*1 inhеrent from injuries resulted Graven’s denying sum- skiing. I believe
risks of this case the facts of
mary judgment under imaginative termi- encourage the use
(cid:127)will statutorily characterizing a identi-
nology in applica- to avoid risk order
fied inherent on Safety preclusion Act’s the Ski
tion of injuries resulting from inherent
recovery for failed to skiing. Because Graven
risks of showing of non-liabil- affirmative
rebut Vail’s matter of law under
ity accident as a for the amendment, wording the 1990 specific appeals. affirm the court of
I would say that Chief Justice
I authorized to am join in and Justice KOURLIS
VOLLACK
this dissent. MARRIAGE OF John
In re the HUNT, Petitioner,
S. Hunt, Respondent.
Dianna L. Stephen OF Mark
In re the MARRIAGE
RAIMER, Petitioner, Harte-Raimer, Respondent.
Melissa 93SC565, 93SC631.
Nos.
Supreme Court Colorado.
Dec. (93SC631) 29, 1996.
Rehearing Jan. Denied
527 *3 Patín, P.C.,
Thomas, Porter, Ar- Spence & Hunt, Porter, Bryan L. thur W. Colorado Hunt. Springs, for Petitioner John S. McDermott, P.C., Susemihl, Lohman & Lohman, Richard V. Catherine Woelk-Rudi- (William Carew, sill, Springs L. Colorado counsel), Respon- Springs, of Colorado L. Hunt. dent Dianna Kirchner, Springs, for E. Colorado John Amicus Nelson O. Kelm. Curiae Hock, P.C., Gregory Gregory John John Hock, Springs, for Mark Colorado Petitioner Stephen Raimer. Culin, Springs, for Re-
Greg
Colorado
Van
spondent Melissa Harte-Raimer.
tary pension and determined that Wife
MULLARKEY delivered the
Justice
fifty percent
should receive
of his
Opinion of the Court.
10/20
pension on an as-received basis at the time
granted certiorari in In re
effect,
ruling
In
trial court’s
he retires.
Hunt,
(Colo.App.1993),
P.2d 1140
grants
portion
of Husband’s
Wife
Raimer,
No. 92CA0759
upon the rank he achieves at the time
based
5,1993),
(ColoApp. Aug.
to determine wheth-
Captain
than
rank of
of retirement rather
his
post-dissolu-
increments based on
er
appeal-
at the time of the divorce. Husband
included in deter-
tion increases
rank are
portion
ed that
of the trial court’s distribu-
military pension is
mining
what
of a
tion.
subject
to division as marital
cases,
appeals
both
the court of
affirmed the
appeals
court of
affirmed the trial
trial courts’ deferred distribution
noting
court’s division
that Husband’s “limit-
*4
pensions based on the “time rule” formula
of
of the retirement
ed view the value
benefit
which includes distribution of benefits attrib-
during marriage
earned
will not result in an
post-dissolution
Hunt,
increases in rank.
utable to
equitable distribution.”
868 P.2d at
petitioners,
The
instances the hus-
holding,
both
appeals
In so
the court of
bands, petitioned the court
to review the
authority
proposition that ad-
cited
for the
opin-
distributions. We issued consolidated
resulting
higher
vancements
benefits are
15, 1995,
May
reversing judgment in
ion on
‘“developed
throughout
and enhanced
remanding
both cases and
with directions.
parties’
years
...
course of the
of mar-
”
19, 1995,
By
granted
Bullock,
order dated June
we
riage.’
(quoting
Id.
Bullock v.
(N.D.1984)).
respondents’
rehearing
motions for
and
The court of
N.W.2d
previously
opinion. Af-
withdrew our
issued
appeals also reaffirmed “the trial court’s dis-
requesting
receiving
ter
and
additional
cretion
fashion
division.”
briefs,
appeals’ Hunt,
now affirm the court of
decision in Hunt and the trial court’s distribution in that case. reverse the B. Raimer of appeals’ court of decision Raimer. We petitioner, Stephen The Mark Raimer trial court in its find Raimer abused (Husband), respondent, and the Melissa altering discretion in the “time rule” formula. (Wife), Harte-Raimer received a decree of 6, 1990, thereby dissolution on November
I. ending sixteen-year marriage. their At the divorce, time of Husband was member of InA. re Hunt of military position Major. and held the of (Husband), petitioner, John Hunt eighteen years He had accumulated and six (Wife), respondent, Dianna Hunt were those, months towards his retirement. Of years married in 1977 and fourteen divorced years during fourteen were accumulated his During marriage, later in 1991. their Hus- marriage military pension to Wife. The was service, years band earned ten of creditable only any asset of real value accumulated required twenty years, of the towards retire- dining marriage. the comise of the ment from the United Air Force. At States divorce, 1, 1991, July initially the time of their Husband had On the trial court Captain. twenty-five rank percent achieved the of October awarded Wife of Hus- permanent trial court entered or- band’s attributable to the rank and dividing parties’ property. longevity ders The trial attained Husband on the of date Thereafter, court, court of mili- deferred distribution Husband’s dissolution.1 the trial on bench, years put 1. In its comments from the which is what he had in at the time decree, stated that: up divide that two and I come something percent with like 37 for her. But adopt juris- I think the Court will the reserve going I'm One, to discount that for two reasons. way [sic] diction method and the normal of And, support dealing her was lukewarm at best. with that would be in the Court’s view two, years again approximate up she has ended with a bit more of the to divide 14 which is parties by married life of these effective, clarify judg- erty including is to its become motion to amend and Wife’s desirability awarding family ment, home its decision and accorded amended right marital fraction or the to live therein for reason- forty percent of the Wife (fourteen periods spouse having able custo- years over the number of retires) children; dy of the benefit when Husband service trial court ex- an as-received basis. The on (d) any or increases decreases forty percent plained that it used instead separate property value allocating fifty percent in marriage depletion or the it pension because of what deemed separate property pur- for marital mil- support of Husband’s Wife’s “lukewarm” poses. itary career. two-part in The UDMA establishes a appeals denied Husband’s The court of dissolution, quiry. Upon a court first must order, appeal trial court’s amended “property.” determine whether an interest is summarily invoking its decision Hunt. so, If the court next determines whether the Raimer, slip. op. at 5. i.e., “marital,” acquired during subject distribution, “separate” and from shielded distribution.
II. incorporates presump The UDMA A. *5 by property acquired spouse tion that a property A trial court’s distribution of be- subsequent marriage, regardless spouses upon dissolution is controlled tween ownership, the form of is marital Marriage Act by the Uniform Dissolution of 14-10-113(3). Separate property is distin (the UDMA), -133, §§ 14-10-101 to 6B guished property from marital in section 14- (1987 and, Supp.), specif- C.R.S. & 1995 more 10-113(2) which states that: ically, 14- the criteria enumerated section (2) only, purposes For of this article “mar- 10-113, (1987), forth in 6B C.R.S. which sets property” property acquired ital means all part relevant that: subsequent by spouse either to the mar- (1) proceeding In a for dissolution of mar- riage except: legal separa- riage рroceeding or in a for (a) Property acquired by gift, bequest, proceeding disposition in a tion or for devise, descent; or property following previous dissolution (b) exchange Property acquired for by marriage a court which at the time of marriage property acquired prior to the prior dissolution of the exchange acquired by property or in for jurisdiction personal lacked over the ab- devise, descent; gift, bequest, spouse dis- sent or lacked (e) by spouse Property acquired a after pose property, the court shall set legal separation; a decree of spouse property apart to each his and shall (d) Property by agree- excluded valid property, regard marital without divide the parties. ment of the misconduct, proportions in such to marital just considering as the court deems after Property “as of the date of the is valued including: all relevant factors hearing on decree or as of the date hearing disposition property pre- if such (a) spouse contribution of each § 14-10- cedes the date of the decree.” acquisition property, marital 113(5). spouse including the contribution of a homemaker; B.
