Gibbons v. Gibbons, Docket No. 49851
| Decision Date | 10 April 1981 |
| Docket Number | Docket No. 49851 |
| Parties | Joan D. GIBBONS, Plaintiff-Appellee, v. Thomas R. GIBBONS, Sr., Defendant-Appellant. 105 Mich.App. 400, 306 N.W.2d 528 |
| Court | Court of Appeal of Michigan — District of US |
[105 MICHAPP 401] Larry K. Bowerman, Detroit, for defendant-appellant.
Paul C. Perovich, Woodhaven, for plaintiff-appellee.
Before V. J. BRENNAN, P. J., and BRONSON and BASHARA, JJ.
Plaintiff sued for divorce on November 14, 1978. Defendant answered and filed a cross-complaint for divorce. Following a trial in the Wayne County Circuit Court, a judgment of divorce was granted on plaintiff's complaint. Defendant appeals as of right from that portion of the trial court's order including his noncontributory retirement benefits as a marital asset and awarding plaintiff $31,641.44 as the present value of her share in these benefits.
The parties were married on July 22, 1950. Defendant was employed throughout the marriage by the Detroit Edison Company. He began his job on August 25, 1947.
B. John Fuller, Secretary of the Retirement Board of the Detroit Edison Company, testified that defendant had a vested right to a noncontributory retirement pension. He stated that how benefits would be paid out depended on defendant's election. If defendant retired as of January 7, 1980, the date of trial, he would receive monthly benefits of $439.66 until his death.
Mr. Fuller was asked on cross-examination if he could reasonably assess the present value of defendant's retirement benefits. He answered that he [105 MICHAPP 402] could not because he had no idea how long defendant would live.
During his closing argument, plaintiff's counsel proposed that the present value of the pension could be determined by presuming defendant's retirement as of January 7, 1980, at his present age of 53 years, based upon a life expectancy of 21.25 years. Under this calculation, the value of the pension was claimed to be $112,000. Further, plaintiff's attorney argued that his client's share of the benefits should be $56,000. This sum would be reduced to a present value of $31,641.44, which sum would purchase an annuity resulting in payments to plaintiff of $219.83 per month over a period of 21.25 years. The $219.83 figure represented one-half of the monthly payment defendant would be entitled to if he retired on the date of trial. The trial court accepted plaintiff's argument and calculations and awarded plaintiff $31,641.44 as her share of defendant's retirement benefits. This amount was deducted from defendant's share of the equity in the marital home. Plaintiff was awarded the marital home, and defendant was left with an $8,820.06 lien on that home.
Defendant first claims on appeal that the trial court erred in including defendant's pension in the distribution of the marital assets because it was not subject to a reasonably certain present value. This Court has held that non-contributory pension plans are distributable as marital property, but only if they have a reasonably-ascertainable present value. Miller v. Miller, 83 Mich.App. 672, 675, 269 N.W.2d 264 (1978); Tigner v. Tigner, 90 Mich.App. 787, 790-791, 282 N.W.2d 481 (1979). 1
[105 MICHAPP 403] Defendant, relying on Fuller's testimony that he could not state what the present value of the retirement benefits would be, argues that this is proof that the value was not readily ascertainable. We do not regard this as dispositive since Fuller's response to the question was based solely on his lack of knowledge concerning how long defendant would live. If ignorance of an individual's actual lifespan was considered a contingency which rendered it impossible to readily ascertain the present value of pension benefits, such benefits could never be a distributable asset to the extent that they turned on the uncertainty of a person's continuing existence. The possibility that one might die prior to completing his expected lifespan is not the type of contingency we envisioned in Miller, supra, 677, 269 N.W.2d 264 which would defeat the inclusion of pension benefits as a marital asset.
Defendant points out that no evidence of his life expectancy was produced during the...
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