Lesko v. Lesko

457 N.W.2d 695, 184 Mich. App. 395, 1990 WL 92766
CourtMichigan Court of Appeals
DecidedJuly 2, 1990
DocketDocket 109807
StatusPublished
Cited by42 cases

This text of 457 N.W.2d 695 (Lesko v. Lesko) 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
Lesko v. Lesko, 457 N.W.2d 695, 184 Mich. App. 395, 1990 WL 92766 (Mich. Ct. App. 1990).

Opinions

R. B. Burns, J.

Plaintiff appeals from the February 24, 1988, judgment of divorce and the order allowing clarification of the judgment and amending the judgment entered on June 10, 1988. We affirm in part and reverse in part.

The parties were married on June 22, 1963. Four children were born of the marriage, three of whom are now adults. One adult child is residing with defendant, another adult child has moved out of the home and the third adult child is attending college full time and returns to defendant’s home for summers and holidays. The minor child, Amanda, also lives with defendant. None of the children have provided financial support to defendant.

Plaintiff was employed by the City of Wyandotte for two years prior to the marriage and had been [398]*398employed there for a total of twenty-six years at the time of trial. Plaintiffs annual salary as director of financial services had risen to over $49,000. Defendant did not work outside of the home throughout most of the marriage, terminating her employment when she became pregnant with the parties’ oldest child. The parties maintained a "traditional” relationship, with defendant staying at home and, in plaintiffs opinion, caring for the children satisfactorily. She is now employed as a dental office receptionist, earning a little over $11,000 per year with nominal benefits.

Plaintiff testified that during the first five years of marriage three children were born. During those five years he worked during the day and obtained a bachelor’s degree in business administration at night school. He also cared for the children and reduced his class load to help.

Plaintiff moved out of the marital home in October, 1985, stating that he fell "totally out of love” with defendant. He indicated that there had been a gradual breakdown in the marriage which had occurred over the last several years.

Defendant testified that plaintiff had been a good husband and provider during the marriage. She did not want the divorce. When plaintiff left, he did not send her any money for several months and she had to depend on relatives and neighbors for financial support.

On appeal, plaintiff raises four issues. First, he claims that the trial court abused its discretion in dividing the marital assets by: (1) awarding defendant fifty percent of his pension benefit for the total time plaintiff would participate in the plan, including that portion accrued prior to the marriage and after the judgment of divorce; and (2) failing to consider the tax consequences of the award.

[399]*399The division of marital property is within the sound discretion of the trial court. Perrin v Perrin, 169 Mich App 18, 22; 425 NW2d 494 (1988). Although this Court reviews property settlements de novo, we will not reverse or modify the property division unless we are convinced we would have reached a different result had we occupied the position of the trial court. Id.

MCL 552.18(1); MSA 25.98(1) states:

Any rights in and to vested pension . . . benefits . . . payable to or on behalf of a party on account of service credit accrued by the party during marriage shall be considered part of the marital estate subject to award by the court under this chapter. [Emphasis added.]

That portion of a pension attributable to service accrued prior to marriage or after the divorce cannot be considered part of the marital estate subject to award by the court. Kurz v Kurz, 178 Mich App 284, 292; 443 NW2d 782 (1989); Kilbride v Kilbride, 172 Mich App 421, 435; 432 NW2d 324 (1988). But see Rogner v Rogner, 179 Mich App 326, 329-330; 445 NW2d 232 (1989) (pension accrued prior to marriage determined to be divisible, MCL 552.23; MSA 25.103). Following Kurz and Kilbride, and applying MCL 552.18(1); MSA 25.98(1), we find that the trial court abused its discretion in awarding defendant the portion of plaintiff’s pension which accrued prior to the marriage and after the divorce. Only that portion accruing during the marriage should have been included in the divisible marital assets. Plaintiff’s future pension accrual, in particular, should not be subject to division. Therefore, we reverse and remand to the trial court to amend its judgment to award defendant one-half of only that portion of [400]*400plaintiffs pension benefit accrued during the marriage.

As for the trial court’s failure to consider the tax consequences of the award, defendant’s C.P.A. testified that each of the parties will pay taxes on his or her own share of the pension upon its receipt. Therefore, this argument is without merit.

Second, plaintiff claims that the trial court erred in distributing the marital property by: (1) awarding nearly all the marital property to defendant and ordering the joint debts to be paid by plaintiff; (2) including as a marital asset the banked vacation and sick pay which is only available at retirement and has no present value and assigning it to plaintiff as gross pay without considering the tax consequences; and (3) basing its decision on plaintiff’s postseparation fault.

The objective of a property division is to reach an equitable distribution of property in light of all the circumstances. Ackerman v Ackerman, 163 Mich App 796, 807; 414 NW2d 919 (1987). The division need not be equal, but must be equitable. Id. The court should consider the duration of the marriage, the contribution of each party to the marital estate, each party’s station in life, each party’s earning ability, each party’s needs, fault or past misconduct, and any other equitable circumstance. Perrin, supra.

Prior to addressing the general property division by the trial court, we will address the specific issues raised by plaintiff. He specifically complains that the trial court improperly required him to pay the parties’ joint debts. On closer examination, these "joint debts” are not so "joint.” The bill consolidation loan of $5,641 apparently paid $2,000 in cash to plaintiff, and defendant disputes that there was $3,641 in debts owing at the time of separation, stating that the debt amount at the [401]*401time was approximately $1,500. Further, defendant testified that the $1,500 included the Sears, Hudson and master card accounts, which plaintiff also used. Defendant testified that she charged between $200 and $300 for herself and Amanda from December, 1985, to February, 1986. The trial court could view the credibility of each witness regarding the disputed joint debts, determine that the majority of the debts were plaintiffs individual obligations, and properly order that he be required to pay the "joint” debts of the parties.

Plaintiff also argues that his "banked” vacation and sick time should not have been considered a divisible marital asset. Plaintiff has accumulated time valued at $22,900, for which he will receive cash payment upon retirement if he does not use it prior to that time.1 This issue is one of first impression for this Court. However, at least one other state has considered the issue and found that accrued personal leave for which an employee can be paid at some point, such as at retirement, is a marital asset. Schober v Schober, 692 P2d 267 (Alas, 1984). See also Brotman v Brotman, 528 So 2d 550 (Fla App, 1988) (severance pay and earned vacation pay received at termination considered marital asset). In Schober,

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Cite This Page — Counsel Stack

Bluebook (online)
457 N.W.2d 695, 184 Mich. App. 395, 1990 WL 92766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lesko-v-lesko-michctapp-1990.