*1 along those considerations weighed ter and DeMARCO, Appellant Frank J. statutory factors. mitigating
with Devers, 519 Pa. 101- v. Commonwealth v. 12, 18 102, 546 A.2d DeMARCO, Appellee. A. Barbara ¶ sentencing tran- 26 Our review sentencing court script reveals Pennsylvania. Superior Court of Sentencing Guidelines considered 13, 2001. Argued also March report. The court pre-sentence Ap- impact the the emotional considered 13, 2001. Dec. Filed victim, the minor pellant’s crimes the victim’s Appellant the fact
uncle, crimes had the effect these In addi- family.
upon the victim’s entire sentencing court also referenced
tion the lack of a history, work Appellant’s record, he was and the fact
prior criminal Taking all abuse. a victim of child
himself consideration, the into
of this information Our imposed consecutive sentences. sentencing reveals the
review of the record weighed all of relevant properly adequate reasons provided
factors and Appellant. sentencing
the record
Therefore, to conclude we find no reason discretion.8 court abused its sentencing
¶ Furthermore, recognize the sen- we aggravated indecent for IDSI and
tences man- pursuant to the imposed
assault were in 42 set forth
datory provisions minimum addition, § the sen-
Pa.C.S.A. range standard within the
tences were and did not ex- Sentencing Guidelines 18 Pa.C.S.A. statutory limits. See
ceed the
§ 1103. foregoing rea- Accordingly, for the of sentence.
sons, judgment we affirm affirmed. Judgment of sentence victim’s emotional some of the stood that Appellant claims the sen- recognize the 8. We by persons consider whether caused tencing problems court failed to could have been have been problems could Opin- emotional victim's Court defendant.” Trial than the other had committed persons who caused other ion, Appellant’s Accordingly, the at 5. 8/18/00 However, in against victim. acts of abuse is meritless. claim stated, "it under- Opinion, the its *2 Goodyear, Pittsburgh, Daniel L. for ap- pellant. Norkus,
Nancy Pittsburgh, appel- J. lee. MELVIN, TODD,
Before: ORIE KELLY, JJ. MELVIN,
ORIE J. (Hus- 1 Appellant Frank DeMarco band) asks us to whether thе determine properly police pen- trial court valued his purposes sion fund for of equitable distri- age fifty, bution as if he retired at even though no im- he continues work with plans mediate retire. We hold that simply pen- error to value Husband’s vested, sion as of the date the without regard to certain factors that must be in the established record and considered failing setting a retire- erred to value before date, point, 1,1997, as a reference to value a April ment as of which is the first sion reverse and re- pension. Accordingly, we following day of the month evidentiary hearing mand for an consistent birthday, on which 50th and the date opinion. with *3 first eligible Husband became receive following pension twenty full benefits 2 The court set out the relevant (20) grant- procedural history apрeal years of this service. The Court facts and Reconsideration, as follows: Motion for ed Wife’s (“Hus- Plaintiff, after of the briefs of the Frank J. DeMarco and review band”) Defendant, A. De- and Barbara argument, and oral the Court (“Wife”) on Janu- Marco were married 16, an Order on issued March 17, and after ary separated twelve 29, amended the October which (12) 2, years on 1982. Husband July Findings and and ruled Order employed police officer with became as component pension marital of Husband’s 12, January City Pittsburgh on $158,908 and at at should be is valued (5) 1970, just days par- to the prior five $104,455 age at 50 rather than 55. age in marriage ties’ and he continued on Regarding ancillary claims re- Wife’s marriage employment throughout consideration, granted either the Court gainful- through and trial. was not Wife a conciliation or party request leave marriage ly employed during the as of further hearing presentation for a home- Husband insisted that she be hearing and A testimony evidence. was caregiver par- and