of any stock options that tax consequences to the petitioner upon exercise of such options must be considered. Summary judgment is entered accordingly.

(R. 6-7). Sandra now brings this interlocutory appeal from the above order. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Standard of Review

Before reaching the merits of this appeal, we recite the familiar standard of review by which we review the granting of motions for summary judgment. When reviewing the trial court's ruling on a motion for summary judgment, this court applies the same standard as the trial court. American Family Mut. Ins. Co. v. Dye (1994), Ind.App., 634 N.E.2d 844, 846 reh'gqg denied, trans. denied. Thus, no deference is given to the trial court's judgment. Foreman v. Jongkind Bros., Inc. (1994), Ind.App., 625 N.E.2d 463, 467, reh'g denied.

Summary judgment is appropriate if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). When the parties do not dispute the facts material to the claim, our task is to determine whether the trial court correctly applied the law to the undisputed facts. O'Neal v. Throop (1992), Ind.App., 596 N.E.2d 984, 986, trans. denied.

On appeal, we will carefully seruti-nize the trial court's determination to ensure that the non-prevailing party is not improperly denied his day in court. Perryman v. Huber, Hunt & Nichols, Inc. (1994), Ind.App., 628 N.E.2d 1240, 1243, trans. denied. We consider only the materials designated to the trial court to determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to a judgment as a matter of law. TR. 56(C). We liberally construe all inferences and resolve all doubts in the non-movant's favor.

Unvested, Unmatured Stock Options

Sandra and Daniel managed to divide the majority of their property, both personal and real, and arrange for the custody of their two children by agreement. The one issue upon which the parties diverge is the distribution of Daniel's unvested, unmatured stock options.

Sandra contends that the trial court erred in granting Daniel's motion for summary judgment. Specifically, she argues that Daniel's stock options should be considered as "marital property" and divided accordingly. Sandra does not dispute the facts material to this appeal. Rather, she argues that, as a matter of law, a portion of Daniel's stock option grants should be considered as marital property.

Daniel, an attorney, moved his family to Warsaw, Indiana, in July of 1989, upon accepting employment with Biomet, Inc., in the capacity of Vice-President, Secretary and General Counsel. As the parties stipulated, Daniel was employed by Biomet on July 3, 1989. Daniel's first stock option was granted concurrent with the commencement of his employment. These initial stock options dated July 5, 1989, were terminated by Biomet on February 21, 1990, and replaced with other options on February 21, 1990. The remaining stock options were all granted to Daniel by Biomet before the date of final separation. The relevant stock options granted to Daniel by Biomet periodically during his employment with Biomet are as follows:

(a) February 21, 1990, Stock Option: On January 31, 1994, Daniel was the owner of a stock option agreement granted to him by Biomet, Inc. pursuant to the Employee Stock Option Plan (hereinafter "1990 Stock Option"). After the grant of the option, Biomet declared two 2:1 stock splits which pursuant to paragraph 6(g) of the Biomet, Inc. Employee Stock Option Plan, modified the number of shares subject to the option vesting schedule from 3,125 shares to 12,500 shares and the option price from $20.25 per share to $5.06 per share. On January 31, 1994, pursuant to the terms of the 1990 Stock Option, Daniel was fully vested in 12,500 unexercised options to purchase Biomet stock. These options were exercisable from February 21, 1998, to February 20, 1995.

(b) June 25, 1992, Stock Option: On January 31, 1994, Daniel was the owner of a stock option agreement granted to him by Biomet, Inc. pursuant to the Employee Stock Option Plan (hereinafter "1992 Stock Option"). On January 31, 1994, pursuant to the terms of the 1992 Stock Option, Daniel was fully vested in 1,250 unexer-cised options at $15.00 per share. These options were exercisable from June 25, 1993, to June 24, 1995.

(c) July 21, 19983, Stock Option: On January 31, 1994, Daniel was the owner of a stock option agreement granted to him by Biomet, Inc. pursuant to the Employee and Non-Employee Directors Stock Option Plan (hereinafter "1993 Stock Option"). On January 31, 1994, pursuant to the terms of the 19983 Stock Option, Daniel was not vested in any unexercised options to purchase Biomet stock under the terms of the 1998 Stock Option. The stock option was for 25,000 shares, but was not vested nor matured.

