95-215
NO.
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
APPEAL FROM:
District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Arthur D. Agnellino, Athens, Pennsylvania
For Respondent:
John H. Gilliam,
Montana
Skjelset
Law
Submitted on Briefs:
Decided:
Filed:
Offices,
Missoula,
February 8, 1996
March 21, 1996
Justice William E. Hunt, Sr. 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 this Court and by a report of its result
to State Reporter Publishing Company and West Publishing Company.
Appellant Donald A. Lassila (Donald) appeals the amended order
of the Fourth Judicial District Court, Missoula County, dissolving
his
marriage
to
Respondent
Barbara
A.
Lassila (Barbara) and
dividing their marital property.
Affirmed.
The following restated issued are presented on appeal:
1.
Did the District Court abuse its discretion in its
division of the parties' respective
retirement
benefits?
Did the District Court abuse its discretion by not
2.
granting Donald a set-off equal to part of Barbara's Montana
retirement
benefits?
Donald and Barbara were married in 1958 and divorced in 1994.
Donald
appealed
the
District
Court's
findings,
conclusions,
and
decree of dissolution to this Court after entry of the decree. We
previously
remanded
this
case
to
the
District
Court
for
clarification of its order, and reserved to the parties the right
to re-assert any alleged error following the issuance of the
District Court's amended order.
On February 27, 1995, the District
Court issued its amended findings of fact, conclusions of law, and
order.
Donald filed the instant appeal shortly thereafter.
2
During the parties' marriage, Donald worked for the United
States Forest Service and Barbara was employed as a teacher. In
1981, Barbara quit teaching and, against Donald's wishes, withdrew
her entire Montana retirement fund to start a small ice cream
business.
The business failed about two years later, and Barbara
lost her entire investment.
In 1990, after separating from Donald,
Barbara moved to Washington State and resumed teaching.
time of
this
Washington,
she
appeal,
remains
employed as a
At the
teacher in
while Donald continues to be employed by the Forest
Service here in Montana.
By the time he retires, Donald will have worked for the Forest
Service for more than thirty years and will receive benefits
accordingly.
Barbara will receive no retirement benefits from the
State of Washington unless and until she works there as a teacher
for five years. After that, she will receive benefits commensurate
to the number of years worked.
In its amended decree, the District Court held that each party
would be entitled to half of that portion of the other party's
retirement
alleges
value
benefits
this
on
holding
the
undetermined
which
is erroneous
pension
future
accrued
funds,
value.
during
because
but
the
it
instead
marriage.
Donald
places
no
present
relies
upon
some
He further alleges error in the
District Court's refusal to allow him a set-off equal to part of
Barbara's Montana retirement, which he claims she "dissipated" in
her small-business venture.
A district court's findings of fact regarding the division of
marital property will not be set aside unless clearly erroneous.
3
In re Marriage of Dewitt (Mont. 1995), 905 P..?,d 1084, 1087, 52
St.Rep. 1089,
1091 (citations omitted).
If the district court's
judgment is supported by substantial credible evidence, it will not
be disturbed absent an abuse of discretion.
Griffith (Mont. 1996) I
- P.2d _, _,
In re Marriage of
53 St.Rep.
28, 30 (citing
In re Marriage of Maedje (1994), 263 Mont. 262, 868 P.2d 580).
Did the District Court abuse its discretion in its division of
the parties' respective
retirement
benefits?
In its amended order, the District Court set out the formula
by which the parties' retirement benefits are to be divided.
The
District Court determined that each party would receive one-half of
that portion of the other's retirement benefits which was earned
during the marriage. In effect, the District Court gave each party
a percentage of the other's total retirement based on the amount of
benefits accrued during the time the parties were married.
the so-called "time
rule"
method of dividing a pension.
(1995),
See Rolfe
766 P.2d 223; In re Marriage of
v. Rolfe (1988), 234 Mont. 294,
Truax
This is
271 Mont. 122, 894 P.2d 936.
Donald alleges this formula constitutes an abuse of discretion
because it gives no present value to either party's retirement
benefits,
but instead is dependent on how much the retirement
benefits will be worth whenever the parties retire.
