In Re the Marriage of Nelson

746 P.2d 1346, 1987 Colo. LEXIS 679, 1987 WL 2980
CourtSupreme Court of Colorado
DecidedDecember 21, 1987
Docket85SC412
StatusPublished
Cited by11 cases

This text of 746 P.2d 1346 (In Re the Marriage of Nelson) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado 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 Nelson, 746 P.2d 1346, 1987 Colo. LEXIS 679, 1987 WL 2980 (Colo. 1987).

Opinion

*1347 VOLLACK, Justice.

We granted certiorari on the issue of whether a vested pension plan subject to divestment was an “economic circumstance” to be considered in dividing marital property pursuant to section 14-10-113(l)(c), 6B C.R.S. (1987). The court of appeals, in In re Marriage of Nelson, 710 P.2d 1175 (Colo.App.1985), held that the husband’s interest in the plan was not marital property, and also, was not to be considered an “economic circumstance” in the division of property pursuant to the dissolution of the marriage. Our recent decision, In re Marriage of Grubb, 745 P.2d 661 (Colo.1987), in which we held that a spouse’s interest in a vested but unma-tured, employer-supported pension plan was marital property subject to equitable distribution in a dissolution proceeding, is dispositive of this case. Therefore, we reverse the judgment and remand the case for further proceedings.

I.

The petitioner, Marilyn R. Nelson (wife), and the respondent, David J. Nelson (husband), were married on November 15,1961. At the time the decree of dissolution was entered on August 30, 1983, the husband was 41 years of age, and the wife was 38 years of age. Two children were born of the marriage and at the time of dissolution one child was still a minor, being 16 years of age. Custody of this child was vested in the husband. The husband was employed by the Pittsburg and Midway Coal Mining Company (P & M), earning approximately $40,000 per year, and the wife was an unemployed licensed practical nurse.

At the dissolution hearing on August 30, 1983, the disposition of property was at issue. The property consisted of the marital residence, furniture and household goods, various motor vehicles, bank accounts, and the subject of dispute, the husband’s pension plan, entitled “Pension Plan of the Pittsburg and Midway Coal Mining Co. for Employees Represented by the United Mineworkers of America Under Western Coal Wage Agreement” (Plan). P & M bore the entire cost of the plan with no contribution from the employee. The benefits could not be anticipated, alienated, sold, transferred, assigned, pledged, or encumbered, and the plan had no cash surrender value. The plan provided that the husband could not receive benefits until age 55 or upon total disablement, and upon his death, the retirement plan was subject to total divestment unless he was retired and at least 55, or disabled at the time of death. A surviving spouse was entitled to 50% of the benefits which would have been payable to the employee.

At the hearing the wife offered the testimony of Dr. James A. Ebenson, an economist who was accepted as an expert. Dr. Ebenson testified as to the economic value of the husband’s pension plan as determined by several methods. Under the “investment approach,” the contribution of P & M was estimated from the date of hire, January of 1968, to the date of the dissolution of the marriage, August 30,1983, for a total of $33,036. Under what Dr. Ebenson called the “conservative approach,” looking at interest rates, the present value of the pension was $26,045, and by the “traditional approach” the Plan was valued between $26,000 and $47,000, depending on the age at retirement. Dr. Ebenson also testified that the husband’s right to retirement benefits was vested at the time of dissolution.

In disposing of property between parties, the trial court ruled that the marital property should be divided equally. The court held that the husband’s pension plan had a current value of $30,000, to which the wife was entitled to one-half of the present value, regardless of whether the plan was considered an “economic circumstance” or a marital asset. The trial court then added up all the marital property subject to division, including the plan, for a total of $104,-986, and divided it into equal halves. The husband was awarded the marital residence. Since the remaining property was not sufficient to offset the value of the house, the court ordered the husband to execute and deliver to the wife a promissory note in the amount of $40,603, $15,000 of which accounted for the wife’s allotted share of the pension. The note was pay *1348 able in monthly installments of $400, with the entire balance due and payable in a balloon payment on August 30, 1986. No maintenance was awarded to the wife.

The husband appealed the trial court’s division of the property, and the court of appeals reversed the judgment. It held that the pension plan was not marital property under section 14-10-113(2), and went further to conclude that the pension plan was not an “economic circumstance” to be considered in the division of property because it bore “none of the indicia of property as defined in Ellis v. Ellis, [36 Colo.App. 234, 538 P.2d 1347 (1975), aff'd, 191 Colo. 317, 552 P.2d 506 (1976),]” and had “no ascertainable value.” Nelson, 710 P.2d at 1176.

II.

Section 14-10-113(1), 6B C.R.S. (1987), of the Uniform Dissolution of Marriage Act, provides that in a dissolution proceeding, the district court is required to

divide the marital property, without regard to marital misconduct, in such proportions as the court deems just after considering all relevant factors including:
(a) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(b) The value of the property set apart to each spouse;
(c) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and
(d) Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.

We granted certiorari in this case to determine whether the court of appeals’ decision that the pension in this case did not qualify as an “economic circumstance” under section 14-10-113(l)(c), was inconsistent with prior case law. See Ellis v. Ellis, 36 Colo.App. 234, 538 P.2d 1347 (1975), aff'd, 191 Colo. 317, 552 P.2d 506 (1976) (husband’s army retirement pension does not constitute marital property but is to be considered as any other “economic circumstance” in determining a just division of property). Since granting certiorari on this case, we have reexamined the concept of “marital property,” specifically as it applies to pension plans.

In In re Marriage of Grubb, 745 P.2d 661

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Bluebook (online)
746 P.2d 1346, 1987 Colo. LEXIS 679, 1987 WL 2980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-nelson-colo-1987.