McCallister v. McCallister

Reilly, P.J.,

(concurring). I concur in the result.

This case involved a ten-year marriage that ended in divorce in 1978 when plaintiff was fifty years old and defendant was fifty-one. No children were born of the marriage. At the time of the divorce, there were two major assets to be considered, a house with a net worth of $33,000 and plaintiff’s federal pension based on twenty years of service in the Army Corps of Engineers, which the court valued at approximately $26,000.

The trial court was directed by this Court, in its earlier opinion in this case, to determine the value of the plaintiff’s interest in his pension plan as of November 1978. McCallister v McCallister, 101 Mich App 543; 300 NW2d 629 (1980). On remand, the trial court determined that plaintiff had been employed by the Army Corps of Engineers since 1958, was earning $44,500 a year,1 and that plaintiff’s twenty-year contributions to his retirement plan totaled $26,028.62. The court did not deter*89mine the employer’s contribution or the current value of the pension plan itself.

The court attributed one half of the $26,028.62 to plaintiff for the ten years of earnings before the marriage, and considered the other half as a marital asset. The court then attempted to equally divide the marital assets, valued at a total of $46,000. Operating under the belief that it could not do otherwise under existing law, the court gave plaintiff, free of any claim or interest of the defendant, all of his employment benefits including, but not limited to, his interest in the pension plan.

Based upon these facts, I do not believe that the trial court properly determined the reasonable value of plaintiff’s pension in 1978, in accordance with this Court’s directive and MCL 552.18(1); MSA 25.98(1) and MCL 552.101(4); MSA 25.131(4). Therefore, the distribution of marital assets that was based on plaintiff’s contributions to the retirement fund, not the present value of the plaintiff’s retirement plan, was not equitable. Nevertheless, the defendant did not appeal, the judgment was never set aside, and the parties subsequently stipulated that alimony could be modified upon a showing of change in circumstances.

In view of these facts and the statutory authority found in MCL 552.23; MSA 25.103 and MCL 552.106; MSA 25.106, and because the award of alimony is based on equitable principles, I agree that the trial court had the legal authority and an equitable basis to consider income from plaintiff’s pension when determining whether the award of alimony should be modified. I also agree that the trial court did not abuse its discretion in denying the plaintiff’s motion for modification of alimony payments.

My view of the equities and my conclusion *90might be different, however, had the trial court properly ascertained the reasonable value of the pension to which plaintiff was entitled in 1978, and had considered the value of the pension attributable to the ten years of marriage as a marital asset. See Weaver v Weaver, 172 Mich App 257; 431 NW2d 476 (1988).

When plaintiff retired from the Army Corps of Engineers in May 1986, he had been employed by the federal government for a total of twenty-eight years and was entitled to receive annuity benefits from his retirement plan in the amount of $44,376 each year.