(R. 13-49). In granting Daniel's motion for summary judgment, the trial court determined that only the vested stock options granted to Daniel by Biomet that were exercisable upon the date of filing the dissolution petition, or that became exercisable prior to the final hearing on the dissolution proceeding, were marital property subject to division pursuant to I.C. 31-1-11.5-11. Therefore, the trial court found that 12,500 shares of the 1990 Stock Option and 1,250 shares of the 1992 Stock Option were to be included in the marital pot. Therefore, Sandra takes issue with the trial court's treatment of the stock options which were accrued but unmatured and unvested at the time of dissolution. Specifically, the 12,500 unvested shares of the 1990 Stock Option; the 8,750 unvested shares of the 1992 Stock Option; and the entire grant of 25,000 shares under the 1998 Stock Option.

On January 31, 1994, upon the filing of the petition for dissolution, Daniel was not vested in the aforementioned options, nor were any of those option shares exercisable. Therefore, these remaining option shares were un-matured, unexercised and Daniel was not vested in the plan.¹

Division of Marital Property

Indiana law provides that when dividing property in a dissolution proceeding, the court shall include property "owned by either spouse prior to the marriage, acquired by either spouse in his or her own right after the marriage and prior to the final separation of the parties, or acquired by their joint efforts." 1.C. 31-1-11.5-11(b) (1994). This "one pot" theory specifically prohibits the exclusion of any asset from the scope of the trial court's power to divide and award. Ross v. Ross (1994), Ind.App., 638 N.E.2d 1301, 1303. Only property acquired after the final separation date of the parties is exelud-ed from the marital assets. Id.

Although there are no Indiana cases precisely on point as to whether unvested and unmatured stock options should be treated as marital property, since shortly after the inception of Indiana's Marriage Dissolution Act, our appellate courts have often construed the definition of "property" within the meaning of the various amendments to I.C. 31-1-11.5-2(d) (1988). We have consistently held that only property in which the party has a vested interest at the time of dissolution may be divided as a marital asset.² I.C. 31-1-11.5-2 has undergone several legislative amendments. Prior to the 1980 amendment which added section (d), the section did not include a specific definition of the word "property." In 1985, section (d) was again amended to include a present vested interest in a pension as marital property subject to division. The current version of I.C. 31-1-11.5-2(d) defines property as follows:

(d) The term "property" means all the assets of either party or both parties, including:

(1) a present right to withdraw pension or retirement benefits;

(2) the right to receive pension or retirement benefits that are not forfeited upon termination of employment, or that are vested, as that term is defined in Section 411 of the Internal Revenue Code, but that are payable after the dissolution of marriage; and

(3) the right to receive disposable retired or retainer pay, as defined in 10 U.S.C. 1408(a), acquired during the marriage, that is or may be payable after the dissolution of marriage.

1.C. 31-1-11.5-2(d). Therefore, in order for a future pension benefit to be considered marital property in Indiana, the right to the pension must not be contingent upon continued future employment. See Coffey v. Coffey (1995), 649 N.E.2d 1074 (vested retirement pensions which are not forfeited upon termination of employment yet are contingent upon the retiree's survival are marital "property" within the meaning of I.C. 31-1-11.5-2(d)). We find pension law in the context of marital dissolutions to be closely analogous to the issue before us. Similar to the "un-vested" nature of Daniel's stock options, a pension is unvested where the right to be paid is subject to forfeiture if the employment relationship terminates. Aside from this useful analogy, stock options are not like pensions in any significant sense. In this appeal, we consider the treatment of stock options for purposes of dividing marital property in dissolution proceedings. In this context, a stock option is the right to buy a specific stock within a designated time period at a designated price if the option holder so chooses.