to the primary maker 30, 1999, on conducted June children, Frank, Jr., February ties’ born July 13, issued its final Court Order 21, Roxanne, 20, October born 1999, which reiterated the Court’s parties separated 1977. After the in 16, 1999 of the marital March valuation 1982, in the marital resi- Wife remained pension component of Husband’s at dence with the children and Husband 13, $153,903. pro- The July 1999 Order voluntarily paid support Wife $700 pertinent 29, 1996, part: vides per April month until when the Order parties entered into a Consent component [Hus- The marital value Alimony whereby paid Husband Wife Police Pension Pittsburgh band]’s per Lite of month. At Pendente $740 $153,903, found to be which is the trial, fifty-one thе time of Husband was only expert value attributed (51) (50) fifty years of and Wife was witness, Lynch, to [Husband]’s James years old. (50) age fifty fully vested at parties pursued respective their The (20) following twenty years service. claims for of mari- compo- marital The calculation of the counsel fees at property, alimony tal based [Husband]’s nent September trial on 1998. Court [Husbandj’s actual upon the date of on Octo- Findings its and Order issued for at full eligibility retirement bene- which the [value the] ber fit. component Husband’s marital 12/8/99, Opinion, at 1-3. Ulti- Trial Court Department Pittsburgh from the Police the marital mately, court valued $104,455 based determined to be $208,535.00. The court awarded estate at age of 55 in projected estate or 60% of the marital Wife Thereafter, a Mo- presented Wife $125,121.00. This award consisted included, for Reconsideration which tion alia, one-half of roughly residence and that the Court marital inter assertion Moreover, the marital police old. Husband avers that pension. The court awarded Husband the trial court should have valued his remaining 40% of the marital estate and if average he would retire at the retire- ordered to pay alimony Husband Wife sixty-five. ment main- Husband ($100.00) the amount of one hundred dol- tains that the trial court interfered with (20) per lars month for twenty years. The right his long choose where and for how purpose reasoned that of he works when the court fixed the value of pur- was to enable toWife age fifty, as if he had retired policy chase an insurance on Husband’s eligible which was when he was first life, guarantee payment of her equitable full retirement Finally, benefits. Husband police share of pension, alleged- suggests that the court should have re- *4 ly based on the fact that jurisdiction property tained over the distri- sion does spousal not have a survivor bene- bution because the assets of the marital fit. This appeal followed.1 great estate enough were to offset the ¶ 3 Husband following raises the issues marital value of at the appeal: on Wife, time the marital estate was divided. WHETHER THE TRIAL COURT hand, agrees on the other with the trial ERRED AS A MATTER OF LAW court. longer contends that the Hus- .She ABUSED ITS DISCRE AND/OR works, band the less his is worth. TION IT WHEN PRESENTLY suggests actually dissipat- She Husband is VALUED RE [HUSBAND’S] ing this marital asset with his continued TIREMENT BENEFITS AT AGE employment. following reasons, For the FIFTY EVEN THOUGH [HUS reject position we Wife’s and share Hus- BAND] CONTINUED TO WORK? band’s concerns. WHETHER THE TRIAL COURT scope Our of review of an order of equi- ERRED AS A MATTER OF LAW table distribution is limited. Such AND ABUSED ITS DISCRE /OR awards are within the sоund discretion TION BY THE [HUS DENYING court, of the trial and will not be dis- A BAND] CHOICE OF WHERE turbed absent an abuse of discretion. TO WORK? An abuse of by discretion will be found DOES [HUSBAND’S] DESIRE this court if the trial court failed to TO CONTINUE IN HIS PRES proper legal procedures misap- follow or ENT EMPLOYMENT CONSTI plied the law. TUTE AN EFFORT TO DISSI Litmans, Litmans v. 209,
PATE THE VALUE OF A 673 A.2d MARITAL ASSET?
