State Specific Cases of Interest

 

 

Alabama Case Law

WILKINSON v. WILKINSON, 2011255 (Ala.Civ.App. 4-16-2004) No. 2011255.

Decided April 16, 2004.

This is the second time these parties have been before this court. See Wilkinson v. Wilkinson, 828 So.2d 924 (Ala. Civ. App. 2001) (" Wilkinson I"). In Wilkinson I, this court reversed the trial court's divorce judgment insofar as it failed to order the wife to provide the husband continued health- insurance coverage, failed to award the husband any portion of the wife's retirement benefits, and failed to order the wife to pay sufficient alimony to the husband On remand, the trial court entered an order modifying its alimony award but failing again to require the wife to provide continued health insurance for the husband or to divide the wife's retirement benefits. The husband appeals, arguing that the trial court is in error for failing to comply with the mandate of this court in Wilkinson I.

Alaska Case Law

LAING v. LAING, 741 P.2d 649 (Alaska 1987) S-1357.

August 21, 1987.

This appeal challenges a marital property division. The husband challenges generally the trial court's finding that the wife was entitled to more than fifty percent of the marital assets. He also contests the court's allocation of certain assets and credits. We affirm the trial court's findings and conclusions except with regard to its disposition of the husband's nonvested pension, which we conclude cannot be presently divided. We remand the case with instructions that the trial court redetermine the property division in a manner consistent with this opinion.

 

Colorado Case Law

In re Marriage of Hunt, 909 P.2d 525 (Colo. 1995) No. 93SC565, No. 93SC631

Decided December 18, 1995 Rehearing Denied (93SC631) January 29, 1996.

[1] We granted certiorari in In re Marriage of Hunt, 868 P.2d 1140 (Colo. App. 1993), and in In re Marriage of Raimer, No. 92CA0759 (Colo. App. Aug. 5, 1993), to determine whether pension increments based on post-dissolution increases in rank are included in determining what portion of a military pension is subject to division as marital property. In both cases, the court of appeals affirmed the trial courts' deferred distribution of military pensions based on the "time rule" formula which includes distribution of benefits attributable to post-dissolution increases in rank. The petitioners, in both instances the husbands, petitioned the court to review the distributions. We issued a consolidated opinion on May 15, 1995, reversing judgment in both cases and remanding with directions. By order dated June 19, 1995, we granted the respondents' motions for rehearing and withdrew our previously issued opinion. After requesting and receiving additional briefs, we now affirm the court of appeals' decision in Hunt and approve the trial court's distribution in that case. We reverse the court of appeals' decision in Raimer. We find that the trial court in Raimer abused its discretion in altering the "time rule" formula.

In re Marriage of Beckman, 800 P.2d 1376 (Colo. App. 1990) No. 88CA0966

Decided October 25, 1990.

[1] In this dissolution of marriage action, the husband appeals from portions of the judgment relating to maintenance and property division and from a finding regarding the length of the marriage. We affirm in part, reverse in part, and remand for further proceedings.

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Case Law

In re the Marriage of Heupel, 936 P.2d 561 (Colo. 1997) No. 95SC754

April 21, 1997

[1] We granted certiorari in In re Marriage of Heupel, No. 94CA1291 (Colo. App. Oct. 19, 1995) (not selected for official publication), to determine the applicability of a property division clause in a marital separation agreement to a payment received by the former husband when he resigned from his position as a member of the armed services. Specifically, we consider whether DuWayne P. Heupel's lump sum payment, received from the United States Air Force under the Special Separation Benefit (SSB) program when he voluntarily elected to switch from active duty to reserve status, should be treated as retired pay for purposes of equitable distribution under the separation agreement of his dissolution decree.

 

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Case Law

In Re Mar. of Riley-Cunningham, 7 P.3d 992 (Colo. App. September 16, 1999) No. 98CA1487

September 16, 1999 Rehearing Denied November 4, 1999. Certiorari Denied August 21, 2000.

In this dissolution of marriage action, Barbara U. Riley-Cunningham (wife) appeals the portion of the permanent orders distributing 16.2% of the disposable military retirement pay of James A. Cunningham (husband) to her. We affirm.

Connecticut Case Law

Appellate Decision

KRAFICK v. KRAFICK, 234 Conn. 783 (1995) (15043)

Decision released August 8, 1995

The principal issues in this certified appeal are whether vested pension benefits constitute property for the purposes of equitable distribution pursuant to General Statutes § 46b-81;[fn1] and, if so, what methods are appropriate by which to value such benefits. The plaintiff, Patricia A. Krafick, appealed to the Appellate Court from the judgment of the trial court dissolving her thirty-three year marriage to the defendant, John H. Krafick, and distributing the parties' marital assets. The Appellate Court affirmed the judgment of the trial court without opinion. Krafick v. Krafick, 34 Conn. App. 930, 643 A.2d 314 (1994).[fn2] We granted certification[fn3] and now reverse the judgment of the Appellate Court.

