Holland v. Holland

HUDOCK, Judge,

concurring and dissenting:

I concur with so much of the majority’s decision as finds no abuse of discretion in the trial court’s valuation of the West Virginia real estate. However, I respectfully dissent from the other aspects of the majority decision.

Unlike the majority, I would find that the trial court erred and abused its discretion in its ordered distribution of Mr. Holland’s (hereinafter “Husband”) government pension to Lula Mae Williams Holland (hereinafter “Wife”).1 Husband does not argue fault in the court’s utilization of the deferred distribution method; instead, he argues that the ordered distribution permits Wife to receive the benefit of service credits which he earns post-separation. The majority finds this permissible because of the fact that Wife must wait until some point in the future before enjoying the benefits of her portion of the marital share (the “coverture fraction”) of Husband’s pension. The majority further justifies its position because “later year wage increases are a *122product of experience and longevity which were developed during the marriage.” 2 At 60.

Although I share the majority’s concern that a non-employed spouse may be required to wait, at his or her peril, to receive distribution of the pension funds, I believe the facts of this case permit an ordered distribution which properly allocates to each former spouse his or her equitable share, and yet affords both of them ample protection. In my opinion, the trial court should have viewed the date of separation as Husband’s retirement date.3 Basic benefits would be determined by averaging the highest three years’ salary of the last five years of Husband’s employment, as specified by the plan. This would have permitted the coverture fraction to be determined,4 and therefore, the immediate allocation of the pension between the parties. An appropriate and acceptable qualified domestic relations order (QDRO) could then be drafted5 specifying that Wife was to receive a particular monthly benefit and each parties’ allocation segregated into separate ac*123counts maintained by the pension fund administrator. Husband’s civil service plan permits such alienation and also specifically requires that the participant spouse shall receive a reduced annuity so as to provide for a “former spouse annuity”. 5 XJ.S.C. § 8345(j).

This approach would permit each party’s account to grow, or diminish, in equal proportion and also maintain the parties in the same relative position that they would have been in had the marriage not ended. Each of the parties then becomes, effectively, a member of the pension fund with individual accounts and, as such, is subject to the fund’s rules and regulations regarding withdrawals. Thus, if the plan administrator agrees, and the plan so authorizes, it is permissible for the benefits to be paid to the permissive distributee (e.g. the divorced, non-employee spouse) on or after the date that the participant spouse attains, or would have attained, the earliest retirement date. Massler, supra. If, as Wife’s expert testified, Husband meets the plan’s requirements of age and length of service so as to be presently eligible to receive annuity payments, Wife will also be eligible presently to receive her “deferred” distribution. In fact, a QBRO may require the plan to pay the permissive distributee or alternate payee “any type or form of benefit offered by the plan regardless of that chosen by the participant spouse.” Id. at 227.6

Admittedly, the facts of the instant case complicate this approach because Wife remarried prior to reaching the age of 55. Husband’s plan specifically disqualifies Wife from currently receiving a “former spouse annuity” because of this fact. 5 CFR 831.625. Despite this, I do not think Wife’s claim for the pension is defeated. The parties separated on December 1, 1985 and a decree of divorce entered on June 29, 1987. Although Wife remarried on September 19, 1987 (R. 172a), her claim regarding the equitable distribution was not finalized by the trial court until December 7, *1241989. I believe that Wife is entitled, at a minimum, to receive 40% of the coverture fraction of Husband’s basic monthly entitlement, determined using the date of separation as his artificial retirement date as explained above, for the period between separation and August 31, 1987.7 As previously discussed, however, the plan may be required to pay Wife any type or form of benefit offered by the plan.8 The court should also order Husband to pay, when his pension goes into pay status, Wife an amount equal to what she was entitled to receive on a monthly basis from her “former spouse annuity”.

I also believe it is necessary to vacate that portion of the trial court’s decree of equitable distribution relating to Wife’s Social Security benefit. It is clear that the court’s consideration of this anticipated benefit was so intertwined with the issue of equitable distribution of Husband’s pension that the court must be afforded an opportunity to reexamine the entire matter.

Hence, I would reverse and remand.

. The court awarded Wife forty percent (40%) of that portion of Husband’s basic retirement benefit which is determined to be part of the marital estate. The court found the coverture fraction could not be immediately determined since it chose the delayed distribution method in its award.

. There is, undoubtedly, some truth to this statement. However, there is not enough truth to it so as to permit any reliable consideration of the theory in equitable distribution. Additionally, the majority does not comment on the fact that Wife has a profit sharing plan and an Individual Retirement Account (IRA), both of which are, in part, the product of experience and longevity developed during the course of the marriage. I think it was incumbent upon the trial court to include both of these assets as part of the marital estate and justify its award thereof.

. I realize that Husband has taken the position that the pension must be valued at the time of the divorce. (Brief for Appellant, at 12.) However, this Court has stated that "[o]nly that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property----” Braderman v. Braderman, 339 Pa.Super. 185, 196, 488 A.2d 613, 618 (1985). (Citation omitted).

. The trial court determined the length of the marriage, the numerator of the coverture fraction, was 26.75 years. Wife’s expert testified that the information in his possession indicated Husband’s service computation date was June 21, 1954. However, Wife’s expert was uncertain as to Husband’s length of service as it appeared that there was additional credited service.

. For a review of drafting considerations, see Massler, Qualified Domestic Relations Orders: A Statutory Analysis, 19 Seton Hall L.Rev. 224 (1989). See also, 5 CFR 831, et seq.

. This approach would also eliminate most, if not all, of the "negative factors” associated with the deferred distribution method. See, Troy-an, Pension Evaluation and Equitable Distribution, 10 FLR 3001, Monograph No. 1 (1983).

. 5 CFR 831.625 mandates that a former spouse annuity, or eligibility therefor, terminates on the last day of the month before the month in which the former spouse remarries before attaining age 55.

. Additionally, it is clear that the court’s order did not comport with our recent decision in Cornbleth v. Cornbleth, 397 Pa.Super. 421, 580 A.2d 369 (1990) (CSRS participants should be equated with Social Security participants and the present value of the Social Security benefit should be deducted from the present value of the CSRS pension prior to determining the marital portion of the pension which is included in the marital estate for equitable distribution.)