Marriage of Blake, In re, 89CA1133

• Decision Date: 25 October 1990
• Docket Number: No. 89CA1133,89CA1133
• Citation: 807 P.2d 1211
• Parties: In re the MARRIAGE OF Karon M. BLAKE, Appellee, and Larry A. Blake, Appellant. . II
• Court: Colorado Court of Appeals

Page 1211

807 P.2d 1211

In re the MARRIAGE OF Karon M. BLAKE, Appellee and Larry A. Blake, Appellant.

No. 89CA1133.

Colorado Court of Appeals Div. II.

Oct. 25, 1990.

Rehearing Denied Dec. 13, 1990.

Certiorari Denied March 25, 1991.

Law Offices of Sandra J. Pfaff, Sandra J. Pfaff, Denver, for appellee.

Law Offices of Jerry N. Snyder, Jerry N. Snyder, Mary L. Everstine, Denver, for appellant.

Opinion by Chief Judge STERNBERG.

The principal issue in this appeal is whether a nonemployee-spouse's interest in a vested pension plan may be ordered to be paid by the employee-spouse before that spouse actually retires and begins to receive his or her own retirement benefits. We affirm the trial court ruling that such payment may be ordered.

The decree here at issue dissolved a marriage of approximately 31 years duration. At the time of decree, Larry A. Blake (husband) was 51 years old and Karon M. Blake (wife) was 50 years old. Husband was employed as an assistant principal with the Denver Public School system and earned $3,880 per month gross income. Wife had been a homemaker during the marriage, raising the parties' two children. At the time of hearing, she was a graduate of the Denver Paralegal Institute and was earning $1,238 per month, working a 32-hour week for a sole practitioner.

Husband's pension plan was 100% vested. The trial court found that it had a fair market value of $164,000 before taxes, and after taxes, a value of $118,000. Both employee and employer contributions were made to the pension.

The husband's earliest retirement date at which time he could receive the full amount of his entitlement, without incurring penalties for early withdrawal, was age 55. Retirement was not mandatory at any age, and the pension benefits would not be lost if husband died prior to retirement.

Husband testified that he did not expect to retire until sometime between the ages of 60 and 65. An employee-benefits administrator testified that, if husband were to terminate his employment on the date of hearing, he would be paid monthly installments of $1,872. This amount was a reduced amount, since husband theoretically would be retiring prior to his earliest retirement date.

Regardless of the date of retirement, all retirement checks would be made payable to husband because of the anti-alienation provisions of the pension plan which, as a governmental plan, was not subject to a qualified domestic relations order (QDRO) 29 U.S.C. § 1003(b) (1988). If husband were to die shortly after the decree was entered, his beneficiary would receive a lump-sum payment of $55,889, representing his contributions to the plan.

The trial court determined that each party had substantially contributed to the acquisition of marital assets. It also concluded that it would make, not an equal but, a fair and equitable distribution of property. Besides the pension, the other major asset of the parties was the family home, in which the court determined the parties had an equity of $54,750. Since neither party desired to retain the home, the court ordered it sold. Of the sale proceeds, husband's mother was to be paid $2,000 to satisfy a prior tax loan, and the remainder was to be divided equally.

Since the court could not order a QDRO, it entered what it labeled a "relatively innovative order." It ordered husband to pay wife $936 per month, commencing June 1, 1992, and payable until her death and regardless of wife's remarriage. This sum represented one-half of the amount of husband's entitlement if he had retired as of the date of the decree. It also ordered husband to designate wife as the irrevocable beneficiary for the amount of $936 per month under Plan B of the pension plan options, so that wife would continue to receive retirement benefits upon husband's death. To offset the anticipated tax liability to husband, the court characterized the monthly payments of $936 as "maintenance in gross."

Finally, the court also awarded wife temporary spousal maintenance of $350 per month for a period of three years, ending May 1992.

I.

First, husband asserts that the trial court abused its discretion in excluding certain evidence which he claimed was relevant to the issue of wife's underemployment. He also contends that wife failed to show a need for maintenance or an inability to find other suitable employment. We disagree.

Husband presented the testimony of the director of placement from the Denver Paralegal Institute. That witness expressed the opinion that wife could have been earning an average salary of $21,140 per year. Thus, any additional evidence regarding the issue of wife's underemployment would have been cumulative, and it therefore properly could be excluded by the trial court. See CRE 403.

Moreover, husband's evidence was directly contradicted by wife's testimony. The credibility of witnesses and the probative effect and weight to be given to the evidence are matters within the province of the trial court. In re Marriage of Hoyt, 742 P.2d 963 (Colo.App.1987). Thus, we will not disturb the court's determinations regarding wife's employment and need for maintenance, which are supported by the evidence. See In re Marriage of Perlmutter, 772 P.2d 621 (Colo.1989).

In addition, considering the length of the marriage, wife's limited recent experience in the workplace, and husband's financial resources, we conclude that the evidence supported the award of short-term maintenance. See In re Marriage of Sinn, 696 P.2d 333 (Colo.1985); In re Marriage of Mitchell, 195 Colo. 399, 579 P.2d 613 (1978).

II.

Husband also contends that the court erred in awarding wife a portion of the pension as "maintenance in gross" in advance of his anticipated retirement date. While conceding that the court was attempting to divide the present value of the pension, husband asserts that the order awards wife substantially more than one-half of the present value of the pension. In addition, although husband agreed at trial that the amount of $936 per month was a fair amount to award wife as her share of the pension, he also asserts that he should not be required to pay that sum until such time as he actually retires, or age 65, whichever is earlier.

The testimony and documentary evidence presented by the administrator of husband's pension plan reveals that husband would have received the sum of $1,872 if he were to retire on June 1, 1989, within two weeks of the date of dissolution.

The supreme court in In re Marriage of Grubb, 745 P.2d 661 ...