Morales v. Morales

LEVINE, Justice,

concurring and dissenting.

I agree that the trial court did not err in awarding retirement benefits on a prospective basis only because the trial court found that Josephine received past indirect benefit from substantial payments Julio made to their daughter. However, in my view, the award of only 17.5% of the retirement benefits is clearly erroneous and should be reversed and remanded for rede-termination.1

*326In Anderson v. Anderson, 390 N.W.2d 554 (N.D.1986), we stated that a property distribution need not be equal in order to be equitable, but any substantial inequality must be explainable. While the Bullock formula has not been adopted as the exclusive method for dividing military pensions, I believe the formula provides a suitable benchmark for determining what is an equitable distribution of a military pension. Applying the formula to this case, an equitable distribution would result in Josephine being awarded 41% of the retirement benefits.2 Thus, the trial court’s award of only 17.5% constitutes a substantial inequality which needs to be explained.

The findings made by the trial court upon which the trial court and the majority rely to explain the disparate award are that Josephine had received a more favorable property division than Julio and that there had been no showing of extensive assistance by Josephine to aid in Julio’s career advancement. The first finding does not justify the degree of disparity and the second finding is clearly erroneous.

It is clear that Josephine received a more favorable property division at the time of the divorce. However, this does not justify the substantial disparity in the division of the pension because the parties had so little property to distribute. Josephine received the family residence valued at $48,000 but subject to a mortgage of approximately $44,000, most of the furniture and appliances in the house, one car and approximately $600. Julio received some power tools and a car. Because the pension was not subject to distribution at the time of the divorce, it was not valued by the parties. However, it is apparent that the military pension was far and away the most valuable asset of the marital estate. I do not believe the small amount of property awarded to Josephine in the original divorce action would have justified an award of only 17.5% of the pension then. Nor does it now.

In finding no showing of extensive assistance by Josephine to Julio to aid in his career advancement, the trial court referred to the facts in Bullock v. Bullock, 354 N.W.2d 904 (N.D.1984), a case tried by the same trial judge. The trial court noted that “Patricia Bullock put on teas and belonged to the Officers Wives Club, etc.” There are two reasons why the trial court’s finding of no extensive assistance does not justify the meager award of pension benefits. First, we have never held that a wife must render extensive assistance to her husband’s career advancement in order to be entitled to an equitable share of the marital property. Second, the finding that Josephine did not extensively assist Julio in his career advancement is clearly erroneous.

This Court has recognized that the tasks performed by a homemaker are significant contributions to the marriage which entitle her to an equitable division of marital assets. See Briese v. Briese, 325 N.W.2d 245, 247 (N.D.1982). Due to Josephine’s status as a military wife, her role as homemaker and primary caretaker of the parties’ two children included additional responsibilities and sacrifices unique to military families. During the seventeen years of marriage that Julio was in the military, the family moved at least fifteen times, including two OSC tours in England, two tours in California, one tour in the Panama Canal Zone, and one tour in North Dakota. These moves meant placing the children in new schools and imposed other responsibilities that come with frequent changes of address. Along with these burdens, Josephine was unable to work out of the home when stationed overseas because American spouses were prohibited from working in a foreign country.

*327Additionally, Josephine attended functions sponsored by and for non-commissioned officers’ wives. She encouraged Julio to take advantage of educational opportunities while he was in the military. After Julio retired from the military, Josephine worked full time to help support the family while Julio completed his education and obtained a nursing degree. While the record does not contain evidence that Josephine “put on teas” or “belonged to the Officers Wives Club,” it can hardly be said that Josephine did not contribute to Julio’s career in the military. The trial court did find that Josephine sacrificed her advancement by working so that Julio could get his education. Based on these facts, I believe the trial court’s finding that Josephine did not extensively assist Julio in his career advancement is clearly erroneous and that the standard of “extensive assistance,” if it means something more than the significant contribution of a homemaker, is incorrect as a matter of law.

I would reverse and remand for a rede-termination of an equitable distribution of the pension. Therefore, I dissent.

MESCHKE, J., concurs.

. In my defense, and to temper the criticism of my ignorance of or disregard for Rule 52(a), North Dakota Rules of Civil Procedure, I believe the trial judge’s memorandum decision and findings of fact are, in part, an explanation of why he did not apply the Bullock formula straight away in this case. I also believe appellant argues not only that the trial court should have applied the Bullock formula straight away, as a matter of law, but also that, under the circumstances of this case, i.e„ as a matter of fact, the trial court erred in modifying the Bull*326ock formula to award Mrs. Morales only 17.5% of the military pension.

. Of the 20 years and 10 months Julio spent in the military, he was married to Josephine for 17 years and 3 months. Thus the formula is applied as follows:

years of marriage x ½ of military spouse’s years in military retirement benefits
17 years 3 mos 20 years 10 mos X 50% = 41%