Holland v. Holland

588 A.2d 58, 403 Pa. Super. 116, 1991 Pa. Super. LEXIS 668

• Court: Superior Court of Pennsylvania
• Decided: February 12, 1991
• Docket: 157 Philadelphia 1990
• Status: Published

Opinions

DEL SOLE, Judge.

In this appeal of an equitable distribution order, Appellant raises four questions. Chief among them is the method used by the trial court in distributing the marital share of Appellant’s pension. The trial judge, after entering a decree of divorce, ordered Mr. Holland’s government retirement plan be equitably distributed using the deferred distribution method. The court ruled that the basic benefit of this asset should be determined at the time that husband retires based upon an application of the coverture fraction.

In evaluating an equitable distribution scheme, an appellate court will not reverse an order determining equitable distribution absent an abuse of discretion Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987).

Wife was awarded forty percent of husband’s government pension using a coverture fraction, the length of the marriage being the numerator, and husband’s total years of employment the denominator. This was to be applied to his basic retirement benefits without adjustment. Basic benefits are calculated by averaging the three highest income earning years of the husband’s last five years of employment. Appellant argues that the portion of benefits attributable to service credits earned after separation is not part of the marital estate. He would have the court value the pension at the time of divorce and fix future distribution at that time.

This court has repeatedly stated that in general “only that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property within the meaning of the divorce code.” Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987). However, an exception to this rule was stated in Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986). It was there held that “where a plan has vested and value increases aside from contribution of the parties, beyond the date of separation,” Id., 357 Pa.Superior Ct. at 344-45, 516 A.2d at 12-13, the increase is marital property, (emphasis added). A delayed distribution of pension benefits requires the non-employed spouse to wait until some indefinite time in the future to receive the marital share. To compensate for this postponement of benefit, that spouse is permitted to enjoy increases in value occasioned by continued employment of the worker. Also, the employed spouse increases the non-marital share of the benefits since continuing service enlarges the denominator. Further, later year wage increases are a product of experience and longevity which were developed during the marriage. The husband, as a long time employee of the Federal Government, can look forward to the benefits which accrue from a vested pension. His former spouse is entitled to share in any increase in value of the marital share which may occur by Appellant’s continued employment.

Appellant’s second contention is that the trial court failed to consider wife’s social security benefits in its equitable distribution analysis. Section 401(d) of the divorce code requires the court to consider all sources of income, including social security. 23 P.S. § 401(d)(6). As an employee of the Federal Government, husband does not participate in the social security program. Wife is entitled to collect social security benefits when she attains the age of sixty-five based on her employment history. Husband argues that the trial court, in awarding him sixty percent of the his pension did not compensate him for his lack of social security benefits. We believe the trial court did take into account the wife’s expectation of social security benefits. The husband’s estimated pension benefit for trial purposes was Four Thousand Two Hundred Thirty-three Dollars ($4233.00) per month. Sixty percent of that figure is two Thousand Five Hundred Forty Dollars ($2540.00). The wife would receive One Thousand Six Hundred Ninety-Three Dollars ($1693.00), which when combined with her estimated social security benefit of Eight Hundred Fifty-Eight Dollars ($858.00) would equal Two Thousand Five Hundred Fifty-One Dollars ($2551.00) the same amount the husband would receive in pension benefits. Since this is in keeping with the overall distribution, we conclude that the trial court did take into account wife’s potential social security.

Appellant further contends that the trial court erred in its order that wife is to receive Forty percent of husband’s “basic retirement benefit, before any adjustments thereto”. The husband has remarried and argues that, under the applicable federal pension statutes, his current wife has an absolute entitlement to the survivor’s annuity portion of his retirement unless she waives her right to this annuity. As his current wife has not waived this right, husband submits that his basic retirement benefit shall be decreased substantially by this election. From our thorough review of the record we are unable to find that husband presented any testimony describing the financial impact of his remarriage. We are mindful that it was the husband’s conscious decision to remarry. The effect his remarriage may have on his share of the pension does not relate to his former wife’s interest in the marital estate.

Appellant also contends that the trial court abused its discretion by failing to consider the interest earned from date of separation to date of hearing on wife’s IRA and profit sharing account. Because the value for different assets fluctuates substantially from time to time, the valuation date for marital property is generally to be the time of distribution. Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988). Yet where the evidence offered by one party is uncontradicted, the court may adopt this value although the resulting valuation would have been different if more accurate and complete evidence had been presented. See Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987). Absent a specific benchmark for valuation, the trial court is free to select the date which best serves to provide for economic justice between the parties. Miller v. Miller, 395 Pa.Super. 255, 577 A.2d 205 (1990). Here, as the trial court points out, the husband supplied date of separation figures for both the IRA and profit sharing accounts, and these figures were used in the court’s determination. Since the court also notes that it did attempt to consider the accounts and their future value when it considered the disposition of husband’s pension plan, the court did not abuse its discretion.

Appellant’s last contention is that the trial court erred in its valuation of a parcel of West Virginia real estate. The parcel in question was a gift to the couple from the wife’s mother. The wife submitted a written appraisal which valued the property at Twelve Thousand Five Hundred Dollars ($12,500.00). (Counsel for husband had stated he had no objection to the use of the handwritten appraisal, N.T. 11-12-89 at 99). The husband presented expert testimony which valued the property at Twenty-Eight Thousand Dollars ($28,000.00). On the basis of countervailing testimony the trial court assessed the value of the disputed property to be Twenty-Thousand Dollars ($20,000.00). See Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985). Since the trial court provided us with the benefit of its reasoning in reaching the determination of the value of the real estate, we find the court did not abuse its discretion.

Order affirmed.

HUDOCK, J., files a concurring and dissenting memorandum.