In Re the Marriage of Hunt

868 P.2d 1140, 1993 WL 282771
CourtColorado Court of Appeals
DecidedFebruary 28, 1994
Docket92CA0252
StatusPublished
Cited by7 cases

This text of 868 P.2d 1140 (In Re the Marriage of Hunt) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Hunt, 868 P.2d 1140, 1993 WL 282771 (Colo. Ct. App. 1994).

Opinions

Opinion by

Judge PIERCE.

In this dissolution of marriage action, John S. Hunt (husband) appeals the orders for division of his military pension and permanent maintenance. Dianna L. Hunt (wife) cross-appeals the valuation and distribution of property. We affirm.

The parties were married in 1977. During the marriage, husband obtained two advanced degrees and became a physician, all while serving in the military. Wife was the homemaker, cared for the parties’ five children, and provided daycare for others on occasion but was not otherwise employed outside the home.

A decree of dissolution was entered in April 1991, when wife was 34 and husband 35 years old. The parties received joint custody of the children, aged 4, 6, 9, 11, and 12, with wife as the primary residential custodian. After a hearing in October 1991, the trial court entered permanent orders dividing the parties’ property, including husband’s non-vested military retirement benefit, and awarding wife $750 per month maintenance.

I. Pension

Husband first contends that the trial court erred in its division of the military pension by allowing wife to share in the benefits associated with future promotions and increases in pay. He argues that the pension to be divided should be limited to that of a captain, the highest rank he achieved during the marriage. We disagree.

The trial court has broad discretion to determine the most appropriate and equitable division of retirement benefits accrued during the marriage. In re Marriage of Gallo, 752 P.2d 47 (Colo.1988); In re Marriage of Sinkovich, 830 P.2d 1101 (Colo.App.1992).

Here, during the fourteen-year marriage, husband accumulated approximately ten years of service creditable to his military retirement, as he did not receive credit for his time in medical school. He must have at least twenty years of creditable service before he may receive a retirement- benefit. When the dissolution decree was entered, he had reached the rank of captain, although he was promoted to major before the permanent orders were entered.

The trial court awarded wife a fraction of the benefit husband will receive when he retires based on his rank at retirement. Her share was determined on a formula consisting of one-half times a fraction having ten years as the numerator and the total number of creditable years as the denominator.

Although wife asserts that the fraction should have been based on the fourteen years of marriage rather than the ten years of creditable service earned during the marriage, we perceive no error. That calculation is supported by the record and properly reflects a share of that portion of the benefit earned during the marriage. See In re Marriage of McGinnis, 778 P.2d 281 (ColoApp. 1989).

[1142]*1142Husband does not dispute the fraction but claims that it should apply only to the retirement benefit accorded to a captain, rather than whatever greater benefit he may eventually receive. He relies on Texas eases which apply that reasoning. E.g., Grier v. Grier, 731 S.W.2d 931 (Tex.1987). See also Salazar v. Salazar, 583 So.2d 797 (Fla.Dist.Ct.App.1991).

However, such a limited view of the value of the retirement benefit earned during the marriage will not result in an equitable distribution. As expressed in one commentary:

The mistake is made by viewing the post-divorce salary levels in a vacuum and concluding that separate property is being given to the other spouse. In truth, the earlier years of employment, many of which may have been during the marriage, are usually the reason the employee was able to sustain his relationship with the employer and reach the higher levels of salary used to calculate the retirement benefit. Often the nonemployee spouse will have furnished substantial emotional support and inspiration (and financial support) during the early years of employment when the salary was low, the hours long, the frustrations many, and the long-term rewards and benefits questionable.

McGuane & Zuber, Valuation of Pension and Profit-Sharing Benefits, 3 J.Am.Acad. Matrimonial L. 13, 28 (1987). Further, as stated in Bullock v. Bullock, 354 N.W.2d 904, 910 (N.D.1984):

Certainly in this case [the husband’s] years of military service during the parties’ marriage provided a basis for any future promotions and increases in pay for length of service to which he may become entitled. [Husband’s] military career and earning ability were developed and enhanced throughout the course of the parties’ ... years of marriage.

Therefore, when the trial court reserves jurisdiction to divide a non-vested military pension, it may properly divide the benefit that husband will receive when he retires. Accord Askins v. Askins, 288 Ark. 333, 704 S.W.2d 632 (1986) (describing husband’s argument as “beguiling but not sound”); Stoerkel v. Stoerkel, 711 S.W.2d 594 (Mo.Ct.App.1986); Radigan v. Radigan, 465 N.W.2d 483 (S.D.1991).

In so holding, we reaffirm the trial court’s discretion to fashion an equitable division. There is no requirement that the trial court divide assets equally or with mathematical precision in order to obtain a fair result. See In re Marriage of Fenimore, 782 P.2d 872 (Colo.App.1989).

In our view, the method used by the trial court here gave appropriate weight to that part of husband’s retirement benefit earned during the marriage and is, at least implicitly, approved by In re Marriage of Beckman, 800 P.2d 1376 (Colo.App.1990).

II. Maintenance

Husband also contends that the trial court erred in awarding wife permanent maintenance. We disagree.

The trial court has discretion to award maintenance in such amounts and for such periods as it deems just. Section 14-10-114, C.R.S. (1987 Repl.Vol. 6B); see In re Marriage of Olar, 747 P.2d 676 (Colo.1987).

Here, the award is amply supported by the evidence, findings, and applicable law. See In re Marriage of Micaletti, 796 P.2d 54 (Colo.App.1990); In re Marriage of Martin, 707 P.2d 1035 (Colo.App.1985).

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