(dissenting).
I disagree with the majority opinion’s holding that the trial court erred in ordering that husband pay wife her share of the community property at the time of divorce. I also disagree with the majority’s interpretation of relevant caselaw. The issue in Schweitzer v. Burch, 103 N.M. 612, 711 P.2d 889 (1986), was whether an heir to the estate of a deceased had a right to the community share of the pension of the deceased’s former spouse. The court’s result was that the heir had a right to the benefits. Id. To get to that result, the supreme court held that, in all cases, benefits are to be divided on a “pay as it comes in” basis. Id., 103 N.M. at 615, 711 P.2d at 892.
As wife points out, it is important to note that there is nothing within the Schweitzer opinion indicating whether the pension plan at issue was vested and matured at the time of the underlying divorce. See id. Within the supreme court’s discussion of the unfairness of lump sum divisions is an overriding concern over future contingencies disrupting the receipt of each parties’ equitable share. The fact hypotheticals the supreme court used repeatedly demonstrate the injustice stemming from a party’s right to a divided share of a pension being cut off by the death of the employee spouse. Id. It is evident that the supreme court thought the sooner the court distributed divided community assets, the better the chance that the parties could avoid the disruptive contingency of death.
This is in keeping with the notion that, upon dissolution of a marriage, what once was a spouse’s community interest becomes a present vested interest in separate property. See Harper v. State Dep’t of Human Servs., Income Support Div., 95 N.M. 471, 623 P.2d 985 (1980); Harper v. Harper, 54 N.M. 194, 217 P.2d 857 (1950). Because the nonemployee spouse’s share of a community pension becomes separate property upon divorce, a trial court should do all it can to assure that the nonemployee spouse enjoys that separate property right. Schweitzer v. Burch.
The next case that dealt with the issue of division of a community pension was Mattox v. Mattox, 105 N.M. 479, 734 P.2d 259 (Ct.App.1987). In Mattox, we concluded that there was inequity in an employee spouse’s control over the timing of a non-employee spouse’s receipt of retirement income. Id., 105 N.M. at 483-484, 734 P.2d at 263-264. We found the inequity to be in the employee spouse’s unilateral depletion of the present value of the nonemployee spouse’s share of the pension. “We reeognize[d] that employee spouses can sharply reduce the present value of pension benefits by projecting a retirement date as distant as possible.” Id.
Read in a particular way, Schweitzer and Mattox can appear to be at odds in their reasoning. Schweitzer, if read literally, holds that trial courts should order payment of community pensions divided upon divorce only when the employee spouse actually receives the pension, because that is the only way to be fair. Regardless of their facts, this appears to be a draconian holding applicable to all cases. If we were to apply the literal meaning of Schweitzer, we would have to conclude in this case that wife would have to wait until husband actually retires and starts receiving benefits before wife could receive her share.
On the other hand, Mattox concludes that requiring the nonemployee spouse to wait years can lead to an inequitable result. It appears that our concern in Mattox is true for this case. If wife waits until the date husband is presumed to retire, she will lose the difference between 48% of $269,-854 (the present value as of June 1988) and 48% of $48,000 (the present value when husband turns 65). We should not read Schweitzer to condone husband’s unilateral depletion of wife’s community share of the pension. We should not read Schweitzer to mean that wife has a present, vested interest in her share of the pension, but that she can do nothing about it until husband retires, and if he dies in the meantime, wife’s share disappears. The supreme court was trying to be fair; to read Schweitzer literally would be to require the nonemployee spouse to forsake a substantial portion of the divided pension. This result is directly contrary to the longstanding rule that a trial court should valúate a spouse’s interest in a community pension at the time of divorce, not at the time of retirement. See Lewis v. Lewis, 106 N.M. 105, 739 P.2d 974 (Ct.App.1987). Finally, we should not read Schweitzer to be a lone voice for rigidity in what is a clear majority rule favoring flexibility.
