Miller v. Miller

• Decision Date: 19 November 1992
• Citation: 617 A.2d 375,421 Pa.Super. 23
• Parties: Karin R. MILLER v. Kurtz J. MILLER, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 375

617 A.2d 375

421 Pa.Super. 23

Karin R. MILLER v. Kurtz J. MILLER, Jr., Appellant.

Superior Court of Pennsylvania.

Argued April 7, 1992.

Filed Nov. 19, 1992.

Arthur T. McDermott, Carlisle, for appellant.

Henry O. Heiser, III, Gettysburg, for appellee.

Before OLSZEWSKI, BECK and HOFFMAN, JJ.

BECK, Judge:

This is the second appeal to this court in unduly protracted litigation over the distribution of marital property after a divorce. Appellant-husband Kurtz J. Miller, Jr. ("Husband") once again seeks to overturn the trial court's order of equitable distribution to appellee-wife Karin R. Miller ("Wife"). The first appeal was decided in Miller v. Miller, 395 Pa.Super. 255, 577 A.2d 205 (1990), alloc. den., 525 Pa. 664, 583 A.2d 794 (1990) ("Miller I "). In this appeal, Husband challenges the trial court's valuation and distribution of his military pension. We affirm.

The parties were married on November 10, 1967. Husband retired from the army as a Colonel in 1973. The parties and their two sons then moved to Adams County. In 1984, Wife filed a complaint in divorce, seeking property distribution, alimony, alimony pendente lite, counsel fees and expenses. On May 15, 1989 the court entered a final divorce decree which inter alia incorporated the property division. Wife was awarded a portion of Husband's military pension. ¹ In calculating the amount of the pension available for equitable distribution, the trial court included Husband's veterans' disability benefits. ²

The Miller I court found error in the trial court's inclusion of the veterans' disability benefits in the amount of the pension available for equitable distribution. ³ On remand the trial court was directed to: 1) determine the present value of Husband's pension; 2) determine the amount of disability compensation currently being received by Husband; 3) re-determine the amount of Husband's pension properly available for equitable distribution; and 4) examine the factors set forth in the Divorce Code in light of the new distribution. Miller I, 395 Pa.Super. at 261-62, 577 A.2d at 208-09. ⁴ After remand, the trial court conferenced with the parties. The trial court ordered Husband and Wife to submit new Proposed Plans for Marital Shares, including current valuations of the pension. Husband's Proposal included a copy of his current monthly pension pay statement, dated March 1991, which listed the following information:

                Net Entitlement:          $4699.00
                VA Disability Reduction:   1179.00
                Adjusted Entitlement:      3520.00
                                          --------
                

These amounts reflect Husband's 80% disabled status. ⁵

Wife also submitted her Proposed Plan, which included an accountant's revised calculation of the pension's value, omitting the amount of disability compensation, and taking into account Husband's current life expectancy. The accountant's computation was based on the following assumptions: the monthly pension payment, excluding disability benefits, was $3520; Husband's life expectancy at the age of 70 was 11.00 years, resulting in 132 monthly payments, and; the pension would be adjusted for cost of living by 5%. The accountant then discounted this total amount by 7.75%, yielding a present value of $403,321.00. Applying the coverture fraction of .1915, the marital portion of the present value of Husband's pension is $77,235.98. Appellant's Brief at Exhibit A.

Husband agreed with the discount and cost of living allowance rates utilized by Wife's accountant. Proposed Plan for Marital Shares at 7. However, he claimed his monthly entitlement was only $2870 and that his life expectancy was 10 years. Based on these figures he argued that the present value of his pension was $289,836. Applying the coverture fraction of .1915, Husband argued the marital portion of the pension was $55,504. Husband's figures and therefore his calculations are not supported by the record.

The trial court held argument on the submitted Plans and issued an order and opinion adopting Wife's expert's valuation of the marital portion of the pension, which excluded the VA disability payment. The court granted 60% of the marital estate to Wife. Husband filed this timely appeal.

Husband raises two challenges in this appeal. He asserts that the trial court should have conducted an evidentiary hearing regarding the current status of the factors listed in Section 3502(a) of the Divorce Code (see fn. 4) and that the trial court erred in basing its award on "bare allegations of values contained only in Wife's proposed plan for marital shares." Appellant's Brief at 5. Finding no merit in Husband's arguments, we affirm the trial court.

