NO. 95-215
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Arthur D. Agnellino, Athens, Pennsylvania
For Respondent:
John H. Gilliam, Skjelset Law Offices, Missoula,
Montana
Submitted on Briefs: February 8, 1996
Decided: March 21, 1996
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of this Court and by a report of its result
to State Reporter Publishing Company and West Publishing Company.
Appellant Donald A. Lassila (Donald) appeals the amended order
of the Fourth Judicial District Court, Missoula County, dissolving
his marriage to Respondent Barbara A. Lassila (Barbara) and
dividing their marital property.
Affirmed.
The following restated issued are presented on appeal:
1. Did the District Court abuse its discretion in its
division of the parties' respective retirement benefits?
2. Did the District Court abuse its discretion by not
granting Donald a set-off equal to part of Barbara's Montana
retirement benefits?
Donald and Barbara were married in 1958 and divorced in 1994.
Donald appealed the District Court's findings, conclusions, and
decree of dissolution to this Court after entry of the decree. We
previously remanded this case to the District Court for
clarification of its order, and reserved to the parties the right
to re-assert any alleged error following the issuance of the
District Court's amended order. On February 27, 1995, the District
Court issued its amended findings of fact, conclusions of law, and
order. Donald filed the instant appeal shortly thereafter.
2
During the parties' marriage, Donald worked for the United
States Forest Service and Barbara was employed as a teacher. In
1981, Barbara quit teaching and, against Donald's wishes, withdrew
her entire Montana retirement fund to start a small ice cream
business. The business failed about two years later, and Barbara
lost her entire investment. In 1990, after separating from Donald,
Barbara moved to Washington State and resumed teaching. At the
time of this appeal, she remains employed as a teacher in
Washington, while Donald continues to be employed by the Forest
Service here in Montana.
By the time he retires, Donald will have worked for the Forest
Service for more than thirty years and will receive benefits
accordingly. Barbara will receive no retirement benefits from the
State of Washington unless and until she works there as a teacher
for five years. After that, she will receive benefits commensurate
to the number of years worked.
In its amended decree, the District Court held that each party
would be entitled to half of that portion of the other party's
retirement benefits which accrued during the marriage. Donald
alleges this holding is erroneous because it places no present
value on the pension funds, but instead relies upon some
undetermined future value. He further alleges error in the
District Court's refusal to allow him a set-off equal to part of
Barbara's Montana retirement, which he claims she "dissipated" in
her small-business venture.
A district court's findings of fact regarding the division of
marital property will not be set aside unless clearly erroneous.
3
In re Marriage of Dewitt (Mont. 1995), 905 P..?,d 1084, 1087, 52
St.Rep. 1089, 1091 (citations omitted). If the district court's
judgment is supported by substantial credible evidence, it will not
be disturbed absent an abuse of discretion. In re Marriage of
Griffith (Mont. 1996) I - P.2d _, _, 53 St.Rep. 28, 30 (citing
In re Marriage of Maedje (1994), 263 Mont. 262, 868 P.2d 580).
Did the District Court abuse its discretion in its division of
the parties' respective retirement benefits?
In its amended order, the District Court set out the formula
by which the parties' retirement benefits are to be divided. The
District Court determined that each party would receive one-half of
that portion of the other's retirement benefits which was earned
during the marriage. In effect, the District Court gave each party
a percentage of the other's total retirement based on the amount of
benefits accrued during the time the parties were married. This is
the so-called "time rule" method of dividing a pension. See Rolfe
v. Rolfe (1988), 234 Mont. 294, 766 P.2d 223; In re Marriage of
Truax (1995), 271 Mont. 122, 894 P.2d 936.
Donald alleges this formula constitutes an abuse of discretion
because it gives no present value to either party's retirement
benefits, but instead is dependent on how much the retirement
benefits will be worth whenever the parties retire. He claims a
fixed present value is necessary because there is "great future
risk" that the retirement benefits of one party will not vest.
