NO. 94-288
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
ROGER LOWELL BLADES,
Petitioner and Appellant,
and
BETTY LOUISE BLADES,
Respondent and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Chris Christensen, Keil & Christensen, P.C.,
Conrad, Montana
For Respondent:
George Best, Kalispell, Montana
Submitted on Briefs: November 18, 1994
Decided: December 29, 1994
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Roger Lowell Blades appeals from the property distribution
made by the Eleventh Judicial District Court, Flathead County, in
this dissolution of marriage. We reverse and remand.
The dispositive issue is whether the District Court erred in
distributing to Roger as part of the marital estate two pension
plans in which his interest was not vested.
The parties were married for thirty-five years before they
separated in 1992. All three of their children are now adults. At
the date of trial, Roger was fifty-eight years old, receiving a
pension, and seeking additional employment. Betty was fifty-six
and working on a part-time, seasonal basis.
In its property distribution, the District Court awarded Betty
the family residence, which it valued at $89,000. It awarded her
personal property valued at a total of $31,075. It also awarded
her 55 percent of Roger's pension, which it valued at $245,698.
The court awarded Roger personal property valued at a total of
$29,500. It awarded him 45 percent of his pension, which it valued
at $201,037. It also awarded him his interest in two "optional"
pensions, which it valued at $43,362 and $53,527 respectively. In
order to be eligible for the first "optional" pension, Roger would
be required to obtain one additional hour of work with the Interna-
tional Union of Operating Engineers. To be eligible for the second
"optional" pension, he would have to obtain work for three years
for the International Union of Operating Engineers and repay about
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$3,000 he and Betty withdrew from the pension in 1973, plus
interest.
Did the District Court err in distributing to Roger as part of
the marital estate the two pension plans in which his interest was
not vested?
In apportioning a marital estate, a district court must
finally equitably apportion between the parties the
property and assets belonging to either or both, however
and whenever acquired and whether the title thereto is in
the name of the husband or wife or both.
Section 40-4-202(l), MCA. This Court reviews findings of fact
which divide marital property under a clearly erroneous standard.
In Re Marriage of Barker (1994), 264 Mont. 110, 113, 870 P.2d 86,
88.
The right to receive a pension may be included in and
distributed as part of a marital estate. Kis v. Kis (1982), 196
Mont. 296, 639 P.2d 1151. The value of a pension is its present
value. u, 639 P.2d at 1153.
Betty cites this Court's opinion in In Re Marriage of Laster
(1982), 197 Mont. 470, 643 P.2d 597, as authority that an unvested
pension plan may be included in a marital estate. However, in
Laster, the husband was employed and contributing to the unvested
plan at the time the marriage was dissolved. Here, Roger had not
been employed for over two years before the dissolution. He
plainly was not contributing to the unvested plans at the time of
the dissolution.
Where there are substantial future risks involved in the
calculation of the value of a pension, both parties should share
those risks. In Re Marriage of Keedy (1991), 249 Mont. 47, 53, 813
P.2d 442, 445. In the present case, Roger was not at the time of
trial eligible for benefits under either of the two pensions which
the District Court termed "optional." The steps which Roger must
take to become eligible for either plan involve obtaining reemploy-
ment. Clearly, significant risks must be considered in calculating
the value, if any, of these pensions. In distributing the
"optional" pensions to Roger, the District Court assigned all of
those risks to Roger and none to Betty.
Additionally, Betty did not submit evidence during trial of
the value of either of the two pensions. Her only evidence of
those values was submitted in an attachment to a post-trial brief
filed with the District Court. Roger took the position at trial
that the two pensions had no value. Therefore, the "estimates" of
value which the District Court assigned to the pensions have no
support in the trial record.
We hold that the court erred in its assignment of these
pensions to Roger as part of his share of the marital estate.
The other issues raised on appeal were whether the court erred
in its valuation of the parties' residence, whether it erred in
dividing the household goods and personal property, and whether it
erred in requiring Roger to retain Betty as the irrevocable
recipient of the life insurance policy proceeds. Although none of
these issues appear at first blush to involve clear error, our
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above holding as to the "optional" pensions will require recalcu-
lation of the marital estate and the equitable distribution
thereof. We therefore conclude that we need not now address the
remaining issues raised on appeal.
Reversed and remanded for further proceedings consistent with
this opinion.
We concur: