In Re the Marriage of Pryor

No. 86-264
J THE S I T R E M E COURT OF THE S'-rATF OF MONTANA
I
Y
1986
IN RE THE MARRIAGE O F
C O N N I E L. PRYOR,
Petit-ionerand. Respondent,
and
GARLAND 1,. PRYOR ,
Respondent and Appellant.
APPEAI, FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presidinq.
COUNSEL O F RECORD:
For Appellant:
Julio K. Morales; Mora-les & Volinkaty, Missoula,
Montana
For Respondent :
P. Mars Scott; Mul-roney, Delaney & Scott; Missoula,
Montana
Submitted on Briefs: Sept. 4, 1986
Decided: December 30, 1986
Filed: DEC 3 0 1986
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Garland Pryor appeals a Missoula County District Court
order which distributed the parties' marital estate and ruled
that certain payments made by Garland to respondent Connie
Pryor were maintenance payments. The issues on appeal are:
(1) Whether the court abused its discretion in dividing
the marital estate between the parties;
a) whether the court erred in including the
husband's vested retirement benefits in the marital
estate and dividing them between the parties;
b) whether the court erred in valuing the husband's
vested retirement benefits;
c) whether the court erred in including the
employer's contributions to the retirement benefits in
the marital estate;
d) whether the court erred in including certain
assets in the marital estate.
(2) Whether the court erred in ruling that certain
payments made by husband to wife were maintenance payments.
We affirm.
The parties were married in 1972 in Billings, Montana.
No children resulted from their marriage. Connie has two
daughters from a previous marriage. She works nine months a
year driving a school bus and has gross annual earnings of
approximately $7,500. Connie is approximately 39 years old.
Prior to and during the marriage, Garland worked as a
federal air traffic controller. In 1983, his gross income
was $36,576. In September 1985, Garland testified that if he
were to retire then, he would receive 518,819 a year in
retirement benefits if he did not choose to reserve survivor
benefits. If he reserved survivor benefits, he would receive
$17,288 a year. Garland is approximately 56 years old.
In June 1984, Connie filed a petition for dissolution of
marriage. Beginning in September 1984, Garland paid monthly
sums to Connie to help pay her living expenses. The parties
stipulated to the first payment and, thereafter, the Distri.ct.
Court granted Connie's motion requiring Garland to continue
paying monthly sums to her. The court reserved ruling on
whether the payments would be regarded as maintenance or as
prepayments of Connie's share of the marital estate.
The court held a hea-ring in September 1985, and issued
an order in November 1985 dissolving the parties' marriage
and distributing the marital estate. In February 1986, the
court held another hearing on the valuation of Garland's
vested retirement benefits. In March 1986, the court filed
an order with a revised distribution of the ma.rita1 estate.
The second distribution is similar to the first but the
retirement benefits are assigned a lower value. The court
distributed the marital estate as follows:
Connie Garland
Personal Property $ 1,545 $ 19,288
Retirement Benefits
(Present value)
East Missoula Residence
Helena Acreage
Honda 90
1984 Tax Refund
FAA Credit Union
Missoula Credit Union
TOTAL $ 99,776 $ 90,082
The distribution plan provides that Garland will make
semi-annual payments to Connie to pay for her share of the
retirement benefits. Garland j s to make semi-annual $4,000
.
payments to Connie at an interest rate of 108 until her share
is "cashed out". Garland appeals with the main issues being
the division and valuation of his retirement benefits.
The standard for reviewing the property division in
a dissolution decree is well settled in Montana.
The apportionment made by the District Court will
not be disturbed on review unless there has been a
clear abuse of discretion as manifested by a
substantially inequitable division of the marital
assets resulting in substantial injustice.
(Citations omitted. )
Hurley v. Hurley (Mont. 1986) 721 P.2d 1279, 1285, 43 St.Rep.
Garland first attacks the inclusion of the present value
of his retirement benefits in the marital estate. He claims
that he should receive all of those benefits. We disagree.
"It is well established in Montana that retirement benefits
are classed as a part of the marital estate." In Re Marriage
of Sirucek (Mont. 1985), 712 P.2d 769, 772, 42 St.Rep. 623,
627. The District Court found that Connie's contribution to
the marriage was equal to Garland's. Substantial evidence
supports that finding. Connie testified that she contributed
monetarily to the marital relationship and performed the vast
majority of the household chores. Her past contributions to
the household entitle her to share in Garland's retirement
benefits. See Marriage of Singer (Mont. 1986), 721 P.2d 755,
The more troublesome issue involves the valuation of the
retirement benefits. The parties' respective experts gave
widely differing estimates of the present value of the
retirement benefits. We note that present value is the
proper test for valuing retirement benefits to be received in
the future. Glasser v. Glasser (Mont. 1983), 669 P.2d 685,
689, 40 St.Rep. 1518, 1522. Garland's expert calculated that
the present value of the retirement benefits, without
electing optional survivor benefits, was $62,352. He would
include 65% of that amount ($41,464) in the marital estate
because only 65% of the vested retirement benefits were
attributable to the marital period. Thus, based on his
calculations, Connie would receive $20,732 (one-half of
$41,464) if the court awarded her half of the benefits earned
during the marriage. In making his calculations, Garland's
expert assumed that Garland would continue working for eight
and one-half years, thus reducing the total benefits he would
receive.