(b) apart set The value spouse; to each many plans com Pension come forms, (c) including plex vested or circumstances of each varieties The economic pensions, or unmatured prop- unvested at the time the division matured methodology method as that term is used in this termed "reserve distribution The trial court its opinion. jurisdiction” actually applied but it the deferred employer-supported but unmatured or defined contribu- pensions, defined benefit contributory plan, plan or noncontributo- that such has been pensions, tion to the extent military ry A has pensions, by employee employer etc.2 contri- funded and/or military pension unique attributes. A marriage, certain butions the course of plan and is non-сontribu- is a defined benefit subject distri- only employer tory (footnote in nature because proceeding”) in a dissolution bution military pension, In an em- contributes. omitted). towards a ployee earns “credits” Here, noncontributory we are faced with on, example, years of active ser- based pension plans that are both defined benefit (1983). military § 1405 A vice. 10 U.S.C. plans unmatured. are unvested and Such twenty years of creditable pension vests after contingencies from affected different vesting; a partial There is no mem- service. in which those considered Gallo and Grubb military twenty ber of the must attain if plans particular, were vested. In pension. forfeit the entire of service or vested, plan is not the amount of the benefit al, Troyan & Dis- M. et Valuation William is unknown: it can increase or decrease de- (1995). Property § Marital 46.32 tribution of pending on a number variables. Conse- computed specific benefits are as a Pension permitted quently, some courts that have duty pay for the percentage of the active plans of vested have held that un- division for each rank held at the date of retirement pension plans are not divisible be- vested year of creditable service. U.S.C. contingencies cause of the of such benefits.3 (1983 1406,1407 Supp.). §§ & 1995 we address the additional issues and Before including pension plans, We have held circumstances, concerns raised such military “property” under the pensions, are must the different means at a trial review marital, and, subject if to divi- UDMA pen- disposal court’s to effect distributions of sion. re plans. sion (Colo.1988)(“vested and matured *6 during pay, retirement which has accrued all C. part marriage, constitutes marital or of a uti subject Three methods of distribution are property division by pension proceeding”); lized courts order divide dissolution (Colo.1987)(‘Vested (1) value; Grubb, plan upon present dissolution: net vest, is, highest monthly salary. employee’s J. Thom- 2. Pension benefits the benefits arе See Oldham, Divorce, longer subject employ- Separation even the and. the Distribu- no to forfeiture if (1987 Property Supp.). employer, 7.10[2] & 1995 ee chooses to leave the when the em- tion of retirement, Upon employee will receive that ployee employed predetermined the has been for a Turner, formulary predetermined years. Equitable benefit. number of Brett R. (2d ed.1994). plan A defined contribution is one in which Property § 6.02 Distribution of employee employer the contribute a both Conversely, pension benefits are characterized as specified money employee’s amount of and the contingent employee when the has unvested or expressed benefits are as a current balance in a required years met number of to be not the retirement, pension account. Id. On the em- assured the benefits. The benefits are forfeited if ployee dies, will receive the balance in the account employee quits, the or is fired. employee. pensions maintained for that Some employee Pension benefits mature when the noncontributory only employer are in that age, typically reaches a certain called “retire- Alternatively, contributory contributes. Id. matured, age. plan ment” If the is vested and plans, employee plan. all or funds some employee eligible receiving pension is to start Any by employee by funds contributed definition, (a pension, by benefits cannot be ma- immediately definition vested. Id. unvested). matured tured and A vested but not Unfortunately, and commentators have courts plan contingent upon employee's is survival consistently pension utilized the same termi- until the benefits mature. An unvested and un- result, nology. As a the reader must scrutinize plan contingent upon employee's matured is carefully being cases and articles to avoid misled employment continued and survival until by labels. benefits mature. See, Kirkman, plan plan, employ- e.g., If a is a defined benefit 3. Kirkman v. 555 N.E.2d (Ind.1990) computed (holding pension ee's benefits are either in advance or that if pursuant prior to a which contains variables are not vested to dissolution the benefits formula as, division). example, length such of service and the should be excluded from (3) distribution, distribution; pre- (2) jur- In and reserve deferred deferred Turner, Equitable percentage pension Distri- R. determines the isdiction. Brett (2d nonemployee § 6.11 ed. 1994 & income that Property stream of bution of “Turner”). (hereinafter Supp.) eligible to receive once the will be approved all three recognized and If the pension have is both vested and matured. Grubb, discussed the net jurisdiction, nonemployee methods. court reserves and deferred distribution present percentage value is calculated later spouse’s share possibility out the of other methods and held pension at the time when the has vested and Grubb, P.2d at of distribution. methods matured. Gallo, Subsequently, we discussed 666. methods, present net Two of the three delayed extensively the methods of dis- more distribution, require the value and deferred tribution.4 percentage a formula or trial court to devise method, value, present The first net apportion pension which to benefits. in immediate distribution to the non- results Here both trial courts used the deferred spouse. method also is re This is, distribution method. That both courts “immediate offset” because the ferred to as receipt determined advance of the bene- present lump represents sum that the net portion of those benefits the nonem- fits what be offset value of the future benefit eligible ployee spouse would be to receive. of other in the marital the value mili- Both courts based their allocation of the method, court, using If the trial estate. this tary pensions at issue on the “time rule” data, by actuarial values the future guided “time rule” formula includes a formula. The benefit, a number of different fac considers fraction, sometimes referred to аs a tors, including (depending risks on certain fraction,” which determines the “coverture plan), type and accords pensions. marital interest in the The marital present value to the future benefit. The net fraction consists of the numerator which is used most often value method (or if years months more the number because when the value of low accurate) employee spouse has only employee spouse has worked a few during mar- earned towards the years qualifying marriage, has denominator, riage, is the over the which paying job, held a low or both. (or months if more accu- number rate) pension. of total service towards the methods, remaining de two multiplied marital fraction is times the jurisdiction, The distribution and reserve ferred *7 (in monthly in half benefit and divided order also to as “wait the latter of which is referred see,” pension to divide the and do not result immediate offset benefits). At the court establishes nonemployee spouse does not receive the time and the actually percentage, is an unknown any benefits until the benefits are the benefit Therefore, spouse employee figure. actual calculation of a dol- paid employee to the or the eligible receipt lar must await of benefits. spouse becomes to receive benefits.5 amount Gallo, pension delayed ployee spouse eligible both methods of is to receive the described jurisdiction. they actually distribution as reserve 752 re benefits rather than when are Koelsch, P.2d at 55. We now differentiate between de- See, e.g., v. 148 Ariz. ceived. Koelsch and on the ferred distribution reserve 1234, 176, (1986); 713 P.2d 1241-43 In re Mar percentage basis of whether or not a is fixed in Gillmore, 418, Cal.Rptr. riage 29 Cal.3d 174 advance of distribution. 493, 496-98, 1, (1981). 4-5 In In re 629 P.2d Blake, 1211, (Colo.App.1990), Marriage 807 P.2d 1213-14 example, employee spouse may choose 5. For denied, (Colo. t. No. 91SC22 cer March beyond to continue to work the time when he 25, 1991), Appeals Court of Colorado pension eligible she is to receive the benefits. affirming decisions in the trial relied on these Receipt of such benefits is deferred until the spouse pay court’s order that the employee spouse makes a unilateral decision nonemployee spouse pension her share of the on nonemploy- delay may retire. This frustrate the monthly prior employee spouse's basis spouse's expectations and undercut ee needs (a lump receipt distribution of the benefits sum plan. Some courts have the court's distribution because there were insufficient was not feasible employee spouse begin pay held that the should offset). estate which to ing nonemployee spouse assets in the marital with as soon as the em 532 allocating pension now hold benefits. We Troyan, Pension Evaluation M.
William Distribution, post-dissolution increases Rep. expressly that 10 Fam. Law Equitable (1983). (BNA) 3001, property when pension The formula is as benefits are marital 3007 court, in the sound exercise of its follows: discretion, pension under either Years of Service divides the n Monthly During x x Benefit jurisdic- distribution or reserve the deferred Taxes) (After of Total Years partnership” The tion method. “economic Service necessarily between pension continues ap has been The “time rule” formula (or post-dissolution increases parties See, jurisdictions. by a number of proved decreases) proper- pension are marital 482, e.g., Cooper Cooper, v. 167 Ariz. 808 P.2d paid ty nonemployee spouse unless denied, 1234, (Ct.App.1990), 1242 review present value of his or her share of the net (Ariz. 7, 1991); May Frei pension at the time of dissolution. 792, 304, Cal.Rptr. 127 berg, Cal.App.3d 57 (1976); Stouffer, Haw.App. 10 796 v. Stouffer (1994); 267, 226, B. v. 867 P.2d 231 Warner Warner, 1339, (La.1995); 1340 651 So.2d cases, however, petitioners The both (Mo. 20, Lynch Lynch, 665 23-24 v. S.W.2d statutorily that the trial court is con- assert 294, Rolfe, Ct.App.1983); v. 234 Mont. Rolfe dividing separate property, strained from Gemma, 223, (1988); Gemma v. 766 P.2d acquired mar- after the which (1989); 458, 429, Berry 105 Nev. 778 P.2d riage. рetitioners implementation The seek Meadows, 1017, v. 103 N.M. “bright post- likens of a line” rule which Welder, (Ct.App.1986); v. Welder post-di- enhancements divorce (N.D.1994); Woodward N.W.2d in- earnings and characterizes all such vorce (Utah 1982). Woodward, 433-34 separate property creases as the of the em- ployee spouse.
III. earnings indisput Post-divorce are A. ably separate property. See J. Thomas Old- present disputes appli- ham, Divorce, arose because Separation and the Distribu necessarily (1987 cation of the “time rule” formula § Property tion & 1995 7-10[5] “Oldham”). (hereinafter post-dissolution includes enhance- Similarly, Supp.) Thus, presented ments.6 the issue is wheth- property acquired by party after the disso UDMA, er, enhanced ben- under 14-10- lution is immunized from division. post-dissolution 113(2)(c). however, in rank efits due to increases agree, that it We do not “acquired” during marriage under post-divorce pension enhance follows 14-10-113(2). practical section Stated separate property ments are under the same terms, question nonemploy- is whether rationale. eligible should be to receive a ee split on this issue. There Jurisdictions are percentage employee spouse’s pension *8 general authority. of line are two lines One by on the of the rank held
benefits basis adopts “bright line” rule decisions employee spouse on the date of dissolution by petitioners advocated here. The oth- or, alternatively, based on the rank held at approves er line of decisions use-of the “time the time the benefits are received. incorporates distribution rule” formula which view, implicitly post-marital pension enhancements. This
In our
this issue was
decisions,
line
based on the “mari-
decided in
and Gallo when we autho
second
Grubb
theory,
delay
tal foundation”
has a more solid theo-
rized trial courts to
distribution
by
premise
and fair
pension
of the deferred dis
retical
and is
sensible
use
approach.-
or
methods of
tribution
reserve
passive
post-dissolution
petitioners
6.
enhancements
at
issue
in both cases concede that
The
rank,
properly apportioned
pertain only
passive
to their
to increases in
not
increases were
cost-of-living
spouses.
The
increases such as
increases.
533
Gallo,
post- Similarly,
approved
we
the award-
equate
cases
“bright line” rule
ing
appropriate percentage
pension benefit enhancements
of “the
dissolution
n with
See,
earnings.
e.g.,
‘if, as,
post-dissolution
payment
marital interest
each
and
”
Koelsch,
176,
P.2d when,
148 Ariz.
713
Koelsch v.
paid
equally
it is
out’
order to
”)
(hereinafter
(1986)
1234,
II
1239
upon
“Koelsch
apportion the risk of forfeiture
both
“time rule” formula
(holding that use of the
parties.
(quoting
904,
(holding that
the hus
hancement
910
cost-of-living in-
passive increases such as
during the
military service
“years of
band’s
pension
to
or increases ascribable
creases
for
marriage provided a basis
parties’
equitably apportion
plan changes in order to
pay
and increases
promotions
future
delay
in the deferred
the risks of
inherent
he
become
length of service
which
and reserve
methods
distribution
“military
earning
career and
entitled” and his
of benefits.8
for distribution
enhanced
ability
developed and
were
parties’ seven
throughout
course of the
marriage
significant
the
length of the
is a
The
v. Buli
years marriage”);
prop-
Bulicek
of marital
teen
consideration in distribution
630,
394,
cek,
recognized that the total
Wash.App.
erty.
800 P.2d
399
have
59
Courts
(1990)
years
dur-
number of
credited
the
(holding
prospective
that “the
increase
marriage
factor in the
ing the
is a substantial
pay
to increased
benefits due
retirement
Cooper Cooper,
pension’s distribution. See
v.
[length of
separation
founded on the
after
is
1234,
(1990),
482,
P.2d
1242
167 Ariz.
808
effort”).
community
marriage]
the
(Ariz.
denied,
7, 1991);
May
In re
review
1,
Poppe,
Cal.App.3d
97
158
B.
(1979);
500,
Cal.Rptr.
503-04
recognizes
formula
that
The “time rule”
Adams,
181,
Cal.App.3d
Cal.Rptr.
64
134
pension benefit enhancements
post-divorce
(1976).
298,
length
marriage
302
The
is
defy easy categorization. Typically, there
during employment
play
into
in two
comes
during the
commingling of effort undertaken
First,
ways.
it is relevant to the determina-
marriage which to-
marriage and after the
method
which the
tion
of the future bene-
gether enhance
value
marriage
per-
A short term
often
divided.
spouse’s ability to en-
fit. The
mits immediate distribution of the
marriage
after the
hance the future benefit
Second,
under the
value method.
on foundation work and
frequently builds
component of the “time
the marital fraction
during
marriage.
undertaken
efforts
fairly apportion
rule” formula serves
Hence,
theory underlying the “time rule”
length
it reflects the
enhancement because
called the “marital foundation”
formula is
Thus,
marriage.
the “time rule” formula
(2d
theory.
at 66
ed.
See Turner
6.10
alleviates concerns as to what
Supp.).
agree with the cases cited
1995
enhancement is related to either the nonem-
accept
foundation”
employee’s
during
that
the “marital
ployee’s
above
efforts
Thus,
although
marriage.
employee spouse
If
continues
theory.
we find that
some-
effort,
beyond
or she
post-dissolution en-
to work
the date on which he
times related to
Id.,
distinguished
pursuant
theories
8. Turner has
two
effort and achievement.”
approved
at 432.
to which courts have
the use of the
Fondi,
856,
predominant
Subsequently,
Nev.
rationale
in Fondi v.
"time rule” formula. The
(1990),
Supreme
If we were to
line”
price.
prolongs
It
comes with
distribu-
required
courts also would be
to consider the
costs,
years
process,
legal
tion
increases
and under-
weight
employment
towards
Instead,
goals
finality.
pension.
cuts
a trial court
enhancement of the
Some defined
plans
legitimately
benefit
are “frontloaded” or “backload-
choose to defer distribution
ed,”
by way
employment
apportion
i.e. “earlier or later
the benefits in advance
explained
employment)
9. One commentator
that courts that
and the time at which the
adopted
theory:
have
the "marital
resulting
(generally
foundation”
retirement benefits accrue
plans
employment)
have also noted that most
later
has reinforced the belief
retirement
are
employees
end-loaded:
if two
do the same
ac-
of some courts that retirement benefits
salary,
[sic]
work for the same
but one has
quired
for the
after divorce
consideration
other,
seniority
more
employee
than the
the more senior
just
employee's
period
entire
of service and not
acquires
often
more retirement bene-
for service after the divorce.
fits. This difference between the time at which
(2d
Supp.).
