Lesko v. Lesko, Docket No. 109807
| Decision Date | 16 July 1990 |
| Docket Number | Docket No. 109807 |
| Citation | 457 N.W.2d 695,184 Mich.App. 395 |
| Parties | Ralph E. LESKO, Plaintiff-Appellant, v. JoEllen LESKO, Defendant-Appellee. 184 Mich.App. 395, 457 N.W.2d 695 |
| Court | Court of Appeal of Michigan — District of US |
[184 MICHAPP 397] Law Office of Robert K. McKenzie, Jr. by Robert K. McKenzie, Jr., Birmingham, for plaintiff-appellant.
Law Offices of John F. Gilhool, P.C. by John F. Gilhool, Southgate, for defendant-appellee.
Before HOLBROOK, P.J., and HOOD and BURNS, * JJ.
Plaintiff appeals from the February 24, 1988, judgment of divorce and the order allowing clarification of the judgment and amending the judgment entered on June 10, 1988. We affirm in part and reverse in part.
The parties were married on June 22, 1963. Four children were born of the marriage, three of whom are now adults. One adult child is residing with defendant, another adult child has moved out of the home and the third adult child is attending college full time and returns to defendant's home for summers and holidays. The minor child, Amanda, also lives with defendant. None of the children have provided financial support to defendant.
Plaintiff was employed by the City of Wyandotte for two years prior to the marriage and had been [184 MICHAPP 398] employed there for a total of twenty-six years at the time of trial. Plaintiff's annual salary as director of financial services had risen to over $49,000. Defendant did not work outside of the home throughout most of the marriage, terminating her employment when she became pregnant with the parties' oldest child. The parties maintained a "traditional" relationship, with defendant staying at home and, in plaintiff's opinion, caring for the children satisfactorily. She is now employed as a dental office receptionist, earning a little over $11,000 per year with nominal benefits.
Plaintiff testified that during the first five years of marriage three children were born. During those five years he worked during the day and obtained a bachelor's degree in business administration at night school. He also cared for the children and reduced his class load to help.
Plaintiff moved out of the marital home in October 1985, stating that he fell "totally out of love" with defendant. He indicated that there had been a gradual breakdown in the marriage which had occurred over the last several years.
Defendant testified that plaintiff had been a good husband and provider during the marriage. She did not want the divorce. When plaintiff left, he did not send her any money for several months and she had to depend on relatives and neighbors for financial support.
On appeal, plaintiff raises four issues. First, he claims that the trial court abused its discretion in dividing the marital assets by: (1) awarding defendant fifty percent of his pension benefit for the total time plaintiff would participate in the plan, including that portion accrued prior to the marriage and after the judgment of divorce; and (2) failing to consider the tax consequences of the award.
[184 MICHAPP 399] The division of marital property is within the sound discretion of the trial court. Perrin v. Perrin, 169 Mich.App. 18, 22, 425 N.W.2d 494 (1988). Although this Court reviews property settlements de novo, we will not reverse or modify the property division unless we are convinced we would have reached a different result had we occupied the position of the trial court. Id.
M.C.L. Sec. 552.18(1); M.S.A. Sec. 25.98(1) states:
Any rights in and to vested pension ... benefits ... 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. [Emphasis added.]
That portion of a pension attributable to service accrued prior to marriage or after the divorce cannot be considered part of the marital estate subject to award by the court. Kurz v. Kurz, 178 Mich.App. 284, 292, 443 N.W.2d 782 (1989); Kilbride v. Kilbride, 172 Mich.App. 421, 435, 432 N.W.2d 324 (1988). But see Rogner v. Rogner, 179 Mich.App. 326, 329-330, 445 N.W.2d 232 (1989) (). Following Kurz and Kilbride, and applying M.C.L. Sec. 552.18(1); M.S.A. Sec. 25.98(1), we find that the trial court abused its discretion in awarding defendant the portion of plaintiff's pension which accrued prior to the marriage and after the divorce. Only that portion accruing during the marriage should have been included in the divisible marital assets. Plaintiff's future pension accrual, in particular, should not be subject to division. Therefore, we reverse and remand to the trial court to amend its judgment to award defendant one-half of only that portion of [184 MICHAPP 400] plaintiff's pension benefit accrued during the marriage.
