NO. 94-184
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
PRISCILLA DALE QUICK ROBINSON,
Petitioner and Respondent,
and
CHARLES ROBINSON,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John L. Hollow, Attorney at law,
Helena, Montana
For Respondent:
Ann L. Smoyer, Smoyer Law Firm,
Helena, Montana
Submitted on Briefs: October 13, 1994
Decided: December 6, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Petitioner Priscilla Dale Quick Robinson petitioned the First
Judicial District Court, for Lewis and Clark County, for
dissolution of her marriage to Charles Robinson on August 20, 1992.
On March 2, 1994, the District Court entered its decree dissolving
the parties' marriage. The decree (1) awarded joint custody of
their minor child, Douglas, but awarded Priscilla primary care of
Douglas; (2) ordered Charles to pay child support and maintenance;
(3) ordered that the family home be sold and that Priscilla receive
65 percent of the net proceeds; (4) awarded Priscilla 35 percent of
Charles's retirement benefit; and (5) distributed the remaining
assets as the parties had previously agreed. Charles appeals. We
affirm.
The issues we find dispositive on appeal are:
1. Did the District Court err in its calculation of the net
worth of the marital estate?
2. Did the District Court err in its distribution of the
marital estate?
3. Did the District Court err when it awarded Priscilla a
fixed percentage of Charles's retirement benefit?
FACTUAL BACKGROUND
Charles and Priscilla were married on September 9, 1973, in
Verdi, Nevada. They lived in Reno, Nevada, until July 1981.
Charles was employed by the Internal Revenue Service prior to and
throughout their marriage. Priscilla was also employed during the
marriage, but has been limited to temporary employment since 1981.
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The parties' only child, Douglas, was born January 19, 1981.
In 1981, the IRS promoted Charles and transferred him and his
family to Montana. Because of this transfer, Priscilla quit her
job to care for Douglas and became a full-time homemaker.
During the parties' marriage, Charles's income increased from
approximately $33,000 a year in 1981, to over $61,000 a year at the
time of the dissolution. While in Montana, Priscilla occasionally
found temporary employment, but has not found long-term employment
since leaving Nevada.
Charles ultimately became chief of planning and special
programs at the Helena IRS office, a position which he held at the
time of the dissolution. Since the parties' separation in 1992,
Priscilla has received job training, but has been unable to find
permanent employment.
The parties agreed on the distribution of the marital assets,
with the exception of Charles's retirement fund with the federal
government and the parties' home in Helena. The present value of
Charles's retirement fund was calculated by Alton Hendrickson, a
consulting actuary designated by the District Court as an expert.
This valuation was based on Charles's income and credits through
1992.
The parties' home in Helena was valued at approximately
$130,000. The District Court ordered that the home be sold and
that Priscilla receive 65 percent of the proceeds, and Charles
receive 35 percent of the proceeds.
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There was conflicting testimony regarding the value of
Charles's retirement fund. Hendrickson valued Charles's retirement
fund at between $154,144 and $263,530, depending on the age at
which it is taken. However, Charles calculated the present value
of his retirement fund at only $79,892, presuming a retirement age
of 65 years. The District Court entered a qualified domestic
relations order which awarded Priscilla 35 percent of Charles's IRS
retirement benefit.
Charles was ordered to provide health insurance for Douglas
and to pay 75 percent of any health insurance costs not covered by
insurance. Charles was also ordered to pay Priscilla child support
in the amount of $426 per month, and maintenance payments of $400
per month for two years, beginning in January 1994.
The District Court also determined that an inheritance
Priscilla received from her mother was not part of the marital
estate since the estate has not yet been closed and Priscilla did
not receive anything from the estate until after the parties were
separated.
ISSUE 1
Did the District Court err in its calculation of the net worth
of the marital estate?
