concurring and dissenting.
I respectfully dissent from reversing the pension distribution, although I concur in the rest of the decision.
The majority criticizes the trial court’s failure to “determine what effect, if any, the withdrawal of $12,000 from the fund would have on Kenneth’s retirement benefit.” The majority also complains that there are no specific findings “that Bernadette was entitled to benefit from Kenneth’s employer’s share paid into the pension fund.” The majority opinion then directs the trial court “to redetermine the equitable distribution of pension assets and make findings of fact to support the distribution” because “we are unable to determine whether or not the distribution is equitable.” I cannot agree.
Furthermore, I would not reach this issue. Kenneth did not address this subject in his motion for new trial, or in his supporting brief on that motion. Under Andrews v. O’Hearn, 387 N.W.2d 716, 728-29 *607(N.D.1986), questions not raised in a motion for new trial are waived. Undoubtedly, that is the reason that the trial court did not address this issue in denying Kenneth’s motion for new trial.
The trial court carefully appraised the spouses’ marital assets:
The parties own no real estate, have the usual househould [sic] furnishings and have no bonds, stocks, or other valuable assets. [Kenneth] does have a pension plan with his employer which had a value in October, 1989 of $84,200. [Kenneth] has contributed $18,500. to this amount. [Kenneth] does not have access to his employers contribution at this time. Apparently his contribution can be utilized to make a payment to his spouse (or former spouse) if a “qualified domestic relations” order is entered.
* * * * *
The personal property of the parties has been divided. Said property has an agreed value of $2,914. This figure does not include a 1977 Blazer in [Kenneth’s] possession and a 1986 Cavalier [Bernadette] has. The Blazer has a value of $1,500., the Cavalier a v[a]lue of $5,000. There is a current indebtedness against the Cavalier of $6,200 [that Bernadette is] ... to assume the payments therefor after she receives the $12,000....
The value of the pension plan had been earned entirely during the marriage since Kenneth began working for BNI in 1977.
Kenneth gave the trial court information about the pension plan through a summary letter from his employer:
You are fully vested in your pension plan. The value of your pension account as of November 1, 1989 is estimated to be $84,200 represented by $18,550 of employee contributions with accumulated interest and $65,650 of employer contributions with accumulated interest. These funds are only available to you as a retirement benefit commencing no sooner than the first day of the month following your 55th birthday. The employee contributions, however, may be available to you as a lump-sum distribution when you terminate employment at any age for any reason.
In addition, federal law requires your plan to comply with “Domestic relations orders” which result from an order or decree issued by a court that obligates you to pay child support or alimony, or otherwise allocates a portion of your assets in the plan to your spouse, former spouse, child or other dependent. If a qualified domestic relations order is received, all or a portion of your benefits may be used to satisfy the obligation.
Any failure in proof about the pension plan is Kenneth’s deficiency, not Bernadette’s.
No adverse effect on the pension beyond the exact decrease in vested value by withdrawal of the $12,000 was suggested in this appellate argument. Since the pension is fully vested, the entire value was clearly marital property even if only part could be withdrawn presently for a “qualified domestic relations” purpose. See 60A Am. Jur.2d Pensions and Retirement Funds §§ 291, 294 (1988). Since the entire value is fully vested, I do not understand why Bernadette should not be entitled to share in Kenneth’s employer’s contributions.
Kenneth argues that the “only part of the pension that is truly part of the marital estate is KEN’s contributions plus the interest they accumulated, which totaled $18,550.” I do not understand this argument. The $84,200 is “fully vested,” even though a large part cannot be withdrawn until retirement, just as in other vested pension funds that are restricted until retirement. See Olson v. Olson, 445 N.W.2d 1, 13 (N.D.1989). While pensions are exempt from “all attachment or process,” they “are not exempt from enforcement of any order to pay spousal support or child support, or a qualified domestic relations order....” NDCC 28-22-03.1(3). See also Employee Retirement Income Security Act, § 206(d)(3), 29 U.S.C.A. § 1056(d)(3); Internal Revenue Code, 26 U.S.C.A. § 414(p)(1); and 60A Am.Jur.2d Pensions and Retirement Funds §§ 463-467 (1988). The entire value fully vested is part of the marital estate.