 

Kansas Case Law

IN RE MARRIAGE OF CRAY, 254 Kan. 376 (1994) No. 67,312

Opinion filed January 21, 1994.

This is an appeal and cross-appeal from various orders and judgments of the trial court in a dissolution of marriage proceeding. The petitioner in the divorce action, Aileen M. Cray, appealed from the district court's orders (1) selecting the date of the parties' separation as the valuation date of marital assets; (2) failing to award profits and/or losses upon certain pension plan assets; and (3) awarding child support. The respondent, Thomas M. Cray, cross-appealed from the court's orders regarding (1) maintenance; (2) assessment of certain litigation expenses; and (3) modification of his settlement proposal. The Court of Appeals affirmed the district court's orders and judgments in part and reversed in part, remanding the case with directions to the trial court to reweigh the evidence as to property division and maintenance using a different valuation date. In re Marriage of Cray, 18 Kan. App. 2d 15, 846 P.2d 944 (1993). Both parties filed petitions for review. We granted Aileen's petition for review on the issues of the selection of a valuation date for marital assets and whether profits and/or losses should have been allowed on her share of the pension plan assets. We denied the petition for review of Thomas. For the sake of clarity, the petitioner will be referred to as Aileen and the respondent as Thomas.

 

Louisiana Case Law

HARE v. HODGINS, 586 So.2d 118 (La. 1991) Nos. 90-C-2405, 90-C-2445.

September 9, 1991.

[1] We granted certiorari to decide whether the court of appeal correctly partitioned a divorced couple's community property interest in the employee spouse's defined benefits pension after it matured in 1988. The trial court divided the community interest by awarding the non-employee spouse a fixed percentage of the pensioner's retirement payments. The court of appeal amended, restoring full pension payments to the retiree spouse, and relegating the non-employee spouse to a lump sum representing her share of the unmatured pension as of the date in 1975 when the community was terminated. Hare v. Hodgins, 567 So.2d 670 (La.App. 5th Cir. 1990). We vacate the partition decree and remand for further proceedings by the trial court consistent with this opinion.

 

Michigan Case Law

Court of Appeals Report

KILBRIDE v. KILBRIDE, 172 Mich. App. 421 (1988)

Docket No. 95295.

Decided October 18, 1988.

Defendant appeals as of right from the trial court's judgment of divorce awarding plaintiff partial attorney fees, alimony, and one-half of defendant's pension. We affirm in part and reverse in part.

 

Missouri Case Law

LYNCH v. LYNCH, 665 S.W.2d 20 (Mo.App. 1983) No. 46123.

December 20, 1983. Motion for Rehearing and/or Transfer to Supreme Court Denied January 24, 1984.

  1. This case is an action brought by the respondent-wife (petitioner below) to dissolve a marriage of nearly twenty-seven years. The trial court dissolved the marriage, divided and disposed of the parties' separate and marital property, awarded primary custody of the minor children to the wife, and awarded her child support, maintenance, and attorney's fees. Appellant-husband (respondent

below) seeks review of that portion of the decree which categorizes his vested but non-matured [fn1] pension plan as marital property and which divides it between the parties. We modify the decree and affirm it as modified.

 

New Jersey Case Law

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Superior Court Report

 

CLAFFEY v. CLAFFEY, 360 N.J. Super. 240 (2003) A-6632-00T2

Decided May 19, 2003

 

This matrimonial appeal illustrates the special problems posed by the equitable distribution of a defined benefit pension plan where there are no available survivor benefits, and the pensioner spouse has a significant alimony obligation to the non-pensioner spouse. Plaintiff Dale Eagan Claffey appeals from certain provisions of the final judgment of divorce, as later modified during a limited remand, that provide security for the potential termination of her deferred-distribution share of the defined benefit pension plan of defendant Daniel Claffey in the New Jersey Police and Firemen's Retirement System (PFRS). Plaintiff also appeals from the manner of distribution of her equitable share in defendant's deferred compensation fund. The following factual and procedural history is relevant to our resolution of the issues posed in this appeal.

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Superior Court Report

 

Eisenhardt v. Eisenhardt, 325 N.J. Super. 576 (App. Div. 1999).

 

Where husband retired prior to the divorce and received early retirement benefits, proper coverture fraction to be used in determining wife’s share of pension must be based on actual years worked and not additional years added for early retirement benefits, affirming the principle set forth in Reinbold.

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Superior Court Report

 

Hayden v.Hayden, 284 N.J. Super. 418 (App. Div. 1995).

 

Husband’s pre-retirement cost of living increases under the State Police Retirement System are not subject to equitable distribution. (Court distinguishes the post-retirement benefits in Moore v Moore). 2.) There should be no reduction in value of husband’s pension due to Social Security benefits he would have received in equivalent private employment.