As for the trial court's failure to consider the tax consequences of the award, defendant's C.P.A. testified that each of the parties will pay taxes on his or her own share of the pension upon its receipt. Therefore, this argument is without merit.
Second, plaintiff claims that the trial court erred in distributing the marital property by: (1) awarding nearly all the marital property to defendant and ordering the joint debts to be paid by plaintiff; (2) including as a marital asset the banked vacation and sick pay which is only available at retirement and has no present value and assigning it to plaintiff as gross pay without considering the tax consequences; and (3) basing its decision on plaintiff's postseparation fault.
The objective of a property division is to reach an equitable distribution of property in light of all the circumstances. Ackerman v. Ackerman, 163 Mich.App. 796, 807, 414 N.W.2d 919 (1987). The division need not be equal, but must be equitable. Id. The court should consider the duration of the marriage, the contribution of each party to the marital estate, each party's station in life, each party's earning ability, each party's needs, fault or past misconduct, and any other equitable circumstance. Perrin, supra.
Prior to addressing the general property division by the trial court, we will address the specific issues raised by plaintiff. He specifically complains that the trial court improperly required him to pay the parties' joint debts. On closer examination, these "joint debts" are not so "joint." The bill consolidation loan of $5,641 apparently paid $2,000 in cash to plaintiff, and defendant disputes that there was $3,641 in debts owing at the time of separation, stating that the debt amount at the [184 MICHAPP 401] time was approximately $1,500. Further, defendant testified that the $1,500 included the Sears Hudson and master card accounts, which plaintiff also used. Defendant testified that she charged between $200 and $300 for herself and Amanda from December, 1985, to February, 1986. The trial court could view the credibility of each witness regarding the disputed joint debts, determine that the majority of the debts were plaintiff's individual obligations, and properly order that he be required to pay the "joint" debts of the parties.
Plaintiff also argues that his "banked" vacation and sick time should not have been considered a divisible marital asset. Plaintiff has accumulated time valued at $22,900, for which he will receive cash payment upon retirement if he does not use it prior to that time. 1 This issue is one of first impression for this Court. However, at least one other state has considered the issue and found that accrued personal leave for which an employee can be paid at some point, such as at retirement, is a marital asset. Schober v. Schober, 692 P.2d 267 (Alas.1984). See also Brotman v. Brotman, 528 So.2d 550 (Fla.App.1988) (). In Schober, the husband had over four hundred hours of unused personal leave. It could be used as paid vacation, or as much as sixty hours per year could be converted to cash and the remainder converted to cash when his employment terminated. The Schober court found that the husband's right to the leave had vested, that it was a form of property and not an expectancy, and that it was an economic resource capable of being assigned a value by the court.
[184 MICHAPP 402] Unlike the Schober court, which stated that the issue gave them "little pause," we do not find the issue so easily decided. On the one hand, plaintiff may become ill and not retain his sick days until retirement. On the other hand, he has accumulated these sick days and vacation days during the marriage, he has a right to the use or pay for these days and they are capable of being assigned a value. In balancing all of the factors, we find that such banked leave days are a divisible marital asset. However, the tax consequences should be taken into consideration in making the determination of value.
Regarding the property division as a whole, the trial court considered the proper factors in distributing the marital assets. See Perrin, supra. Contrary to plaintiff's assertion, it was proper for the court to consider plaintiff's conduct in leaving the marital home with the cash from the Kemper Annuity and failing to send defendant any support for a few months, although the court may have placed an inordinate amount of emphasis on this conduct. 2 See Vance v. Vance, 159 Mich.App. 381, 406 N.W.2d 497 (1987), lv. den. 429 Mich. 870 (1987). However, we find that the distribution was inequitable and we would have reached a different result. See Perrin, supra. The assets of the parties were divided as follows:
Plaintiff Defendant
Equity in marital home $35,519
IRA $ 3,956.00 3,525
Credit Union Account
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