*608Without evidence, Kenneth suggests that the “present value” of the pension account is only $18,550, since that is the “only part of that pension plan that could be touched by the order of the court.” The majority opinion seems to follow this notion. However, the present value is clearly the fully vested amount of $84,200, absent some showing by Kenneth that a disproportion1 ate forfeiture or effect would result from a withdrawal by a qualified domestic relations order. The trial court properly considered the entire, fully vested value.
The trial court explained its division of this “only appreciable asset in the marriage”:
[Kenneth] shall pay to [Bernadette] the sum of $12,000. from his share of his pension plan as part of an equitable settlement of the marital property interest and partly to provide a portion of the rehabilitative spousal support [Bernadette] is entitled to. $4,000. of the $12,-000 shall be deemed partial spousal support. The $12,000. is to be paid 30 days after entry of the decree unless an extension is granted for good cause shown. In addition, [Bernadette] is awarded 10 percent of [Kenneth’s] pension entitlement at the time he starts to withdraw it. If [Kenneth] withdraws it in lump sum, [Bernadette] will receive 10 percent thereof. If [Kenneth] takes his retirement pay on a monthly, quarterly or other installment basis, [Bernadette] is to receive ten percent thereof.
The $4,000 distributed as spousal support is only 5% of the fully vested value and is obviously taken out of Kenneth’s share of marital property. The $8,000 distributed as property to Bernadette is another 10%. Together with the 10% apportioned to Bernadette upon later withdrawal at Kenneth’s retirement, this leaves 75% of the value, currently and fully vested, for the ultimate benefit of Kenneth. This is far short of an equal division.
Kenneth proposed to the trial court that Bernadette be awarded either a $12,000 cash withdrawal or 10% of benefits at retirement. Kenneth now argues that the trial court could not do both. Why is not explained. Without a showing that both together would be inequitable in amount, or over 50% of net marital assets, I do not understand why the trial court is powerless to do so. The majority recognizes that either method, a present award or a presently defined apportionment at withdrawal upon retirement, may be appropriate, but hesitates about approving both together, even when each is a modest proportion. Since a division of up to $42,000 presently, as 50% of the presently vested amount, would be surely equitable if possible, it is difficult to comprehend why $8,000, or 10% now, together with a later 10% apportionment becomes inequitable.
While a property division need not be equal to be equitable, any substantial inequality must be explainable. Volk v. Volk, 404 N.W.2d 495 (N.D.1987). Since this property distribution does not treat Bernadette anywhere near equally, I do not understand Kenneth’s appeal or the majority opinion’s disposition.
Under the Bullock formula for presently apportioning a vested, but presently inaccessible, pension upon retirement, Bernadette would normally expect at least a percentage upon Kenneth’s retirement equivalent to that here disbursed. See Bullock v. Bullock, 354 N.W.2d 904, 908-09 (N.D.1984). The Bullock formula uses the number of years of the marriage during which the pension was earned, divided by the number of total years in earning the pension, times one-half of the later retirement payout to calculate a divorced spouse’s apportionment. Id. Here, if Kenneth retired when he first could at age 55, that formula would compute as 12 years of retirement earnings during this marriage (although they have been married for over 19 years), divided by the 26 retirement earning years, multiplied times one-half, for a net apportionment to Bernadette upon withdrawal of 23 percent [12 divided by 26 times 50% = 23%]. The trial court’s combined 20% for property division, now and later, substantially parallels the Bullock formula, and is not inequitable.
In sum, I see no need for the redetermi-nation of the distribution of pension assets *609that the majority directs. There is nothing inequitable about this distribution, considering Bernadette’s circumstances and the fully vested value of $84,200 as the “only appreciable asset in the marriage.”
Because I would affirm in all respects, I respectfully dissent.
LEVINE, J., concurs.