Kаthleen Cox BAILEY, Plaintiff and Respondent, v. Glade Charles BAILEY, Defendant and Appellant.
No. 860046-CA.
Court of Appeals of Utah.
Nov. 13, 1987.
830
Brian M. Barnard, Salt Lake City, for plaintiff and respondent.
Before ORME, BENCH and GREENWOOD, JJ.
OPINION
BENCH, Judge:
Appellant, Mr. Bailey, seeks a redistribution of assets awarded in a divorce decree. Specifically, he challenges the award to respondent, Mrs. Bailey, of the residential property occupied by the parties during their marriage to offset the award of “his” retirement fund to him. We reverse and remand.
The parties were married in December 1967, separated in February 1983, and divorced in April 1984. Three sons were born during their marriage. At the time of the trial two were teenagers and the youngest was almost eleven years old. Mrs. Bailey was awarded custody of the children. Mr. Bailey was ordered to pay $150 per child in monthly child support.
Both the parties were employed. Mrs. Bailey worked as a school secretary and earned approximately $970 per month. Throughout the fifteen year marriage, Mr. Bailey worked as a teacher for the Jordan School District and earned, at the end of the marriage, approximately $2,300 per month. The trial court awarded no alimo
The only issue on appeal involves the division of the marital assets. Mr. Bailey argues that the division is inequitable because it gives Mrs. Bailey the “liquid” asset (the house) while he has only the deferred asset (the retirement fund). He seeks to have Mrs. Bailey share the retirement plan subject to the same contingencies he is subject to, namely the completion of additional years of employment with the school district, his termination of that employment, or his deаth.
In determining the value of the retirement fund, the court relied upon testimony of Frank Stuart, who was stipulated to be a qualified expert. Stuart testified the cash value of the retirement fund was approximately $23,000.2 This is the amount Mr. Bailey would receive if he had terminated his employment at the time of the divorce.
Stuart also testified Mr. Bailey‘s account had a present value of $67,591 as of January 1984. That figure reflects all amounts paid intо the fund during the marriage, both by Mr. Bailey and the school district; interest to be earned on those amounts up until distribution; the total anticipated distributions, in view of actuarial data, attributable to the appreciated contributions made during the marriage; and a discount factor to arrive at a present value of those anticipated future distributions. Stuart refined his valuation of the fund with reference to several other contingenсies: study and work life expectancy statistics from the Department of Labor, an annual cost of living salary increase of four percent, and the possibility that Mr. Bailey would leave his job and find other employment.
The trial court found the present value of the retirement account to be $67,591. The court awarded the benefits of the retirement fund exclusively to Mr. Bailey and, as an offset, awarded the residential propеrty exclusively to Mrs. Bailey.
This case involves application of principles set forth in Woodward v. Woodward, 656 P.2d 431 (Utah 1982). The basis for the holding in Woodward is the following language quoted from the landmark case of In re Marriage of Brown, 15 Cal. 3d 838, 544 P.2d 561, 126 Cal. Rptr. 633 (1976):
Pension rights, whether or not vested, represent a property interest; to the extent that such rights derive from employment during coverture, they comprise a community asset subject to division in a dissolution proceeding.
656 P.2d at 432. The Utah Supreme Court held that equitable distribution of the resource does not turn on whether the benefit may be used or given a present value. “The essential criterion is whether a right to the benеfit or asset has accrued in whole or in part during the marriage.” Id. at 432-33.
The Court went on to give some direction as to how retirement benefits should be distributed. In Woodward, the value of the retirement benefits was “contingent on the husband‘s decision to remain working for the government.” Id. at 433. Because that contingency made present value of the retirement benefit “difficult if not impossible to ascertain,” the Court held distribution of the asset should be postponеd until “the husband chooses to terminate his government employment.” Id.
In support of its decision to postpone distribution, the Utah Supreme Court cited with approval the case of Selchert v. Selchert, 90 Wis. 2d 1, 280 N.W.2d 293 (Ct. App. 1979). In that case, the court reversed a distribution based on present value because of the difficulty in determining “the extent of [the earner‘s] interest ... until he actually retires.” 280 N.W.2d at 298. The Wisconsin court explained its holding as follows:
In dividing nonvested pension rights as community property the court must take account of the possibility that death or termination of employment may destroy those rights before they mature. In some cases the trial court may be able to evaluate this risk in determining the present value of those rights (citations omitted). But if the court concludes that because of uncertainties affecting the vesting or maturation of the pension that it should not attempt to divide the present value of pension rights, it can instead award each spouse an appropriate portion of each pension payment as it is paid. This method of dividing the community interest in the pension renders it unnecessary for the court to compute the present value of the pension rights, and divides equally the risk that the pension will fail to vest.
In Woodward, the Court also cited Kikkert v. Kikkert, 177 N.J. Super. 471, 427 A.2d 76 (1981), for the proposition that, where feasible, the trial court has the discretion to place a present value on the benefits and distribute the asset at the time of divorce. Kikkert suggests present value is calculable even though contingent on the life expectancy of the retiree. However, where the benefits remain subject to other contingencies, such as the possibility the pension may never mature, present value is “difficult if not impossible to ascertain.” Woodward at 433. Where such additional contingencies are present, distribution of the asset should generally be postponed until benefits are received or at least until the earner is eligible to retire.
This interpretation of Woodward is consistent with a case recently decided in the Utah Court of Appeals. In Marchant v. Marchant, 743 P.2d 199, (Utah App. 1987), this Court held the trial court erred in distributing retirement benefits at the time of the divorce rather than postponing distribution until the benefits are received. Arguably, Marchant is limited to federal retirement; yet the policy implications remain the same. Postponing distribution equalizes the risks and the benefits to both parties. Not only is postponed distribution generally fairer, it also allows the asset to be used by both parties in a way and at a time the asset was intended to be used: for retirement. Id. at 205 n. 5.
The potential for long lasting financial entanglement is a valid concern in divorce cases. See Kikkert, 427 A.2d at 79-80. Yet, as pointed out in In re Marriage of Brown, “Judicial suрervision of alimony awards ... entails far more onerous a burden than supervision of future pension payment.” 126 Cal. Rptr. at 640, 544 P.2d at 568. In Marchant, there were no direct financial entanglements between the federal retiree and the ex-spouse. In view of recent federal legislation, the long term contact between divorced parties need only be minimal under any retirement program managed by a trustee. The Retirement Equity Act of 1984,
In summary, under our interpretation of Woodward, the distribution of retirement benefits should generally be postponed until benefits are received or at least until the earner is eligible to retire. That is particularly true where there is a sparsi
In the instant case, the calculations of present value were based on assumptions that Mr. Bailey would continue working for the school district for another 18.7 years and that he would not die before reaching retirement age. Those contingencies make present value calculations just as difficult to ascertain in the instant case as in Woodward. As was ordered in Woodward, Mrs. Bailey is entitled to one-half of the retirement benefit accrued during the marriage. But unless the court makes specific findings as to reasons for immediate distribution, the retirement asset is not distributable until Mr. Bailey leaves his employment with the school district.
Because the trial court misapplied Woodward, the property award is set aside and the case is remanded for further proceedings consistent with this opinion. Since the denial of alimony referred to the property award, the court may also rеconsider Mrs. Bailey‘s request for alimony. See Smith v. Smith, 738 P.2d 655 (Utah App. 1987) (when altering disposition of property, trial court is not precluded from adjusting balance of decree to assure equity).
We will briefly address Mr. Bailey‘s additional contention on appeal that the land underlying the marital residence was his separate property. In 1970, Mr. Bailey‘s mother, Rachel, transferred ownership of a half acre of land to her son and daughter-in-law in joint tenancy. This land adjoined Rachel‘s homestead. Mr. Bailey‘s mother apparently intended the gift to be an advance upon her son‘s inheritance, but title was given to the parties jointly. The parties mortgaged the property and built a home on the land, where they lived until the divorce. The trial court found the market value of the land and home to be $59,800, which included $25,000 for the value of the land, against which was an outstanding mortgage of $12,000 rеmaining from the original loan for construction.
The trial court did not find the underlying land to be Mr. Bailey‘s separate property, although it did acknowledge Rachel‘s intention that the conveyance be considered an advance on Mr. Bailey‘s inheritance. It is to be noted that even if the property is found to be Mr. Bailey‘s separate property, it is still subject to equitable division. As stated in Burke v. Burke, 733 P.2d 133 (Utah 1987):
Premarital property, gifts, and inheritances may be viewed as separate property, and in appropriate circumstances, equity will require that each party retain the separate property brought to the marriage. However, the rule is not invariable. In fashioning an equitable property division, trial courts need consider all of the pertinent circumstances.
Id. at 135 (footnotes omitted). See also Smith, 738 P.2d at 658.
The property award is reversed and the case is remanded for further proceedings consistent with this opinion. No costs awarded.