Turner
6.10 at 66
ed. 1995
employees perform
(generally
services
earlier
*11
de
that accrue
the
increased benefits
752 P.2d
percentage. See
of a fixed
(“Further
(holding
Stouffer,
can be
at 232
lay.
to the courts
resort
See
ameliorated, however,
determining a for-
by
required
spouse] is
[nonemployee
“if the
by
payments
the
percentage
which
mula
employed
until the
after the divorce
to wait
time of the dissolu-
be divided at the
should
or she receives the
party retires before he
(ex-
Bulicek,
decree.”);
D.
Adams)
by
(quoting
UDMA,
(emphasis supplied
guided
Id.
construing
In
we are
14-10-104(1),
(1987),
Marriage
Freiberg,
Cal.App.3d
57
6B
In re
section
C.R.S.
solely
employee
adopted
to [the
other
that have
stat-
increases are attributable
12. The seven
states
efforts,
Marriage
spouse's]
increments result
on the Uniform
and Divorce
own
such as
utes based
based)
Arizona,
excluded).
(on
ing
promotions"
Act
which the UDMA is
from
which
be
Minnesota, Missouri,
Illinois, Kentucky,
conflicting
Mon-
case law on this issue.
Illinois has
tana,
Wells,
Alshouse,
Washington.
at 696 n.
Marriage
and
850 P.2d
Compare
255 Ill.
In re
Act,
(citing
Marriage
960,
394, 396,
Uniform
and Divorce
9A
3
App.3d
N.E.2d
194 Ill.Dec.
627
these, Arizona,
(1987
Supp.)).
731,
(1994)
U.L.A.
Missouri,
& 1992
Of
(holding that the trial court did
733
Montana,
recog-
Washington
have
using
the "time rule”
not abuse its discretion
court is afforded considerable
nized that the trial
employee spouse’s objections
formula over the
dividing
and have
discretion in
marital assets
grant
does not
that the formula
nonemployee spouse
held in favor of the
in cases
worked,
the benefit of "additional
Cooper,
this court. See
similar to the ones before
earning occurring
the dis
the increases in
solution,
after
482,
1234; Stoerkel,
167 Ariz.
808 P.2d
711
changes
pension plan, all
and the
in the
223;
594;
294,
Rolfe, 234 Mont.
S.W.2d
increased value of
of which contributed to the
Bulicek,
630,
Wash.App.
59
ing “bright line” we set forth the near-equal value. following guidelines for a trial court faced pension part with a which accumulated in If permit, circumstances and the tri marriage. recognize opts that in court present al to use the net value method, post-dissolution nonemployee certain cases in a spouse exchanges increases pension separate prop contingent post-dissolution should be treated as future enhance However, erty. pension qualifies sepa ments for the benefits of immediate distribu time, property post-dissolution employee spouse rate treatment of tion. At the same only reaps potential increases if the trial court can award the the benefit of enhancements pension present theory post-dissolution.14 practical under net value that occur In ef fect, at the time of If present dissolution. the value of the the use of the net value method pension very cannot be divided at the time of avoids the raised in the cases issues because, presently dissolution but must be it divided when before us. This is so received, post- among things, present received or could be then other the net value property upon employee dissolution increases are marital un calculation is based theory. spouse’s salary der the “marital foundation” Treat- at the time of divorce.15 See Raimer, value, example, appro- pension 13. For [i]n the trial court order to reduce a to priately pension, pursuant (1) awarded necessary Wife’s to it is to know the amount of the eligible division, (2) $68 which she is to at monthly receive her, month subject benefits to age entirely to and offset the value percentage of that to be awarded to the benefit pension against other in the mari- (3) nonemployee spouse, and when that benefit tal estate. begin payment. would Where it cannot be known will be until the what these variables addition, employee sрouse employee spouse actually begins 14. In if the foresees retires and benefits, extraordinaiy that his or unnecessary, her efforts will dramati- receive retirement it is cally increase the value of the after the improper, employee indeed to wait until the marriage, spouse may have an incentive to spouse actually retires and use the actual nonemployee “cash out” the interest of the spouse. amounts received Rather, circumstances, spouse. Under such each pension benefits the amount of the stands can, should, to benefit. be determined at the time of (1) upon assumptions: divorce based three particular, employee spouse that the would retire at the 540 Svalina, effecting a distribution of interests B. Mari- Tingley & Nicholas John ed.1995). (2d fac- Relevant property under UDMA. § at 83 Property Law 10.08
tal
include the contribu-
tors under the UDMA
present value serves
of net
Distribution
acquisition of
spouse to the
tions of each
finality.
parties
goals
It allows
a home-
including contributions of
property,
pro
financially and
disentangle themselves
maker,
apart to
set
the value
Moore v.
some measure of closure. See
vides
circumstances
spouse, and the economic
each
(1989)
Moore,
A.2d
114 N.J.
14-10-113(1). Among
spouse.
of each
(“The
proceedings is to elimi
goal of divorce
balancing
parties’ inter-
things,
other
and strife between
possible
nate
contact
court assess which
help the trial
ests will
(“such
Shill,
P.2d at 145
parties.”);
is best suited
method of
distribution
of disentan
would have the merit
solution
For exam-
particular
for the
circumstances.
at a finite
gling
parties and their affairs
weigh
can
the value of the
ple, time”).
Immediate offset also fos
point marital estate
relative to the
II,
P.2d
judicial efficiency. Koelsch
ters
offset, if
and ascertain whether immediate
par
for the
1241. It is more economical
possible,
appropriate under the circum-
thеy
not have to return
ties because
do
may
Alternatively,
court
the trial
stances.
A
of other
at a later date.
number
courts
parties should
a conclusion that both
reach
general prefer
jurisdictions have stated a
presented
equally
contingencies
share
present value method for
ence for the net
plan. The
and unmatured
an unvested
See,
e.g.,
similar reasons.
Diffenderfer
distribution,
court,
in advance of
*15
(Fla.1986); De
Diffenderfer, 491
265
So.2d
of
percentage
calculate the
share
each
Dewan,
506 N.E.2d
399 Mass.
wan
pension.
in the
(1987).
choice of a distribution method
The
however,
If,
do
the circumstances
of the trial
lies within the sound discretion
because
immediate distribution
warrant
Supreme Court of Okla
court. Like the
in the estate to
there are insufficient assets
homa,
any specific
“to dictate
we hesitate
offset,
permit
or the
value of the
distributing pension
technique for
benefits
ascertain,
future benefit is too difficult
plan presents
pension
each
a divorce because
necessary
may find it
to utilize
trial court
problems.” Pulliam v.
a different set of
or the re
either the deferred distribution
(Okl.1990).
Pulliam,
623, 626
We
See,
Gallo,
e.g.,
method.
serve
leeway
accorded trial courts substantial
have
Nelson,
55;
752 P.2d at
of
determining
which method of distribution
(Colo.1987).
of ei
Use
circum
suits the needs and financial
best
the risks to
ther of these methods increases
Grubb, 745 P.2d
parties.
stances of the
See
differing
nonemployee spouse and entails
(“Our
is not to create
at 665
intent here
interaction between the
levels of continued
valuation.”). Al
rules of
inflexible
In
parties and with the court.16
consider
flexibility
of such trial court
serves
lowance
and the continued
ation of the increased risks
goals
Col
of
distribution. See
parties
partnership” between the
“economic
Bene
bey Campbell, Distribution
Pension
delayed
of distri
under either of the
methods
Determining
in Marital Dissolutions:
fits
bution,
always
post-dissolution enhancements
Community
Time
Evaluation
property if distri
must be treated as marital
Interest, 24
Property
Santa Clara L.Rev.
delayed.
bution is
(1984) (noting that because of the differ
plans
composition
pension
“courts
determining
the method of distri
ence
bution,
parties’
apportionment
various methods of
to as
the trial court balances the
use
Svalina,
(2)
plan;
Tingley
Marital
permitted
that
1 John
& Nicholas B.
earliest date
under the
ed.1995).