Connie's expert calculated. the present value of the
benefits by assuming that Garland was retired at the time of
the hearing and could begin drawing the benefits then.
Connie's expert testified that the present value of the
retirement benefits was $150,671, if Garland chose the option
with survivor benefits. He also testified that the present
value for the option without survivor benefits would be about
equal to the present value of the option with survivor
benefits. Garland's expert gave a similar opinion on that
point. Of the $150,671, approximately $100,904 would be
attributable to Garland's work during the marriage and, thus,
part of the marital estate. The difference in the experts'
estimates of the present value of the retirement benefits
stemmed from different assumptions of Garland's retirement
date. Connie's expert assumed Garland was presently retired
while Garland's expert assumed Garland would retire in eight
and one-half years.
The District Court found the present value of the
benefits earned during the marriage was $100,904 and divided
that amount 55% - 45% with Garland receiving the larger share
and Connie the smaller. The court also awarded $1,362 in
survivor benefits to Connie. We hold that there was no error
in the valuation and division of the retirement benefits.
We uphold the court's valuation of the benefits because
substantial credible evidence supports that valuation. The
court accepted the opinion of Connie's expert, who was a
certified public accountant. That opinion considered
Garland's life expectancy and the probability of Connie's
remarriage (which would affect the amount of benefits she
receives). Moreover, Garland's own testimony supports the
court's decision to use Connie's valuation (which assumes
that Garland is presently retired) and not Garland's
valuation (which assumes he will retire in eight and one-half
years). Garland testified that he plans to work for ". . . a
while. I don't know, a year or two, it just depends." There
was no evidence he would work for over two more years, let
alone eight and one-half years. Finally, the District Court
did not err in including in the marital estate the employer's
contributions to the retirement benefits. Those
contributions are analogous to deferred compensation which
Garland earned during the marriage. Those contributions are
part of the marital estate just as his regular earnings are.
This Court, in Glasser v. Glasser (Mont. 1 3 8 3 ) , 669 P.2d
685, 689, 40 St.Rep. 1518, 1523, cited the following
guidelines for the division of retirement benefits;
. . . 11) The distribution should generally be
based on the contributions made during the
marriage. (2) The courts should continue to
strive to disentangle the parties as much as
possible by determining, where equitable, a sum
certain to be paid rather than a percentage based
upon expected future contingencies. (3) In
determining whether a lump sum award is
appropriate, courts should consider the burden it
would place on the paying spouse in view of
required child support, spousal support, and other
property distribution. (4) Where courts determine
that the parties will share in the benefits on a
proportional basis, the parties should also share
the risks of future contingencies, e. g., death of
the employe spouse or delayed retirement of the
employe spouse, and payment should be to the
receiving spouse as the employe spouse receives the
retirement pay. (5) Courts should consider, where
appropriate, an award of a portion of retirement
benefits where other property awarded is not
adequate to make an equitable distribution.
(Citation omitted.)
The District Court considered these factors and acted
accordingly. The court awarded Connie a lump sum of the
benefits rather than a percentage of the benefits as received
by Garland because the court found it was best to
"disentangle" the parties. Moreover, the parties share the
risks of future contingencies as those contingencies were
considered in the estimate of present value.
We hold that the District Court equitably distributed
the marital estate and did not abuse its discretion in making
that distribution. The court made numerous and detailed
findings supporting its property distribution. The court
noted that Garland earned much more than Connie. Garland
attacks the inclusion of certain assets in the estate.
Without addressing this complaint in depth, we simply note
that those assets were accumulated during the marriage.
Connie's contributions to the household facilitated the
accumulation of the assets and entitle her to share in them.
The last issue is the court's designation of certain
payments made by Garland to Connie as maintenance. The court
provided that Connie was not entitled to maintenance after
the order distributing the marital property. Section
40-4-203(1), MCA, provides that a court may award maintenance
to a spouse where that spouse "a.) lacks sufficient property
to provide for his reasonable needs; and b.) is unable to
support himself through appropriate ernpI-oyment or . . . "
Connie's testimony at trial establishes that she met those
standards. Therefore, we hold that the court did not err in
designating Garland's payments as maintenance
Justice '
We concur: