Giesen v. Giesen , 140 Mich. App. 335 ( 1985 )

140 Mich. App. 335 (1985) 364 N.W.2d 327

GIESEN
v.
GIESEN

Docket No. 73117.

Michigan Court of Appeals.

Decided January 23, 1985.

Harvey A. Koselka, for plaintiff.

Henry A. Crudder, III, for defendant on appeal.

Before: CYNAR, P.J., and M.J. KELLY and R.L. EVANS,^[*] JJ.

PER CURIAM.

Defendant appeals as of right and plaintiff cross-appeals by leave granted from the alimony and property settlement provisions of a divorce judgment entered July 25, 1983. We affirm.

The parties were married on June 23, 1946, and divorced for the first time in 1971, pursuant to an Illinois divorce judgment. Defendant subsequently married and divorced another woman. The parties remarried in 1975. Four children were born during the first marriage, all of whom had reached the age of majority when the parties divorced the second time. At the time of trial, plaintiff was 55 years of age and defendant was 57 years of age and both enjoyed good health.

The trial court awarded plaintiff $323 a month in alimony. According to the evidence introduced at trial, defendant had served in the military from 1944 until 1953 on active duty and from 1953 until 1978 on reserve duty. He retired as a full colonel, with a pension which was to vest when he reached age 60. Defendant had also been employed by Texaco as a civil engineer since 1957. He retired from Texaco in 1981 when the plant at which he was then employed closed. Upon his retirement, during the second marriage to plaintiff, defendant received a lump sum pension payment of $82,020. He also received severance pay of $646 a month, after deductions, to be continued until he began receiving social security benefits at age 62. At that time, the severance payments were to be reduced to $125 a month. It was anticipated that upon the vesting of his military pension when he reached age 60, defendant would receive $1,418 per month from his military pension.

Plaintiff is a high school graduate. During both marriages she raised the parties' children and performed traditional housekeeping tasks. In addition, she was sporadically employed as a salesperson in department stores and dress shops.

Defendant contends that $323 a month in alimony is excessive as 1/2 his monthly income at the time of the divorce and argues that the trial court, in arriving at that figure, improperly considered the parties' first marriage as well as the second.

Plaintiff did not receive an award of alimony as a result of the first divorce judgment. Plaintiff responds and argues in her cross-appeal that the $323 monthly payment is inadequate.

We agree that the trial court erred when it awarded alimony based on the duration of the parties' combined marriages. We must presume that the Illinois judgment adequately provided for the disposition of marital assets and alimony as warranted by the evidence introduced and the law applicable in that jurisdiction at the time. Assuming that the issue of alimony was litigated in the Illinois action, the courts of this state are barred from reconsidering that issue in an action to dissolve the second marriage. See generally, MCL 600.2103; MSA 27A.2103, and the Uniform Reciprocal Enforcement of Support Act, MCL 780.151 et seq.; MSA 25.225(1) et seq.

We find, however, that the trial court's error in considering the duration of the combined marriages is harmless. In computing an award of alimony, the trial court must consider several factors, including the necessities, circumstances and earning abilities of both parties. York v York, 113 Mich App 306, 309; 317 NW2d 604 (1982). The fact that plaintiff performed "all the traditional jobs of a housewife, while Mr. Giesen went to college and got his engineering degree and then worked up through the Texaco engineering staff" relates to the earning capacity and circumstances of plaintiff's ability to provide for herself. Because we review divorce cases de novo, Arnholt v Arnholt, 129 Mich App 810; 343 NW2d 214 (1983), we conclude, upon reviewing the entire record in this case, that the award of $323 a month in alimony was neither excessive nor inadequate.

Both parties also challenge the property settlement provisions of the divorce judgment. Defendant contends that the trial court abused its discretion in awarding plaintiff a portion of the Texaco pension while plaintiff argues that the portion awarded was insufficient. Defendant also contends that the trial court erred in awarding plaintiff cash from the sale of Illinois property which was owned by the defendant prior to the second marriage. Finally, plaintiff contends that the trial court erred in not awarding her a share of the defendant's military pension as part of the property settlement.

