THIS OPINION HAS NO
PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Linda R. Asmussen, Appellant,
v.
Patrick M. Asmussen, Respondent.
Appeal From Greenville County
Deborah Neese, Family Court Judge
Unpublished Opinion No. 2011-UP-301
Submitted March 1, 2011 Filed June 17,
2011
AFFIRMED
O.W. Bannister, of Greenville, for Appellant.
H. Michael Spivey, of Mauldin, for Respondent.
PER CURIAM: Linda
Asmussen (Wife) appeals from the family court's final divorce decree, arguing
the court erred in (1) using Patrick Asmussen's (Husband's) contributions plus
interest as the value of a defined benefit pension plan, and (2) not awarding
her attorney's fees and costs. We affirm.[1]
FACTS
Husband and Wife
were married in 1992 in Iowa, and no children were born of the marriage. In
2007, Husband and Wife separated, and Wife moved to South Carolina. Husband
testified he moved to South Carolina two months after Wife moved to reconcile
with Wife based on her request. Wife testified she moved to be closer to her
brother, and she did not want Husband to move to South Carolina.
In 2008, Wife
filed a complaint in the Greenville County Family Court, seeking separate support
and maintenance, equitable division of marital assets and debts, and attorney's
fees and costs. Husband filed an answer and counterclaimed for separate
support and maintenance, equitable division of the marital property, alimony,
and attorney's fees and costs.
At the final
hearing on April 9, 2009, Wife moved to amend to seek a divorce on one-year's
continuous separation. Husband did not object, and the court granted the
motion. Husband and Wife agreed they had divided all personal property and
each would keep the property in his or her possession. Husband also withdrew
his claim for alimony. At the end of the hearing, Husband and Wife stipulated
that: (1) they would equally divide the marital estate; and (2) the court would
determine the present value of Husband's Iowa Retirement Plan. Wife's expert
testified that, using the life expectancy method of calculation, the value of
Husband's retirement plan was $76,901.46 at the time of the hearing; however,
Husband testified he called the Iowa Retirement Plan immediately before the
hearing, and his retirement was valued at $31,000, including contributions and
interest.[2]
On cross-examination, Wife's expert admitted Husband's cash surrender value, as
of July 4, 2008, would have been a little less than $31,888.71. Also, he
admitted that as of the date of the hearing, the only amount Husband could have
withdrawn from the plan was the cash surrender value. The court found it
noteworthy that Husband's retirement was negatively impacted by Wife's desire
to move to South Carolina; his relocation to South Carolina; and her decision
to seek a divorce.
The family court
filed its final divorce decree on June 24, 2009. In the decree, the court made the following rulings: (1) Wife was entitled to a divorce on one-year's separation;
(2) Husband and Wife were to keep all personal property currently in his or her
possession; (3) all other marital assets were to be divided as provided in the
order; (4) Husband's Iowa retirement account's present value was to be
determined by the contributions plus interest method, resulting in a value of
$31,000; (5) Husband and Wife were responsible for his or her own attorney's
fees and costs; (6) Wife was to pay Husband $294.67 within 30 days of the
filing of the order for half of the difference in distributions; and (7)
Husband was responsible for the preparation of any qualified domestic relations
orders necessary to effect distribution. Wife filed a Rule 59(e), SCRCP,
motion, which was denied by the court. This appeal followed.
STANDARD OF REVIEW
On appeal from the family
court, this court reviews factual and legal issues de novo. Simmons v.
Simmons, Op. No. 26970 (S.C. Sup. Ct. filed May 9, 2011) (Shearouse Adv.
Sh. No. 16 at 29); see Lewis v. Lewis, Op. No. 26973 (S.C. Sup.
Ct. filed May 9, 2011) (Shearouse Adv. Sh. No. 16 at 44). Although this court
reviews the family court's findings de novo, we are not required to ignore the
fact that the trial court, who saw and heard the witnesses, was in a better
position to evaluate their credibility and assign comparative weight to their
testimony. Lewis, Op. 26973 at 46-48. The burden is upon the appellant
to convince this court that the family court erred in its findings. Id. at 49-51.
LAW/ANALYSIS
I. Pension Plan
Wife argues the family court erred in using Husband's
contributions plus interest to determine the value of his defined benefit
pension plan. We disagree.