A district court has broad discretion in determining the value
of property in a dissolution. In re Marriage of Milesnick ( 19 8 8 ) , 235
Mont. 88, 94, 765 P.2d 751, 755. "Its valuation can be premised on
expert testimony, lay testimony, documentary evidence, or any
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combination thereof." Milesnick, 765 P.2d at 755. "The court is free
to adopt any reasonable valuation of marital property which is
supported by the record." InreMarriageofRada (19941, 263 Mont. 402,
405, 869 P.2d 254, 255-56 (citing In re Marriage ofhisi (1988), 232
Mont. 243, 756 P.2d 456). "As long as the valuation [of property
in a dissolution1 is reasonable in light of the evidence submitted,
we will not disturb the finding on appeal." Milesnick, 765 P.2d at
755 (quoting Luisi 756 P.2d at 459).
Before it divides the marital estate, we have held that the
district court must first determine the net worth of the marital
assets. InreMarriageofStephenson (1989), 237 Mont. 157, 160, 772 P.2d
846, 848. "The test [when we review a property division] is
whether the findings as a whole are sufficient to determine the net
worth and to decide whether the distribution was equitable."
Stephenson, 772 P.2d at 848 (citing Nunnallyv. Nunnally (1981), 192 Mont.
24, 27, 625 P.2d 1159, 1161). In this case, the principal assets
of the marital estate were the family home and Charles's retirement
fund. However, the court's findings indicate that it also
considered the values assigned by the parties to their other
assets, which were divided by agreement. The court then valued the
two principal assets, based on the testimony of the real estate
agent who appraised the home, and the actuary who evaluated the
retirement benefits.
We have held that the valuation of marital assets must only be
reasonable in light of the evidence submitted. In re Marriage of Johns
(1989), 238 Mont. 256, 258, 776 P.2d 839, 840 (citing Milesnick, 765
P.2d at 755).
We conclude that the court did consider the value of the
entire marital estate, and that the findings of fact regarding the
evaluation of marital assets were supported by substantial credible
evidence and were not clearly erroneous.
ISSUE 2
Did the District Court err in its distribution of the marital
estate?
When we review a district court's division of marital
property, we will uphold the district court unless the findings on
which that division is based are clearly erroneous. In ye Marriage oj
Maedje (1994), 263 Mont. 262, 265-66, 868 P.2d 580, 583 (citing Inre
MarriageofMcLean/Fleury (19931, 257 Mont. 55, 849 P.2d 1012). If the
district court's findings of fact are not supported by substantial
evidence, they are clearly erroneous. Interstate Production Credit Ass’n v.
DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. If the
district court's findings of fact upon which it bases its division
of marital property are supported by substantial credible evidence
and are not clearly erroneous, "[tlhis Court will not alter the
trial court's decision unless there is an abuse of discretion."
Maedje, 868 P.2d at 583 (citing InreMarriageofScofield (1993), 258 Mont.
337, 852 P.2d 664).
Section 40-4-202, MCA, governs the division of property in a
dissolution of marriage. That section provides, in pertinent part,
that in a dissolution proceeding assets belonging to both parties
shall be distributed equitably. Section 40-4-202, MCA, sets forth
the factors to be considered in apportionment of marital assets.
That section provides in part that:
(1) . . . In making apportionment, the court shall
consider the duration of the marriage . . the age,
health, station, occupation, amount and sources of
income, vocational skills, employability, estate,
liabilities, and needs of each of the parties . . . . The
court shall also consider the contribution or dissipation
o f the value of the respective estates and the
contribution of a spouse as a homemaker or to the family
unit. In dividing property acquired prior to the
marriage; property acquired by gift, bequest, devise, or
descent . . the court shall consider those
contributions of the other spouse to the marriage,
including:
(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions have
facilitated the maintenance of this property .
In its apportionment of the marital assets, the District Court
took these factors into account, including the parties' ages,
health, occupations, employability, ability to earn income, and
liabilities. In its apportionment of the value of the marital
home, the District Court took into account the differences in the
parties' income and their ability to obtain assets in the future.
