concurring and dissenting.
With respect to the first appellate contention raised by Dr. Qazi, I concur in the result reached by the majority. Dr. Qazi waived any error in the trial court’s failure on remand to consider the tax shelter liability, because the doctor stipulated that the sole issue on remand was the distribution of the pension plans.
I also concur in the result reached by the majority on the second issue: whether the trial court erred in using the remand hearing date for the valuation of Dr. Qazi’s pension plans. I agree that a finding of reversible error may not be predicated upon the court’s use of the remand hearing date for valuation, because that date fell within the range of dates suggested by Dr. Qazi as appropriate. Nonetheless, the court erred when it selected the remand hearing date for purposes of valuation.
When the instant cause was remanded with instructions to include the pension plans in the marital estate, this Court offered the following guidance:
“In placing a value on the plans, the present value should be ascertained. Libunao v. Libunao (1979), 180 Ind.App. 242, 388 N.E.2d 574, on petition for reh., 180 Ind.App. 242, 390 N.E.2d 695.” Qazi v. Qazi (1986), Ind.App., 492 N.E.2d 692, 694.
The phrase “present value” was not intended to convey the meaning of “value as of this date”; rather, the phrase was employed to preclude redistribution of the marital estate based upon the future value of the plans. Such a reading of Qazi is confirmed by examining the authority cited by the Court, namely Libunao v. Libunao (1979), 180 Ind.App. 242, 388 N.E.2d 574.
Libunao was an appeal from a dissolution of marriage proceeding, in which the trial court divided such marital assets as a pension fund, a profit sharing fund and a Keough plan. Upon reviewing the disposition of assets, this Court stated:
“[W]e hold that the trial court may consider the future value of an asset, but the final distribution must be just and equitable in light of the present vested interest of the particular fund.” Id. at 246-247, 388 N.E.2d at 576.
In placing a value on Dr. Qazi’s pension plans, the trial court could have selected for purposes of valuation any date between the date of filing of the dissolution petition and the date of the dissolution hearing. Eyler v. Eyler (1986), Ind., 492 N.E.2d 1071, 1074. The lower court’s discretion was not expanded by virtue of the fact that the valuation followed a reversal and remand. Cf. Doughty v. State Dept. of Public Welfare (1954), 233 Ind. 475, 121 N.E.2d 645 (Where an appellate tribunal finds a judgment was erroneous and reverses it, the parties must take their places in the trial court at the point where the error occurred and proceed to decision.). The court’s use of the remand hearing date for the valuation of Dr. Qazi’s pension plans was erroneous, but it does not provide grounds for reversal under the particular circumstances of this case.
I dissent from the majority’s disposition of Issue III, concerning the potential tax consequences of early liquidation of the pension plans, for the reasons articulated in my dissenting opinion in Harlan v. Harlan (1989), Ind.App., 544 N.E.2d 553.