248 N.W.2d 272 (Mich.App. 1976), 25674, Hutchins v. Hutchins

Docket Nº:Docket No. 25674.
Citation:248 N.W.2d 272, 71 Mich.App. 361
Opinion Judge:Before ALLENand D E HOLBROOK, Jr, and PAPP, JJ
Party Name:Robert Lloyd HUTCHINS, Plaintiff-Appellee, v. Iva Lea HUTCHINS, Defendant-Appellant.
Judge Panel:Before ALLEN, P.J., and D. E. HOLBROOK, Jr., and PAPP, [*] JJ.
Case Date:September 27, 1976
Court:Court of Appeals of Michigan
 
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Page 272

248 N.W.2d 272 (Mich.App. 1976)

71 Mich.App. 361

Robert Lloyd HUTCHINS, Plaintiff-Appellee,

v.

Iva Lea HUTCHINS, Defendant-Appellant.

Docket No. 25674.

Court of Appeals of Michigan.

September 27, 1976

Released for Publication Jan. 6, 1977.

Page 273

[71 Mich.App. 362] Hubbard, Fox, Thomas & Born, by Jack D. Born, Lansing, for defendant-appellant.

J. Richard Robinson, Lansing, for plaintiff-appellee.

Before ALLEN, P.J., and D. E. HOLBROOK, Jr., and PAPP, [*] JJ.

PAPP, Judge.

A judgment of divorce was granted to the plaintiff, Robert Lloyd Hutchins, against his wife. Iva Lea Hutchins appeals from that portion of the judgment having to do with the property division, alimony and attorney fees. Custody of the minor son, born July 14, 1958, was awarded to the defendant, and support of said minor son is not at issue in this appeal nor need it be considered since he has now reached the age of 18 years.

Defendant-wife claims the trial court erred and thus abused its discretion when it failed to take into account the plaintiff-husband's retirement pension in calculating the total assets of the parties subject to distribution, in awarding her alimony and limiting it to a five-year period after 29 years of marriage, and in awarding attorney fees to her in the 'statutory amount' of $180.00.

Briefly, the testimony of the defendant-wife [71 Mich.App. 363] showed that the parties were married for 29 years, that six children were born to the parties, and that she was 53 years of age. In the year 1964, after the children were more mature, she worked on a part-time basis and in 1973 started working full time. She received absolutely nothing in the way of fringe benefits and her average weekly net take-home pay was between $93.00 and $103.00. Plaintiff-husband's testimony indicates that he was 51 years of age, a licensed mortician, had been a Michigan State Trooper for 23 years before retiring in July of 1974 at an earlier age than was required, that he received $3,500.00 in severance pay and thereafter commenced to receive monthly pensions of $545.00. In March of 1975, he started to work as a court officer in the Lansing District Court at a yearly salary of $10,200.00, or $614.00 net per month.

The trial judge in rendering his decision stated:

'* * * part of the current difficulty in Michigan law is what is the status of retirement benefits and programs for either spouse in a divorce situation * * *. Until the law becomes more established in Michigan, that is, an adequate guideline for the trial court, it must be kept in line, this is not an appellate or policy-making court, this is a trial court.

'It has been my position that, per se, participation pro-rata in retirement benefits is not approved or disapproved under Michigan law. And I have not, to this juncture, allowed pro rata participation in retirements of either spouse. The only manner in which I have attempted to adjust it has been in relation to either giving an award in all money or an award in division of property to try to compensate for what the inequity might be.'

The first question we are faced with is whether or not the trial judge should have considered as an award in the division of property the retirement [71 Mich.App. 364] pension of the defendant-husband. We are of the belief that it is time to resolve this question which has been plaguing the trial courts, and for our answer we look to the public safety department pension, accident and disability fund

Page 274

act. 1935 P.A. 251; being M.C.L.A. § 28.101 Et seq.; M.S.A. § 3.331 Et seq. Section 1 of the Act reads as follows:

'There is hereby created and established a continuing fund to be known as the Michigan department of public safety pension, accident and disability fund. Such fund shall be made up from contributions from members of the Michigan department of public safety who have subscribed to the constitutional oath of office, from the rewards offered and accepted for such fund and from a yearly sum to be paid into such fund from the appropriation of the Michigan department of public safety in such an amount as shall be deemed sufficient by the commissioner of the Michigan department of public safety approved by the state administrative board to carry out the provisions of this act.'

It is apparent that an individual account is maintained for each member, who shall contribute every month, 5% Of his monthly salary. Any member who resigns or is dismissed for reasons other than breach of the public trust from the Michigan Department of Public Safety shall receive in a lump sum, payable to him or his legal representative, 100% Of the contributions made by him into the fund. In the event of death or legal disability the member or his legal representative may apply. M.C.L.A. § 28.103; M.S.A. § 3.333, as amended by 1965 P.A. 165. 1

A further reading of the Act indicates that a member who has retired shall receive an annual pension, payable monthly, and in the event of [71 Mich.App. 365] death of...

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