The District Court also took into account the fact that Priscilla,
as primary caretaker of Douglas, would need a home in which to
raise their child. The District Court considered that two-thirds
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of Charles's retirement account was earned during the marriage, and
on that basis, concluded that Priscilla is equitably entitled to
35 percent.
We conclude that the District Court's apportionment of the
marital assets was supported by substantial evidence and that its
findings are not clearly erroneous.
ISSUE 3
Did the District Court err when it awarded Priscilla a fixed
percentage of Charles's retirement benefit?
The standard of review of a district court's division of
marital property is as set forth in the previous section. We have
defined substantial evidence as "'evidence that a reasonable mind
might accept as adequate to support a conclusion; it consists of
more than a mere scintilla of evidence but may be somewhat less
than a preponderance.'" InreMarriageofDavies (Mont. 1994), 880 P.2d
1368, 1372, 51 St. Rep. 929, 932 (quoting Barrett IA Asarco, Inc. (1990) ,
245 Mont. 196, 200, 799 P.2d 1078, 1080).
"It is well established in this state that retirement benefits
are part of the marital estate . .'I Rolfe v. Rolfe (1988), 234
Mont. 294, 296, 766 P.2d 223, 225 (citing Kurrv. Kurr (1981), 192
Mont. 388, 628 P.2d 267). Therefore, the retirement plan in this
case is properly part of the marital estate. The question is how
to equitably divide the pension plan. We have held that
"[glenerally, the proper test for determining the value of a
8
pension is the present value." Rolfe, 766 P.2d at 225 (citing Inre
,‘kbrriUgeofBowmUn (1987), 226 Mont. 99, 108, 734 P.2d 197, 203).
In this case, the District Court utilized the services of an
actuary to determine the present value of Charles's retirement plan
with the IRS.
Under the "time rule," retirement benefits are usually divided
upon their receipt. A spouse, therefore, is entitled to increases
or accruals on his or her interest in the retirement plan because
of the delay in receiving that interest. Rolfe, 766 P.2d at 226
(citing McNamara Dividing Pension Benejh Upon Divorce, ALI-ABA Course
Materials Journal, No. 2, 33, 42 (1983)).
In this case, the District court held that Charles's
retirement benefit with the IRS was part of the marital estate
because two-thirds of this retirement benefit was earned during the
parties' m a r r i a g e . Testimony by an actuary determined the present
value of Charles's retirement benefit. Hendrickson testified that
the present value of Charles's retirement benefit is $263,530.
Hendrickson assumed that Charles would retire at age 55 after
30 years of service with the IRS. According to Hendrickson, if
Charles retired at age 62, the present value of his retirement
benefit would be $154,144, including cost of living adjustments.
Without cost of living adjustments, the present value of Charles's
retirement fund at age 62 would be $119,969.
The District Court used this testimony to determine the value
of Charles's retirement. Applying the time rule to Charles's
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retirement benefit, the District Court determined that 20 of the
30 years of service required for federal retirement was earned
during the parties' marriage. On this basis, and taking into
consideration Priscilla's earning capacity and the length of the
parties' marriage, the District Court issued a qualified domestic
relations order in which it awarded Priscilla 35 percent of
Charles's retirement benefit.
Priscilla also bears the risk of unforeseen contingencies
which may affect Charles's benefits. Testimony by the actuary
established that the value of the retirement benefit is greatest
when it is taken at age 55, and the value declines if it is taken
after age 55. If Charles delays his retirement until after age 55,
Priscilla will receive less. If Charles should die prematurely and
not achieve 30 years of service with the IRS, she will also receive
less.
Substantial credible evidence supports the District Court's
findings regarding its apportionment of Charles's retirement
benefits, and we conclude that they are not clearly erroneous.
The judgment of the District Court is affirmed.
usti!ce
/
We concur:
December 6, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
John L. Hollow
Attorney at Law
318 E. Sixth Ave.
Helena, MT 59601
Smoyer Law Fii
1085 Helena Ave.
Helena, MT 59601
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA