BOYD v BOYD
Docket No. 55268
116 MICH APP 774
Submitted January 5, 1982. — Decided June 8, 1982.
116 Mich. App. 774
Docket No. 55268. Submitted January 5, 1982, at Lansing. — Decided June 8, 1982.
Duane H. Boyd was granted a divorce from Kathleen Boyd, Hillsdale Circuit Court, Harvey W. Moes, J. Defendant appeals, alleging that the trial court erred in the distribution of marital property and in the awarding of child support and alimony. Held:
- The plaintiff‘s interest in his vested, noncontributory pension was a marital asset which should have been considered as such by the trial court. Because the court failed to consider the pension, the matter is remanded for further proceedings concerning the valuation and manner of distribution of the parties’ interests in the pension benefits.
- The seniority which plaintiff earned in his job during the marriage is not a marital asset such that it would entitle the defendant to more than the 50% of the marital property which she was awarded. The trial court did not err by refusing to consider the plaintiff‘s seniority.
- The trial court was not bound by the recommendation of the friend of the court with regard to child support. The award made by the court was not an abuse of discretion.
- The trial court‘s award of alimony in gross, rather than permanent alimony, was not an abuse of discretion. However, because of the possibility that the defendant, because of her age, health conditions, and the like, may not be able to support herself, the judgment awarding alimony is modified to reserve
the possibility of future alimony.
Affirmed in part, reversed in part, and remanded for further proceedings.
M. F. CAVANAGH, P.J., wrote separately to express his opinion that job seniority, while it is not a marital asset, is a factor which should be considered in the distribution of marital assets and in the award of alimony in a case such as this where the wife had been absent from the job market for an extended period of time.
BEASLEY, J., concurred in the result only.
REFERENCES FOR POINTS IN HEADNOTES
[1, 2, 10]
[2] Pension or retirement benefits as subject to award or division by court in settlement of property rights between spouses. 94 ALR3d 176.
[3]
[4, 9]
[5] 4 Am Jur 2d, Amicus Curiae §§ 1, 3.
[6]
[7]
[8]
OPINION BY BRONSON, J.
- DIVORCE — PENSION BENEFITS — MORTALITY TABLES. Statutory mortality tables may be used to calculate life expectancy in determining the value of a pension plan for purposes of a marital property division in a divorce case (
MCL 500.834 ;MSA 24.1834 ). - DIVORCE — MARITAL ASSETS — PENSION BENEFITS. An employee‘s interest in a vested pension which is determined to be a marital asset should be distributed even if the pension is subject to the contingency or expectancy that the employee survive to a certain age or a specific number of years; the manner of distribution rests within the discretion of the trial court.
- DIVORCE — MARITAL ASSETS — DIVISION OF PROPERTY — APPEAL. The division of marital property and the awarding of alimony in a divorce case are within the discretion of the trial court; the trial court‘s division of property or award of alimony will not be reversed on appeal unless the Court of Appeals is convinced that had it been sitting in the lower court‘s position it would have reached a different disposition.
- DIVORCE — MARITAL ASSETS — JOB SENIORITY. An employee‘s seniority in his job is not a marital asset such that would entitle the employee‘s spouse to more than half of the marital property in a property division made pursuant to a divorce.
- DIVORCE — CHILD SUPPORT — FRIEND OF THE COURT. A trial court is not bound by the recommendation of the friend of the court in awarding child support pursuant to a divorce judgment.
- DIVORCE — CHILD SUPPORT. The provision of child support beyond a child‘s 18th birthday is precluded absent an express agreement between the parties to provide such support.
- DIVORCE — ALIMONY. Factors to be considered in determining whether alimony should be awarded in a judgment of divorce include: 1) the past relations and conduct of the parties; 2) the length of the marriage; 3) the ability of the parties to work; 4) the source of and amount of property awarded to the parties; 5) the age of the parties; 6) the ability of the parties to pay alimony; 7) the present situation of the parties; 8) the needs of the parties; 9) the health of the parties; 10) the prior standard of living of the parties and whether either is responsible for the support of others; and 11) general principles of equity.
- DIVORCE — ALIMONY. An award of alimony in gross should be modified to reserve the possibility of payment of future alimony where the evidence shows that the unemployed spouse may not, because of her age, health problems, and the like, be able to fully support herself in the future.
OPINION BY M. F. CAVANAGH, P.J.
- DIVORCE — MARITAL ASSETS — JOB SENIORITY. Job seniority, while it is not a marital asset itself, is a factor which should be considered in a distribution of marital assets or an award of alimony in a case involving a long-term marriage wherein the parties had agreed that the husband would work and the wife would maintain the household and raise the children, thus removing herself from the job market for an extended period of time.
CONCURRENCE IN RESULT BY BEASLEY, J.
- DIVORCE — MARITAL ASSETS — PENSION BENEFITS. A trial court should not be limited in the methods available to it for equitable distribution of pension benefits which are considered to be marital assets in a divorce case.
Fry, Barker & Hayne, for plaintiff.
Thomas E. Anderson, for defendant.
BRONSON, J. The parties were divorced by a judgment entered on December 3, 1980, in the Hillsdale County Circuit Court. Defendant appeals as of right, contesting the propriety of the property disposition, child support, and alimony award.
At the time of the divorce, plaintiff was 55 years old and employed by Clark Equipment Company (hereinafter Clark Equipment). The parties’ tax returns for the years 1978 and 1979 reveal that in each year plaintiff earned a gross salary of approximately $28,000. Defendant was 51 years of age at the time of the divorce and unemployed. Defendant worked only sporadically during the marriage while plaintiff had been employed by Clark Equipment for some 24 years. The parties were married for over 30 years and had 2 minor children at the time of trial.
The trial court awarded plaintiff property with a value of $37,206. Defendant was awarded property with a value of $30,687. Plaintiff was ordered to pay defendant $3,259.50, which represented one-half the difference of the value of the property awarded plaintiff in excess of that awarded defendant. A subpay plan at Clark Equipment was valued at $4,000. Plaintiff was ordered to pay defendant an additional $2,000 as her share of the plan.
Child support was set at $45 per week, per child, until each child attained his majority. On December 4, 1980, one of the children, Charles, turned 18. On May 6, 1982, Steven, the parties’ remaining minor child, reached 18 years of age.
The court awarded defendant $60 a week in alimony until May 6, 1982. On this date, plaintiff‘s alimony obligation expired. The court also ordered
Defendant first contends that the circuit court erred in failing to consider as a marital asset plaintiff‘s noncontributory pension plan with Clark Equipment. In Miller v Miller, 83 Mich App 672; 269 NW2d 264 (1978), this Court held that a noncontributory pension plan is distributable as a marital asset to the extent that the plan has a reasonably ascertainable present value and the employee‘s interest is more than a mere expectancy. See, also, Tigner v Tigner, 90 Mich App 787; 282 NW2d 481 (1979).
In the case at bar, the court noted that although defendant had a current right to a pension, he was not yet eligible to receive anything from the company. At the earliest, plaintiff would be able to receive monies from the pension plan at age 59. In any case, upon his death, unless he was married and elected a “joint and survivor benefit“, he would be eligible for no further payments.1
In Gibbons v Gibbons, 105 Mich App 400; 306 NW2d 528 (1981), we held that an employee‘s vested, but unmatured, pension rights were distributable as a marital asset. In considering the Miller
holding, the Gibbons Court concluded that the possibility that one might die prior to the comple
In Gibbons, we stated that the statutory mortality tables appearing in
The major objection to the division of a vested, but unmatured, pension plan in the way that we have outlined is that the pension holding spouse may not ever receive anything from the pension plan yet, nonetheless, have to pay the nonpension holding spouse for an interest in the plan. This is, of course, a matter for legitimate concern. However, to the extent that a pension plan of the variety under consideration here is deemed a marital asset, the real problem is determining which party on the marriage‘s dissolution may have to be shorted in the distribution of assets. If, because of the relatively small possibility that the pension holding party might not actually benefit from the plan, we were to hold such pensions nondistributable, we would actually be perpetrating a greater inequity. Our refusal to distribute the pension benefits would result in the pension holding spouse obtaining more than a fair share of the marital assets in most cases since, in actuality, most persons do live approximately to the fulfillment of their expected lifespan. Indeed, even under the method of distribution outlined in this opinion, a
We proceed from the premise that it is unrealistic to think of an employee‘s pension plan as a gratuity or mere largesse from the employer. Such pension plans must be deemed bargained-for consideration in lieu of more salary now. If, instead of a pension plan, the employer offered higher wages, these monies would have been available to the parties during the marriage and, to the extent that this compensation in lieu of a pension had been invested, may well have resulted in a bigger pot of marital assets for distribution.3 By finding that a particular pension plan is a marital asset, a court is finding that both parties have a right as between themselves to benefit from the same.
Two of us were on the panel that decided Miller, supra. We now believe that the following statement from Miller is too broad:
“If the employee‘s interest is contingent or a mere expectancy it may not be distributed pursuant to a divorce judgment.” Id., 675.
It is our opinion that any vested pension which is deemed a marital asset should be distributed even if the plan is subject to the contingency or expectancy that the employee survive to a certain age or a specific number of years. Moreover, there may be potential pension benefits which, although not
We have discussed the distribution of potential pension benefits as if they must be reduced to present value and distributed immediately. In fact, this is only one possible means of distribution. In Chisnell v Chisnell, 82 Mich App 699; 267 NW2d 155 (1978), lv den 403 Mich 844 (1978), cert den 442 US 940; 99 S Ct 2881; 61 L Ed 2d 310 (1979), reh den 444 US 887; 100 S Ct 187; 62 L Ed 121 (1979), this Court affirmed a distribution of pension benefits as they were received by the pension holding spouse. This method of distribution would be particularly useful in cases such as this one, where the lifespan of the pension holding spouse determines the actual value of the pension benefits. This method of distribution would eliminate the inequity of a pension holding employee “buy-
In this case, the court could defer distribution of any pension benefits until plaintiff begins to receive them. Such payments would resemble alimony, but would be considered the delayed distribution of marital assets. Whether such a method of distribution should be used in this case, or any case, rests within the trial court‘s discretion. A delayed distribution would be most appropriate where the parties to the divorce are not extremely bitter and hostile, so that the pension holding spouse could be counted on to provide his ex-partner with her share of the pension as ordered.5 The actual amount of time the pension holding spouse must, or plans to, work before retiring might also be a factor in determining the feasibility of delayed distribution.6
In light of the foregoing, we remand this matter to the lower court for further proceedings. We do consider the pension in this case to constitute a marital asset. The entirety of the vested pension interests came about during the parties’ marriage.
Defendant also argues that apart from the question of whether the pension should have been distributed as a marital asset, the lower court abused its discretion in the distribution of the marital property in any case. The division of marital property is entrusted to the trial court‘s discretion. This Court will not reverse the trial court‘s division of marital property unless it is convinced that, sitting in the lower court‘s position, it would have reached a different disposition. McLain v McLain, 108 Mich App 166, 168-169; 310 NW2d 316 (1981).
Defendant argues that she is entitled to more than the 50% of the property she was awarded because she took care of the family and facilitated her husband‘s ability to earn seniority in his factory job. Without regard to plaintiff‘s pension, in light of the trial court‘s findings, and considering the factors enumerated in Johnson v Johnson, 346 Mich 418, 431; 78 NW2d 216 (1956), we see no problem with the distribution of marital assets made by the court.
We reject defendant‘s argument that the seniority plaintiff earned in his job is an asset like the medical degree under consideration in Moss v Moss, 80 Mich App 693; 264 NW2d 97 (1978), lv den 402 Mich 946 (1978). In Moss, the wife actually financially supported her husband to enable him to acquire a medical degree. Here, plaintiff‘s seniority was not a product of learning new skills which required full-time pursuit of formal education. Defendant was not required to financially support plaintiff while the latter earned seniority. Additionally, job seniority is simply not an asset
Defendant next asserts that the trial court abused its discretion in its award of child support. Specifically, defendant asserts that when Charles Boyd turned 18, the court should have increased the weekly support allowance for Steven Boyd from $45 to $65 per week. The friend of the court recommended this increase. In Meeker v Harring-
“It is not uncommon for the trial judge to make ready reference to a support schedule prepared by the office of the friend of the court, but such schedules should not be used mechanically; they are at best a guide to the trial judge. It is elementary that each case must be decided upon its own particular merits based upon those facts shown in the testimonial record.”
The trial court was not bound by the friend of the court‘s recommendation, and we do not believe the record before us shows an abuse of discretion in the court‘s failure to follow it.
Defendant also argues that plaintiff should have been required to pay support for Steven Boyd until he graduates from high school, approximately one month after he turns 18 years of age. We disagree. Absent an express agreement between the parties to provide for support beyond the child‘s 18th birthday, the Age of Majority Act,
Defendant‘s final claim on appeal is that the trial court should have awarded permanent alimony, and not simply alimony in gross. This Court will not modify an alimony award unless it is convinced that, sitting in the position of the trial court, it would have reached a different result. McLain, supra.
In McLain we stated that the following factors should be considered in determining whether permanent alimony should be awarded:
“1. The past relations and conduct of the parties. * * *
“2. The length of the marriage. * * *
“3. The ability of the parties to work. * * *
“4. The source of and amount of property awarded to the parties. * * *
“5. The age of the parties. * * *
“6. The ability of the parties to pay alimony. * * *
“7. The present situation of the parties. * * *
“8. The needs of the parties. * * *
“9. The health of the parties. * * *
“10. The prior standard of living of the parties and whether either is responsible for the support of others. * * *
“11. General principles of equity. * * *” Id., 171-172. (Citations omitted.)
Factors cutting in favor of an award of permanent alimony (to a lesser or greater degree) are the length of the marriage, defendant‘s lack of marketable skills (ability to work), defendant‘s age and her minor medical problems. The other factors, with the exception of general equitable principles, are basically neutral criteria. Insofar as general equity is concerned, however, the trial court determined that, based upon what he heard during trial, an award of alimony would be “contra-indicated“. Defendant testified that she believed she should not have to work and that plaintiff owed her support for the rest of her life.
Although more factors favor an award of permanent alimony than disfavor one, the determination of an appropriate alimony award is not simply reached by counting up factors and declaring a winner. Cf. Dempsey v Dempsey, 96 Mich App 276, 289; 292 NW2d 549 (1980), aff‘d as modified 409 Mich 495; 296 NW2d 813 (1980). We believe the trial court‘s decision not to award permanent alimony is justified. It is apparent from defendant‘s testimony that she does not believe she should be
We do modify the award of alimony to the following extent, however. We believe that the possibility of future periodic payments of alimony should not be foreclosed. It is possible, try as she might, because of her age, health problems, and the like, that defendant will not be able to fully support herself for many years to come, if at all. We are dealing here with a marriage of over 30 years’ duration. When the marriage was entered into, the parties apparently agreed that their relationship would be very traditional with the husband working and the wife staying home to raise the children. Due to this traditional marital relationship, defendant has not developed marketable work skills. Moreover, defendant‘s absence from the work force for so many years puts her at a disadvantage in finding suitable employment. While we agree with the lower court that it seems defendant does have the ability to support herself, we do not know if this assessment is realistic at this time. As such it may be equitable at a later time to require plaintiff to pay further alimony. See and compare Metcalf v Metcalf, 28 Mich App 442, 448; 184 NW2d 560 (1970), and Ashwell v Ashwell, 31 Mich App 172; 187 NW2d 494 (1971). Thus, to the extent of reserving the possibility of future alimony, we modify the lower court‘s judgment.
Affirmed in part; reversed in part, and re-
M. F. CAVANAGH, P.J. (concurring). I concur with the conclusions expressed in my brother BRONSON‘S opinion. I do so separately so as not to be interpreted as ignoring plaintiff‘s job seniority in the distribution of the marital assets. While I am in agreement that seniority is not an asset like the medical degree in Moss v Moss, 80 Mich App 693; 264 NW2d 97 (1978), lv den 402 Mich 946 (1978), it nonetheless is a factor to be considered in the distribution of marital assets and/or the award of alimony.
More than 30 years previously, these parties entered into this marriage contract with the understanding that the husband would work and improve his job skills and income earning capacity while the wife maintained the household and primarily raised and cared for the children. While I agree with my brother that plaintiff‘s seniority was not a product of learning new skills which required full-time pursuit of formal education, it nonetheless was acquired to no small degree by virtue of defendant‘s willingness to abide by the arrangement and remove herself from the job market. Now, some 30 years later, this arrangement is to be terminated but the parties are far removed from the equal footing they enjoyed at the outset of this contractual arrangement. Defendant‘s lack of job skills and experience, her age, and her general absence from the job market mandate that plaintiff‘s corresponding job seniority be included in the equation which ultimately terminates this contract. As our ultimate disposition of this case on appeal arrives at an equitable disposition encompassing the foregoing concern, I concur.
“In this case, the court could defer distribution of any pension benefits until plaintiff begins to receive them. Such payments would resemble alimony, but would be considered the delayed distribution of marital assets. Whether such a method of distribution should be used in this case, or any case, rests within the trial court‘s discretion.”
I am not yet prepared to rule out the possibility of solving the pension benefit problem in divorce cases within the framework of alimony provisions. Payments need not only “resemble” alimony, but perhaps in some cases such possible future retirement payments should be alimony. I would not limit the trial judge in how he goes about awarding defendant wife a more equitable share.