GREENWOOD, J., concurs.
ORME, Judge (concurring in the result):
I am persuaded that remand and reconsideration are appropriate, in view of the confusion about ownership of the real estate and the trial court‘s decision not to award alimony apparently, at least in part, because of a more favorable property award than might otherwise have been ordered. See Note 1, supra. It is difficult tо evaluate the trial court‘s decision absent detailed findings concerning alimony, see, e.g., Marchant v. Marchant, 743 P.2d 199, 207, (Utah Ct. App. 1987), and the status of the real estate. See generally Smith v. Smith, 738 P.2d 655 (Utah Ct. App. 1987).
As noted in the main opinion, Woodward v. Woodward, 656 P.2d 431 (Utah 1982), is our starting point in analyzing divorсe cases posing retirement benefit issues. The Court in Woodward stated that if a present value of a pension plan is ascertainable, the trial court should fix the other spouse‘s share and have it satisfied out of other assets, leaving all pension benefits to the employee spouse. 656 P.2d at 433. The Utah Supreme Court in Woodward upheld a deferred arrangement only because (1) other assets available for immediate distribution were inadequate and (2) the prеsent value of the retirement benefits was “difficult if not impossible to ascertain because the value of the benefits [was] contingent on the husband‘s decision to remain working for the government.” Id. Unlike my colleagues, I read Woodward as preferring immediate resolution of retirement benefits whenever that can be accomplished. Deferred participation in retirement benefits by the other spouse should be a last resort.
The factors which, under Woodward, require a deferred arrangemеnt were not present in the instant case. Although the present value of the retirement benefits was perhaps difficult to ascertain, it clearly was not impossible to ascertain. The trial court heard, and based its findings as to value upon, the testimony of Frank Stuart.
As Stuart testified, the Utah State Retirement Fund is set up to encourage employees to continue their employment. Consequently, only the employee‘s contributions аre vested prior to eligibility for participation in plan benefits. Thus, if Mr. Bailey would have quit his teaching job at the time of the divorce he would have been entitled only to the vested amount. The cash value of the retirement fund, i.e., the vested total attributable to Mr. Bailey‘s own contributions, was roughly $23,000 according to Stuart.
However, since the matured fund is in the nature of an annuity, Mr. Bailey‘s account actually had a present value of $67,591 as of January 1984. As noted in the main opinion, that figure reflects all amounts paid into the fund during the marriage, both by Mr. Bailey and the school district; interest to be earned on those amounts up until distribution; the total anticipated distributions, in view of actuarial data, attributable to the appreciated contributions made during the marriage; and a discount factor to arrive at a present value of those anticipated future distributions.
Because the value of Mr. Bailey‘s retirement fund was in fact ascertained, requiring immediate cash-out of Mrs. Bailey‘s share would be within the court‘s sound discretion under Woodward--where apparently there was no expert testimony as to value--if there are assets with which the cash-out can be appropriately effected.4
Of course, the spouse who is required to cash out the othеr‘s interest in a retirement fund upon divorce should, ideally, be given the option of how best to meet that obligation. Trial courts should ordinarily not require settlement of the obligation in some mandatory way, as was done here. In addition, the spouse ought usually to have a reasonable time to discharge the obligation in situations where immediate cash-out is not possible but long-term deferral can be avoided. In Rayburn v. Rayburn, 738 P.2d 238 (Utah Ct. App. 1987), the trial court permitted the husband to cash out his wife‘s interest in five annual payments, leaving the husband the option of paying his retirement fund obligation out of current income or on some other basis. 738 P.2d at 242. In the present case, the trial court might have permitted Mr. Bailey an opportunity to cash out Mrs. Bailey‘s interest in payments similar to those in Rayburn. However, unlike the wealthy husband in Rayburn, Mr. Bailey‘s resources are quite limited and the court apparently concluded that the only method realistically available for short-term discharge of the obligation was via Mr. Bailey‘s equity in the residence. On remand, I believe the court should specifically consider whether some less onerous approach might achieve a short-term resolution of Mrs. Bailey‘s share of the retirement benefits. On the surface, divesting Mr. Bailey of his only “liquid” asset of any consequence--his share of the equity in the residence--seems a fairly exacting meаns for leaving him with the entirety of an asset which, as a practical matter, will do him no good until after the turn of the century.
In my judgment, any shift by the trial court to deferred participation by Mrs. Bailey should be the product of concern about the lack of such assets as will fairly permit immediate or short-term cash-out of Mrs.