(2d
Property
10.08 at 82-83
Law
pension
upon
is based
divorce;
(3)
spouse's salary at the time of
methods,
remaining
that of the two
note
pension
upon
that the
is based
the number
advantages
outweigh
of deferred distribution
up
years
earned
to the date
jurisdiction.
of credited service
See discussion su-
those of reserve
535;
pra
p.
VI.
The Hunt court also ruled in its written
order:
Here,
Hunt court considered the rele-
The court believes that
mili-
[Husband’s]
and effected distribution based
vant factors
tary retirement
is an asset
must
which
be
equities. The court ruled that
on the
divided
the court. The cоurt finds that
nonemployee spouse
pen-
should share in the
figure
of ten
is a
[Husband’s]
correct
sion at the time of retirement
because
figure. Although
the court
reasonable
length
marriage
dur-
of their
and her efforts
marriage
finds that
this is a
of almost
ing
marriage.
The Raimer court similar-
years,
recognizes
fourteen
the court
ly
length
considered the
only
years military
there have
been
ten
ruling
nonemployee spouse
could
service attributable and creditable toward
share in the
at the time of retire-
result,
retirement. As a
should [Husband]
court, however, misap-
ment. The Raimer
*16
retire,
the numerator for
division of
plied
Accordingly,
the “time rule” formula.
any military
ten
retirement shall be
over
we find that
the Raimer court
its
abused
years
of
in
number
service whatever
discretion.
proposal
those
be.
for
[Husband’s]
division of this
as an
of
asset
asset
re
A In
Hunt
marriage using
present
a
value calculation
convincing.
is not
The court does not find
orally
trial court in
The
Hunt
held:
by
that the
value calculation made
retirement,
regard
military
to
I
With
any generally accepted
follows
[Husband]
any question my
don’t have
in
mind that
accounting
court
find
standards. The
does
[Wife] is entitled —entitled to a share of
military
that
retirement benefit shall be
military
that
retirement
should —should
using
divided
the fractions noted above
10-year
I
[Husband] retire.
think that the
upon
based
rank at the time
[Husband’s]
figure
good figure.
is a
I understand that
argued
[Husband]
retirement.
has
talking
14-year marriage.
we
about
upon
[Hus-
calculation should be based
And I understand that —that
in most cir-
rank at
The
band’s]
the time
divorce.
[Husband]
cumstances that
would be—or
authority
position.
court finds no
for this
[Wife] would be entitled to that calculation
The factual circumstances demon
years.
which would include the whole
strate that the Hunt court did not abuse its
retirement,
part
It’s not
of the
as I under-
making
discretion in
distribu
stand it.
It’s —the time that [Husband]
tion.
in
took out
order to attend medical school
time,
as I
disallowed—[dis]allowed
a—
B.
Raimer
it,
testimony
understand
from the
herе.
going
initially
I’m
in
made
And
not
to order that the retire-
court
Raimer
following
ruling:
ment be calculated on that disallowed time.
oral
really
percentage
The Court has reduced
property, what we’re
As to the other
military pension.
for reasons earlier stated on
dealing
here is the
from 50 to 40
with
adopt
will
the re-
fraction is a
And I think the Court
the record. The coverture
method and the nor-
[sic]
serve
numerator of 14 and a
fraction with the
way
dealing
with that would be
years
mal
equal
denominator
number
years
which is
the Court’s view to divide
time
[Husband]
of service at
when
military married life
again approximate of
retires.
parties
which is what
of these
Although
find that
the Raimer
decree,
put
had
in at the time of the
he
not abuse its discretion
trial court did
up
and I come
with
divide that
two
utilizing
deferring
distribution17
But
something
percent for her.
like 37
formula, we find that the court
“time rule”
reasons.
going
I’m
to discount that for two
altering
abused its discretion
nevertheless
One,
support
lukewarm at best.
her
was
forty
according
percent
the formula and
Wife
And, two,
up
has
with a bit
she
ended
instead
So,
property.
going
I’m
more of the
fifty percent.
percent
receive 25
order
she
military retirement benefit and order Sur-
Initially,
court
we note that
the Raimer
if,
you say,
Plan
as
Mr. Van
vivor’s Benefit
interjected
inappropriately
marital fault con
attorney],
possible.
I
that’s
[Wife’s
Culin
analysis.
siderations
into the distribution
pay
think it is. But that she has
parties’
The determination of the
contribu
plan
of the retire-
out
her share
acquisition
tions to the
of marital
way
that’s the
we’ll work that.
ment. So
any way.
marital fault in
See
cannot assess
fair
for her under the
I think that’s a
share
§ 14-10-113.
support fully
circumstances.
did not
She
however,
recognize,
that some authori-
for a
career
while.
permit
of “economic fault”
ties
consideration
himself said when he was
[Husband]
distinguished from “marital fault”
captain,
did. And it’s
lieutenant or
she
division of marital
See Turner
coupled
her
after that she didn’t. So
with
(2d ed.1994). Although
8.09
coupled
getting
mоre of the
fault,”
on
using the term “economic
we relied
although
support,
with her lack of
it didn’t
concept
arising
a similar
a case
before
end, I
hurt his career toward the
think
Liggett
Liggett,
adoption of the UDMA.
I
that’s a fair allocation and that’s what
(1963).
152 Colo.
Liggett
problems
inherent
case illustrates the
(1/2
fifty percent)
adjusted up
shares
or
fault” and
distinguishing
in
between “marital
case,
down as it was
this
the method of
case,
upheld
“economic fault.” In that
distributing
hybrid.
becomes a
any
the trial court’s refusal to award
is, part
That
is distributed
Liggett
in
part,
to the wife.
immediately by discounting
spouse’s
one
dissipation
volved the wife’s
of marital assets
augmenting
spouse’s
share and
the other
$12,000
apply
since she failed to
some
toward
finding
share because of the
of “economic
payment
mortgage resulting in
of a hotel
pension,
fault.” The remainder of the
how-
property through
the loss of the
foreclosure.
