Pongonis v. Pongonis

• Decision Date: 22 April 1992
• Citation: 606 A.2d 1055
• Parties: Joseph M. PONGONIS v. Lois M. PONGONIS.
• Court: Maine Supreme Court

Page 1055

606 A.2d 1055

Joseph M. PONGONIS v. Lois M. PONGONIS.

Supreme Judicial Court of Maine.

Submitted on Briefs March 19, 1992.

Decided April 22, 1992.

Mark E. Susi, Gregory J. Farris, Farris, Susi, Ollen, Heselton & Ladd, Gardiner, for plaintiff.

Lois M. Pongonis, pro se.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD and COLLINS, JJ.

GLASSMAN, Justice.

The defendant Lois M. Pongonis appeals, and the plaintiff Joseph H. Pongonis cross-appeals, from the judgment entered in the Superior Court (Kennebec County, Chandler J.), modifying the judgment of the District Court (Augusta, Gorman, J.), to provide one dollar a year alimony to Lois. Lois challenges, as she did, inter alia, on her appeal to the Superior Court, the division of the marital property, and Joseph challenges the Superior Court's modification of the District Court judgment. We affirm the judgment of the Superior Court.

I.

The parties were married in November 1973, and at the time of the entry of the divorce judgment in August 1990, their two children were aged 16 and 11 years. From approximately 1975 Lois has been employed in the medical records department of the Kennebec Valley Medical Center with a gross annual income of approximately $18,428. She contributes to the social security system and has vested rights in a private pension plan covering the hospital employees. Joseph has been employed by the Department of Transportation since 1978 with a gross annual income of approximately $23,400. As a state employee he does not contribute to the social security system but has vested rights in the retirement system covering state employees. Dr. Charles Stewart, Lois's treating psychiatrist since 1989, testified that Lois had been under medical care since 1981 for panic disorder and major depression of a severe nature that had required her hospitalization for 44 days in 1987 and for 36 days in 1989. He further testified that although she was presently on medication to alleviate the severity of her symptoms, in his opinion Lois would suffer future recurring episodes of panic disorder and major depression of such severity as to require hospitalization.

The divorce judgment provided that the primary residence of their children be with Joseph and that Lois pay $75 a week for child support; Joseph to maintain medical insurance benefits and Lois dental insurance benefits for their children with the necessary cost of all uninsured medical, dental, optical, hospital, pharmaceutical and counseling expenses to be divided equally between the parties. Each of the parties was awarded the right to claim one child for federal and state income tax purposes.

The marital assets of the parties, other than their respective pension rights, included the family home, with a stipulated fair market value of approximately $60,000, and $10,000 being held in escrow representing proceeds from the sale of a boat. These assets were set aside to Joseph. It was further provided that Joseph assume the mortgages on the family home and other marital obligations in the total amount of approximately $68,500. An automobile of the approximate value of $6,000 was set aside to Lois with a further provision that Lois be responsible for marital obligations in the approximate amount of $11,300. The court found that the combination of Lois's social security and the Kennebec Valley Medical Center retirement plan approximated the value of Joseph's state retirement and set apart to each party that party's respective retirement benefits. The court ordered that the remaining items of personal property be divided between the parties in accordance with their agreement and that alimony would not be awarded to either party.

After a hearing on Lois's appeal challenging the denial of alimony and the division of the marital property as between the parties, the Superior Court vacated the denial of alimony, awarded Lois alimony in the amount of one dollar a year and affirmed the division of the marital property, and both parties appeal. When, as here, the Superior Court acts as an intermediate appellate court, we examine the proceedings in the District Court as though on initial appellate review. Dunning v. Dunning, 495 A.2d 821, 823 n. 1 (Me.1985).

II.

Lois contends that the District Court erred in its determination that the values of the parties' respective retirement assets are equivalent. We have previously stated:

An appellate court can reverse a finding of fact only where (1) there is no competent evidence in the record to support it or (2) it is based upon a clear misapprehension by the trial court of the meaning of the evidence, or (3) the force and effect of the evidence, taken as a total entity, rationally persuades to a certainty that the finding is so against the great preponderance of the believable evidence that it does not represent the truth and right of the case.

Harmon v. Emerson, 425 A.2d 978, 982 (Me.1981). When considering the division of marital property, a comparison of deferred distribution payment values is as valid a method as comparing present values. Marquis v. Chartier, 592 A.2d 169, 172 (Me.1991). Here, there was evidence before the court that if both parties worked until retirement age, the annual benefit during actuarial life after retirement for Joseph would increase from $7,800 in the first year to $15,300 in the last year, and for Lois it would be a total annual benefit of $13,475 from social security benefits and her employer-provided plan. Accordingly, we find no clear error in the trial court's determination that there is an approximate equivalency in the value of the respective retirement assets of the parties.

We find no merit in Lois's contention that the provisions of 42 U.S.C.A. § 407 (West 1991) prohibited the court's consideration of her anticipated social security retirement benefits in determining a just division of the parties' marital property. Section 407 provides that future social security payments "shall not be transferable or assignable...." The trial court made no attempt to transfer or divide Lois's anticipated social security benefits. Instead, the court recognized the deferred distribution value of those anticipated benefits as a relevant factor to be considered in its division of the marital property. See 19 M.R.S.A. § 722-A (1981 & Supp.1991) ("The value of the property set apart to each spouse" is a relevant factor for the court's consideration in division of marital property.). See also Harmon v. Harmon, 161 N.J.Super. 206, 391 A.2d 552, 555 (1978) (social security benefits properly considered as factor in equitable division of marital property in divorce action).

Nor do we find merit in Lois's contention that the trial court erred in its division of the marital property, other than the pensions. The division of marital property is committed to the discretion of the trial court. Most v. Most, 477 A.2d 250, 262 (Me.1984). "The statute directs a 'just' not an equal division" of marital property. Robinson v. Robinson, 554 A.2d 1173, 1176 (Me.1989). See also 19 M.R.S.A. § 722-A. "[A]bsent a violation of some positive rule of law, this [c]ourt will overturn the trial court's decision only if it results in a plain and unmistakable injustice, so apparent that it is instantly visible without argument." Anderson v. Anderson, 591 A.2d 872, 874 (Me.1991) (quoting Smith v. Smith, 419 A.2d 1035, 1038 (Me.1980)). Considering, in the instant case, the value of the marital property of the parties, their respective earning ability,...