He claims a
fixed present value is necessary because there is
"great future
risk"
that the retirement benefits of one party will not vest.
Generally,
the proper test for determining the value of a
pension is present value.
In re Marriage of Bowman (1987), 226
Mont. 99, 108, 734 P.2d 197,
203 (citing Kis v. Kis (1982), 196
4
Mont.
296,
639 P.2d 1151).
However,
a
court may decline to
presently value a pension under certain circumstances, and instead
employ the "time rule"
used
if
the
formula.
pension
which
contingencies
to
makes
be
The "time rule" is appropriately
valued
present
is
subject to
valuation
unknown
impractical or
inequitable.
Curiously,
Donald argues that the pensions in this case are
subject to various contingencies, and therefore the District Court
must give the pensions a present value.
This directly contradicts
previous cases where we have held that the "time
rather than present valuation, is
contingencies
938.
exist.
,
Rolfe
appropriate
rule"
valuation,
if
substantial
766 P.2d at 226; Truax 894 P.2d at
Since Donald himself argues that the pensions are subject to
such contingencies, we
find no error in the District Court's
employment of the "time rule" formula in valuing the pension funds.
The District Court set out a rational formula by which the benefits
are to be divided.
Donald has failed to show that the employment
of this formula constitutes an abuse of the District Court's
discretion.
Did the District Court abuse its discretion by not granting
Donald a set-off equal to part of Barbara's Montana retirement
benefits?
In 1982, after numerous years working as a teacher in Montana,
Barbara retired.
She then withdrew all her retirement benefits and
The business subsequently failed
started a small ice cream store.
and Barbara lost her entire investment.
5
Section
40-4-202,
MCA,
lists the factors which a district
court must consider when dividing marital property.
factor is whether,
marital
asset.
One such
and to what extent, a party has dissipated a
Section 40-4-202, MCA.
District Court should have
Donald
argues
that
the
found that Barbara dissipated her
retirement and that, had she not done so, Donald would have been
entitled to part of it.
He contends that the District Court then
should have used the amount of the dissipated funds as a set-off
against whatever amount Donald may owe Barbara from his pension.
Although the District Court found that Barbara's Montana
pension had been
"dissipated
during
the
marriage,"
no
specific
finding or conclusion indicates that the District Court used the
word
"dissipated" to mean that Barbara had frittered the money
away.
Indeed,
from the testimony presented at the hearing, it is
uncontroverted that Barbara worked long hours to try to make the
business
a
going
concern,
albeit
without
success.
indicates that Barbara purposely wasted her retirement.
Nothing
There is
no reasonable basis for penalizing her now, more than ten years
later,
for a business venture embarked on during the marriage.
Under
similar
circumstances, this Court refused to allow a set-off
because of such business losses:
marital
status
[Flundamental
legal
principles of
possess
mutual
powers,
[indicate
that1
spouses
obligations and interests which endure until lawfully
modified or terminated. One of those powers is the power
with others
regarding
marital
to
freely contract
Section 40-Z-301, MCA.
Appellant may have
property.
used poor judgment in his business transactions . .
however, he lawfully possessed that power.
The record
does not indicate the respondent attempted to modify the
appellant's right to control and dispose of the property
6
as he did or that she claimed breach of fiduciary
obligation by the appellant.
In re Marriage of Lippert (1981), 192 Mont. 222, 227-28, 627 P.2d
1206,
1209.
at bar.
The Lippert rationale is directly on point to the case
It is also noteworthy that Donald and Barbara remained
married for six additional years following the business failure.
The task of the District Court is to divide the existing
marital estate at the time that the parties are separated or
divorced.
Section
40-4-202,
MCA.
It is not the task of the
District Court to reach back through the years of the marriage and
attempt to divide assets which, for whatever reason, no longer
exist.
It was not error for the District Court to refuse to do so.
The District Court has broad discretion to apportion the
marital estate in a manner which is equitable to each party under
the circumstances.
336,
343,
In re Marriage of Binsfield (1995), 269 Mont.
888 P.2d 889, 893 (citation omitted).
We find no abuse
of discretion in the District Court's apportionment of the marital
estate in this case.
We Cog
Accordingly,
the decree is affirmed.