Wife asserts this is error
because it ignores the additional value the plans have to the holder. Wife
asserts the use of only contributions to value a pension plan was specifically
rejected in Smith v. Smith, 308 S.C. 372, 418 S.E.2d 314 (Ct. App.
1991). Wife also claims that in Belton v. Belton, 325 S.C. 456, 461, 481
S.E.2d 174, 174 (Ct. App. 1997), the court reiterated that defined benefit
pension plans are calculated using actuarial evidence to arrive at the present
cash value. Thus, Wife requests we reverse the family court's determination of
the value of Husband's retirement account; find the plan's present day value
was $76,901.46; and remand the issue to the family court for an adjustment
based on our finding.
The family court found the
retirement plan in this case differed from those in Martin v. Martin,
296 S.C. 436, 373 S.E.2d 706 (Ct. App. 1988), and Smith because, unlike
here, benefits were being paid at the time of the litigation. The court stated
there were two common methods the court could use to value Husband's retirement
plan: (1) the distribution from each payment method; and (2) the method of
determining present value. The court determined the distribution from each
payment method was not appropriate under the facts of the case, and the parties
agreed. Thus, the court found the plan's present value could be determined by
either contributions plus interest, or by a calculation using actuarial
evidence and other factors. The court concluded there is no set rule for
determining present cash value, and each case must be individually analyzed based
on its facts. The court also noted courts are "encouraged to award the
plan to the employee spouse where, as here, there are sufficient other marital
assets to allow for an offset." Therefore, the court found the present
value of Husband's retirement plan to be $31,000, as reflected by contributions
plus interest.
"[T]he [South Carolina] Code
does not specifically define pension benefits as marital property, but this [c]ourt
has consistently held that both vested and nonvested retirement benefits are
marital property if the benefits are acquired during the marriage and before
the date of filing." Shorb v. Shorb, 372 S.C. 623, 629, 643 S.E.2d
124, 127 (Ct. App. 2007). "Even if the vested benefits have yet to
mature, they are properly includable in the marital estate." Id. at 630, 643 S.E.2d at 128. In Tiffault v. Tiffault, 303 S.C. 391, 393,
401 S.E.2d 157, 158 (1991), our supreme court determined that vested retirement
benefits accrued during the marriage constituted an earned property right that is
subject to equitable distribution. In Ball v. Ball, 314 S.C. 445, 447,
445 S.E.2d 449, 450 (1994), our supreme court agreed with the Tiffault court and found nonvested pension plans are also marital property. The court
determined "[i]t is within the discretion of the [f]amily court to
determine, from the facts of each case, what portion, if any, of the benefits
spouse is entitled to receive." Id. The court further found
"the pension plan essentially has no value until vestment," and
"a finding of no current value is sufficient" because "the court
must only determine the portion of the plan to which the spouse is entitled." Id. at 447-48, 445 S.E.2d at 450-51.
In Martin, the husband
had already begun receiving pension benefits at the time of the divorce
hearing. Id. at 439, 373 S.E.2d at 708. The wife presented expert
testimony concerning the value of the husband's retirement plan. Id.
The expert based his computation on the following assumptions: (1) a
twenty-seven year life expectancy for the husband under the mortality tables;
(2) a constant real income stream of $735 per month; and (3) a discount rate of
1.1% based on the average real rate of return on long-term government bonds. Id.
The husband's expert witness gave no opinion on the value of the retirement
account because he thought it was too speculative to value. Id. The
court used the wife's expert's computation and an offset approach in the final
distribution of the marital property. Id. at 439-40, 373 S.E.2d at
708. On appeal, the husband argued the court erred in using the present cash
value method to value and distribute his pension.[3] Id. at 440, 373 S.E.2d at 709. In rejecting his argument, this court
determined "there were sufficient other marital assets to permit an
application of an offset without working an inequity on the husband." Id. at 441, 373 S.E.2d at 709. This court further stated "[t]he trial court
has wide discretion in determining equitable distribution of marital property
and its judgment will not be disturbed on appeal absent an abuse of
discretion." Id. The court found no abuse of discretion in the
family court's use of the present cash value method, but "emphasize[d]
there is no set rule in this area and each case must be analyzed and determined
on its own facts." Id.
