Franklin v. Franklin

859 P.2d 479, 116 N.M. 11
CourtNew Mexico Court of Appeals
DecidedJune 25, 1993
Docket14333
StatusPublished
Cited by11 cases

This text of 859 P.2d 479 (Franklin v. Franklin) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franklin v. Franklin, 859 P.2d 479, 116 N.M. 11 (N.M. Ct. App. 1993).

Opinion

OPINION

PICKARD, Judge.

This case involves the formula for dividing periodic payments of a retirement plan that was being distributed pursuant to a “pay as it comes in” basis as provided in an earlier divorce decree. The parties were married in 1950 and divorced in 1983. The division of the parties’ community property in the 1983 divorce decree awarded Wife “[a]n undivided lh of [Husband’s] interest in the Employee Retirement Income Plan of El Paso Company [“the Plan”] as of January 10, 1983, with the benefits to be paid to [Wife] as they become due and payable under the terms of the Plan.” Husband was awarded an identical interest, as well as “all rights accruing after Janu: ary 10, 1983,” in the Plan. No value was placed on the Plan in the divorce decree, nor was a qualified domestic relations order regarding the Plan ever prepared.

The parties never appealed the divorce decree. However, after Husband retired on August 1, 1988, Wife objected to the amount of pension benefits Husband was paying her for her share of the Plan. Accordingly, Wife filed a petition to enforce the decree. Wife appeals the trial court’s judgment regarding the petition.

Wife raises two issues on appeal. She first contends that the trial court as a matter of law applied the wrong formula to determine Wife’s share of the community interest in the Plan under a pay as it comes in method of distribution. Specifically, she claims that the trial court erred in (1) applying an income adjustment that factored in Husband’s salary average at the time of divorce rather than the salary average that was actually applied to calculate Husband’s share of the Plan upon his retirement, and (2) applying two early-retirement penalties against Wife that were not imposed against Husband in computing his share of the Plan. Wife’s second issue is that the trial court erred in characterizing the $62,864.16 that Husband received as a lump sum severance payment as Husband’s separate property. Based on the record presented, we affirm on the trial court’s use of Husband’s salary at the time of divorce and characterization of the lump sum severance as separate property. We reverse the trial court’s inclusion of the hypothetical penalties in the calculation of Wife’s portion of the pension benefits.

FACTS

Husband worked for El Paso Natural Gas Company during and after his marriage to Wife. • The parties do not contest that Wife is entitled to half the benefits accrued under Husband’s defined benefit plan for the coverture period. What is contested is the appropriate formula to compute Wife’s community interest and Husband’s separate interest. Under the terms of the Plan, a determination of benefits is based on the age of the employee at the time of retirement, the number of credited years of service, and the employee’s final average monthly compensation. At the time of divorce, Husband was not quite 58 years old and had accrued 23.9167 years of credited service with El Paso Natural Gas Company. When Husband retired, he was 58 years and 4 months old, and he had accrued 29.4163 years of credited service. Husband’s final average monthly compensation at the time of divorce was $2689.47, and it was $3989.51 at the time of his retirement. The Plan was fully vested at the time of divorce.

After Husband retired, he received two different amounts of benefits, one amount for the first four years of retirement and a second amount once Husband became eligible for Social Security benefits. The reason for the different amounts is that the Plan contemplated a reduction in benefits according to a certain formula once Social Security benefits became available. It would unduly complicate this opinion to fully explain the different formulas; therefore, we will utilize the first four years to explain the facts. Similarly, there were minor discrepancies in the testimony concerning some of the numbers. Again, rather than fully explaining the discrepancies and the probable reasons for them, we will use the figures that are supported by the evidence in the light most favorable to the judgment or those figures that are not challenged on appeal.

The basic elements of the Plan are as follows. The normal retirement benefit is 1.83% times the final average monthly compensation times the years of credited service up to thirty years. However, benefits are reduced for early retirement. Benefits are reduced by 2% for each year that commencement of benefits precedes age 65 or 2% for each year of credited service less than 30, whichever produces the greater benefit, provided that the minimum reduction in any case is 2% for each year an employee retires before age 60. We will call these reductions the standard penalties. In addition, employees are not eligible to retire until age 55, and if they leave the company before that age, they cannot begin to collect benefits until age 55 and then in vastly reduced percentages. We will call this reduction the ineligibility penalty.

It appears that when El Paso Natural Gas Company calculated Husband’s actual pension upon his actual date of retirement, it applied the basic pension formula plus a standard penalty of 3.3% for retiring one and two-thirds years short of age 60. By applying the following formula, this Court has arrived at an almost identical pension benefit to the one that Husband actually received upon retirement:

1.83% X $3989.51 X 29.4163
X 96.7% = $2076.75.

Explanations for the numbers used in this formula are as follows:

(1) 1.83% is the multiplier applied to all pension calculations, (2) $3989.51 is Husband’s final average compensation when he retired, (3) 29.4163 is the number of credited years of service, and (4) 96.7% is 100% minus the standard reduction for retiring one and two-thirds years short of age 60.

Wife asserts that this Court should apply the following formula, referred to by Wife as a straight coverture fraction, in determining Wife’s share of the Plan:

50% X 0.813042 X $2076.75 = $844.24.

Explanations for the numbers used in this formula are as follows:

(1) 50% represents Wife’s half of the community interest, (2) 0.813042 represents the amount of time that Husband participated in the Plan during the marriage (23.9167 years) divided by the total amount of time that Husband participated in the Plan both during and after the marriage (29.4163 years), and (3) $2076.75 is the actual benefit that Husband received upon retirement.

The straight coverture fraction formula that Wife proposes is based on a percentage of Husband’s actual benefits. Therefore, under this formula, Wife’s benefit is based on the same salary and the same early-retirement penalties that were actually used in calculating Husband’s benefit. The only reductions inherent to this formula are (1) dividing the community interest by 50%, and (2) applying a service years adjustment to reduce Wife’s share proportionate to the number of years Husband was employed by El Paso Natural Gas Company during the marriage.

The trial court did not adopt Wife’s formula and instead adopted the pension calculations of Husband’s expert witness, bank trust officer Rita Neal.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kelly O. Orgeron v. Edward J. Orgeron, Jr.
Supreme Court of Louisiana, 2025
Veronica Louise Hudson v. Daniel Lee Hudson
532 P.3d 272 (Alaska Supreme Court, 2023)
Montoya v. Sasso (In re Sasso)
560 B.R. 801 (D. New Mexico, 2016)
Trinosky v. Johnstone
New Mexico Court of Appeals, 2013
Gilmore v. Gilmore
2010 NMCA 013 (New Mexico Court of Appeals, 2009)
Garcia v. Garcia
2010 NMCA 014 (New Mexico Court of Appeals, 2009)
Berry v. Berry
898 A.2d 1100 (Superior Court of Pennsylvania, 2006)
Luczkovich v. Luczkovich
496 S.E.2d 157 (Court of Appeals of Virginia, 1998)
Ressler v. Ressler
644 A.2d 753 (Superior Court of Pennsylvania, 1994)
Ruggles v. Ruggles
860 P.2d 182 (New Mexico Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
859 P.2d 479, 116 N.M. 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-franklin-nmctapp-1993.