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Superior Court Report

 

Kikkert v. Kikkert, 177 N.J. Super. 471 (App. Div. 1981), aff’d88 N.J. 4 (1981). Held– husband’s vested pension plan subject to equitable distribution.

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Superior Court Report

 

LaSala v. LaSala, 335 N.J. Super. 1 (App. Div. 2000)certif. denied,167 N.J. 630 (2001).

 

Trial court ordered immediate monthly benefits to be paid to wife from husband’s Police and Firemen’s Retirement System (PFRS) pension plan even though husband was not retired and not currently eligible to collect benefits. App Div reversed, finding that the trial court impermissibly required the PFRS to provide a benefit which was not authorized by the plan. Court says that the coverture formula (Marx) must be used to determine wife’s benefits. Good description of 3 methods of distributing pensions: deferred distribution, immediate offset, and partial deferred distribution.

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Superior Court Report

 

LINEK v. KORBEIL, 333 N.J. Super. 464 (2000) DOCKET NO. A-3719-98T1

Decided: August 3, 2000 Page 465

 

Defendant appeals from the trial courts order clarifying and modifying the provision in the parties' 1981 judgment of divorce which purported to distribute defendant's pension equitably. We affirm.

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Superior Court Report

 

L.M. v. State of New Jersey, Division of Medical Assistance and Health Services, 140 N.J. 480 (1995).

Good discussion of equitable distribution of pensions at 496-497.

 

#8

 

Superior Court Report

 

MARX v. MARX, 265 N.J. Super. 418 (1993)

 

Decided March 26, 1993. Page 419

 

This matter comes before the court on a post-judgment motion to settle the form of qualified domestic relations order (QDRO) to be entered pursuant to the parties' inter-spousal agreement. Specifically, plaintiff seeks to have the court determine her rightful interest in defendant's American Airlines Pilot Pension Plan. The facts are undisputed in this case. The sole issue to be determined by the court is the method of distributing defendant's fixed income plan.

 

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Superior Court Report

 

MENAKE v. MENAKE, 348 N.J. Super. 442 (2002) A-4784-99T3

Decided February 22, 2002

 

This is an appeal arising from a post-matrimonial dispute over defendant's entitlement to a portion of plaintiff's defined-benefit pension that he has with the New York State and Local Retirement System as a result of his employment with the Port Authority of New York and New Jersey. It is a dispute that has spanned eight years with four different judges and numerous court applications and orders, two different Qualified Domestic Relations Orders (QDRO) and several recalculations by the New York State and Local Retirement System. It is the formula for the calculation of defendant's share of plaintiff's pension in the second of the two QDROs that prompts this appeal. By order entered April 1, 1996, defendant's share was to be determined by a formula which consisted of the "[number of months of marriage of the parties while in the retirement systems divided by total number of months in retirement systems multiplied by 50%.......................... " In contrast, a

March 27, 2000, order directed that defendant's share be determined by a formula which consisted of "50% of the hypothetical retirement allowance computed using final average salary as of May 14, 1990, and the service credit accrued between July 9, 1973, and May 14, 1990." The latter dates reflect the duration of the parties' marriage to the date of the filing of the divorce complaint. The differences in these two formulas are significant. Indeed, because the Retirement System had made a number of payments to defendant under the first order, the effect of the March 27, 2000, order was a recalculation, which resulted in a $93,809.92 overpayment. In order to repay this amount, defendant will receive no pension benefits until July 30, 2012. We reverse and remand for further proceedings.

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Superior Court Report

 

Monteforte v. Monteforte, (unreported) 2002 WL 32862137 (App. Div. 2002).

 

Trial Court entered QDROs distributing Husband’s PERS pension and military pension using the coverture formula. Husband appealed claiming that using the coverture formula improperly gave wife share of post-divorce salary increases which were solely attributable to husband’s efforts. App Div affirmed the trial court’s use of the coverture formula. This case contains a very good discussion of why the Husband’s argument is incorrect and the coverture formula is the most appropriate method for distributing a deferred defined benefit pension.

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Superior Court Report

 

Moore v. Moore, 114 N.J. 147 (1989).

Husband’s post-retirement cost of living increases under NJ Police and Firemen’s Retirement System are subject to equitable distribution. The Supreme Court encourages use of “immediate payment” approach of distributing pensions. Cost of living increases are distributed by way of the coverture formula.

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Superior Court Report

 

PANETTA v. PANETTA, A-1424-02T5 (N.J. Super. 7-1-2004) No. A-1424-02T5

Decided July 1, 2004

 

In this post-judgment matrimonial matter, we focus on two issues: the appropriate formula for calculating the marital share of plaintiff's federal pension and whether plaintiff is entitled to an offset against defendant's share of his pension for defendant's social security benefits.[fn1]

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Superior Court Report

 

REINBOLD v. REINBOLD, 311 N.J. Super. 460 (1998)

 

Decided May 14, 1998.