We first hold that the trial court properly considered the defendant's Texaco pension as a marital asset subject to distribution. Perry v Perry, 133 Mich App 453, 457; 350 NW2d 275 (1984); Bolt v Bolt, 113 Mich App 298; 317 NW2d 601 (1982). We summarily reject defendant's argument on this issue and instead consider the adequacy of the amount awarded. With regard to the Texaco pension, the trial court made the following findings:

"First, as to the Texaco ``pension' or savings plan. It took Mr. Giesen 24 years and 19 days or about 289 months to accumulate the asset. The second marriage lasted 6 years, 2 months, and 17 days or about 75 months. Mrs. Giesen argues the great bulk should be considered accumulated during the second marriage since it vested during the second marriage. That seems unfair to the court. Vesting is no longer the powerful concept it once was in property settlements (Boyd v Boyd, 116 Mich App 774; 323 NW2d 553 [1982]). While as his salary grew, the Texaco contribution grew, that is the natural consequence of long continued service with any employer. It takes the first years to get to the last years. No year is really more important than the other. Accordingly, Mrs. Giesen should get half of 75 months or $7,006.88 in property settlement for this item."

We cannot say that the trial court abused its discretion in simply calculating an average monthly accrual and awarding plaintiff 1/2 of the total contibutions made by defendant and Texaco during the second marriage. While the final calculation is less than 1/2 the average monthly accrual, we believe that the shortage may be attributable to the undisputed fact that defendant took $18,000 of the lump sum payment and used it to pay marital debts and purchase a 1978 Cadillac automobile. Additionally, $14,000 of the lump sum amount was put into a personal stock trading account which, at the time of the trial, had declined in value to $4,000. We find no error in the award of $7,006.88 to plaintiff as her share of the Texaco pension.

Nor do we find an abuse of discretion in the trial court's award of cash from the sale of the Illinois property. Defendant mischaracterizes the distribution, contending that plaintiff was awarded a share in an asset which was owned by the defendant prior to the second marriage. While defendant did own that property at the time of the second marriage, it was encumbered in the amount of $2,821. By the time of the divorce, the encumberance had been satisfied. The trial court merely found that plaintiff was entitled to 1/2 the amount of the encumberance or, $1,410, on the ground that marital funds earned during the course of the second marriage had been used to complete the purchase of the property. We find no error.

The trial court did not award plaintiff any portion of the defendant's military pension. The court found that only three years of military duty were served during the second marriage and that the uncertainties and difficulties of collecting pension installments weighed against awarding plaintiff a portion of those benefits. The court concluded that the property settlement was designed to be fair without including distribution of the military pension. We find no abuse of discretion and note, as an aside, that military pensions are now distributable in Michigan divorce actions under the "Uniformed Services Former Spouses' Protection Act", 10 USC 1408(c)(1); 96 Stat 730. See McGinn v McGinn, 126 Mich App 689, 691, fn 1; 337 NW2d 632 (1983).

Affirmed.

CYNAR, P.J. (dissenting).

I would affirm except that I am unable to conclude that the property settlement was fair without including distribution of the military pension. We have no dispute on the cited law. Divorce cases are reviewed de novo, Arnholt v Arnholt, 129 Mich App 810; 343 NW2d 214 (1983). Military pensions are now distributable in Michigan divorce actions under the "Uniformed Services Former Spouses' Protection Act", 10 USC 1408(c)(1); 96 Stat 730.

The end sought in the division of property is a fair and equitable division under all of the circumstances. Ripley v Ripley, 112 Mich App 219, 227; 315 NW2d 576 (1982); Kendall v Kendall, 106 Mich App 240, 244; 307 NW2d 457 (1981). In my opinion, the plaintiff should additionally receive 1/2 of the defendant's military pension at such times as he receives a distribution of the military pension payments.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.