Appellant’s 5 For understanding Brief at 8. a better complexity problem valu- ¶4 issues, In each of these Husband ation plan for a defined benefit where the challenges the trial court’s valuation employee retire, spouse yet has we must pension as if he had retired at fifty. first understand the nature of retirement Husband asserts that the trial court erro- simply benefits. Pensions are deferred neously age fifty valued his at past compensation employer because he from worked at for ser- the time fifty-two years of trial was in fact by employee. Thеy vices rendered are remand, previously appealed 1. Husband utory. Following the divorce decree August distribution order on granted May 1999. That was 2000. The matter is appeal quashed properly "Per Curiam” as interloc- now before us for review. type property they plan, like the defined contribution there intangible a because represent right a contractual to future account is no individual statement which upon Pen- payable benefits retirement. provides parties with value of types: plans generally sion are one of two All plan regular at intervals. we de- plan contribution and the defined employee stays if the alive know that fined plan. benefit retirement, job and on until he will plan
A is one which defined benefit specified entitled to receive month- employer promises a certain bene- ly payment for the balance of his life. fit; plan contribution is one defined employer a cer- promises which the by are ac- plans Defined benefit valued tain contribution. tuarially determining present their val- In plan, benefit the benefit defined ue.... calculation of a val- The which promised calculated discounting mortality, requires ue formula defined annuity mortality ta- group based provisions. employer pays bles, interest, discounting for and dis- specified benefit retirement. counting probability for the that the em- plans, some the em- defined benefit company to ployee will remain with the *5 others, ployee in nothing; contributes All of fac- age. the various based, part, the are in benefits actuary can tors be considered the employee
what the contributes. The present the determining value employer’s plan, contribution to the plan. however, year year varies from based on the amount which is needed majority reported vast decisions [T]he any particular pay time to the bene- deal with the valuation and distribution fits are due. Individual ac- which and the pension plans, of defined benefit employee’s counts of each contribu- are an coverture fraction calculations tion, maintained, any, if are but these important part analysis in these specify employer not accounts do numerator of the cover- decisions. The contribution. represents ture fraction the number plan, In a howev- defined contribution married, years were er, sрecify individual accounts not represents denominator the number contribution, employee’s but the years employee/spouse participated employer’s as well. The benefits to plan. in the paid in the defined contribution an essen- coverture fraction is While however, plan, unlike in the de- those component tial of this formula for deter- fixed, for plan, fined benefit are not defined mining portion marital they depend upon performance plan, not an factor benefit it is essential which made with the investments are cov- process in the valuation itself. The contributions. merely way fraction is to calcu- erture the distinct nature of each of Because of pension adjusted of a portion late what plans, valuation is these their method of present value. different as well. noth- The use of a fraction has coverture plan
Valuing the defined benefit pension ing to do with the valuation of Rather, plan purpose its sole itself. plan It is benefit which rais- the defined part of the value significant problems. es valuation Un- determine what
1077 plan years is attributable ties lack sufficient to offset the mar- assets marriage and hence marital property However, pension. ital value of the nei- subject to equitable distribution. How- party disputed ther court’s use of ever, if portion this marital is clear from the as the proper immediate offset method itself, plan records of the the use of method to employ under facts of this the coverture fraction is unnecessary concluded, case. The trial court whether and potentially to either unfair the em- correctly not, or that distribution of the ployee non-employee spouse. or pension this case could be deferred Paulone, Pa.Super. 130, Paulone v. 437 through a domestic relations order and 691, (1994). 649 A.2d 693-695 sepa- declined to treat asset rately from the other assets the marital Additionally, 6 Pennsylvania provides law estate. We remind the two methods to distribute a when dividing the assets of a mari defined benefit wherein Miller, tal estate. Miller v. 395 Pa.Super. monthly easily benefit is calculable and (1990), denied, appeal A.2d 205 have separately could been treated (1990), Pa. appeal 583 A.2d payment deferred. remand, 617 A.2d after problems 8 Regardless of the with the method, The first “immediate analysis, proceeded trial сourt’s to place offset,” percentage awards a of the marital present pension. value on the It added of the value to the residence, along the value of the marital party earning it offsets the marital personal other property with miscellaneous value of with other marital together with value of the assets at the time the estate is divided. pension to arrive at total value of *6 Id. preferred This method is where the marital estate. The trial court then deter- estate has sufficient assets to offset the mined that entitled to a Wife was 60% pension, because it not require does of the total estate. share marital The trial jurisdiction court to retain indefinitely. then of subtracted value method, Id. The second “deferred distribu personal marital residence and various tion,” generally requires the court to re property from the and total estate conclud- jurisdiction pension tain until the is collect ed, get that for 60% of the marital Wife ed, at point which is divided estate she was awarded 50% of the marital according to the court’s order. Id. This Thus, of portion pension. Wife practical method is more where the roughly monthly awarded of the was 50% lack sufficient assets offset the marital approximate- or pension benefit of $869.50 pension. value of the Id. ly per month retire- $435 recognized We have that neither distri- employed by ment. The methodology bution scheme will appropriate be to all problematic, trial court is but we must Rather, cases. the trial court must bal- focus our review on the limited issue ance the and advantages disadvantages raised, of a which is the selection retire- according of each method to the facts of purpose valuing ment date for the the case before it in order to determine pension. which method best would effectuate eco- justice
nomic parties. between the ¶ 9 arose for problems Further Lyons Lyons, v. arbitrarily it a court when next chose re- A.2d present fifty tirement date of to set value
¶
case,
pension. According
expert
7 In
Wife’s
the instant
Husband
has
pension plan
defined
Husband
par-
benefit
and the
evaluator when
was
The crit-
continues to work.