 

Plaintiff Linda Reinbold and defendant Frank Reinbold were married on October 29, 1960. Two children were born to them, both of whom are emancipated. After thirty-four years of marriage, plaintiff filed a complaint for divorce on June 20, 1994. At the time the complaint was filed defendant was 55 years old and had 28 years of service at Sandoz Pharmaceuticals ("Sandoz").

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Superior Court Report

 

RISOLDI v. RISOLDI, 320 N.J. Super. 524 (1999)

 

Decided May 3, 1999.

 

In this post-judgment matrimonial pension evaluation and distribution dispute, we examine the appropriate method for evaluating the non-pensioner wife's equitable distribution, deferred- distribution, interest in her husband's Public Employees Retirement System (PERS) pension where the parties agreed to a partial distribution through the present-value offset of a portion of her interest in exchange for the husband's interest in the marital domicile, and a deferred distribution of the remainder of the wife's interest in his pension until the husband's retirement date, through entry of a qualified domestic relations order (QDRO).

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Superior Court Report

 

WHITE v. WHITE, 284 N.J. Super. 300 (1995)

 

Decided May 10, 1995. Page 301

 

The evidence in this case indicates that the parties were married on July 10, 1965. The jurisdiction and venue requirements for the divorce were met and the grounds for extreme cruelty were satisfactorily proven.

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Superior Court Report

 

WHITFIELD v. WHITFIELD, 222 N.J. Super. 36 (1987)

 

Decided December 18, 1987.

 

The issue before us is whether that portion of a pension which was earned during coverture but which is neither vested nor matured is subject to equitable distribution upon divorce. We hold that such a pension is "property" acquired during the course of the marriage within the meaning of

N.J.S.A. 2A:34-23 and that the practical difficulties inherent in its valuation in no way affect its includability in the marital estate. In so doing we part company from prior decisions of this court which have concluded otherwise. Barba v. Barba, 198 N.J. Super. 205 (App. Div. 1985); White v. White, 136 N.J. Super. 552 (App. Div. 1975).

#17

Re:End date of Marriage

 

Genovesev. Genovese, 392 N.J. Super. 215 (App. Div. 2007).

 

Husband filed for divorce in New York and a Judgment of Divorce was entered in 1994. Wife appealed and Judgment was vacated and complaint dismissed due to insufficient evidence to support the cause of action. Husband later filed complaints for divorce in New Jersey in 2001, 2002, and 2003, all of which were dismissed for lack of prosecution. Husband filed again in New Jersey in 2005 and case was tried and a Dual final Judgment of Divorce was entered. Trial Court found that for purposes of equitable distribution of husband’s pensions, the marriage ended in 1994 when husband filed his first complaint for divorce and that date was used for the coverture fraction for distributing the pensions. Wife appealed and App Div affirmed. [Note: the facts in this case are somewhat unusual and the date of the complaint which results in a final judgment is still the rule which is most often followed by the courts for determining the end of date of a marriage and determining which assets accrued “during the marriage” for purposes of equitable distribution. Portnor v Portnor, 93 N.J. 215 (1983), Brandenburg v. Brandenburg, 83 N.J. 198, (1980), Painter

v. Painter, 65 N.J. 196, (1974)]

 

#18

 

Re:Life insurance

 

Claffey v.Claffey, 360 N.J. Super. 240 (App. Div. 2003).

 

Trial court improperly tied Husband’s security requirement (life insurance) for wife’s share of deferred compensation pension (PFRS) to present day value of pension. App Div reversed and remanded for trial court to determine proper amount of life insurance to be secured by husband.

#19

 

Larrison v.Larrison, 392 N.J. Super. 1 (App. Div. 2007).

 

This case involved equitable distribution of Husband’s disability pension which the App Div remanded for the trial court to determine which portion of the pension represented a retirement component and which portion represented compensation for disability and economic loss. In addition, the App Div vacated the trial court’s order which required the Husband to maintain life insurance to protect the wife’s share of the pension benefits in the event of his death. The App Div stated that since the pension plan did not provide for survivor benefits, then “…there was no legal support for the trial court’s order directing otherwise.” (Contrary to Claffey).

#20

 

Re:Distribution of Disability Pension

 

Sternesky v.Salcie-Sternesky, 396 N.J. Super. 290 (App. Div. 2007)

 

Trial court determined that husband’s disability pension through PFRS was income and not distributable to the wife. In the alternative, the trial court found that even if husband’s disability pension was determined to be an asset, the wife was not entitled to share in that asset through equitable distribution. The App Div reversed and set out a formula for determining which part of the disability pension was for ordinary retirement benefits and therefore subject to equitable distribution.

#21

 

Re:Value of 401(k) at time of distribution

 

Settenbrino v.Schwartz, (unreported) 2007 WL 3085151 (App. Div. 2007)

 

certif. denied, 194 N.J. 270 (2008).