ever,
“
paid
out under deferred distribution
112,
Liggett, 152
nation of such i.e., multiplier). component, formula permissible inquiry. trial court scope of 1/2 majority’s adoрtion of the I concur with the Accordingly, Raimer we remand components two of the formula to identi first appeals to the trial court of with directions agree fy property. marital I also with in apply the “time rule” formula its court to conclusion, compo in those reflected pure to recalculate the overall form and nents, post-dissolution pension benefit appropriate. property distribution as be marital enhancements are to be treated as However, of because the division VII. spouses property marital between the reasons, foregoing we hold that For the court, I of the trial within the discretion in abused its discretion neither court that the trial court must be allowed conclude mili- deferring petitioners’ distribution of the adjust multiplier, discretion to 1/2 fixing nonemployee tary pensions component the formula that divides the of pur- spouses’ an basis shares on as-received portion between the marital However, suant to the “time rule” formula. man spouses, if an evaluation of the factors its we find that the Raimer court abused 14-10- dated for consideration under section altering in rule” formula. discretion the “time 113(1)(a)-(d), (1987), requires 6B C.R.S. such up- appeals’ affirm decision the court adjustment. I that the trial would hold holding in Hunt the trial court’s distribution Hunt, courts in both In re in appeals’ the court of decision and reverse (Colo.App.1993), P.2d 1140 and In re Mar directions Raimer. We remand Raimer with (Colo Raimer, riage App. No. 92CA0759 applied in “time rule” formula be its 5, 1993), Aug. properly the marital identified appropriate form. in property and acted within their discretion dividing property spouses. between J., LOHR, part in concurs in and dissents Accordingly, agree majority I with the part. Ap judgment Court of Colorado peals upholding the trial court’s division ERICKSON, J., dissents. military pension benefits Hunt should be concurring part Justice LOHR affirmed, majority’s from the re but dissent dissenting part: appeals’ versal of the court of affirmance of the trial сourt’s division of such benefits concerning These cases an issue Raimer. military pension in a the division marriage proceeding. The for-
dissolution majority adopted by
mula for the deter- I. portion mination of the such benefits be Dissolution of Mar Under Uniform property classified as marital and for division (UDMA), -133, §§ riage Act 14-10-101 to 6B spouses of that marital between the C.R.S.(1987 Supp.), the trial court is & under the deferred distribution method em- charged dividing property with the task ployed by the trial court in each case is as spouses following dissolution between follows: marriage. process of a The distribution Years of Service First, n steps. conducted in two During Marriage x Benefit x Monthly classify separate or must (After Taxes) Years of Total Second, Service marital. the court must divide the formula, Maj. op. By applying property equitably this between the formula, spouses pursuant a trial to the factors set forth in known as the “time rule” agree general court effects both the determination of the the UDMA. I with Justice steps benefit that is marital Erickson that these two are undertak *19 (the property product compo pursuant legal standards. of the first two en different formula) Erickson, J, dissenting op. at clas nents of the and the division of 549. The property equally spous property sification of an asset as marital is marital between the (by multiplying property por typically legal determination to be made es the marital by pursuant equitable an distribution of fashion marital without discretion property. at 528 n. 1. applicable law. But see infra property the marital is com The division of Following marriage, dissolution of a of the trial court to mitted to the discretion property trial court effects division of be- criteria in accordance with the be exercised spouses pursuant tween the to the UDMA. 14-10-113(1)(a)(d). The in section listed 14-10-113(1), Specifically, section 6B by majority adopted “time rule” formula C.R.S.(1987),requires the trial court to: steps and combines the classification division property, rеgard divide the marital without single process impermissibly elim into misconduct, proportions to marital in such inates all discretion of the trial court with just considering as the court deems after marital share of respect to the division of the including: all relevant factors military pension benefits.
(a) spouse contribution of each acquisition property, of in- the marital A. cluding spouse the contribution of a formula, Under the “time rule” the share homemaker; eligi- of the benefits that is (b) property apart The value of the set by to be the trial court as marital ble divided spouse; to each computed by multiplying the first (c) components of the formula. of the The economic circumstances of each two Use spouse rule” formula results in the inclusion of at the time the division of “time effective, post-dissolution pension including is to become benefit enhance- desira- estate, bility awarding family marital for the of home or ments within the “monthly component right periods of the formula to live therein for reasonable benefit” custody monthly upon spouse having actual to the of chil- is the benefit received dren; maj. op. agree I retirement. See 532. majority proper
with the such result is (d) Any increases decreases precedential policy Accord- reasons. separate property value of the of the ingly, majority’s adoption I concur in the of spouse during deple- or the determining the “time rule” formula for separate property tion of the for marital military pension marital share of benefits purposes. dividing when such benefits under de- scheme, statutory this a trial court Under distribution method. ferred specifically must consider the criteria identi 14-10-113(1)(a)-(d), including fied section
B.
acqui
the contribution of each
however,
agree,
majori-
property.
Implicit
I
in the
do not
with the
sition of marital
ty’s
positive
adoption
application
of the third
consideration of
contributions to the
equal
nega
component of the “time rule” formula. Fol- marital estate is the
relevance
Turner,
lowing
Equita
R.
the calculation of the share of the
tive contributions. Brett
8.05,
military pension
prop-
Property
that is marital
ble Distribution
at 575-
(2d ed.1994). In
erty,
requires multiplication
the formula
of 76 & n. 105
its evaluation of
factors, however,
statutory
mandatory
this marital share
This
court
1/2.
necessarily
to fashion an
multiplication
results
has broad discretion
1/2
equal
spouses
disposition
Marriage
In re
division between the
47,
(Colo.1988);
benefits. The
752 P.2d
In re
share
Price,
majority
Marriage
that a trial court that elects to
727 P.2d
holds
(Colo.1986).Equitable
not
use the “time rule” formula has no discretion
distribution is
neces
equal
sarily
equal
coterminous with an
division of
to alter this
division of the marital
Simon,
assets,
Maj.
op. at
In re
benefits.
majority’s requirement
(Colo.App.1993);
I consider the
Gercken,
(Colo.App.1985),
equal
impermissible
limi-
division to be
fairness,
key
tation
of the trial court to
and the
consideration
on the discretion
*20
value,
present
and the avail
approximate
P.2d at
net
precision.
mathematical
marital es
ability of sufficient assets
the
55.
maj.
an immediate award. See
tate to offset
may not alter
By holding that a trial court
op. at 539-540. These factors focus on
component of the “time rule” for
the third
ability
support
marital
to
estate
mula,
majority
trial
eliminates
payout
nonemployee
to the
immediate
traditional discretion to consider the
court’s
spouse.
selecting a distribution meth
When
dividing
circumstances of the case
od, the court is not concerned with allocative
impermissible effect of
marital assets. The
of each
factors such as the contribution
holding
prevent
trial
majority’s
is to
spouse
property
marital
or the other
to the
considering
factors statutori
court from
required
factors
for consideration before the
14-10-113(1).
by
Fur
ly
section
mandated
spous
actual division of benefits between
thermore,
rigid,
division of
such a
formulaic
must be un
es. Evaluation of these factors
long-
is in direct conflict with the
benefits
dertaken
the trial court after the selection
above, that
recognized principle, discussed
Consequently, I
of a distribution method.
do
granted broad dis
the trial court must be
agree
apply
that a trial court’s decision to
equitable, rather than
cretion to achieve an
applica
the “time rule” formula reflects an
mathematically
precise, division of
statutory factors
forth in
tion of the
set
Accordingly,
agree
I
that a trial court
do not
10—113(1)(a)—(d).
section 14—
applies
pen
to
the “time rule” formula
required
apply
sion benefits is
to
the 1/2
II.
considering
multiplier
the factors set
without
10—113(1)(a)—(d).
forth in section 14 —
trial
in Hunt
the mili-
The
court
divided
tary pension
equally
fund benefits
under the
majority
contends that the trial court
deferred distribution method.
I conclude
implicitly takes into consideration the factors
proper
that this was a
exercise of the
14-10-113(1)
in evaluat
set forth
section
court’s discretion.
method, i.e.,
ing
of a distribution
its selection
however,
majority’s
pres
disagree,
I
either immediate distribution of the net
with
through ap
trial court
in Raimer
ent value or future distribution
conclusion
improperly
marital fault consider-
plication of the deferred distribution or re
included
maj.
analysis. Maj. op.
jurisdiction
op. at
ations in its
at 542.
serve
method. See
Therefore,
majority
important
concludes that There is an
distinction between
540.1
“moral”,
misconduct,
following
marital
use of the “time rule” formula
se
consideration
specifically prohibited
of a
method is not incon
that a court is
from
lection
distribution
duty
considering
dividing
when
marital
sistent with the trial court’s
consider
14-10-113(1),
However,
statutory
the ma
under section
and the contribu-
those
criteria.
jority’s
supported
acquisition
conclusion is not
a re
tion of a
to the
of marital
underlying
property,
of the factors
a trial court’s
an “economic” factor that must be
view
pursuant
14-10-
selection of a distribution method. As the
considered
to section
113(l)(a).