was
fact Husband
fifty the marital
his
$153,908.19.
question which effects both
expert
The
testified
ical
worth
is
age fifty-
and
what
if
chose to retire at
that Husband
five,
assigned to Hus-
of the
would bе
value should
the valuation
cash
be
$104,455.00.
logic
pension. By
determining
not first
band’s
approximately
any
fact
point,
stems from the
as
reference
this calculation
retirement date
retires,
the less
is
placed
later in life Husband
on this asset
further valuation
potentially
above,
he
collect before
speculative.
checks
will
As noted
time
old,
the time of his
trial,
terminate at
payments
fifty-two years
Husband
monthly benefit
As the number of
point
death.
years beyond the reference
se-
two
decreases,
actually
checks
issued
by
lected
Husband
necessary
money
to fund a de-
amount
question
yet
This alone raises a
to retire.
As
plan decreases.
noted
fined benefits
of the trial court’s
about
soundness
above,
plans
ac-
defined benefits
take into
ignoring this reali-
valuation method. Yet
early
count factors such as
ty,
arbitrarily
selected
mortality
of its members
rates
all
to maximize
fifty as the date of retirement
determining
money
what amount of
pur-
of the asset
insurance
the benefit
Husband,
just
plan.
needed
fund
justice.
poses under the rubric of economic
many
plan,
members of the
one
a retirement date is
Assigning
em-
depleting anything by
continued
must
re-
non-computational
which
issue
instead, merely
costs his em-
ployment;
by
supported
trial court and
solved
longer
ployer
less to fund the
complexity
of record. The
evidence
However, for
to work.
he chooses
law
amplified by
matrimonial
issue
best
employer, as different members
Rounick,
expert Jack A.
who wrote:
pension plan go
pay
and out
status
into
statisti-
ample empirical
There is
death,
money
through retirement and
justify
the conclusion
cal evidence
to fund individual members’
needed
at the
all
do not retire
workers
out.
averages
sions
age.
variety
impact
A
of factors
same
its selec-
10 The trial court concedes
selection of a re-
[sic]
on an individuals
arbitrary age cho-
age fifty
was an
tion
*7
great majority
In
age.
tirement
the
this
to maximize the value of
asset.
sen
plans
par-
the
qualified defined benefit
“value” of
increasing
purported
By
ticipant
given
option
an
to retire with-
is
inflated the
pension the court
Husband’s
The breadth
this
range
in a
of dates.
ef-
of the marital estate. The
total value
individual
range is from the date an
the ultimate
fect this valuation
opt
to
for a
and decides
becomes vested
is
rе-
of the estate
that Wife
distribution
...