 

The Final Judgment of Divorce entered on August 22, 2000 awarded the wife $32,500 as her equitable share of husband’s 401(k) which was to be distributed by QDRO. The accompanying QDRO stated that “… the plaintiff is to receive a 50% distributive award of the marital portion of the defendant’s 401(k) to wit: the sum of $32,500 to be distributed by separate QDRO…” The plan administrator did not transfer the funds until April 1, 2001 at which time the value of wife’s share had diminished to $18,724.61. Wife filed motion to compel the pension plan to transfer the balance of the money owed to her. Pension plan wrote to the wife and stated that they had complied with the QDRO and transferred her 50% interest in the 401(k). The trial court relied upon the decision by the pension plan and denied the wife’s motion. Wife appealed and App Div affirmed finding that the intent of the QDRO was to award the wife half of the value of the 401(k) and if she were to receive the full $32,500, she would be receiving more than 50% of the marital asset contrary to the Final Judgment of Divorce

#22

Re:Consequences of not filing a QDRO

 

Ross v.Ross, 308 N.J. Super 132 (App. Div. 1998)

 

The parties were divorced and their attached PSA provided that wife would receive half of husband’s annuity and pension and also provided her with all of the survivor benefits under all of the plans in the event of his death. The PSA specifically referenced 2 of the 3 pension plans of the husband and required the wife to prepare QDROs to effectuate the division of the pensions. The husband remarried immediately after the divorce. One month later he died. Wife moved in the Family Court for the entry of QDROs or in the alternative to deem the PSA to be a QDRO and to declare her to be the surviving spouse. New wife (widow) opposed the motion claiming that she was the surviving spouse for purposes of entitlement to survivor’s benefits under the plans. Widow also filed an action in Federal Court seeking survivor’s benefits under ERISA. Family Court judge entered the QDROs and widow appealed. App Div held thata QDRO cannot be entered after the death of a participant, but found that the PSA met the requirements of a QDRO under ERISA and the REA for the specific plans mentioned but not for the plans that were not stated in the PSA.

#23

 

Samaroo v.Samaroo, 193 F.3d 185 (3rd Cir. 1999)

 

Cert. denied, 529 U.S. 1062 (2000)

 

Parties were divorced and the PSA stated that the wife was to receive one half of the husband’s pension benefits at the time of his retirement. Three years later, husband died while still employed and prior to reaching retirement age. The pension plan denied the wife’s claim to pre-retirement survivor’s benefits since the divorce decree did not mention such benefits and there was no QDRO which designated the wife as the surviving spouse. The wife filed a motion in state court to amend the divorce decree nunc pro tunc to provide her with pre-retirement survivor’s benefits and that motion was granted. The pension plan was joined as a defendant and the case was removed to federal court. The district court held that the amended divorce decree was not a QDRO since it would require the plan to provide increased benefits to the wife and this was prohibited by ERISA and the REA. The 3rd Circuit affirmed.

#24

 

Files v. ExxonMobil Pension Plan 428 F.3d 478 (3rd Cir. 2005)

 

Cert. denied, 547 U.S. 1160 (2006).

 

Parties were divorced and the PSA stated that the wife was entitled to one-half of husband’s Exxon Savings account and one-half of the pension. The transfer was to be by QDRO for the pension and by transfer to an account designated by the wife for the savings account. The pension plan was notified of the divorce and the provisions of the PSA relating to the pension and savings account. Husband died 2 ½ years after the divorce at age 54 and no QDRO had been submitted at that point. The pension plan refused to pay any survivor’s benefits to the wife since the PSA did not designate the wife as the surviving spouse. Wife filed a motion in Family Court for relief and the court entered an order nunc pro tunc as a QDRO to compel the pension plan to pay wife her share of the pension. The pension plan again denied benefits to the wife stating that since no QDRO was entered at the time of the husband’s death, no benefits were payable to any party. Wife filed suit in federal court against the pension plan and the attorneys for the parties in state court. The district court granted summary judgment to the pension plan finding that the PSA was not a QDRO and, relying on the decision in Samaroo, also found that the nunc pro tunc order was not a QDRO. Wife appealed. Circuit Court reversed distinguishing Samaroo and finding that the PSA had created a separate interest in husband’s pension plan for the wife prior to husband’s death and the nunc pro tunc order was a QDRO which was simply enforcing a right given to the wife in the PSA. The court went on to note that nothing in ERISA precluded the entry of a QDRO after the death of a plan participant.

New Mexico Case Law

 

MATTOX v. MATTOX, 105 N.M. 479 (App. 1987) No. 8319.

February 10, 1987.