In Smith, the husband
had already received a lump sum of his retirement benefits and was receiving
monthly benefits at the time of the divorce hearing. 308 S.C. at 373, 418
S.E.2d at 315. Based on that and other facts, this court determined the trial
court erred in valuing the husband's pension. Id. at 374, 418 S.E.2d at
316. The Smith court stated that to evaluate the present cash value of
a pension, the testimony of an actuary is essential. Id. Because the
court did not have any actuarial evidence of record, the court adopted the
distribution from each payment method of valuation. Id.
In Belton, the family
court valued the husband's three pension plans at $15,000, using the present
cash value method. 325 S.C. at 460-61, 481 S.E.2d at 176. On appeal, the wife
argued this was error because the only evidence presented was that the accounts
were valued at $42,854.25. Id. The evidence presented to the family
court included: (1) the wife's expert accountant's testimony; (2) a letter from
the husband's employer; (3) the husband's financial statement; and (4) each
party's general testimony. Id. at 461, 481 S.E.2d at 176. This court
noted the two methods for valuing pensions, present cash value and distribution
from each payment, have both pros and cons. Id. The court stated the
present cash value method "promotes finality and the severance of the
entanglements between the parties, but its downside can be difficulty in
valuation." Id. It also stated "[t]here is no set rule for
how to determine present cash value." Id. at 461, 481 S.E.2d at
177. The court quoted Martin, holding that courts typically use
actuarial evidence to calculate the present cash value of a defined benefit
plan. Id. This court concluded the family court erred in its valuation
of the husband's plan because the evidence presented did not support the
court's amount. Id. at 462, 481 S.E.2d at 177. Specifically, the
husband's financial declaration failed to include anything that actually
quantified the present value of his plans; the letter from the husband's
employer listed the current value of husband's two defined contribution plans
at $6,603.00, but it did not provide the current value of the husband's defined
benefit plan; and neither the husband's nor the wife's testimony provided any
specific dollar amount for the values of the three plans. Id. Thus,
the court remanded the case to the family court to use $42,854.25 as the
corrected value of the husband's plans, to determine what percent was marital
property, and to divide the assets accordingly. Id. at 463, 481 S.E.2d
at 178.
Based on our review of the
relevant case law and the evidence presented, we find the evidence supports the
family court's determination that Husband's retirement was valued at $31,000 at the time of the divorce
hearing. Although Wife's expert testified he calculated the value of Husband's
retirement plan to be $76,901.46, Husband testified his retirement plan was
valued at $31,000 immediately before the hearing. Further, on
cross-examination, Wife's expert admitted that as of the hearing, the only
amount Husband could have gotten from his plan was the cash surrender value,
which would probably have been a little less than $31,888.71. We do not find any error in the family court's use of the present
cash value method.
II. Attorney's Fees and Costs
Wife argues the family court
erred in not awarding her attorney's fees and costs. We need not address this
issue.
Wife asserts that Husband
rejected her offer to divide his plan; thus, she had to have his plan valued by
an expert at a cost of $1,106.25. Wife asserts that we should award her
attorney's fees and costs if we reverse the family court's determination of the
value of Husband's pension plan. However, we need not address this issue because we do not find any
error in the family court's determination
of the value of Husband's pension plan. See Futch v. McAllister
Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999)
(holding an appellate court need not review remaining issues when its
determination of another issue is dispositive of the appeal).
CONCLUSION
Accordingly, the family court's order is
AFFIRMED.
HUFF, SHORT
and PIEPER, JJ., concur.
[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.
[2] Wife's expert testified Husband's plan is a defined
benefit plan, and Husband did not object. Wife's expert calculated the value
of Husband's plan using the following assumptions: (1) a four percent discount
rate; (2) a benefit rate of twenty-four percent; (3) retirement at age
fifty-five; and (4) a life expectancy of 77.39 years.
[3] The court described this method: "The trial
court calculates, using actuarial evidence, the present value of the pension.
The court further calculates the percentage of the present value attributable
to the marriage and the appropriate equitable share of the other spouse.
Usually, the pension is awarded to the employee spouse and there is an offset
of other marital property to the nonemployee spouse." Id. at 440
n.2, 373 S.E.2d at 709 n.2.