Generally, the proper test for determining the value of a
pension is present value. In re Marriage of Bowman (1987), 226
Mont. 99, 108, 734 P.2d 197, 203 (citing Kis v. Kis (1982), 196
4
Mont. 296, 639 P.2d 1151). However, a court may decline to
presently value a pension under certain circumstances, and instead
employ the "time rule" formula. The "time rule" is appropriately
used if the pension to be valued is subject to unknown
contingencies which makes present valuation impractical or
inequitable.
Curiously, Donald argues that the pensions in this case are
subject to various contingencies, and therefore the District Court
must give the pensions a present value. This directly contradicts
previous cases where we have held that the "time rule" valuation,
rather than present valuation, is appropriate if substantial
contingencies exist. ,
Rolfe 766 P.2d at 226; Truax 894 P.2d at
938. Since Donald himself argues that the pensions are subject to
such contingencies, we find no error in the District Court's
employment of the "time rule" formula in valuing the pension funds.
The District Court set out a rational formula by which the benefits
are to be divided. Donald has failed to show that the employment
of this formula constitutes an abuse of the District Court's
discretion.
Did the District Court abuse its discretion by not granting
Donald a set-off equal to part of Barbara's Montana retirement
benefits?
In 1982, after numerous years working as a teacher in Montana,
Barbara retired. She then withdrew all her retirement benefits and
started a small ice cream store. The business subsequently failed
and Barbara lost her entire investment.
5
Section 40-4-202, MCA, lists the factors which a district
court must consider when dividing marital property. One such
factor is whether, and to what extent, a party has dissipated a
marital asset. Section 40-4-202, MCA. Donald argues that the
District Court should have found that Barbara dissipated her
retirement and that, had she not done so, Donald would have been
entitled to part of it. He contends that the District Court then
should have used the amount of the dissipated funds as a set-off
against whatever amount Donald may owe Barbara from his pension.
Although the District Court found that Barbara's Montana
pension had been "dissipated during the marriage," no specific
finding or conclusion indicates that the District Court used the
word "dissipated" to mean that Barbara had frittered the money
away. Indeed, from the testimony presented at the hearing, it is
uncontroverted that Barbara worked long hours to try to make the
business a going concern, albeit without success. Nothing
indicates that Barbara purposely wasted her retirement. There is
no reasonable basis for penalizing her now, more than ten years
later, for a business venture embarked on during the marriage.
Under similar circumstances, this Court refused to allow a set-off
because of such business losses:
[Flundamental legal principles of marital status
[indicate that1 spouses possess mutual powers,
obligations and interests which endure until lawfully
modified or terminated. One of those powers is the power
to freely contract with others regarding marital
property. Section 40-Z-301, MCA. Appellant may have
used poor judgment in his business transactions . .
however, he lawfully possessed that power. The record
does not indicate the respondent attempted to modify the
appellant's right to control and dispose of the property
6
as he did or that she claimed breach of fiduciary
obligation by the appellant.
In re Marriage of Lippert (1981), 192 Mont. 222, 227-28, 627 P.2d
1206, 1209. The Lippert rationale is directly on point to the case
at bar. It is also noteworthy that Donald and Barbara remained
married for six additional years following the business failure.
The task of the District Court is to divide the existing
marital estate at the time that the parties are separated or
divorced. Section 40-4-202, MCA. It is not the task of the
District Court to reach back through the years of the marriage and
attempt to divide assets which, for whatever reason, no longer
exist. It was not error for the District Court to refuse to do so.
The District Court has broad discretion to apportion the
marital estate in a manner which is equitable to each party under
the circumstances. In re Marriage of Binsfield (1995), 269 Mont.
336, 343, 888 P.2d 889, 893 (citation omitted). We find no abuse
of discretion in the District Court's apportionment of the marital
estate in this case. Accordingly, the decree is affirmed.
We Cog