 

Respondent-appellant (husband) and petitioner-appellee (wife) appeal the decision of the trial court in this divorce proceeding. Husband raises five issues: (1) whether the trial court properly valued his pension plan; (2) whether the trial court properly valued his employee stock option plan; (3) whether the trial court properly valued his employee savings plan; (4) whether the trial court erred in the award of a coin collection as husband's separate property when its value was already included in the award of household goods; and (5) whether the trial court abused its discretion in awarding lump sum alimony in addition to alimony of $500 a month for one year. We

 

affirm on issues 1 and 2 and remand as to issue 3 with instructions. As to issue 4, we grant the parties' request to correct the arithmetic error on the personal property list. We discuss issue 5 in conjunction with wife's cross-appeal since the parties appeal the common issue of alimony.

New York Case Law

Miscellaneous Report

McGOWAN v. McGOWAN, 136 Misc.2d 225 (1987) July 15, 1987

Defendant in this divorce action governed by the Equitable Distribution Law moves for an order determining that plaintiff's teaching license is marital property subject to equitable distribution, and that the pension of both parties should be valued as of the date of the earliest retirement as provided by their respective plans.

Appellate Division Report

 

CASELLA v. CASELLA, 306 A.D.2d 800 [3d Dept 2003] 93283

Decided and Entered: June 26, 2003.

 

The parties to this divorce action entered into a stipulation of settlement resolving the distribution of all of their marital assets. The stipulation was incorporated, but not merged, into their judgment of divorce. Under the terms of this stipulation, the parties agreed that plaintiff's state pension would be divided in value as of the commencement date of the action (May 20, 1998) and that defendant would be entitled to 50% of this value to be accomplished through a domestic relations order.[fn1] The stipulation further provides, without differentiation, that "counsel" shall prepare the domestic relations order to be "viewed by other counsel" and further permits, but by no means requires, that a certain pension evaluator, namely William Troyan, may prepare the order "subject to approval by both counsel."

Miscellaneous Report

HEBER v. HEBER, 112 Misc.2d 799 (1982)

January 22, 1982

This motion by defendant for an order pursuant to section 237 Dom. Rel. of the Domestic Relations Law directing plaintiff to pay defendant her costs in retaining an actuary and an appraiser is granted as set forth below.

North Carolina Case Law

Report

BISHOP v. BISHOP, 113 N.C. App. 725 (1994) No. 9329DC288

Filed 1 March 1994

 

Prior to the hearing on equitable distribution in this case, plaintiff and Harry H. Bishop, Sr. (defendant), resolved many of the equitable distribution issues by consent. At the hearing, the trial court was asked to classify, value, and distribute three assets: defendant's military retirement, defendant's DuPont retirement, and defendant's DuPont incentive plan. The trial court concluded that the DuPont retirement plan was a marital asset and that the military retirement was defendant's separate property. The trial court further concluded that an equal division of the marital property was equitable and entered the following order:

 

Pennsylvania Case Law

Supreme Court Report

 

BERRINGTON v. BERRINGTON, 534 Pa. 393 (1993)

 

Decided November 12, 1993.

 

This is a divorce case involving equitable distribution of a defined benefit pension fund. The issue presented is whether the non-employee spouse's share in a deferred distribution of a pension should be based upon the salary which the employee-spouse earned at the date of separation or upon the amount earned at some post-separation retirement date. The trial court determined that the marital share should be based on the employee's pension to be received at the time the pension plan enters pay status. Superior Court reversed, holding that the amount to be awarded

 

the non-employee spouse should be based on the employee's salary at the date of separation, but augmented by growth in the pension fund based on factors other than the employer's or employee's contributions to the fund after the date of separation. 409 Pa. Super. 355, 372, 598 A.2d 31, 40 (1991). We affirm.

#2

Superior Court Report

 

KING v. KING, 332 Pa. Super. 526 (1984)

 

Filed August 24, 1984.

 

Appellant is the former husband of appellee. He contests the distribution of property ordered by the trial court in conjunction with the parties' divorce. Specifically he challenges the valuation of his pension plan, which was subject to equitable distribution, and what he claims was the failure of the trial court to take into consideration in making its distribution of marital property the fact that appellee had resided since the date of separation in the marital residence rent free.

#3

 

Superior Court Report

 

KRIZOVENSKY v. KRIZOVENSKY, 425 Pa. Super. 204 (1993)

 

Filed May 4, 1993.

 

Linda Krizovensky ["wife"] appeals the order entered July 23, 1992, in the Court of Common Pleas of Bucks County. The court's order apportioned the post-retirement distribution of John Krizovensky's ["husband"] Civil Service Retirement System pension. On this appeal, wife argues that the court misinterpreted the parties' property settlement agreement and disputes the amount awarded to her pursuant to the court's order. We agree and reverse the trial court's order.

#4

 

Superior Court Report

 

BRADERMAN v. BRADERMAN, 339 Pa. Super. 185 (1985)

 

Filed February 8, 1985.

 

These cross-appeals arise from an order of the Dauphin County Court of Common Pleas in a divorce proceeding concerning the equitable distribution of marital property, alimony, and counsel fees. Roslyn S. Braderman, is the appellant in appeal No. 272 and Jay R. Braderman is the appellant in appeal No. 273. In order to avoid the confusion which the terms "appellant" and "appellee" would cause in dealing with these cross-appeals, the term "plaintiff-wife" will be used throughout this opinion to describe Roslyn S. Braderman and Jay R. Braderman will be designed as "defendant-husband".

#5

 

Supreme Court Report

 

HOVIS v. HOVIS, 518 Pa. 137 (1988)

 

Decided May 20, 1988.

 

The issue before this Court is under what circumstances potential tax liability should be considered in the valuation of marital property for purposes of equitable distribution under the Pennsylvania Divorce Code, 23 Pa.S.A. § 401(d).

#6

 

Superior Court Report

 

FLYNN v. FLYNN, 341 Pa. Super. 76 (1985)

 

Filed March 29, 1985.

 

This is an appeal from an order of the Court of Common Pleas of Lackawanna County entered November 23, 1982, granting a decree in divorce and an award of temporary alimony. The appellant, Mary Flynn, requests that the divorce decree be reversed and that her award of alimony be vacated and remanded for additional consideration.

#7

 

Superior Court Report

 

MANTELL v. MANTELL, 384 Pa. Super. 475 (1989)

 

Filed May 11, 1989.

 

I agree with President Judge Cirillo that, except for the trial court's award of counsel fees in the Texas action, the decree of divorce and order of distribution must be affirmed. The award of counsel fees in the Texas action, however, was improper and must be vacated.

#8

 

Superior Court Report

 

DeMASI v. DeMASI, 366 Pa. Super. 19 (1987)

 

Filed August 10, 1987. Petition for Allowance of Appeal Denied March 2, 1988.

 

These are four consolidated appeals: three filed by Rocco J. DeMasi, and one filed by Tanya J. DeMasi. As both parties are appellant and appellee, we shall refer to Rocco J. DeMasi as "husband" and to Tanya J. DeMasi as "wife." The orders under review concern child support, spousal support, alimony pendente lite, equitable distribution of marital property, counsel fees and litigation expenses.[fn1]

#9

 

Superior Court Report

 

ZOLLARS v. ZOLLARS, 397 Pa. Super. 204 (1990)

 

Filed August 28, 1990.

 

Robert D. Zollars appeals from an order distributing marital property. He specifically takes issue with the valuation of his pension and with the trial court's decision to award Dolores 60 percent of the marital property. We affirm the portion of the order granting Dolores 60 percent of the marital property and the valuation of his pension, but reverse as to the manner of distribution.

#10

 

Superior Court Report

 

LYONS v. LYONS, 401 Pa. Super. 271 (1991)

 

Filed January 17, 1991.

 

Appellant-wife (hereinafter "Wife") appeals from a December 15, 1989 equitable distribution and child support order. The order in question denied Wife's motion for post-trial relief and modified a September 15, 1989 order to require appellee-husband (hereinafter "Husband") to provide medical insurance coverage for two of the parties' minor children and to pay for half of their unreimbursed medical expenses.[fn1] Wife contends that the trial court erred in: (1) failing to distribute Husband's pension on a 50/50 basis; (2) underestimating the present value of the marital portion of Husband's pension; and (3) failing to order Husband to pay all of the children's medical and dental expenses that are not covered or reimbursed by insurance.[fn2] For the reasons that follow, we affirm the trial court's order regarding Husband's payment of uncovered or unreimbursed medical expenses, and we vacate the portion of the court's order disposing of Husband's pension and remand for proceedings consistent with this Opinion.

#11

 

Superior Court Report

 

HOLLAND v. HOLLAND, 403 Pa. Super. 116 (1991)

 

Filed February 12, 1991. Petition for Allowance of Appeal Denied August 6, 1991.

 

In this appeal of an equitable distribution order, Appellant raises four questions. Chief among them is the method used by the trial court in distributing the marital share of Appellant's pension. The trial judge, after entering a decree of divorce, ordered Mr. Holland's government retirement plan be equitably distributed using the deferred distribution method. The court ruled that the basic benefit of this asset should be determined at the time that husband retires based upon an application of the coverture fraction.

#12

 

Superior Court Report

 

GORDON v. GORDON, 436 Pa. Super. 126 (1994)

 

Filed July 11, 1994.

 

Reargument Denied September 14, 1994.

 

This is an appeal from an order of the Court of Common Pleas of Delaware County dividing the parties' marital estate.

 

Rhode Island Case Law

Supreme Court Case

 

STEVENSON v. STEVENSON, 511 A.2d 961 (R.I. 1986)

 

No. 83-550-Appeal.

 

June 26, 1986.