Deferred retirement benefit
vested
greater
share.2
ceived
to
required
an
to the date
individual is
record,
result
de-
employment
Upon
terminate
11
careful review of
incapacity
physical or mental
monstrable
method em-
find the
valuation
we
Because of
actual
determining
perform....
by the trial court
ployed
options
available
range
retirement
ignores the admitted
equitable distribution
date,
selecting
arbitrary
which
justice,
the trial
an
If to achieve economic
by
entitled to a
award of
truly
unsupported
believed Wife was
the record. Our
is
share,
awarded it
greater
then it should have
give
the flexibil-
will
the trial court
a new trial
greater than
her in the form of a
60%
order to set
new
ity it is entitled
Instead,
the trial court
estate.
thе marital
scheme.
by
manipulated the "value”
1079
employed
potential
spouse, evaluators
as-
does
framework for how
who
raise
sume that all workers retire at
same
point
at a
to arrive
valuation reference
age or point
skep-
are to be viewed with
a court
attempting
use
to make a
when
ticism.
present distribution of a future asset. At
Rounick,
Pennsylvania
least,
recognized
Matrimonial
a fac-
Practice,
§
IB,
Vol.
46C:1 at 14.
point
tual determination
a reference
future retirement date must be
husband’s
Pennsyl-
Our exhaustive search of
vania
made.
jurisprudence
ap-
has revealed little
pellate
However,
problem.
this
notice of
(cid:127)¶ 14
than
recog
Other
which we
Bucci
Husband
suggested
Alleghe-
has
that an
unpublished
nize is an
memorandum deci
ny County Common Pleas Court decision
value,
precedential
sion which offers no
we
Bucci,
(Alle-
in Bucci v.
No. FD83-6072
Pennsylvania
have found no other
cases
gheny Cty.1985), affirmed,
dealing directly
problem.
with this
Howev
(1986)
Bucci, the trial court considered how to (1993), Michigan Appeals Court of re evaluate pension payments future where pen viewed a court’s valuation of a the employee/spoüse continued to work. considering sion. whether earliest articulating exactly Without what factors permitted by retirement date considered, made fac- appropriate was an reference date to tual dеtermination that husband would pension, value Appeals Court re likely age sixty-five. work until The wife jected automatic specula selection of a argued Bucci that the retirement Instead, tive date. it affirmed the trial should have been fixed at fifty, on the point date the court’s selection of a first reference based matured. rejected argument stating presented on the evidence trial. It problem “the such analysis with approved of the trial court’s consideration it requires employee spouse to of testimony that he would cannibalize If himself. he retires and re- age sixty-five work until as to provide so pension, ceives his he is no longer work- parties’ daughter, for the minor child’s ing and salary cannot receive his or age, health and work histo wages likely whiсh are considerably high- ry. discussion, Significant to our er than monthly pension payment.” Michigan recognized: Court Id. at 2. The Bucci court continued Circumstances often exist that would stating, cases, “in if many, not most make it unrealistic to assume that an *8 age usual sixty-five, retirement will be for employee possi- will retire at earliest the that age is the at which an individual can Utilizing ble retirement date. a ficti- receive full Security the Social allotment.” in tious date results a fictitious value Id. at hearing 3. After testimony from asset. for the To value a husband, the court decided he in- that of required assumption the basis tended until age sixty-five to work be- contradictory in the retirement face of cause of obligations. his financial At the will result in an necessarily evidence decision, already time of its husbаnd was inequitable unfair or distribution of this fifty-eight years By express old. its marital asset. terms, Bucci does mandate the use of 292, 497 222 age sixty-five (emphasis Id. at N.W.2d at in all cases struggling with added). the plan, valuation of it but
1080
¶ recog- job, profession normal- occupation 15 Minnesota have also same or Courts 232, pension presents ly nized that valuation of Id. at retire. N.Y.S.2d for complex issues and a need the ¶ Here, nothing is in there the point supported to select reference arbitrary support to the record selection In the of In Re the by the evidence. case point. it is age fifty as the reference Since Fastner, 421 Marriage Fastner v. of: continues work evident Husband well (Minn.App.1988), employ- N.W.2d 691 past fifty, point age reference errone ee/spouse despite continued work court, ously assigned by the trial some multiple that from sclero- fact he suffered employed other method must be to deter expec- his life and work sis which affected A mine re his future retirement date. tancy. Again, the issue for the trial mand in for the trial court to order age Hus- assign what retirement employee/spouse If develop a record. point valuing as in band a reference presents testimony as to his antic credible ap-On for distribution. retirement, the ipated date of issue sim peal, valuing a pension, court held problem event the ple. The arises the trial court’s determination a retire- spouse has no employee intention retir supported by ment date must be facts circumstances, it ing. such we find Under specific findings record or