We first note our limited scope of review from an order of equitable distribution. Awards of property distribution are within the sound discretion of the trial court, and will not be disturbed unless there has been a clear abuse of discretion. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). An abuse of discretion is not found lightly, but upon a showing of clear and convincing evidence. Miller I, supra. As a result, under the abuse of discretion standard, the appellate court does not usurp the trial court's duty as fact finder. An abuse of discretion will be found by this court only if the trial court failed to follow proper legal procedures or misapplied the law. Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613, 615 (1985).

Husband complains that the trial court did not properly review the Divorce Code factors (23 Pa.C.S.A. § 3502(a) in light of Miller I's instructions on remand. We disagree. Our review of the record indicates the opposite. Although the court did not hold a new hearing on the section 3502 factors, it reevaluated them before making its award. In Miller I, this court found no error in the trial court's evaluation of the Divorce Code factors, and simply directed the trial court to reexamine the factors in making its order of a new distribution which excludes the disability payment from the marital estate. Miller I, 395 Pa.Super. at 260-61, 577 A.2d at 208. Pursuant to this instruction, the trial court recognized that Husband had decreased the marital estate by converting part of his pension into non-marital disability payments, and found that "Superior Court's decision obviously impacts heavily on [Divorce Code] factors (6), (8) and (10). Colonel Miller will continue to enjoy substantial income with more favorable tax benefits reporting [sic] from disability treatment." Tr. Ct. Opinion at 2. The trial court therefore increased Wife's distribution to 60% of the marital estate, in accordance with its reconsideration of the relevant Divorce Code factors.

Husband also asserts that a hearing was necessary to discover other changed factors, such as his age and his deteriorating health. However, these clearly are matters of record. Husband's current age was considered in the expert valuation of the pension adopted by the court, as was his current disability status as set by the government at 80%. Husband provided this information to the court. We find no abuse of discretion in the trial court's refusal to hold a hearing or on its findings which are supported by the record.

In addition, Husband argues that it was necessary for the trial court to hold a hearing because the "record does not reflect the amount of [his] military pension waived for veteran's disability." Appellant's Brief at 7. We disagree and find appellant's statement to be inaccurate. Husband's own exhibit appended to his Proposed Plan for Marital Shares indicates the amount of disability pay he receives monthly.

Husband argues that the trial court improperly adopted the report of Wife's accounting expert which provided a current valuation of the pension based on Husband's age and his March 1991 pension payment statement. Husband argues that he was not given an opportunity to challenge the report, and that it was therefore "untried hearsay." Appellant's Brief at 9.

Husband had an opportunity to challenge the expert's report and also to present his own expert valuation of his pension, but he chose not to do so. ⁶ He merely offered an unsubstantiated alternate calculation of the present value of the marital portion of the pension.

Husband argues that the court erred in two additional respects. He alleges that the trial court accepted the expert's pension valuation as of the date of separation instead of the date of distribution. In addition, he asserts that the court improperly accepted the expert's calculation based on Husband's age of 70 instead of 71. We find no error.

In June 1991, when the current valuations were prepared, Husband was still 70 years old, and his statistical life expectancy could be gleaned from the record. ⁷

Husband further argues that the date of distribution should have been used to value the pension rather than the date of separation. Husband's argument is meritless since the pension was valued as close to the date of distribution as was possible in this case, and not at the date of separation. We underscore the principle that when using the immediate offset method of pension distribution, the valuation should be made "as close as possible to the property distribution date." Miller I, 395 Pa.Super. at 263, 577 A.2d at 209; Braderman, supra. This is especially important when there has been a considerable passage of time since the separation date which has resulted in substantial fluctuations in the value of the asset to be divided. See, Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988). In this case, the trial court acknowledged the fact that several years had passed since the parties separated in 1984, and that the present value of Husband's pension had decreased along with his decreased life expectancy. Tr.Ct.Opinion at 2.

Therefore, contrary to Husband's assertion, the trial court did not value the pension as of the date of separation. Rather, the date of valuation of the pension was as close to the...