Marriage of Larson v. Larson

412 N.W.2d 773, 1987 Minn. App. LEXIS 4844
Court of Appeals of Minnesota·Decided September 29, 1987·No. C3-87-453·Published·Cited by 2 cases

Opinion

OPINION

HUSPENI, Judge.

This is an appeal from the December 12, 1986, judgment and decree which dissolved a 27 year marriage. Husband appeals a provision which awarded respondent wife one-half of the present value of appellant’s pension at retirement age 65 plus $402.00 per month in the event appellant retires before age 65. The $402.00 represents one-half of the monthly payment appellant would receive at age 55 should he retire on August 31, 1986. He contends on appeal that the trial court abused its discretion when it made the pension award to respondent. We affirm.

FACTS

Appellant and respondent were married on July 18, 1959. The one child of the marriage had reached the age of majority at the time of the dissolution. Neither party requested an award nor reservation of maintenance. The court apportioned the marital estate giving the parties approximately equal shares including equal division of the proceeds from the sale of the homestead. None of these rulings is challenged on appeal.

For eighteen years prior to the dissolution, respondent, age 46, was employed as a banquet waitress. In 1985, her taxable income was $21,818.44. During the first half of 1986, her net monthly income ranged from $1,370.00 to $1,459.20. She has a vested social security benefit which matures at age 65. This is her only retirement benefit. At trial, appellant argued that respondent’s social security entitlement should-offset her claim to appellant’s retirement monies. He does not raise this issue on appeal, however.

Appellant was 48 years old at the time of the final hearing. He has worked for the Bloomington School District since 1965, and attained the position of chief custodian. During 1985, his gross income was $23,-944.48; his net monthly income was $1,629.44 at the time of trial. He had accrued twenty-six quarters of social security benefits through employment prior to 1965. Appellant’s social security benefit will vest when he accrues four more quarters. Respondent’s expert testified appellant could accrue four quarters in one year through other employment. Appellant also has a Public Employee’s Retirement Association (PERA) pension, vested at the date of trial, based on over 21 years of service with his current employer. The division of the PERA pension is the subject of this appeal.

Respondent’s expert was a Fellow of the Society of Actuaries from 1975, with eighteen and one-half years experience as an actuary. He testified that in valuing appellant’s PERA pension, a “vested termination *775 assumption” method was utilized. The expert explained:

[t]here’s two parts to evaluation. The first part is to determine the amount of monthly payments that would be received. And the second stage then is to use those monthly payment amounts to determine a present value today, reducing to present value.

The information regarding the monthly payments was supplied by PERA. The expert testified that assuming appellant did not work after August 31, 1986:

The amount of the monthly payment as of August 31, 1986, * * * would mature and become payable at age 55 and the amount is $804.33 per month.

The expert testified there was a major incentive for appellant to cease his PERA employment at age 55. In that event, appellant would receive 62% of his high-five yearly salary as his PERA pension. If he took other employment, he could subsidize his pension to the level of his pre-retirement salary. Furthermore, he would accrue in one year the four quarters needed to receive a social security pension. The expert opined:

[the appellant] could become a double dipper in the pension sense and this is a very, very standard procedure by people that are covered by plans that are not covered by social security initially.

Moreover, if appellant continued to work to age 65, his pension would be a lower percentage of his salary at retirement age, and he would be ineligible for social security.

At the trial court’s request, the expert calculated the present value of the pension excluding salary increases after the date of trial. The figures in the record were:

retirement age 55.326, present value $72,392
retirement age 57.326, present value $77,253
retirement age 59.326, present value $69,162
retirement age 60.326, present value $62,585
retirement age 62.326, present value $51,274
retirement age 65.326, present value $37,945

These figures included a pre-retirement death benefit.

The trial court refused to permit testimony from a person called by the appellant as an expert. Subsequently, the parties stipulated to a present pension value of $37,945, assuming a retirement age of 65, and also assuming continuance of appellant’s current salary and death benefit. Appellant offered no further testimony as to the value of his pension.

Appellant claimed he could not afford to retire until age 65 and that he had no intention of changing his employment. Respondent, however, claimed appellant had talked often of retiring early to spend the winters in warmer climates and the summers fishing in northern Minnesota. The court discounted the testimony from both parties. There was no testimony on the average retirement age for chief custodians in the Bloomington School District.

ISSUES

1. Did the court abuse its discretion when it awarded respondent one-half of the present value of the appellant’s pension at retirement age 65 and in the event he retired before age 65, an additional one-half share of the monthly pension income he would receive if he were to retire immediately, although he would not receive any payments until age 55?

2. Should the respondent be awarded attorney fees upon appeal?

ANALYSIS

I.

A trial court has broad discretion when dividing marital property in a dissolution and will not be overturned on appeal except for a clear abuse of discretion. Bogen v. Bogen, 261 N.W.2d 606, 609 (Minn.1977). As with other marital property, the valuation and division of pension rights is a matter for the trial court’s discretion. DuBois v. DuBois, 335 N.W.2d 503, 505 (Minn.1983). The trial court’s method of *776 valuation is to be affirmed if it has an acceptable basis in fact and principle even though this court may have taken a different approach. Castonguay v. Castonguay, 306 N.W.2d 143, 147 (Minn.1981). While trial courts are- accorded broad discretion in both valuation and distribution of an asset, this discretion is not unlimited and must be based on clear documentary evidence or by comprehensive findings issued by the court. Ronnkvist v. Ronnkvist,

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Marriage of Larson v. Larson, 412 N.W.2d 773, 1987 Minn. App. LEXIS 4844 (Mich. Ct. App. 1987).

412 N.W.2d 773 (Marriage of Larson v. Larson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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