Michaelson,
majority recognizes,
of a distri
the selection
See Michaelson
(Colo.1994)
largely
bution method turns
on the value of 884 P.2d
699-700 & n. 5
(describing
concept of marital
benefits relative to the entire
the historical
estate,
ability
provided
ground for
marital
of the court to
fault as conduct that
notes,
majority
present
separate property, contrary
precept
the net
value
As
classification of
tal
as marital or nonmari-
identifying
property does not
method of
legal
involving
determination not
military pension
include increments of
Erickson, J.,
exercise of discretion. See
dissent-
promotions
employee spouse
based on
ing op.
military pension
at 550. The division of
subsequent
Maj. op.
at 539.
dissolution.
jurisdic-
benefits on
basis other than reserve
Thus,
permit
the trial court to elect between
tion, however, necessarily
assumptions
involves
value method of distribution on
net
and risks that will be tested and resolved on the
the one
and the deferred distribution or
hand
accept
basis of uncertain future events. I would
reserve
methods on the other does
departure
conceptual purity
from
as neces-
this
inject
the classifica-
an element of discretion into
sary to a sensible and workable scheme for divi-
military pension
military pension
benefits.
tion of
benefits as marital or
sion of
*21
mili
existing prior to
that fails to divide the marital share of
under Colorado law
divorce
UMDA).
tary pension
equally
benefits
“undermines
commentator
adoption of the
One
integrity
of the formula and detracts
as follows:
explained the distinction
very purpose,”
from its
for “the formula can
factor,
is not a
the court is not
Where fault
Maj. op.
Finally,
not be altered.”
at 543.
it
to
the moral or social
permitted
consider
rejects “discounting of the share of the non-
during the
impact
party’s
of a
conduct
employee spouse” because the discount “is
dividing
marital estate.
subjective.”
wholly arbitrary
Maj. op.
and
at
can,
course, consider econom-
The court
individually
I find
these reasons
and
negative ef-
which has a
ic fault —conduct
collectively unconvincing
contrary
and
to the
upon
parties’
fect
financial condition.
14-10-113(1)(a).
standard of section
only
Economic fault includes
miscon-
finances,
directly
parties’
aimed
at the
duct
First,
simply way
“economic fault” is
a
consequences
the economic
of so-
but also
expressing
statutorily
an element of
man
cial or moral fault.
marital-property-division
dated
factor of
spouse
Turner,
“[t]he contribution of each
to the ac
Property
Equitable Distribution of
(footnotes omitted).
quisition
property,
including
of the marital
8.09,
§
at 600
Our cases
spouse
the contribution of a
as homemaker.”
preceding adoption of the UDMA also reflect
14-10-113(1)(a).
reason,
For this
a court
recognition of the distinction between these
must consider economic fault in order to be
Liggett Liggett,
factors.
we stated:
two
requirements
faithful to the
of the statute.
property
on
division was
issue
[T]he
Although isolation of the
effect
“economic
fault.
It was whether
not one of marital
proper
fault” on
marital
the accumulation of
prop-
the wife was entitled to a division of
ty may
be difficult and the result
be
erty by
having
reason of
contributed
imprecise,
statutorily required
it
a task
is
preservation of the
accumulation or the
type traditionally
and of the
committed to
divided, and on this issue it
assets to be
the discretion of trial courts.
proper
was
for the court
to determine
justify
whether her conduct was such as to
Second,
majority’s
inflexible rule that
sharing
property.
her
a division of such
used,
the ‘time rule’ formula is
the for
“[i]f
altered,”
maj. op.
mula cannot be
at
(1963);
110, 113,
Colo.
upon practical
based
considerations of alloca
Kraus,
331, 333,
see also Kraus v.
159 Colo.
(1966).
concerning
tion of risks
future
events
241-42
In accord with
simplification of the trial cоurt’s task rather
authorities, I
these
would conclude that con-
upon statutory
maj. op.
than
criteria. See
at
spouse
negative impact
duct of a
that has a
536-537,
“time
formula
543. The
rule”
does
property
on
financial
of marital
value
not take into account the contribution of each
properly
aspect
characterized as an
of that
thereof)
acquisition
marital
(or
towards the
party’s contribution
lack
military pension
share of the
benefit. See
assets,
appropriate
marital
and is
for consid-
supra pp.
A
court
con
528-529.
must
dividing
eration
marital
comply
statutory
sider that factor to
with the
property under section 14-10-113.
14-10-113(1)(a).
requirements
§of
however,
majority,
rejects
consider
rejects
party’s
Finally,
majority
departure
ation of the economic effect of
fashioning
equitable
equal
from
of the marital
conduct
division of
division
share
military pension
military pension
marital
benefits because it is “whol-
share
subjective.” Maj.
ly arbitrary
op.
method.
It
at 543.
under the deferred distribution
First, it
This criticism can
leveled at the division of
does so for three reasons.
concludes
be
separate
fault is
form of marital
The selection
that economic
difficult
misconduct,
equal
principle by
from marital
that it “is a limited
division as
which
only
apportion
concept
play
comes into
in ex
between the
which
cases,”
spouses
arbitrary.
recog-
treme
and that Raimer does not
is itself
We have
nized, however,
Maj. op.
application
of the statu-
such an extreme case.
Second,
majority
tory
criteria for marital
division is
542-543.
holds
exactitude,
way
not a
that admits of
alteration of the time rule formula
task
key
component,
equal
to an
distribution is fair-
the third
which effects an
“[t]he
ness,
precision.”
property portion
not mathematical
division of the marital
with-
*22
express-
of
out
ing forty percent of the marital of share dissenting: Justice ERICKSON military pension sixty benefit to the wife and husband, percent to the reflects that I respectfully agree dissent. I do not with support court considered the wife’s lack of majority’s analysis of the Uniform Disso- military for her husband’s career as evidence Act, -133, Marriage §§ lution of 14-10-101 to military of her lack of contribution to the (1987 Supp.). 6B In resolving C.R.S. & 1995 pension fund asset. trial court not did property of division issues a dissolution of support east lack the wife’s as marital action, marriage the inclusion of an asset misconduct, and limited her share of the legal within the marital estate is a determi- only based not on her lack of contri- nation; the manner of distribution of that receipt higher bution but also on her asset once characterized as marital non-pension property. marital appropriately a matter within the trial Such a determination is within the trial court’s discretion. court’s broad discretion to divide the marital rights important Pension are economic as- in an manner.2 Accord- Marriage sets within a unit. In re ingly, uphold I would the trial court’s deci- Gallo, (Colo.1988). 47, 51 percentage sion in Raimer to limit the wife’s “[Sjince military pay retirement is awarded of the marital share of her husband’s services, past in return for it an constitutes forty percent. to asset which should be divisible as marital property to the extent the entitlement was
III.
upon military
based
service rendered
reasons,
foregoing
part
For the
I concur in
marriage.”
all or
Id. at 52
added)
majority’s adoption
compo-
(emphasis
of the first
(involving
two
retirement bene-
vested, matured,
nents of the “time rule” formula for deter-
fits which had
and were
mining
collected);
Grubb,
military рension
being
the marital share of
In re
(Colo.1987)
661,
benefits under
the deferred distribution
(involving
665
vest-
dividing
property.
method of
I dis-
ed retirement benefits which had not ma-
tured).1
sent, however,
majority’s
framed,
adoption
Narrowly
question pre-
Jackson,
particular,
agree
majori-
property).
2.
I cannot
with the
Contra Jackson v.
656 So.2d
875,
ty's
(Ala.Civ.App.1995)
statement and
(cataloguing
characterization that the "ten
877
cases
percent
imposed
issue,
discount
the trial court has
holding
on both sides of the
but
that an
appar-
no basis in the evidence and was selected
military pension right
unvested
"is a contractual
ently
rough justice
penalize
as some form of
right, subject
contingency,
to a
and is a form of
nonemployee spouse
for what the
court
al.,
property”).
Troyan
See also 3 William M.
et
phase
viewed as her lackluster interest in one
Property
Valuation & Distribution
Marital
military
maj. op.
her husband's
career.” See
(1995).
