Pinkowski v. Pinkowski, 276

• Decision Date: 06 March 1975
• Docket Number: No. 276,276
• Citation: 226 N.W.2d 518,67 Wis.2d 176
• Parties: Anna C. PINKOWSKI, Appellant, v. Leonard A. PINKOWSKI, Respondent.
• Court: Wisconsin Supreme Court

Page 518

226 N.W.2d 518

67 Wis.2d 176

Anna C. PINKOWSKI, Appellant, v. Leonard A. PINKOWSKI, Respondent.

No. 276.

Supreme Court of Wisconsin.

March 6, 1975.

Georgia A. Felger, Milwaukee, for appellant; Ronald J. Jaskolski, Walther & Halling, Milwaukee, of counsel.

Michael Klein, Milwaukee, for respondent; Finnegan & Finnegan, Milwaukee, of counsel.

DAY, Justice.

This is an appeal from a portion of a judgment of divorce granted to the plaintiff Anna C. Pinkowski from Leonard A. Pinowski, defendant, on the ground of voluntary separation.

Two questions are raised on the appeal by the appellant Anna C. Pinkowski: (1) Did the trial court err in not including among the assets for division between the parties a pension fund belonging to the husband valued at $23,551. We conclude it was error not to include the value of the pension fund in the assets for distribution. (2) Did the trial court abuse its discretion in awarding only $70 per month alimony to the wife? We conclude the trial court did not abuse its discretion, but we return to the trial court the issue for reconsideration in view of our answer to the first question and the changed circumstances of the parties since the divorce was granted.

Mr. and Mrs. Pinkowski had been married for 30 years at the time the divorce was heard on December 19, 1972. Five children had been born to them, four of whom were of age. Custody of a minor daughter Audrey, born January 11, 1957, was awarded to Mrs. Pinkowski and the court ordered the defendant to pay $80 per month support for Audrey's care and maintenance. That portion of the judgment is not at issue in this appeal.

The plaintiff wife was 53 years of age, worked as a school-crossing guard for $8.91 per day and had a net monthly income after taxes of approximately $123 per month. In addition she received $15 per week from each of two adult employed sons for room, board and laundry. The court in its directions for findings of fact and conclusions of law found that the plaintiff had worked fulltime when the parties were first married and part time ever since and that their property had been accumulated from their joint efforts. The court found the plaintiff lacked substantial skills which limited her employment opportunities.

Mr. Pinkowski, aged 53 years at the time of the divorce, had been employed throughout their married life and was employed by the Falk Corporation. With some help from her relatives and his, he had built the home they occupied. After taxes and social security deductions he had a weekly pay of $139.65.

The court found that the parties were possessed of a home worth $25,000, a checking account of $80, a savings account in the credit union of $858.97 (which had been saved for taxes), a coin collection worth $350 and other personal property on which no valuation was placed.

In dividing the property the court ordered that the homestead should be occupied by the wife and the minor daughter until one month after the daughter achieved the age of 18 years, at which time the home was to be put up for sale and the proceeds after deducting the expenses of sale were to be divided equally between the parties. In addition, the court awarded Mr. Pinkowski the checking account, the savings account, and the coin collection.

In addition to $80 a month support for Audrey during her minority, the court ordered that Mr. Pinkowski pay $70 a month alimony and the taxes on the property of $1,100 a year until the property was sold.

Other items such as two cars, household goods, and furniture, and insurance policies owned by each of the parties were not valued and their division by the court is not challenged in this appeal.

The court also found that the defendant had an interest in a pension fund with his employer and that were he to terminate his employment it would pay him $23,551. If Mr. Pinkowski should stay with the Falk Corporation until age 65, the pension fund would pay him $347 per month, which added to his social security would give him $596 per month.

The trial court in its directions for findings of fact and conclusions of law said, 'It is clear that Mr. Pinkowski should not be required to terminate his employment so that the proceeds of his retirement program would be available for division.' We agree. However, the present value of the fund as determined by the trial court must be included in the assets to be divided between the parties.

The trial court held that alimony should be awarded to Mrs. Pinkowski and said, 'Provision for alimony is the only practical way under the circumstances of this case that Mrs. Pinkowski can have some benefit of her husband's pension system.' The value of the pension fund was not included in the assets which were divided.

The plaintiff wife contends that the value of the pension should have been included.

The judgment in this case would put off for at least 12 years the time when Mrs. Pinkowski would receive any benefit from this asset, assuming Mr. Pinkowski stayed at Falk Corporation and retired at age 65. If he should leave earlier and draw out the fund, she could very well get nothing from this asset.

This court first considered the value of pension plans and their inclusion for purposes of division of property in a divorce case in Schafer v. Schafer (1958), 3 Wis.2d 166, 170, 87 N.W.2d 803.

In Schafer at the time of the divorce Mr. Schafer was 56 years of age and for 32 years he had been an employee of the postal department and had made contributions of his salary to the federal civil service retirement fund. His interest in the fund at the time of the divorce had '. . . no realizable cash surrender value unless he separates himself from the postal service.' No value was attempted to be placed thereon by the trial court; his contributions had amounted to $4,065.08 and at his then age of 56 he was eligible to retire and receive an annuity payable at the rate of $240 per month. However, if he waited until age 60 to retire, his annuity would yield him approximately $277 per month. The trial court gave no weight to the fact Mr. Schafer had an interest in the retirement fund. The question before this court was, should the retirement fund have been taken into account in making a property division? This court concluded that it should have. The court stated that if Mr. Schafer's interest in the retirement fund was to be wholly ignored in making the property division, then there was no abuse of discretion on the part of the trial court in making the property division between the parties because independent of that interest the wife had been awarded one third of the net estate. But the court found that in view of the long married life of the parties and the many thousands of dollars of earnings which the wife had contributed to the support of the family that a more generous award would have been warranted. The court went on to say, pp. 170, 171, 87 N.W.2d p. 806, 'While it is true that the husband's interest in the retirement fund by its very nature is an asset that is incapable of division by the court between the parties so as to award the wife a portion thereof, nevertheless, we consider that its value should have been ascertained and taken into account by the trial court in making the division of estate.' The court calculated that the value of the annuity under the statutory five percent annuity table was $29,000 at his age of...