upon the trial court to consid incumbent findings court. no are made and Where following projecting er factors facts, the record is devoid of retirement date: must be and case remanded reversed (1) regarding average data statistical for further consideration. company from retirement noting when Finally, is worth employ- industry or with which v. this issue arose in the of McGowan case affiliated; ee/spouse is McGowan, 136 Misc.2d 518 N.Y.S.2d (2) employee/spouse’s age; 1987) County (Sup.Ct. Suffolk af- (3) health; employee/spouse’s modified, 142 A.D.2d firmed (2nd Dec.30, 1988), (4) work; Dept. N.Y.S.2d 990 the nature projecting New York trial court found (5) work; to continue incentives employ- of retirement when the a date (6) employment opportunities else- eligible ee/spouse is to retire but continues where; accomplished сan once to work (7) present and future financial circum- testimony, hears considers trial court stance; specific findings of evidence and makes (8) disposition mental toward continued recognizing fact. need evidence and, working; which to a determination of a base (9) an probability offer added date, projected reasonable early sion benefits an incentive suggested certain factors that retirement. include should be considered. The factors Certainly, a trial court would not health; parties’ respective intensely expect an de- employee with children; presence employment of minor physical position to have the manding elsewhere; fu- opportunities *9 sedentary In longevity same as a worker. circumstances; mеntal dis- ture financial case, only speculate we can as position working at a toward continued placed employ- to demands ear- age; probability of incentives for later police retirement; intent; ee/spouse occupation as a and future statistics ly the rec- in the officer. Error arises here because age people employed to what as only supports parties marriage, ord intent during Husband’s to con- as well totally working; any tinue it is devoid of payor’s ability pay. to Twilla v. Twil future, he will in the near la, evidence retire 664 A.2d yet assigned the trial a retire- nature, determining the When passed. date that already ment has amount, payment duration and manner of alimony, for an award of the trial court ¶ 19 The trial court is under the mistak- must consider the factors set forth in impression year en that each Husband § Pa.C.S.A. 3701. to beyond age fifty continues work he re- duces the marital component ¶ 22 According to the dis sion as well as the value Order, tribution was awarded alimo Wife assumption simply itself. This is not true. ny per the amount of month for $100.00 As a plan, defined benefit marital com- term of is twenty years. a This award $869.58, ponent regardless is fixed at purported to on a be based review of sev Admittedly, the date of retirement. less However, §in eral factors set forth is money required pay-out to a fixed fund the trial court no provides findings of fact time, period over shorter but this it support or conclusions of law to how argument begs question of what value Instead, arrived at this award. the alimo placed should on a benefit plan dеfined ny merely of income to stream fund the employee/spouse yet
when has not re- policy, term life insurance which we be Furthermore, tired. the trial court seems lieve constitutes a double award. The ali something to find about sinister Husband’s mony award has no relation to the length to ability control the disbursement of the the marriage, earning the relative ca yet pension, a finding never made pacities parties, obligations Husband’s continued employment is ill-mo- children, minor the relative assets and lia tivated. We must be mindful that bilities and the relative pension at issue nothing more than de- Moreover, needs of parties. requiring during ferred income earned the marriage pay twenty years’ Husband to worth and not realized until retirement. Wife is alimony following twelve-year marriage еntitled collect the benefit when conclusion, Husband does. appears inequitable considering the date of speculative, Husband’s retirement and payment alimony child support over any lacked basis in using seventeen-year period, especially in light age fifty as the date of retirement. earning capacity Wife’s the award the marital residence and lack of out
¶20 Next we turn the trial court’s standing support child issues. alimony award a term life fund insur- policy ance on the life of Husband of which Still, question we fairness of the By is the beneficiary. utilizing Wife alimony award to fund a term life insur- policy, insurance is award- policy. If ance Husband should die at ing Wife benefits she would not be entitled 69, Wife will received her marital have should prematurely collect Husband die. portion оf his checks from the date compelled areWe to address this issue dies, of his retirement until he in addition because the award of is inextrica- lump to the sum from the insur- benefit bly tied to the equitable policy approximately ance worth scheme established court. $77,121.00. estate will receive nothing. If should die at age Husband 21 Alimony is on the rea based needs, again will received her marital life Wife have sonable accordance with the style living by portion and standard of established of his checks from the date
1082
¶ TODD,
joins.
no
27
J.
he dies with
of his retirement until
If the
party.
to either
additional award
¶ KELLY,
Dissenting
28
J. files
protect
court
wanted to
Wife’s
trial
Opinion.
having
portion
pension by
marital
of
KELLY, J., dissenting.
policy,
a term life insurance
Husband fund
¶
major-
depart
11
respectfully
from
stop
age
at
70?
why
I
triаl
think the
ity disposition because
¶
any disruption
24
in
Finally, we stress
court’s decision to value
initial valuation of
the trial court’s
purposes
equitable
distri-
sion
eq-
pension, necessarily changes the entire
fifty
if he
should
bution as
retired
present
A
distribution scheme.
uitable
ma-
disagree
I
with the
be affirmed.
also
placed
portion
marital
value was
jority’s
the trial court’s award
criticism of
to the
which was then added
portion
to insure Wife’s
marital
of the house and incidental
value
Finally, I take issue
pension benefits.
in
The
divided the total
assets.
court then
majority’s
with the
assertion
house
split.
Once the value
60/40
easily
and
“monthly
calculable
benefit is
which was
was subtracted
awarded Wife
separately and
could have been treated
out,
fifty
approximately
then received
Wife
Hence, I dissent.
payment deferred.”
Hus-
percent
marital
¶
analysis
grounded
majority’s
2
The
If
value
band’s
benefits.
in
a trial court must first
the assertion that
placed
changed,
on the
Wife’s
approximate
holder’s retire-
pension is
proportional
share of
may
it
such
ment date before
value
Thus,
trial
changed as
we vacate the
well.
this is the
pension.
majority suggests
in its
order
court’s
distribution
an asset.
way to value such
“realistic”
entirety.
However,
schemes in
equitable distribution
Pennsylvania
traditionally assigned to
are
¶25
conclusion,
at-
the trial court’s
trial
because we
the discretion
off-
tempt
employ
partial
an unavailable
are identical.
recognize that no two estates
selecting
inappropriate
in
an
set and error
412
McNaughton,
McNaughton v.
See
point
to determine the
reference
(1992). Thus,
409,
A.2d
question,
resulted
value of
Pennsylvania
allows the trial court
law
Ac-
injustice
in this
an economic
case.
apply
equitable tools to the
freedom to
its
court is
cordingly, the Order of
fair
task
distribution
create
matter is remanded for a
vacated
this
given
parties’
assets
“realistic” division
is free to reas-
new trial. The
Smith, 439
abilities. Smith v.
Pa.Su-
light
method
sess
denied,
appeal
per.
A.2d
In the
highlighted.
have
problems we
Our limited
Pa.
determine the date retire- proper date and method of valuation on the basis ment unknown possibility of the circum- and the stances of each case. We hold Appellant’s untimely lengthy therefore em- death or that no one valuation method is re- ployment prevent would from re- Appellee quired; rather, court, the trial when any ceiving “value” from the valuing a pension, obligated to reach distributed, simply court could fair equitable division proper- separately treat asset defer the ty in light of all the circumstances. payments. Additionally, the court (first empha- Id. at at 222 the distri- separately, 497 N.W.2d treated the added; emphasis original). remaining sis second the meager bution of assets of inequi- the marital estate would have been ¶ 6 majority’s procedure While the for gamble than the amount table. Rather valuing pension plan may some work for monthly Appellant retirement checks cases, mandatory should not made receive, actually court or- would the trial rigid all cases. Such a rule overrides pay a modest amount Appellant dered judges discretion afforded and devi- powers Appellee talizes their when distrib- the form of *12 longer purchase continue to increase the Appellee that could a benefits award so protect Thus, equita- tо her policy Appellee’s term life insurance while he works. Appel- portion of her marital of award portion Appel- marital of ble share the Casting award as ali- pension. lant’s the per fixed at pension lant’s is $435.00 mony Appellant to in the form is favorable month, pension Appellant’s monthly bene- break, Appellee of a tax while it benefits today if be well fits he retired would by funding policy protect portion to Furthermore, $2,000.00. Ap- as excess of an she has been awarded but other- asset work and collect sala- pellant continues to may wise never receive. monthly retirement ry, the amount of ¶ Moreover, 9 the trial court awarded grows. benefit Appellee of that equitable share ¶ 12 Appellant’s The division of marriage. during the of the earned portion of percentage equitable of the as share, In at size this the arriving benefits, coupled monthly of the mar- length court considered alimony to insure payments with riage, earning capacities, relative award, to relin- allowed the assets, parties. and needs of the liabilities Thus, the deci- quish jurisdiction. court’s to purpose alimony of the award was purchase of alimony for the sion to order Appellee’s portion of this asset insure policy an insurance the added benefit re- Appellant enjoy not a normal should jurisdiction avoiding the to need retain Thus, alimony pro- tirement. award Miller, supra (stating indefinitely. See Appellee’s portion tecting pre- of distribution immediate settlement directly to the factors related it avoids entan- fеrred because continued § by the trial court. 23 Pa.C.S.A 3701 cited parties and contin- glement between ¶ in- repeating It that 10 bears supervision). ued court re- monthly Appellant creased benefits will Finally, compared employment ceive from inure continued pension plan the valuation of the instant only principally Arguably, him. that of a purposes for distribution close- person penalized by Appellant’s continued ly-held The court said: business. Appellee, must wait employment is who for is no date valua- There established re- to retire she can Appellant before property tion marital because from asset. any monthly ceive benefit objective court’s effectuate econom- house, essentially Appellee Other than the In justice. McNaughtоn[, supra]. ic. equitable dis- more in the nothing receives Superior found McNaughton, the Court Appellant until decides tribution ap- valued properly that the trial court retire, entirely Appel- a decision under separa- at time of pellant’s business By requiring Appellant control. lant’s at the distribution tion rather than pay alimony Appellee could insure so family pension, appellant’s business was her share where wellbeing protected Appellee’s financial control” of “largely under the owned waits an indefinite amount while she In the appellant’s influence. similar Benson, time for the distribution. case Benson v. (1993), Superior 624 A.2d majority mischar- Additionally, did that the trial court Court determined so Appellant’s benefits
acterizes a for- valuing its discretion abuse monthly appeаrs Appellant’s bene- time appellant’s mer business However, fits are constant. nature of separation where portion of these benefits remains marital separa- warranted monthly pension the Divorce Code Appellant’s constant. tion date value because the business was Pennsylvania, COMMONWEALTH
“under the sole control” of the former Appellee case, appellant. instant mari- Appellant’s pension tal value of simi- v. larly under his control and diminishes *13 WILLIAMS, Appellant. Ernest Therefore, employment continues. properly equitably the Court valued Pennsylvania. Court of Superior marital component Argued 25, 2001. Sept.
the date it and full vested benefits first became available. Filed Dec.
(Trial 5). Opinion Court Appel- While pension plan
lant’s is not to a identical
closely-held business, the trial com- court’s
parison persuasive. of the two not- As
ed, Appellee any portion does not receive Appellant’s Ap- retirement benefits until
pellant chooses to Appel- retires. When
lant retires is within solely his control.
Thus, Appellant controls the number
monthly Appellee retirement checks will
share, and consequently, the value she will
ultimately derive from this To asset.
fair, the court choose date that will max-
imize the value of this asset for insurance
purposes Appellant the event suffers fact,
untimely death. the instant distri-
bution is more Appellant favorable to than
he would care to admit.
¶ 14 Based the foregoing and view- the trial
ing court’s whole, it my opinion
as a that the court’s justice
order effects economic between the wisely vitiating while the need supervision.
continued court Consequent-
ly, I do not think that
abused its See McNaughton, discretion. Miller,
supra; supra; Lyons, Ac- supra. I
cordingly, dissent.