 

  1. This is an appeal from a divorce decree entered in the Family Court in which the trial justice granted the husband's petition and the wife's cross-petition for absolute divorce based upon irreconcilable differences that had caused the irremediable breakdown of the marriage.[fn1] The husband appeals from the court's assignment of property and from the award of alimony and counsel fees to the wife. We affirm in part and reverse in part.

#2

 

Supreme Court Case

 

RETIREMENT BOARD OF THE EMPLOYEES' v. DiPRETE, 845 A.2d 270 (R.I. 2004) No. 2000-0429-Appeal (PC 99-206)

March 26, 2004

 

Abraham Lincoln once explained that "[t]he legitimate object of government is to do for * * * people whatever they need to have done, but cannot do at all, or cannot so well do, for themselves

* * *."[fn1] Implicit in this is an indispensable ingredient of a well-functioning democracy - the element of trust. Public officials are honored with the opportunity to serve the public to benefit the people. It is expected that those officials will fulfill their commitments with loyalty, honor and integrity. This opinion comes in the wake of an elected official's decision to breach that commitment.

Tennessee Case Law

KENDRICK v. KENDRICK, 902 S.W.2d 918 (Tenn.App. 1994)

 

November 16, 1994.

 

Published Pursuant to Tenn. Ct. App.R. 11.

 

This appeal involves the right of a divorcee to receive a portion of her former spouse's nonvested military pension. After over ten years of marriage, the wife sued the husband for divorce in the Chancery Court for Franklin County. The trial court granted the wife a divorce and awarded her a portion of the husband's nonvested military pension as part of the division of the marital property. The husband asserts on this appeal that his nonvested military pension should not have been considered marital property. We have determined that the wife is entitled to a portion of the husband's military pension when and if he begins to receive it and that her share should be based on the husband's salary at the time of the divorce.

Virginia Case Law

Court of Appeals Report

ZIPF v. ZIPF, 8 Va. App. 387 (1989) 46009 No. 1114-87-4

Decided July 11, 1989

 

On this appeal from a decree entered in a divorce proceeding, Marion K. Zipf contends that the trial judge erred in: (1) selecting as the valuation date of marital property the date of filing of the bill of complaint instead of a date as near as practical to the evidentiary hearing; (2) awarding her twenty-five percent of the value of the husband's military pension and twenty-five percent of the value of stock titled in the husband's name; (3) fixing as a sum certain the value of her share of the husband's pension without adjustment to compensate for delayed receipt of that sum in the form of periodic payments; and (4) requiring her to exhaust her share of the marital property before awarding more than nominal spousal support. For the reasons which follow, we affirm in

part the trial judge's decision, reverse in part, and remand for further proceedings consistent with this opinion.

#2

 

Court of Appeals Report

 

GAMBLE v. GAMBLE, 14 Va. App. 558 (1992) 47876 No. 1726-90-2

Decided June 2, 1992

 

By final decree entered on September 21, 1990, the Circuit Court for the City of Charlottesville granted Constance P. Gamble a final divorce on the grounds of desertion and adultery from Harry Yandle Gamble, Jr. The decree further granted Mrs. Gamble a monetary award and spousal support, and ordered Mr. Gamble to convey his interest in the jointly owned marital home to Mrs. Gamble in partial satisfaction of the monetary award. On appeal, Mr. Gamble challenges the monetary and spousal support awards. He does not challenge the grounds for the divorce.

West Virginia Case Law

 

Supreme Court Report

 

BUTCHER v. BUTCHER, 178 W. Va. 33 (1987) No. 16705.

April 2, 1987. Petition for Rehearing April 17, 1987. Rehearing Denied June 3, 1987.

 

The primary issue presented in this appeal is whether military nondisability retirement benefits can be considered for alimony and child support purposes and as marital property subject to equitable distribution in a divorce proceeding. A secondary issue involves whether the circuit court abused its discretion in awarding only temporary rehabilitative alimony. The circuit court concluded that military retirement benefits were exempt, and we find this to be error. The circuit court also erred in awarding only temporary rehabilitative alimony.

Wisconsin Case Law

IN RE: MARRIAGE OF WASHINGTON v. WASHINGTON, 2000 WI 47 234 Wis.2d 689 Case No.: 98-1234.

Opinion Filed: June 7, 2000.

 

This is a review of an unpublished decision of the court of appeals, Washington v. Washington, No. 98-1234, unpublished slip op. (Wis. Ct. App., June 9, 1999), affirming an order of the circuit court for Ozaukee County, Joseph D. McCormack, Circuit Judge. The circuit court denied Gail M. Washington's post-divorce motion to grant her appreciation and interest, from the date of divorce until pension payments begin, on her award of a lump-sum share of her ex-husband Melvin K. Washington's federal employee pension. The circuit court held that Wis. Stat. § 767.32(1)(a) (1997-98) prohibited the circuit court from modifying or revising the provisions of the judgment and order with respect to the final division of property.

 
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