Sandra concedes that the great weight of the Indiana authority available for guidance on this issue is against her; however, she urges us to abandon precedent and adopt the rationale employed in several other jurisdictions. Judge Chezem, in her dissent, points to several cases from other states, some of them from community property states, that treat stock options as marital property. To be sure, the treatment of these future benefits varies from jurisdiction to jurisdiction. There are also several jurisdictions which hold that potential future benefits arising out of one's employment should not be treated as marital property and therefore should not be subject to equitable distribution. See Wikel v. Wikel (1992), App., 168 Wis.2d 278, 483 N.W.2d 292 (only portion of stock option which was exercisable as of the first day of trial in the parties' dissolution proceeding should be treated as part of the marital estate); Hall v. Hall (1987), 88 N.C.App. 297, 363 S.E.2d 189 (stock options which are not exercisable as of the date of separation and which may be lost as a result of event occurring thereafter are not vested and therefore should be treated as separate property of the spouse for whom they may vest at some time in the in the future)³; In re Marriage of Miller (1994), Colo.App., 888 P.2d 317, reh'g denied, cert. pending (those portions of stock options and restricted stock granted to Husband by his employer which may become available contingent upon Husband's continued employment after the dissolution do not constitute marital property. Rather, those options constitute potential future income not subject to division). In In re Marriage of Evans (1981), III., 85 Ill.2d 523, 426 N.E.2d 854, the Supreme Court of Illinois held that the lower court's failure to characterize Husband's un-vested stock as marital property was not error where the parties failed to introduce sufficient evidence to establish a value for the stock. Although the court did not opine as to the circumstances, if any, in which the right to future payments of income should be treated as marital property, the court said the following in dicta:

... the personal right of an employee to receive future payments from his employer is not susceptible to being divided in the same sense that real estate or personal property may be. Again, if the payment of benefits is contingent upon future events, such as the continuation of employment, a present award based on the discounted value of future payments to the employed spouse will prove excessive if the amount of benefits which he actually receives is less than the amount which was assumed.

Evans, 55 Ill.Dec. at 532, 426 N.E.2d at 857.

Daniel's 1993 Stock Option is not a presently vested property interest subject to distribution as a divisible marital asset. Daniel was granted the stock options as a benefit of his employment with Biomet, and any future value to be realized by the exercise of these options (when and if they become exercisable) is wholly contingent upon Daniel's continued employment with Biomet. If Daniel terminates his employment with Biomet prior to the date the stock options become exercisable, he has no right under the Stock Option Plan to exercise that option. As such, the stock options not exercisable as of the date of separation, and which will become exercisable at a particular date in the future conditioned upon Daniel's continued employment, are not subject to division as marital property.

We find that the treatment most consistent with the statutory scheme currently in place in Indiana is to classify only those stock options granted to an employee by his or her employer which are exercisable upon the date of dissolution or separation which cannot be forfeited upon termination of employment as marital property. Given our legislature's position on unvested pension benefits and Indiana's equitable distribution means for the distribution of marital property, we find that our treatment of Daniel's stock options is fully in accord with Indiana law on the subject of division of future income interests.

CONCLUSION

Based on the foregoing, having found that there is no genuine issue of material fact and that the trial court properly applied the law to the undisputed facts, we conclude that the trial court properly granted Daniel's motion for summary judgment. Accordingly, the trial court is affirmed.

SHARPNACK, C.J., concurs. CHEZEM, J., dissents with separate opinion.

1 . In considering whether these stock options are subject to equitable distribution, we denominate Daniel's options as "unmatured" in the sense that they were not exercisable at the time of dissolution. We further denominate the options as "unvested" in the sense that the options are subject to forfeiture in the event that Daniel dies, is fired or otherwise terminates his employment with Biomet. Daniel has no "vested" interest in the options because they may be exercised only he is in the employ of Biomet at the time the exercise period begins. It is this uncertainty that makes this option a contingent interest rather

2 . See Wilcox v. Wilcox (1977), 173 Ind.App. 661, 365 N.E.2d 792; Savage v. Savage (1978), 176 Ind.App. 89, 374 N.E.2d 536; Hiscox v. Hiscox (1979), 179 Ind.App. 378, 385 N.E.2d 1166; Sadler v. Sadler (1981), Ind.App., 428 N.E.2d 1305. The most recent affirmation of this long-standing principle was announced in Mullins v. Matlock (1994), Ind.App., 638 N.E.2d 854, 856, trans. denied ("A chose in action, not vested but rather contingent and speculative in nature and in value, is not capable of division and thus not marital property subject to equal distribution under the Dissolution of Marriage Act").

3 . Specifically, in Hall, the stock options were granted to Husband by his employer as a benefit of his employment. At the time of dissolution the options were not yet exercisable and were subject to cancellation in the event of Husband's termination from his employment. Only those options that were presently vested were exercisable for a limited period of time in the event Husband left the Company for reasons other than retirement, disability or death. In this case of first impression, the court of appeals held that the trial court erred in treating the unvested unexercised options as marital property. The court of appeals held that only the options that were exercisable on the date of separation should be classified as marital property. Id.