NO. 96-189 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN RE THE MARRIAGE OF 

WILLIAM R. LIERMANN, 

Petitioner 

and 

NADINE P. LIERMANN, 

dent, 

Respondent & Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell C. Fagg, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Virginia A. Bryan, Wri 

Billings, Montana 

For Respondent: 

Kevin T. Sweeney, Sweeney & 

Montana 

olliver & Guthals, 

Healow, Billings, 

Filed: 

Submitted on Briefs: October 10, 1996 

~~~ided: October 24, 1996 
Justice James C. Nelson delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing 

Company. 

This is an appeal from the Findings of Fact, Conclusions of 

Law and Order of the Thirteenth Judicial District Court, 

Yellowstone County, in a domestic relations case. We affirm. 

Background 

On December 7, 1995, after a bench trial, the Hon. Russell C. 

Fagg, District Judge, entered his Findings of Fact, Conclusions of 

Law and Order which, among other things, dissolved the parties' 25 

year marriage, awarded maintenance and distributed their marital 

property. Nadine filed this appeal raising as the sole issue the 

question of whether the trial court had correctly valued and 

distributed Roger's non-vested pension rights with Pittsburgh Paint 

& Glass Corporation (PPG) . The facts, to the extent pertinent, are 

set forth in our opinion. 

Discussion 

We review the trial court's division of property in marital 

dissolution proceedings to determine whether the court's findings 

of fact are clearly erroneous. Where substantial evidence supports 

the court's findings and judgment, this Court will not alter the 

district court's decision unless there is an abuse of discretion. 

2 
In re ~arriage of Griffin (1996), 275 Mont. 37, 43, 909 P.2d 707, 

710-11 (citations omitted). The test for abuse of discretion is 

"whether the trial court acted arbitrarily without employment of 

conscientious judgment or exceeded the bounds of reason resulting 

in substantial injustice." In re Marriage of Tonne (1987), 226 

Mont. 1, 3, 733 P.2d 1280, 1282 (quoting in re Marriage of Rolfe 

(1985), 216 Mont. 39, 45, 699 P.2d 79, 83 (Rolfe I)). 

On the basis of the testimony and evidence presented at trial, 

the court awarded Nadine $500.00 per month maintenance for one year 

ar.d divided the parties' net worth $125,917.50 (43.2%) to Roger and 

$164,981.50 (56.8%) to Nadine. The court determined to make this 

unequal property division on the unique facts of this case, 

including Nadine's greater need for assets which could be 

liquidated to produce income for her in lieu of additional 

maintenance and because the court included in its valuation the 

interest in a residence and lot deeded to Nadine by her father, 

while not including the premarital interest in Roger's SherwinWilliams retirement account and the PPG retirement account. 

The maintenance award and this property division are not 

otherwise contested except as to the PPG retirement account. Roger 

was employed with Pittsburgh Paint &Glass Corporation (PPG) during 

the marriage from 1985 to the time of trial. With respect to this 

employment the court made the following finding of fact: 

7. Roger participates in a retirement plan with 

Pittsburgh Paint & Glass Corporation. This benefit has 

no value because it has not vested. Under the retirement 

plan offered to employees by Pittsburgh Paint & Glass 

Corporation, the employee has no interest in this plan 

whatsoever until completing 10 years of continuous 
service. At the tirne of trial, Roger had 8 l/2 years of 

continuous service. Because of the property division and 

maintenance arrangement contemplated by the Court; and 

because this asset has not vested, the Court believes it 

is equitable to place no value on this expectancy for 

purposes of property division. 

Nadine argues that the trial court erred in not placing a 

value on the PPG retirement account and in failing to make 

provisions to divide any benefits from the account ultimately 

received by Roger according to the "time rule" first discussed in 

Rolfe I, 699 P.2d at 83, and then after remand, in more detail, in 

Rolfe v. Rolfe (1988), 234 Mont. 294, 296-300, 766 P.2d 223, 225- 

27 (Rolfe 11). 

Roger does not dispute that non-vested pension rights are a 

form of marital asset to be.valued and divided by the court. Roger 

maintains, however, that, at the time of trial the PPG retirement 

account did not, in fact, have any value because the account had 

not vested and, moreover, while the court had sufficient evidence 

to apply the "time rule," it chose not to do so given the facts of 

this case. Roger contends that based on the trial evidence and 

assuming vesting of the PPG pension, application of the "time rule" 

would have produced a benefit of $127.00 per month, less tax 

withholding, to be paid to Nadine commencing in the year 2008. 

Clearly, non-vested pension rights are a marital asset that 

are to be considered, valued and distributed by the trial court in 

marital dissolution proceedings. See, e.g., In re Marriage of 

Laster (l982), 197 Mont. 470, 643 P.2d 597; Rolfe I, 699 P.2d at 

83; Rolfe 11, 766 P.2d at 225. In this case, it is equally clear 

that the trial court took Roger's non-vested pension rights into 
consideration and that it effectively distributed those rights to 

him. What the trial court did not do is place a monetary valuation 

on this marital asset. While under our case law the court should 

have done that, we conclude that, under the circumstances here, the 

court's failure to do so was not an abuse of discretion and, 

therefore, did not constitute reversible error 

Both parties cite our decision in Glasser v. Glasser (1983), 

206 Mont. 77, 669 P.2d 685, wherein we adopted from Matter of the 

Marriage of Rogers and Rogers (1980) , 45 0r.App. 885, 609 P. 2d 877, 

guidelines as to the division of retirement benefits in marital 

dissolution cases. We stated that: 

(1) 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 [sicl spouse or 

delayed retirement of the employe [sic] spouse, and 

payment should be to the receiving spouse as the employe 

[sicl 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. 

Glasser, 669 P.2d at 689. 
~adine argues that the court should have followed guideline 

(4) , while Roger maintains that (2) and (5) are reasonable 

alternatives under the facts of this case. We agree with Roger. 

In this case, the trial court determined that Nadine had 

demonstrated a greater need for assets which could be liquidated to 

produce income for her in lieu of additional maintenance. The 

court also found that the property Nadine had been awarded along 

with gifts she had received from her father--an elderly gentleman 

for whom Nadine was providing around-the-clock care--did not 

entirely provide her with sufficient income to meet her monthly 

expenses. Moreover, the court anticipated that Nadine might 

require additional job training costing some $6,000.00 and taking 

several months of study in order to secure future employment. 

Given her immediate need for income and assets which could be 

liquidated to produce income, it would have, as a practical matter, 

made little sense for the court to award Nadine a portion of a 

retirement benefit that, assuming it vested, would not have been 

available for some thirteen years in the future and would have 

produced a relatively insubstantial monthly income. 

Based upon the facts of this case, the trial court correctly 

attempted to I4disentangle the parties" by payment of a sum certain 

"rather than a percentage based upon expected future 

contingencies, fr and by making an equitable, albeit lopsided, 

property division in favor of Nadine in lieu of awarding her a 

portion of the non-vested PPG retirement benefits. &, Glasser, 

669 P.2d at 689. 
Under the circumstances of this case and based upon the record 

on appeal, we hold that the court's findings of fact were not 

clearly erroneous and that it did not abuse its discretion in 

dividing the parties' marital property in the manner which it did. 

A£ f irmed.