BARBARA SUE SMITH V PAUL DEAN SMITH
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STATE OF MICHIGAN
COURT OF APPEALS
BARBARA SUE SMITH,
UNPUBLISHED
January 29, 2002
Plaintiff-Appellant,
v
Nos. 222536; 225248
Genesee Circuit Court
LC No. 95-179086-DM
PAUL DEAN SMITH,
Defendant-Appellee.
Before: Jansen, P.J., and Doctoroff and Owens, JJ.
JANSEN, P.J. (concurring in part and dissenting in part).
Except with regard to the pension issue, I agree with the majority’s opinion. Regarding
the distribution of the pension, I would affirm the trial court’s award to each party of fifty
percent of the pension valued at the time the complaint for divorce was filed.
The parties were married in 1965, the complaint for divorce was filed in 1995, and the
judgment of divorce was entered in 1999. It is clear from the record that the trial court sought to
divide the assets as evenly as possible, but acknowledged that the parties’ health and earning
capacities were different when it made its dispositional rulings. In this regard, the trial court’s
dispositional ruling in dividing the pension should be affirmed unless we are left with the firm
conviction that it was inequitable. Sparks v Sparks, 440 Mich 141, 152; 485 NW2d 893 (1992).
I cannot conclude that the trial court’s fifty percent award of the pension to each party, valued at
the time the complaint was filed, was inequitable.
The trial court’s distribution of pension benefits is within its discretion. Boonstra v
Boonstra, 209 Mich App 558, 563; 531 NW2d 777 (1995). In this regard, the trial court’s
discretion should not be restricted unduly, including premarriage and postdivorce pension
contributions, to ensure that equity can be done. Id. The delay in the proceedings does not
appear to be attributable to defendant. Moreover, the trial court awarded alimony to plaintiff and
I cannot agree with plaintiff’s assertion that the distribution of the pension was “grossly
inequitable” given plaintiff’s poor physical and mental health, the duration of the marriage, and
defendant’s “fault” (a factor specifically rejected by the trial court). The trial court
acknowledged plaintiff’s health and the duration of the marriage. Plaintiff has set forth no
reason showing that the trial court actually abused its discretion in valuing the pension at the
time the complaint was filed. See, e.g., Thompson v Thompson, 189 Mich App 197, 199; 472
NW2d 51 (1991) (the valuation date of a profit sharing and retirement plan is committed to the
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trial court’s discretion and the trial court had a plausible reason for choosing the date on which
the divorce complaint was filed rather than the date of the divorce judgment).
I cannot conclude, based on the record before us, that the trial court abused its discretion
in valuing the pension at the time the complaint was filed and awarding fifty percent to each
party. I would affirm the trial court’s distribution of the pension. In all other respects, I agree
with the majority’s opinion.
/s/ Kathleen Jansen
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