Perry v. Perry

350 N.W.2d 275, 133 Mich. App. 453
CourtMichigan Court of Appeals
DecidedApril 2, 1984
DocketDocket 68666
StatusPublished
Cited by21 cases

This text of 350 N.W.2d 275 (Perry v. Perry) 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
Perry v. Perry, 350 N.W.2d 275, 133 Mich. App. 453 (Mich. Ct. App. 1984).

Opinions

T. Gillespie, J.

Plaintiff, Leona A. Perry, and defendant, Noble K. Perry, were married January 7, 1956. They were divorced December 8, 1982, by Circuit Judge Hazen R. Armstrong in Saginaw.

Mr. Perry was 52 years of age and had been employed by Consumers Power Company for many years. He has a vested noncontributory pension with his employer which will entitle him to $886 [455]*455monthly at age 65. His salary was about $30,000 a year.

Mrs. Perry is a skilled business woman who was an executive secretary, a successful real estate agent, and her last employment was as assistant vice president of the mortgage department of Family Federal Savings and Loan of Saginaw where her annual earnings were $15,000. Just prior to the divorce, in April, 1982, she was laid off due to economic conditions and she was drawing $150 weekly in unemployment benefits at the time of the divorce.

The parties were parents of two children, both of whom were over 18 years of age. Both parties, even though not obligated to do so, had been contributing to a daughter’s college education.

There was recrimination on each side. The wife charged the husband with insensitivity and lack of communication, unwillingness to travel with her, parsimony, unwillingness to participate in counseling, and, ultimately, physical abuse. The husband charged the wife with taking separate vacations and, ultimately, involvement with another man, which plaintiff claimed did not occur prior to separation.

The court found mutual fault.

In division of the property, the court divided all the property equally except the house which it ordered sold, the net proceeds to be divided equally.

The court granted the husband his Consumers Power pension free of claims by the wife.

The issue in this case arises in the decision of the court to award $250" per month alimony to plaintiff, so long as she is unemployed, and permanent alimony of $150 per month thereafter, unless she should remarry.

[456]*456The defendant sought reconsideration of the alimony question averring that alimony was not asked for in the complaint nor was the question raised on trial or in argument.

The court denied the motion saying that it was aware of all facts and that the alimony was an offset for plaintiffs interest in the pension, which was a marital asset granted to the defendant.

Defendant appeals from the court’s decision on permanent alimony, not quarreling with the decision on temporary alimony while plaintiff is unemployed.

This case raises a question which has been troubling family practice lawyers and judges who have the responsibility to divide property in divorce cases.

In this case a 53-year-old man has a vested, noncontributory pension which will not mature until he is 65 years of age, at which time he will receive $886 per month for life. No attempt was made by either party to place a present value on that pension.

The trial judge awarded the pension to the defendant husband, who had gained the pension rights through his employment. In so doing the court achieved two objectives deemed by some circuit judges to be desirable. First, it is conceived that at the time of divorce it is best not to encumber a retirement pension with the claims of a divorced spouse and to make the break as clean as possible, for by the time the pension matures there are ofttimes second families on both sides. Second, assuming alimony is warranted, it tends to enlarge the estate to be divided because the tax impact is usually less when the alimony is taxed to the recipient who normally is in a lower tax bracket.

[457]*457Pensions and their place in property settlements in divorce actions have been the subject of two dozen or so appellate cases in the last ten years. Out of these cases has come a body of law on that subject which is still evolving, but certain maxims have emerged.

One such rule is that if a pension has a "reasonably ascertainable present value” it should be considered a marital asset by the court. In Miller v Miller, 83 Mich App 672; 269 NW2d 264 (1978), this Court set forth the above rule which is reiterated in Tigner v Tigner, 90 Mich App 787; 282 NW2d 481 (1979); McCallister v McCallister, 101 Mich App 543; 300 NW2d 629 (1980); Gibbons v Gibbons, 105 Mich App 400; 306 NW2d 528 (1981); Davey v Davey, 106 Mich App 579; 308 NW2d 468 (1981); Ripley v Ripley, 112 Mich App 219; 315 NW2d 576 (1982); Crombez v Crombez, 114 Mich App 750; 319 NW2d 660 (1982); Bolt v Bolt, 113 Mich App 298; 317 NW2d 601 (1982); Boyd v Boyd, 116 Mich App 774; 323 NW2d 553 (1982).

In Miller the statement was made that "an employee’s interest in a pension funded by his employer is distributable pursuant to a divorce only to the extent that the interest is marital property with a reasonably ascertainable present value. If the employee’s interest is contingent or a mere expectancy it may not be distributed pursuant to a divorce judgment.” 83 Mich App 675. (Footnote omitted.) This concept was expanded in Boyd v Boyd, supra, to include even rion-vested plans which have reasonable certainty of vesting even though the plan may be still contingent. A plan is said to have vested when the employee’s right to pension funds becomes irrevocable and will survive voluntary termination of employment. It is said to have matured when the employee [458]*458acquires an unconditional right to immediate payment, whether or not that right is exercised.

Some distinction is made between contributory and noncontributory pension plans. If the plan is conditioned on voluntary employee contributions by paying some of his or her wages into the plan, the plan must normally be considered marital property. Bolt v Bolt, supra.

Certain retirement funds, though vested, may not be included in the marital estate because the state or federal act creating such fund has been judicially determined not to be included or distributed in a divorce situation. Some such funds are school retirement benefits, Public School Employees’ Retirement Board v Wexford Circuit Judge, 39 Mich App 568; 197 NW2d 854 (1972); Grotelueschen v Grotelueschen, 113 Mich App 395; 318 NW2d 227 (1982), federal railroad retirement benefits, Kendall v Kendall, 106 Mich App 240; 307 NW2d 457 (1981), and military retirement benefits, Grotelueschen, supra.

In this case the plaintiff argued for a lump sum settlement in lieu of a division of the value of the pension, but she failed to provide the court with any valuation figures. The Court in Miller v Miller, supra, p 677 said, "The party seeking to include the interest in the marital estate bears the burden of proving a reasonably ascertainable value; if the burden is not met, the interest should not be considered an asset subject to distribution.”

Normally, the valuation of future retirement payments and the value of alimony are subjects for expert testimony, usually from an actuary. However, in Boyd v Boyd, supra, Judge Bronson described an acceptable formula which could ideally be applied in this situation. The exact method of performing the Boyd calculation is set forth in [459]*459Bassett, Pension Valuation, Mich Family L J (December, 1982).

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Perry v. Perry
350 N.W.2d 275 (Michigan Court of Appeals, 1984)

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Bluebook (online)
350 N.W.2d 275, 133 Mich. App. 453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-perry-michctapp-1984.