§
requires
46.32
Our statute
the trial
property acquired by
court to divide "all
either
spouse subsequent
marriage"
with certain
exceptions
applicable
enumerated
here. See
1. This court has not determined whether unvest-
added).
ed,
(emphasis
Although
14-10-113
I be
“property"
unmatured
benefits are
division,
subject
majority
lieve the court as a whole should
nor
consider wheth
does the
address
military pension
property,
er an unvested
this
that issue. "Nonvested
retirement bene
assumes,
following
majority,
dissent
property:
fits lack the
as did the
that unvest-
characteristics of
ed,
value,
value,
military pension rights
redemption
"prop
unmatured
cash surrender
loan
val
ue,
value,
Grubb,
erty”
lump sum
and a value realizable
under the statute. See
P.2d at
after
745
Burns,
61,
J.,
(Erickson,
dissenting) (discussing
death.”
23,
v.
Burns
312 Ark.
847 S.W.2d
667-68
vest
(1993)
ed,
(holding
benefits).
military pension
26
that such benefits are not
but unmatured
promotions
review is whether
due to
and similar individual ef
by this consolidated
sented
due to
military pension benefits
occurring
increased
forts
after dissolution of the mar
increases are marital
post-dissolution rank
See,
riage.
e.g., Bishop
Bishop,
v.
591,
(1994);
N.C.App.
595-96
S.E.2d
Berrington
Berrington,
534 Pa.
majority recognizes,
ap-
have
As the
(1993).
pen-
of distribution of
proved
Although spousal sup
three methods
A.2d
(1)
value;
upon dissolution:
net
sions
port may
employee’s
influence
final rank
(3)
(2)
distribution;
jur-
deferred
reserve
position,
support presumably
such
ceases
Maj. op. at 530-531.
isdiction.
See
in the event of divorce.
See
*23
Grubb,
55;
at
First, appropriately rank as con- dissolution increases are retirement benefits earned sideration for marital efforts are marital separate property classified as Second, property. retirement employee spouse suscepti and should not be postmarital ef- earned as consideration ble to division the dissolution court. Third, separate property. forts are when majority non- “[i]f The concludes market or other nonmarital forces cause employee spouse must bear the risks attend- passive appreciation between the date of waiting distribution, [under ant either the deferred classification and the date method], appreciation given the same classifi- distribution or reserve Thus, underlying property. cation as the nonemployee should share in in- then the postdivoree passive the marital share of that accrue the de- creased benefits appreciation is the same as the marital Maj. majority lay.” op. at 536. The also unappreciated share asset. “contingencies notes that we have held that (citations omitted). Turner, supra § 6.10 the court should be taken into account when disposes property marital between the rules, nonemployee basic Under these determining parties, not when which assets spouse should not share increased benefits added).3 Thus, (emphasis nonemployee belong in the marital estate.” Grubb, 52; maj. P.2d at 665. See who contributes to the career of the However, majority con- op. remedy. at 536. then employee spouse is not without a first, contingencies: siders two interrelated can The court and should consider unvested, pension, unmatured such as nonemployee spouse’s contribution when di here, vest; and, might those at issue never viding awarding marital main second, that, result, nonemployee as a 14-10-113(1)(a), §§ tenance. See 14-10-114. Maj. spouse might get paid. op. never at However, spousal consideration of contribu majority The the nonem- then rewards inappropriate determining tion is when ployee spouse contingen- who “risks” these inclusion of the marital asset within the es by deeming military pension cies increased tate. rights in such cases to be marital majority separating states holding majority, Under the an in- “separate” “marital” in increase from the crease benefits attributable widely divergent crease “would lead to post-dissolution rank increases is results, inject inconsistent an element of fault nonemployee spouse when the *24 division, property into the and enmesh the bears a of the risk that the many years.” vest, parties’ courts lives for will not as distribu- with deferred Maj. contrary, methods, op. at 535. On the jurisdiction tion and In result reserve see McGinnis, espoused by majority re leads to inconsis (Colo.App.1989), tency by placing but is not marital the determination of the entirely by when the risk is borne the em- marital estate within the trial court’s “discre ployee spouse under the net value majority’s approach, tion.” Under Maj. op. at method.2 539. post-dissolution pension whether the increase property depends entirely constitutes marital The court should consider such con upon the distribution method the trial court tingencies selecting methodology Further, appropriate. deems the courts are property, distribution of the marital see Nel parties’ many years enmeshed in the lives for son, 1349; 746 P.2d at method, jurisdiction under the reserve which Beckman, (Colo.App. majority today expressly Finally, allows. 1990), determining not whether the benefit if even the “time rule” set forth Indeed, property. is marital majority appropriate is the statutorily required method to deter to consider the “con nonemployee’s participatory spouse acquisition tribution of each mine the share increase,4 property, in the including the marital the contribu the trial court’s ” spouse’s tion nonemployee as homemaker when divid consideration 10—113(1)(a) ing § inject the marital contribution or lack thereof does not 14 — method, adopted positions appropriate have Courts three on the 4.If the time rule is the post-dissolution pension extent which benefit coverture fraction should be determined (1) property: Beckman, increases are divisible as "points” years. marital rather than See only the marital estate includes those benefits P.2d at 1379. classification; (2) which exist of the date of military points The benefit is based on which benefits, regardless the marital estate includes all years are converted into of service. Since the earned; (3) they of when are marital years points, basis of of credited service is only passive estate includes increases in benefits. military coverture fraction for benefits must be Turner, supra majority § See 6.10. The here points determined in terms of rather than appears posi- to combine the second and third years, tions, normally simple as is the case. Use of a concluding that the benefit increase computation separate property of service rather than rec- dependent be either marital or will, ognition upon point system in some situa- the trial court’s discretion. inequitable tions lead to conclusions. greatest potential for distortion of the marital recognition homemaking 3. The statute’s as a share of the benefit occurs in situations where “contribution” indicates that the contributions system dividing the member of the retirement be considered in contributions, regular component switches from monetary to reserve limited to but can types component include service. domestic other of noneconom- support. Troyan, supra § ic 46.34. maj. property division. Contra fault into the Rather, the trial court’s
op. at 542-543. nonemployee spouse’s
consideration marital asset is contribution to the
relative
statutorily required. 14-10-113. The See consideration, stating:
majority this disallows used, the formu
“If the ‘time rule’ formula is maj. op. at 543. altered.” See
la cannot be majority today effectively stating, so provisions of section 14-10-113
overrides the trial court uses either the de
whenever the or reserve
ferred distribution property division.
methods of
Accordingly, I dissent. Norton, General, Attorney Stephen A.
Gale Erkenbraek, Deputy Attorney K. Chief Gen- eral, Timothy Tymkovich, M. Gener- Solicitor Mills, al, Attorney K. Assistant Gen- Sandra eral, Denver, Plaintiff-Appellee. for P.C., Gerash, Miranda, Todd Robinson & Denver, Thompson, Intervenor-Appel- J. lant. *25 Colorado, The PEOPLE of the State of
Plaintiff-Appellee, Opinion by Judge ROY. (Am- Surety Company Amwest Insurance MADISON, Defendant, William H. west) $10,000 appeals judgment from the against it on the forfeiture of the bail entered Surety Concerning Amwest defendant, posted it for the release of bond Company, Surety, Insurance Madison. reverse and remand William Intervenor-Appellant. proceedings. for further No. 94CA1863. appear failed to When the defendant Appeals,
Colorado Court of 1994, required July on Div. V. warrant, forfei- issued an arrest ordered the Amwest, posted ture of the bail bond Nov. 1995. cause issued a citation to Amwest show Rehearing Nov. Denied against why judgment should not be entered forfeiture, and set a show cause it on the 11,1994. hearing August for hearing, the defen- Prior to the show cause custody, into and the sheriffs dant was taken writing department notified the trial court that the defendarit was then incarcerated city jail for court and was “available anytime.” appeared at the The defendant hearing custody and Amwest show cause appear. failed to court, de- questioning the trial Under stopped had been fendant stated that he offense, that he told a routine traffic