Boyd v. Boyd

323 N.W.2d 553, 116 Mich. App. 774
CourtMichigan Court of Appeals
DecidedJune 8, 1982
DocketDocket 55268
StatusPublished
Cited by49 cases

This text of 323 N.W.2d 553 (Boyd v. Boyd) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boyd v. Boyd, 323 N.W.2d 553, 116 Mich. App. 774 (Mich. Ct. App. 1982).

Opinions

Bronson, J.

The parties were divorced by a judgment entered on December 3, 1980, in the Hillsdale County Circuit Court. Defendant appeals as of right, contesting the propriety of the property disposition, child support, and alimony award.

At the time of the divorce, plaintiff was 55 years old and employed by Clark Equipment Company (hereinafter Clark Equipment). The parties’ tax returns for the years 1978 and 1979 reveal that in each year plaintiff earned a gross salary of approximately $28,000. Defendant was 51 years of age at the time of the divorce and unemployed. Defendant worked only sporadically during the marriage while plaintiff had been employed by Clark Equipment for some 24 years. The parties were married for over 30 years and had 2 minor children at the time of trial.

The trial court awarded plaintiff property with a value of $37,206. Defendant was awarded property with a value of $30,687. Plaintiff was ordered to pay defendant $3,259.50, which represented one-half the difference of the value of the property awarded plaintiff in excess of that awarded defendant. A subpay plan at Clark Equipment was valued at $4,000. Plaintiff was ordered to pay defendant an additional $2,000 as her share of the plan.

Child support was set at $45 per week, per child, until each child attained his majority. On December 4, 1980, one of the children, Charles, turned 18. On May 6, 1982, Steven, the parties’ remaining minor child, reached 18 years of age.

The court awarded defendant $60 a week in alimony until May 6, 1982. On this date, plaintiff’s alimony obligation expired. The court also ordered [778]*778plaintiff to pay defendant as additional alimony $1,000 per year for the years 1981 and 1982. Each payment was to be made in a lump sum before the start of the calendar year for which it was intended.

Defendant first contends that the circuit court erred in failing to consider as a marital asset plaintiff’s noncontributory pension plan with Clark Equipment. In Miller v Miller, 83 Mich App 672; 269 NW2d 264 (1978), this Court held that a noncontributory pension plan is distributable as a marital asset to the extent that the plan has a reasonably ascertainable present value and the employee’s interest is more than a mere expectancy. See, also, Tigner v Tigner, 90 Mich App 787; 282 NW2d 481 (1979).

In the case at bar, the court noted that although defendant had a current right to a pension, he was not yet eligible to receive anything from the company. At the earliest, plaintiff would be able to receive monies from the pension plan at age 59. In any case, upon his death, unless he was married and elected a "joint and survivor benefit”, he would be eligible for no further payments.1

In Gibbons v Gibbons, 105 Mich App 400; 306 NW2d 528 (1981), we held that an employee’s vested, but unmatured, pension rights were distributable as a marital asset. In considering the Miller [779]*779holding, the Gibbons Court concluded that the possibility that one might die prior to the completion of his expected lifespan is not the type of contingency which should defeat the distribution of pension benefits upon marital dissolution. This case differs from Gibbons only in that here, at the time of the divorce, the pension holder was not eligible to receive benefits if he chose to retire immediately. As in the instant case, Gibbons involved a pension plan which terminated on the death of the pension holder.

In Gibbons, we stated that the statutory mortality tables appearing in MCL 500.834; MSA 24.1834 could be used to calculate life expectancy for purposes of determining the value of á pension plan. The value calculated in this way could in turn be reduced to a present value for purposes of computing each party’s interest in the pension benefits. Id., 403. Essentially, the same procedure can be utilized to determine the value of the pension plan here. Since, however, plaintiff was 55 years old at the time of the divorce and was not eligible to receive any pension benefits until at least age 59, the following deviation from the Gibbons calculation would be necessary. First,, the lower court would have to ascertain the likelihood of a 55-year-old man dying before he becomes 59. If, for instance, five 55-year-old males out of each 100 die by the age of 59, the value of the pension benefits would have to be reduced by 5%. Second, the life expectancy of plaintiff at retirement age would have to be calculated. By MCL 500.834; MSA 24.1834, a 59-year-old person has a life expectancy of 16.81 years.2 Third, the life expectancy of plain[780]*780tiff would have to be multiplied by the yearly pension benefits the plan provides. Fourth, this figure must be reduced by the percentage of possibility that plaintiff would die before he is eligible for retirement. (In this example, we have used 5% for purposes of illustration only.) Fifth, this figure must be reduced to present value. This sum will constitute a reasonably ascertainable present value for the pension.

The major objection to the division of a vested, but unmatured, pension plan in the way that we have outlined is that the pension holding spouse may not ever receive anything from the pension plan yet, nonetheless, have to pay the nonpension holding spouse for an interest in the plan. This is, of course, a matter for legitimate concern. However, to the extent that a pension plan of the variety under consideration here is deemed a marital asset, the real problem is determining which party on the marriage’s dissolution may have to be shorted in the distribution of assets. If, because of the relatively small possibility that the pension holding party might not actually benefit from the plan, we were to hold such pensions nondistributable, we would actually be perpetrating a greater inequity. Our refusal to distribute the pension benefits would result in the pension holding spouse obtaining more than a fair share of the marital assets in most cases since, in actuality, most persons do live approximately to the fulfillment of their expected lifespan. Indeed, even under the method of distribution outlined in this opinion, a [781]*781pension holding spouse who lives significantly longer than his or her expected lifespan will obtain a disproportionately higher share of the marital assets. Under the holding of this opinion some inequities will probably result. However, the contrary holding will inevitably result in even greater inequities in a greater number of cases.

We proceed from the premise that it is unrealistic to think of an employee’s pension plan as a gratuity or mere largesse from the employer. Such pension plans must be deemed bargained-for consideration in lieu of more salary now. If, instead of a pension plan, the employer offered higher wages, these monies would have been available to the parties during the marriage and, to the extent that this compensation in lieu of a pension had been invested, may well have resulted in a bigger pot of marital assets for distribution.3 By finding that a particular pension plan is a marital asset, a court is finding that both parties have a right as between themselves to benefit from the same.

Two of us were on the panel that decided Miller, supra. We now believe that the following statement from Miller is too broad:

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Bluebook (online)
323 N.W.2d 553, 116 Mich. App. 774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyd-v-boyd-michctapp-1982.