NO. 94-184

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

IN RE THE MARRIAGE OF

PRISCILLA DALE QUICK

Petitioner

and

CHARLES ROBINSON,

Respondent

ROBINSON,

and Respondent,

and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John L. Hollow, Attorney at law,

Helena, Montana

For Respondent:

Ann L. Smoyer, Smoyer Law Firm,

Helena, Montana

Filed:

Submitted on Briefs: October 13, 1994

Decided: December 6, 1994
Justice Terry N. Trieweiler delivered the opinion of the Court.

Petitioner Priscilla Dale Quick Robinson petitioned the First

Judicial District Court, for Lewis and Clark County, for

dissolution of her marriage to Charles Robinson on August 20, 1992.

On March 2, 1994, the District Court entered its decree dissolving

the parties' marriage. The decree (1) awarded joint custody of

their minor child, Douglas, but awarded Priscilla primary care of

Douglas; (2) ordered Charles to pay child support and maintenance;

(3) ordered that the family home be sold and that Priscilla receive

65 percent of the net proceeds; (4) awarded Priscilla 35 percent of

Charles's retirement benefit; and (5) distributed the remaining

assets as the parties had previously agreed. Charles appeals. We

affirm.

The issues we find dispositive on appeal are:

1 . Did the District Court err in its calculation of the net

worth of the marital estate?

2 . Did the District Court err in its distribution of the

marital estate?

3 . Did the District Court err when it awarded Priscilla a

fixed percentage of Charles's retirement benefit?

FACTUAL BACKGROUND

Charles and Priscilla were married on September 9, 1973, in

Verdi, Nevada. They lived in Reno, Nevada, until July 1981.

Charles was employed by the Internal Revenue Service prior to and

throughout their marriage. Priscilla was also employed during the

marriage, but has been limited to temporary employment since 1981.

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The parties' only child, Douglas, was born January 19, 1981.

In 1981, the IRS promoted Charles and transferred him and his

family to Montana. Because of this transfer, Priscilla quit her

job to care for Douglas and became a full-time homemaker.

During the parties' marriage, Charles's income increased from

approximately $33,000 a year in 1981, to over $61,000 a year at the

time of the dissolution. While in Montana, Priscilla occasionally

found temporary employment, but has not found long-term employment

since leaving Nevada.

Charles ultimately became chief of planning and special

programs at the Helena IRS office, a position which he held at the

time of the dissolution. Since the parties' separation in 1992,

Priscilla has received job training, but has been unable to find

permanent employment.

The parties agreed on the distribution of the marital assets,

with the exception of Charles's retirement fund with the federal

government and the parties' home in Helena. The present value of

Charles's retirement fund was calculated by Alton Hendrickson, a

consulting actuary designated by the District Court as an expert.

This valuation was based on Charles's income and credits through

1992.

The parties' home in Helena was valued at approximately

$130,000. The District Court ordered that the home be sold and

that Priscilla receive 65 percent of the proceeds, and Charles

receive 35 percent of the proceeds.

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There was conflicting testimony regarding the value of

Charles's retirement fund. Hendrickson valued Charles's retirement

fund at between $154,144 and $263,530, depending on the age at

which it is taken. However, Charles calculated the present value

of his retirement fund at only $79,892, presuming a retirement age

of 65 years. The District Court entered a qualified domestic

relations order which awarded Priscilla 35 percent of Charles's IRS

retirement benefit.

Charles was ordered to provide health insurance for Douglas

and to pay 75 percent of any health insurance costs not covered by

insurance. Charles was also ordered to pay Priscilla child support

in the amount of $426 per month, and maintenance payments of $400

per month for two years, beginning in January 1994.

The District Court also determined that an inheritance

Priscilla received from her mother was not part of the marital

estate since the estate has not yet been closed and Priscilla did

not receive anything from the estate until after the parties were

separated.

ISSUE 1

Did the District Court err in its calculation of the net worth

of the marital estate?

A district court has broad discretion in determining the value

of property in a dissolution. In re Marriage of Milesnick ( 19 8 8 ) , 2 3 5

Mont. 88, 94, 765 P.2d 751, 755. "Its valuation can be premised on

expert testimony, lay testimony, documentary evidence, or any

4
combination thereof." Milesnick, 765 P.2d at 755. "The court is free

to adopt any reasonable valuation of marital property which is

supported by the record." InreMarriageofRada (19941, 263 Mont. 402,

405, 869 P.2d 254, 255-56 (citing In re Marriage ofhisi (1988), 232

Mont. 243, 756 P.2d 456). "As long as the valuation [of property

in a dissolution1 is reasonable in light of the evidence submitted,

we will not disturb the finding on appeal." Milesnick, 765 P.2d at

755 (quoting Luisi 756 P.2d at 459).

Before it divides the marital estate, we have held that the

district court must first determine the net worth of the marital

assets. InreMarriageofStephenson (1989), 237 Mont. 157, 160, 772 P.2d

846, 848. "The test [when we review a property division] is

whether the findings as a whole are sufficient to determine the net

worth and to decide whether the distribution was equitable."

Stephenson, 772 P.2d at 848 (citing Nunnallyv. Nunnally (1981), 192 Mont.

24, 27, 625 P.2d 1159, 1161). In this case, the principal assets

of the marital estate were the family home and Charles's retirement

fund. However, the court's findings indicate that it also

considered the values assigned by the parties to their other

assets, which were divided by agreement. The court then valued the

two principal assets, based on the testimony of the real estate

agent who appraised the home, and the actuary who evaluated the

retirement benefits.
We have held that the valuation of marital assets must only be

reasonable in light of the evidence submitted. In re Marriage of Johns

(1989), 238 Mont. 256, 258, 776 P.2d 839, 840 (citing Milesnick, 765

P.2d at 755).

We conclude that the court did consider the value of the

entire marital estate, and that the findings of fact regarding the

evaluation of marital assets were supported by substantial credible

evidence and were not clearly erroneous.

ISSUE 2

Did the District Court err in its distribution of the marital

estate?

When we review a district court's division of marital

property, we will uphold the district court unless the findings on

which that division is based are clearly erroneous. In ye Marriage oj

Maedje (1994), 263 Mont. 262, 265-66, 868 P.2d 580, 583 (citing Inre

MarriageofMcLean/Fleury (19931, 257 Mont. 55, 849 P.2d 1012). If the

district court's findings of fact are not supported by substantial

evidence, they are clearly erroneous. Interstate Production Credit Ass’n v.

DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. If the

district court's findings of fact upon which it bases its division

of marital property are supported by substantial credible evidence

and are not clearly erroneous, "[tlhis Court will not alter the

trial court's decision unless there is an abuse of discretion."
Maedje, 868 P.2d at 583 (citing InreMarriageofScofield (1993), 258 Mont.

337, 852 P.2d 664).

Section 40-4-202, MCA, governs the division of property in a

dissolution of marriage. That section provides, in pertinent part,

that in a dissolution proceeding assets belonging to both parties

shall be distributed equitably. Section 40-4-202, MCA, sets forth

the factors to be considered in apportionment of marital assets.

That section provides in part that:

(1) . . . In making apportionment, the court shall

consider the duration of the marriage . . the age,

health, station, occupation, amount and sources of

income, vocational skills, employability, estate,

liabilities, and needs of each of the parties . . . . The

court shall also consider the contribution or dissipation

o f the value of the respective estates and the

contribution of a spouse as a homemaker or to the family

unit. In dividing property acquired prior to the

marriage; property acquired by gift, bequest, devise, or

descent . . the court shall consider those

contributions of the other spouse to the marriage,

including:

(a) the nonmonetary contribution of a homemaker;

(b) the extent to which such contributions have

facilitated the maintenance of this property .

In its apportionment of the marital assets, the District Court

took these factors into account, including the parties' ages,

health, occupations, employability, ability to earn income, and

liabilities. In its apportionment of the value of the marital

home, the District Court took into account the differences in the

parties' income and their ability to obtain assets in the future.

The District Court also took into account the fact that Priscilla,

as primary caretaker of Douglas, would need a home in which to

raise their child. The District Court considered that two-thirds

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of Charles's retirement account was earned during the marriage, and

on that basis, concluded that Priscilla is equitably entitled to

35 percent.

We conclude that the District Court's apportionment of the

marital assets was supported by substantial evidence and that its

findings are not clearly erroneous.

ISSUE 3

Did the District Court err when it awarded Priscilla a fixed

percentage of Charles's retirement benefit?

The standard of review of a district court's division of

marital property is as set forth in the previous section. We have

defined substantial evidence as "'evidence that a reasonable mind

might accept as adequate to support a conclusion; it consists of

more than a mere scintilla of evidence but may be somewhat less

than a preponderance.'" InreMarriageofDavies (Mont. 1994), 880 P.2d

1368, 1372, 51 St. Rep. 929, 932 (quoting Barrett IA Asarco, Inc. (1990) ,

245 Mont. 196, 200, 799 P.2d 1078, 1080).

"It is well established in this state that retirement benefits

are part of the marital estate . .'I Rolfe v. Rolfe (1988), 234

Mont. 294, 296, 766 P.2d 223, 225 (citing Kurrv. Kurr (1981), 192

Mont. 388, 628 P.2d 267). Therefore, the retirement plan in this

case is properly part of the marital estate. The question is how

to equitably divide the pension plan. We have held that

"[glenerally, the proper test for determining the value of a

8
pension is the present value." Rolfe, 766 P.2d at 225 (citing Inre

,‘kbrriUgeofBowmUn (1987), 226 Mont. 99, 108, 734 P.2d 197, 203).

In this case, the District Court utilized the services of an

actuary to determine the present value of Charles's retirement plan

with the IRS.

Under the "time rule," retirement benefits are usually divided

upon their receipt. A spouse, therefore, is entitled to increases

or accruals on his or her interest in the retirement plan because

of the delay in receiving that interest. Rolfe, 766 P.2d at 226

(citing McNamara Dividing Pension Benejh Upon Divorce, ALI-ABA Course

Materials Journal, No. 2, 33, 42 (1983)).

In this case, the District court held that Charles's

retirement benefit with the IRS was part of the marital estate

because two-thirds of this retirement benefit was earned during the

parties' marriage. Testimony by an actuary determined the present

value of Charles's retirement benefit. Hendrickson testified that

the present value of Charles's retirement benefit is $263,530.

Hendrickson assumed that Charles would retire at age 55 after

30 years of service with the IRS. According to Hendrickson, if

Charles retired at age 62, the present value of his retirement

benefit would be $154,144, including cost of living adjustments.

Without cost of living adjustments, the present value of Charles's

retirement fund at age 62 would be $119,969.

The District Court used this testimony to determine the value

of Charles's retirement. Applying the time rule to Charles's

9
retirement benefit, the District Court determined that 20 of the

30 years of service required for federal retirement was earned

during the parties' marriage. On this basis, and taking into

consideration Priscilla's earning capacity and the length of the

parties' marriage, the District Court issued a qualified domestic

relations order in which it awarded Priscilla 35 percent of

Charles's retirement benefit.

Priscilla also bears the risk of unforeseen contingencies

which may affect Charles's benefits. Testimony by the actuary

established that the value of the retirement benefit is greatest

when it is taken at age 55, and the value declines if it is taken

after age 55. If Charles delays his retirement until after age 55,

Priscilla will receive less. If Charles should die prematurely and

not achieve 30 years of service with the IRS, she will also receive

less.

Substantial credible evidence supports the District Court's

findings regarding its apportionment of Charles's retirement

benefits, and we conclude that they are not clearly erroneous.

The judgment of the District Court is affirmed.

/

usti!ce

We concur:

December 6, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

John L. Hollow

Attorney at Law

318 E. Sixth Ave.

Helena, MT 59601

Smoyer Law Fii

1085 Helena Ave.

Helena, MT 59601

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA