SALLI JO RICHMOND V DONALD D RICHMOND
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STATE OF MICHIGAN
COURT OF APPEALS
SALLI JO RICHMOND,
UNPUBLISHED
December 28, 1999
Plaintiff-Appellee,
v
No. 207909
Calhoun Circuit Court
LC No. 96-002715 DO
DONALD D. RICHMOND,
Defendant-Appellant.
Before: Griffin, P.J., and Wilder and R.J. Danhof,* JJ.
PER CURIAM.
In this divorce action, defendant appeals as of right from the trial court’s dispositional ruling
awarding a portion of his pension benefits to plaintiff. We reverse and remand.
Defendant and plaintiff were married in August 1991. No children were born of the marriage,
but plaintiff had an eighteen-year-old son from her previous marriage. Plaintiff, 41 years old at the time
of the divorce, had been employed by Kellogg Company for twenty-two years and remained employed
there at the time the judgment of divorce was entered. Defendant, 53 years old at the time of the
divorce, had been employed by Kellogg Company for thirty-three years at the time he retired in 1996.
In late 1995, Kellogg offered defendant an early retirement opportunity under which he would receive a
pension benefit of $1,921 per month, an enhancement of more than $1,200 over the retirement benefit
he would have received at normal retirement eligibility. Defendant accepted the early retirement option
in November 1995. Shortly before defendant’s retirement in 1996, plaintiff filed for divorce.
After a bench trial, the trial court rendered its factual findings. In pertinent part, the trial court
found there was no basis to award plaintiff any part of defendant’s pension plan which accrued before
the marriage, and that equity did not support a 50% division of defendant’s pension accrual during the
marriage. The trial court then made a dispositional ruling which, in part, awarded plaintiff a $475 per
month distribution of defendant’s pension benefits. Defendant filed a motion for reconsideration asking
the trial court to reconsider its ruling distributing a portion of defendant’s pension benefits to plaintiff.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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The trial court denied the motion finding that the award of $475 per month of defendant’s pension to
plaintiff represented an insignificant reduction in his pension.
On appeal, defendant does not challenge the original factual findings made by the trial court.
Instead, defendant challenges the trial court’s dispositional ruling, arguing that the trial court’s award of
$475 per month of defendant’s pension to plaintiff is inconsistent with the trial court’s factual findings
and an inequitable division of the marital estate. We agree.
When reviewing a trial court’s dispositional ruling in a divorce proceeding, this Court first
reviews the trial court’s factual findings pursuant to the clearly erroneous standard. McDougal v
McDougal, 451 Mich 80, 87; 545 NW2d 357 (1996). A finding is clearly erroneous when, based on
all the evidence, the appellate court is left with a definite and firm conviction that a mistake has been
made. If the factual findings are upheld, this Court must then determine whether the dispositional ruling
was fair and equitable in light of those facts. Sparks v Sparks, 440 Mich 141, 151; 485 NW2d 893
(1992). A dispositional ruling is discretionary and should be affirmed unless the reviewing court is left
with the firm conviction that the division was inequitable. Id. at 151-152.
In support of his position that the trial court’s dispositional ruling was erroneous, defendant
relies on a line of cases which hold that, pursuant to MCL 552.18(1); MSA 25.98(1),1 the portion of a
pension that accrued before the marriage cannot be considered part of the marital estate subject to
division. See Lesko v Lesko, 184 Mich App 395; 457 NW2d 695 (1990); Kurz v Kurz, 178 Mich
App 284; 443 NW2d 782 (1989); Kilbride v Kilbride, 172 Mich App 421; 432 NW2d 324 (1988).
However, we note that a more recent line of cases have held that the trial court has discretion to divide
retirement benefits that have accrued before or after the marital period. See Vander Veen v Vander
Veen, 229 Mich App 108; 580 NW2d 924 (1998); McMichael v McMichael, 217 Mich App 723;
552 NW2d 688 (1996); Boonstra v Boonstra, 209 Mich App 558; 531 NW2d 777 (1995); Booth v
Booth, 194 Mich App 284; 486 NW2d 116 (1992), Rogner v Rogner, 179 Mich App 326; 445
NW2d 232 (1989). The apparent conflict between these two lines of cases has been expressly
resolved in favor of the second approach, that is, the trial court has discretion to divide retirement
benefits that accrued before or after the marital period. Vander Veen, supra at 111 n 2. Thus, we
must first determine whether the trial court’s factual findings that the premarital accrual of defendant’s
pension benefits should not be divided in any respect, and that the accrual during the marriage should
not be evenly distributed, were clearly erroneous. Next, we must determine whether the trial court’s
division of defendant’s pension benefits under the facts of this case was fair and equitable.
A judgment of divorce must include a determination of property rights of the parties. MCR
3.211(B)(3). When determining property rights in a divorce, the trial court may apportion all property
that has come to either party by reason of the marriage. Byington v Byington, 224 Mich App 103,
110; 568 NW2d 141 (1997). In distributing the marital assets, the trial court’s goal is to reach an
equitable distribution in light of all the circumstances, taking into account the following factors: (1) the
duration of the marriage; (2) the contribution of each party to the marital estate; (3) each party’s station
in life; (4) each party’s earning abilities; (5) the age, health and needs of the parties; (6) the fault or past
misconduct of the parties; and (7) any other equitable circumstance. McDougal supra at 89; Sparks,
supra at 158-160; Hanaway v Hanaway, 208 Mich App 278, 292; 527 NW2d 792 (1995).
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In this case, the trial court properly considered the foregoing factors and placed its relevant
findings on the record. With respect to the last factor, the trial court found that there were “certain
equitable considerations in favor of defendant which must be recognized”:
The Plaintiff’s present income from employment exceeds the Defendant’s and,
given the Defendant’s age and lack of higher education or specialized training, it is a safe
assumption that, not only the amount of income she receives, but her earning capacity as
well, will substantially exceed his for the remainder of her working years.
Therefore, though this Court recognizes it may have the power to do so, there is
no basis to consider awarding Plaintiff any part of the Defendant’s pension or savings
and investment plans which he accrued before the marriage, as suggested in Plaintiff’s
Trial Brief. Given the assets which exist in the marital estate, together with her earning
capacity, there is no need to invade pre-marital assets to protect the Plaintiff.
The disparity in income and earning power, and the fact that this Court is
satisfied that Defendant would not have chosen to retire at age 53 if he had known that
the Plaintiff was going to divorce him, provide clear equitable grounds upon which to
decline to evenly divid [sic] the marital estate, including the increases of these parties’
pension benefits and savings and investment plans which accrued during the marriage.
On our review of the record, we conclude that these findings by the trial court were not clearly
erroneous. Despite those findings, however, the trial court nonetheless awarded plaintiff $475 per
month of defendant’s pension benefits. We find that this distribution was not fair and equitable in light of
the findings of fact made by the trial court.
This Court has previously articulated a method for calculating the portion of a pension plan that
is attributable to a marriage “when the period in which the pension was earned includes time in which
the employee spouse was not married to the other party.” Vander Veen, supra at 111. When pension
benefits accrue before, during, or after the marriage, they should, absent particularized reasons not to,
be allocated based on the ratio of years the parties were married while the employed spouse earned his
or her pension to the total years in which the employed spouse worked to accrue the pension benefits.
Id. at 112, 115.
In this case, the trial court awarded plaintiff $475 per month, or approximately 25%, of
defendant’s total pension benefits available at the time of his retirement. However, under the Vander
Veen calculation, only fifteen percent of defendant’s pension was subject to distribution as a marital
asset [five years of marriage divided by thirty-three years of employment]. Further, because the trial
court did not articulate what percentage of the marital estate was being awarded to the respective
parties, we are unable to determine from the record what portion of the 15% of the pension, if any,
should have been awarded to plaintiff. We are also unable to determine from the record whether the
$1200 pension enhancement was construed by the trial court as having accrued before or during the
marriage, or both. The trial court simply found that the facts of this case did not warrant an even
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division of the marital estate, particularly defendant’s pension benefits, without specifying a percentage
as to how the assets should be distributed.
Thus, although we find the trial court’s factual findings adequately supported by the record, in
light of the trial court’s explicit statement that “there was no basis to consider awarding Plaintiff any part
of Defendant’s pension or savings and investment plans which he accrued before marriage,” and that it
would only consider the portion of the pension benefits that accrued during the parties’ marriage as part
of the marital estate, we find that the trial court’s award to plaintiff of 25% of defendant’s total pension
benefits is inequitable. Indeed, on the facts found by the trial court plaintiff was awarded substantially
more of the pension than could be justified under Vander Veen, even if the pension enhancement in total
is considered to have accrued during the marriage.
Accordingly, we reverse the trial court’s dispositional ruling as it relates to the distribution of
defendant’s pension benefits. On remand, we direct that if the trial court is to make any distribution of
defendant’s pension benefits to plaintiff, the trial court must do so consistent with its factual findings and
in accordance with the formula set forth in Vander Veen.
Reversed and remanded for action consistent with this opinion. We do not retain jurisdiction.
/s/ Richard A. Griffin
/s/ Kurtis T. Wilder
/s/ Robert J. Danhof
1
MCL 552.18(1); MSA 25.98(1) provides:
Any rights in and to bested pension, annuity, or retirement benefits, or accumulated
contributions in any pension, annuity, or retirement system, payable to or on behalf of a
party on account of service credit accrued by the party during marriage shall be
considered part of the marital estate subject to award by the court under this chapter.
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