*1 MILLER v MILLER 5, 1977, Rapids. at 77-659. Submitted October Docket No. Grand June 1978. Decided George against complaint W. Plaintiff Julia M. Miller filed a Circuit seeking judgment The Kalamazoo a of divorce. Miller Fox, J., granting Court, judgment Raymond W. entered dividing property of the Defendant divorce and party’s appeals presents interest in the issue of whether pension plan, distributa- his is funded pursuant Held: a divorce and settlement. ble employer employee’s pension funded his An interest in a pursuant judgment to the extent to a of divorce is distributable reasonably ascer- with a that the interest is marital contingent upon the value. Interests which tainable may happening not not occur are of an event which party seeking in the to include the interest distributable. The marital estate bears the burden ascertainable value. Remanded. there is no and would hold that dissents appears agreed statement of to remand since it from the reason given for half of the husband should be credit facts pension fund by plaintiff her amount contributed wife into funds; further- because the contribution came from marital more, problems de minimis and the controversy is plans, noncontributory contributory pension whether versus nonvested, of a contro- vested or should await the existence versy highlighting genuine competing considerations.
Opinion of the Court 1. of Assets—Retirement Pensions—Mari- Divorce—Distribution Property—Present tal Value. employee’s An for in Headnotes References Points 623, 679, 2, 3, 2d, [1, Separation Am Jur Divorce and §§ 4] 2d, 59, 80. 60 Am Jur Pensions and Retirement Funds §§ which court consider Pension husband resource determining alimony. 22 ALR2d 1421. amount of v Miller judgment distributable to a of divorce extent that the interest is marital with a present value; if the interest is contin- gent expectancy may or a mere it not be distributed judgment. to a divorce *2 Divorce—Appeal 2. and Error—Distribution of Assets—Retire- ment Pensions—Present Value. allocating
A trial court in erred a divorce action in the interests pension in funds of property both a husband and his wife in the upon settlement based total contributions to the funds where reasonably such calculations did not take into account value of the interests in the funds. op 3. Divorce—Distribution Assets—Retirement Pensions—Bur- op den Proof—Value. party A in a divorce action who seeks to include an interest in a pension property fund for allocation in the settlement bears the burden of ascertainable value of the interest in the in order for that interest to be considered an asset to allocation. by Kelly, M. J. J.
Dissent Appeal and Error—Divorce—-Remand—Distribution Assets Property—Value— —Interest in Pension Funds—Marital Agreed Facts. Appeals There is no need for the Court of to remand to the trial ñnding court for a of the ascertainable value of the parties’ interests in funds and for an allocation of such property marital between the where the case was agreed submitted on an statement of facts from which such determination can be made without remand. Birkhold, Hills, Newland & plaintiff. for Ryan, Edward J. for defendant. Cavanagh,
Before: M. F. P. and and Bronson JJ. Bronson, J. appeal This is an from a judgment divorce action which the parties was divided the trial by court. The sole App 672 83 Mich in Michi- impression first on is one of appeal
issue pension plan a gan—whether party’s a is distrib- which is funded settle- a divorce utable ment. on the distribution of Michigan case leading to a party’s Hutchins, 71 Mich
divorce is Hutchins (1976). the Court held 248 NW2d to a contributions accumulated that a husband’s salary from his deductions pension plan trial court considered an asset to be action. The Court’s in a divorce dividing property contributions the accumulated was that rationale were they because constituted and were not salary husband’s deducted from the forfeitable: *3 department Michigan public safety "Returning the to us, disability fund leads as do
pension, accident and
statutes,
the conclu-
to
jurisdictions with similar
other
sion that
in
deductions
it
treats the accumulated
also
makes them
in a manner which
the husband’s account
Here,
plaintiff-husband’s interest
property.
the
agree
and we
part
salary,
from his
created in most
was
with the defendant-wife
have
deductions would
that
these
during their mar-
available
been
account,
invested,
stocks, bonds, savings
riage
in
to be
plaintiff-hus-
annuity and/or other investments.
cannot be
fully
and
right in the fund is
vested
band’s
forfeiture, except
herein
to divestment or
subjected
noted for breach
it
marriage
assets of the
that
also hold
public
trust. We
reason of
plaintiff by
to the
should be
that came
is
in the total
included
and therefore
laws
our divorce
Jersey,
As in New
seq.;
552.1 et
vesting.1 See MCLA
make no reference to
1
finding
light
"vesting”
puzzling
its
in
The Court’s reference to
is
"fully
To the
fund was
vested”.
the husband’s interest
that
extent
to
indicating
language
it is irrelevant
could be read as
that
this
pension
distributability
interest
in a
that an
a determination of
675
v Miller
Therefore,
MSA 25.81
seq.
et
it must be included as an
asset in the
distribution of property.”
supra,
at 370-371.
(Colo
Marriage
Pope,
Accord, In re
held that a husband’s interest
profit-sharing plan
was not distributable
judgment
plan
to a divorce
because was funded
employee
had no
right
right
payment
of withdrawal and the
quoted
the future was not certain. The court
Wil-
liamson Williamson,
Cal
2d
(1962),
Rptr
approval:
Cal
with
" 'Pensions become community property,
divorce,
division in a
when and to the extent
*4
not,
disapprove.
determining
fund is "vested” or
we
In
whether an
distributable,
interest
sion is vested or
the
pen-
court should consider whether
the
not,
funding.
not the source of the
2
552.19;
See MCL
MSA 25.99. The trial court found that
pension
finding.
property.
disagree
interests were marital
We do not
with that
App
83 Mich
672
676
payment
recovery
receive
or
of
party
to
some
is certain
is,
time
at the
of
payment
the extent that
To
funds.
divorce,
not
subject to conditions which
subject
not
occur,
expectancy,
is an
to
”
Super at
121
community property.’
as
NJ
division
reasoning
applied in White v
The same
was
(1975),
White,
136
at a recent New case Jersey stated follows: lem as which, although
"On one side is not without value, expectation receipt constitutes an benefits Tucker, supra; subject contingency. or is Tucker v. Williamson, Cal.App.2d Williamson v. White, 1962); supra. Cal.Rptr. On the other side (D.Ct.App. White v. which,
of that
line is
al-
hand,
though
gency,
but the decision of the owner to take actual
not cash in
is not
to a contin-
value,
has a
and awaits
discernible
possession.
See,
Pellegrino,
Pellegrino
supra;
v.
See v.
Cal.2d
distribution of the
is left to the trial court’s
The actual
552.19;
MCL
MSA 25.99.
discretion. See
*5
v Miller
by
Kelly,
Dissent M. J.
J.
778,
888,
Rptr.
Cal
(Sup.Ct. 1966);
P.2d 776
1970).”
Angott Angott,
v.
Remanded for consistent with this opinion. appellant. Costs to
M. Cavanagh, F. P. concurred. (dissenting). J. Kelly, There is no need for remand case. This case was sub- agreed stipula- mitted on an statement of facts following: tion which included the parties agree "The further that the Plaintiff’s 4The court held that the defendant’s vested 50% employer-funded profit-sharing plan had a distributable value of $24,500 (one-half fund), of the as distribution of that amount could retirement, death, disability, employment. occur on or termination of App 83 Dissent M. J. J. $1,393.00, and that present value of has a $1,393.00 said fund. contributed Plaintiff agree that the value "The further $3,857.56, and that pension fund is Defendant’s * * *.” of this sum from source trial made was judge The mistake that *6 credit for half the husband failing give into the wife plaintiff amount paid by had to obviously her contribution because The trial court decided funds. come from on a 50/50 basis. be divided the assets should for an addi- given be credit The husband should $696.50, judge’s of the trial and the balance tional al- controversy, decision should be affirmed. is de minimis important parties, though versus contribu- noncontributory problems nonvested, vested or whether pension plans, tory which controversy the existence of should await interests for our determi- opposing highlights is and is not marital nation as to what consider- genuine competing light viewed in the ations.