Burkey v. Burkey

ON REHEARING

Before: Marilyn Kelly, P.J., and Sawyer and Weaver, JJ.

Marilyn Kelly, P.J.

Plaintiff appeals from a judgment of divorce entered March 20, 1989. We affirm in part and reverse in part.

The parties were married on September 24, 1966, and separated after more than twenty years, on December 28, 1986. Plaintiff filed a complaint for divorce on July 20, 1987. Two children were born of the marriage both of whom are now adults.

Following trial, the court made a determination of the value of the marital estate and divided it as follows: Defendant received the marital home with an equity of $28,900, her ira account with a value of $3,000, and the household goods which were valued at $1,500. Plaintiff received a $10,000 lien on the house, a money market account worth $5,297, his ira account of $2,500, and tax refunds in the amount of $1,503. Thus, the value of the property awarded to Mrs. Burkey was $33,400, while the property awarded plaintiff was valued at $19,300. The parties do not dispute on appeal the valuation of the above items.

What plaintiff does challenge is the trial court’s refusal to value defendant’s interest in her employee stock ownership plan (esop). The plan was awarded to her with no dollar amount ascribed to it. The trial court explained it was unable to put a present value on the esop, because none was provided by the parties. We conclude that the trial court erred in failing to assign a value to the esop and that it could have done so with the evidence before it.

An esop serves a purpose similar to that of an ordinary pension plan, the providing of financial security in retirement. However, an esop is not the functional equivalent of a pension plan and, therefore, must be treated differently. The primary distinction between an esop and an ordinary pension plan is the nature of the benefit to be paid and the method of calculating that benefit.

An ordinary pension plan may be referred to as a "defined benefit plan.” It guarantees upon retirement payment of a certain monthly benefit which generally is independent of the investment performance of the pension fund itself. The benefit is dependent upon factors such as the employee’s length of service with the company and salary preceding retirement.

An esop, on the other hand, is better categorized as a "defined contribution plan” whereby the employee or employer, or both, put specified amounts into the plan. The plan’s trustee credits the contributions to the employee’s account. The benefit paid out upon retirement is directly related to the value of the account. That value in turn is directly related to the amount of contributions paid into the plan as well as to the performance of the investments made by the plan.

Under an ordinary pension plan, the retirant’s benefits normally run until death. Under an esop, the employee’s account is paid off in a specified number of installments over a specified period of time.

When determining the present value of a pension plan, a number of contingencies must be considered. Among them are the amount of monthly benefit to which the employee will be entitled, the length of time before payment will begin, and the employee’s probable life expectancy.

An esop is not subject to any such variable. The present value of an esop plan can be readily determined at any given time by looking at the value of the stock or other investments made by the plan. All that must be done to determine present value is to determine the number of shares in the employee’s account and multiply that figure by the value of those shares. Defendant in the case at bar was annually notified what number of shares were owned by her, their value and, therefore, the value of the esop account itself.

The trial court correctly determined that the valuation reached by the trial court could not be dependent upon the happening of future events after the divorce. Kilbride v Kilbride, 172 Mich App 421, 435-436; 432 NW2d 324 (1988). Accordingly, the trial court ignored any changes which might occur to the esop after divorce, such as additional contributions and fluctuation in the price of the stock.

The actual date to be used for valuation of an asset is within the discretion of the trial court. Curylo v Curylo, 104 Mich App 340, 351; 304 NW2d 575 (1981). In this case, the court used December 31, 1987, since neither party presented information to enable valuation of the stock in the esop as of a different date.

In addition, the trial court properly ignored the effect of inflation, a factor to be considered in valuing a pension plan. The fluctuating value of the esop investments themselves compensates for inflation. This is not to say that the value of the investments held in the esop account will necessarily increase at the same rate as inflation. Rather, the value of the account may well perform better or worse than the rate of inflation, depending upon the performance of the particular company whose stock is held. This difference, however, is of no relevance. Simply, investments which fluctuate with market forces need not be adjusted for inflation as must be payments of a sum certain in the future.

