Marchant v. Marchant

ORME, Judge

(concurring):

I concur fully in most of the main opinion. As to the discussion under the headings “Distribution of Retirement Asset” and “Interest,” I have a somewhat different view, although I agree remand and reconsideration are appropriate. I wish also to add a comment concerning the discussion under the heading “Custody Award.”

DISTRIBUTION OF RETIREMENT ASSET

As I read Woodward v. Woodward, 656 P.2d 431 (Utah 1982), one spouse’s interest in the other’s pension benefits should be cashed out immediately, if at all possible. Deferred participation, as upheld in Woodward, is to be avoided. See Woodward at 433 (quoting Kikkert v. Kikkert, 177 N.J. Super. 471, 427 A.2d 76, 79-80 (1981)). See also Rayburn v. Rayburn, 738 P.2d 238, 241-42 (Utah Ct.App.1987) (cash-out of retirement fund share appropriate to avoid long lasting financial entanglement of parties).

While I agree that a new trial must be held and all pertinent issues reconsidered,1 I do not agree with my colleagues that the “formula delineated in Woodward ” should necessarily govern the trial court’s treatment of the retirement fund on remand. If “other assets available for equitable distribution” are adequate, 656 P.2d at 433, and if, with expert or other evidence, a “present value can be established,”2 id., then, under Woodward, Mrs. Marchant’s share of the retirement fund should be fixed and paid or otherwise settled. Id. Only if these two factors are not present should a deferred arrangement be prescribed.3

*209INTEREST

As to the question of interest, the main opinion adheres to this court’s recent opinion in Stroud v. Stroud, 738 P.2d 649 (Utah Ct.App.1987), in which this court concluded that there may be no deviation from the statutory judgment interest rate even in divorce actions. I adhere to the view taken in the Stroud dissent, id. at 651-52 (Greenwood, J., dissenting), and therefore do not agree it was necessarily error to have provided for less than a 12% rate of interest on certain elements of the property award. In my view, however, there needs to be an articulated, rational basis for deviating from the statutorily prescribed rate.

Thus, while I agree error was committed, I find error not because an interest rate of less than 12% was imposed, but only because the basis for such a rate was not articulated and substantiated.

CUSTODY AWARD

Although, as indicated, I concur in the section of the main opinion entitled “Custody Award,” I wish to add a further comment. As the main opinion states, the record does not show that “plaintiff had been unfaithful to her husband” or that she had other than “minimal involvement” with her supervisor. However, even if the evidence were otherwise, such facts would not be controlling. “Moral character is only one of a myriad of factors the court may properly consider in determining a child’s best interests.” Sanderson v. Tryon, 739 P.2d 623, 627 (Utah 1987).

. I note that any failure of the record to include what the main opinion refers to as “the particulars of defendant’s retirement fund" and "evidence to show whether the U.S. Government will match defendant's contributions” is ultimately the responsibility of plaintiff, who was free to take discovery and assemble evidence on these points. Without such evidence in the record, and with unobjected to testimony as to the asset’s value, the trial court did not err in finding the value of the asset to be as testified by the husband.

. The present value would not necessarily be the cash value of then-vested benefits. In a case like this one, the “present value” should measure the present worth of ultimate retirement benefits insofar as attributable to employment during the marriage in question.

.“Long term and deferred sharing of financial interests are obviously too susceptible to continued strife and hostility, circumstances which our courts traditionally strive to avoid to the greatest extent possible. This goal may be best accomplished, if a present value of the pension plan is ascertainable, by fixing the other spouse’s share thereof, as adjusted for all appropriate considerations, including the length of time the pensioner must survive to enjoy its benefits, to be satisfied out of other assets leaving all pension benefits to the employee himself.” Woodward v. Woodward, 656 P.2d at 433 (quoting Kikkert v. Kikkert, 427 A.2d at 79-80).

I agree with the main opinion that the ten-year payout prescribed by the trial court posed an unacceptable long-term financial entanglement at odds with the sound policy recognized *209in Woodward. If on remand the true present value of the marital portion of the retirement fund can be fixed, deferred participation would nonetheless be appropriate under Woodward if other assets are not available with which to cash out Mrs. Marchant. See 656 P.2d at 433. If such assets exist, deferral should be avoided.
While federal regulations may minimize the concern about long-term financial entanglement, immediate cash-out is still preferable, in my judgment, where feasible.