We should not read Schweitzer literally as the majority opinion suggests. Instead, we should reconcile Schweitzer and Mattox by holding that the Schweitzer “pay as it comes in” language means “pay as the money is available to come in.” In reading Schweitzer in this fashion, I come to a conclusion that is in harmony with the facts in that case and established policies of this state. There was no evidence in Schweitzer that the pension at issue was vested and matured, i.e., available for receipt when those parties divorced. Therefore, that case is distinct from this case, in which the benefits are vested and matured. Also, the evil that Schweitzer sought to avoid was the inequitable cutting off of one spouse’s right to receive the full share of benefits. Payment as soon as possible in this case allows payment of at least some of the benefits before they are cut off by either wife’s or husband’s death.
In the case at hand, the evidence is that husband was able to retire in June 1988 and receive his pension. The money to pay wife was available upon retirement. There is nothing in Schweitzer or Mattox preventing the trial court from ruling as it did. Schweitzer continues to prohibit trial courts from awarding lump sums. Also, Schweitzer continues to allow trial courts to order division and payment of community pensions no sooner than when the employee spouse is first eligible to receive the benefits, even if this occurs before the employee spouse actually retires. However, beyond that, we should not limit trial courts to one formula for all fact situations and the vast array of pension plans in existence. I would therefore hold that the trial court may make its order as would seem fair in the case before the court, only by the dictates of Schweitzer as interpreted here. See generally Hoyt v. Hoyt, 53 Ohio St.3d 177, 559 N.E.2d 1292 (1990); Weiss v. Weiss, 702 S.W.2d 948 (Mo.Ct.App.1986); Lawrence J. Golden, Equitable Distribution of Property § 6.16.
Husband points out several circumstances in this case that he argues make the trial court’s action inequitable. He states that if he dies before receiving benefits, he will have paid substantial benefits to wife without receiving his own. He states that the trial court’s order seriously impairs his cash flow, leaving him only $1,100 after taxes and other obligations. He also states that, over the course of years, he will end up paying wife much more than her 48% share of the present value projected at the time he turns 65. Finally, he states that the trial court’s failure to consider the tax consequences of his payments to wife rendered the order inequitable.
In fashioning its division of community property, a trial court’s main focus is approximate equality of division. Foutz v. Foutz. In some circumstances, the division may be roughly equal, but may require one spouse to transfer more property to the other. See Ridgway v. Ridgway, 94 N.M. 345, 610 P.2d 749 (1980); Sparks v. Sparks, 84 N.M. 267, 502 P.2d 292 (1972). If the trial court soundly exercises its discretion in fashioning its award, we should not disturb it. Foutz v. Foutz.
This case presents just such circumstances. The fact that husband will pay wife her share of the pension but might never receive his share is a possibility. However, there is no question that there will be a large reduction of wife’s interest in the pension if she has to wait to receive her share until husband reaches 65 years of age. The trial court’s order, risking a possibility against a sure thing, is not objectionable. In addition, the fact that husband has $1,100 to spend after debts is not such an untoward situation that should compel us to say that the trial court abused its discretion. Cf. Wilder v. Wilder, 85 Wash.2d 364, 534 P.2d 1355 (1975) (en banc) (requiring employee spouse to pay $180 immediately was not unduly burdensome in light of $1,031.25 expected monthly salary). Finally, wife’s share of the pension is 48% of its present value at the time of divorce, not when husband reaches 65 years of age. If she received only 48% of the present value when husband reaches 65 years of age, she would receive far less than her due. This would be tantamount to requiring her to purchase husband’s continued desire to work. The trial court was careful guarding wife’s property.
I also note an overriding reason for accepting the trial court’s order with respect to the amount and timing of the payments. The trial court could properly reject the evidence upon which husband relies to argue that wife should only get $182.98 per month. As we stated in Mattox, valuating a nonemployee spouse’s interest in a pension by projecting the value at the time the employee spouse retires is contrary to law. The actuary from husband’s employer in this case valuated wife’s interest in a manner which was contrary to law. Absent any other legitimate valuation method before it, the trial court could properly decide that the only way to assure wife’s interest was to valúate the pension as of the date of divorce. On balance, I see no abuse of discretion based on the circumstances upon which husband relies. See Foutz v. Foutz.
For the foregoing reasons, I would affirm the trial court’s division of the community pension and its order requiring payment immediately.