"Present value” is essentially the amount of money a person must receive today in order to provide the same benefit which he is scheduled to receive later. Thus, in the case of a pension plan, it is the amount a person would have to invest today so as to obtain what the plan would pay in the future. See Kilbride, supra, 440, n 6.

By contrast, with an esop, the amount of money which would have to be invested today to provide for the same future benefit is the current value of the esop. For example, if one had an esop account worth $20,000, a person could provide the same benefit by purchasing $20,000 worth of the same stock held in the esop account. Thus, the present value of an esop account is the balance itself, adjusted for any partial vesting.

For the above reasons, we conclude that the trial court erred in failing to value defendant’s esop account and failing to include it as a marital asset subject to division. On remand, the trial court shall determine the present value of the esop by multiplying the account balance on the appropriate date by the percentage vested. In addition, if a percentage of the unvested esop was payable to defendant on account of service credit accrued during the marriage, the court may add it, if just and equitable. MCL 552.18; MSA 25.98. After determining its value, the trial court shall make an appropriate distribution of the esop asset.

Plaintiff also argues that the trial court erred in considering his fault in the breakdown of the marriage. The fault consideration resulted in sixty-three percent of the marital assets being awarded to defendant and thirty-seven percent to plaintiff. Fault is a legitimate consideration in arriving at a property division in a divorce matter. Pelton v Pelton, 167 Mich App 22, 26; 421 NW2d 560 (1988). Furthermore, we review the trial court’s findings of fact under the clearly erroneous standard. Beason v Beason, 435 Mich 791; 460 NW2d 207 (1990). The finding of fault in this case was not clear error.

The trial court’s decision to award defendant sixty-three percent of the marital estate was a dispositional ruling. We review it de novo but will not reverse it unless convinced we would have reached a different result in the trial court’s place. Paul v Paul, 362 Mich 43, 46-47; 106 NW2d 384 (1960). Accordingly, we decline to set aside the ratio of property division fashioned by the trial court.

We employed a two-part review in reaching this conclusion. First, we determined that the trial court’s findings of fact were not clearly erroneous under the standard put forth in Beason. Then, given these findings, we reviewed the dispositional ruling, which was the decision to award sixty-three percent of the estate to defendant, under the de novo standard. See Powell & McAlpine, Standards of Review in Michigan, 70 Mich B J 28, 30 (1991).

It is noteworthy that, in affirming the trial court, we did not exercise an abuse of discretion standard of review. See Spaulding v Spaulding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). The trial court has great discretion in distributing the property of divorcing parties. However, it does not follow that this Court reviews a lower court dispositional ruling in a divorce case for an abuse of discretion. Powell & McAlpine, supra.

Also noteworthy is the fact that the Supreme Court in the Beason decision addressed itself to the proper standard for reviewing a trial court’s findings of fact. It was not asked to review a dispositional ruling such as an award of alimony. Beason, supra, 798. Accordingly, the Court made no statement in Beason affecting the existing standard of review for dispositional rulings. We see no reason to stretch the Beason holding beyond its stated subject matter, nor do we believe the Court intended us to do so.

We are mindful that the trial court divided the assets with the view that the esop was not to be valued and awarded it solely to defendant. Therefore, in light of our resolution of the esop valuation issue, if it so chooses on remand, the trial court may reconsider the division of assets and increase defendant’s share.

Finally, plaintiff argues that the award of alimony in the amount of $50 per week was inequitable. The standard of review of an alimony award by our Court is the same as that for a property division. Cloyd v Cloyd, 165 Mich App 755, 759; 419 NW2d 455 (1988). In the case at bar, we find no error. Accordingly, we affirm the trial court’s award of alimony.

Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. No costs are awarded, as neither party has prevailed in full.

Weaver, J., concurred.