Smith v. Smith, 1725
| Decision Date | 08 October 1991 |
| Docket Number | No. 1725,1725 |
| Citation | 418 S.E.2d 314,308 S.C. 372 |
| Court | South Carolina Court of Appeals |
| Parties | Mildred Elizabeth SMITH, Appellant, v. Rudolph Lee SMITH, Sr., Respondent. . Heard |
Coming B. Gibbs, Jr., of Gibbs & Holmes, Charleston, for appellant.
Hans F. Paul, N. Charleston, for respondent.
Mildred Elizabeth Smith (the wife) brought this divorce action against Rudolph Lee Smith, Sr., (the husband). The appealed order equitably divided the marital property and denied the wife attorney fees. We affirm as modified.
The two issues of merit are whether (1) the trial judge erred in evaluating the husband's pension, and (2) the trial judge erred by deducting from the wife's share of the marital property $6,000 paid by the husband to defray the cost of the wife's education as a registered nurse.
The parties were married in 1953 and separated on July 18, 1988.
The husband worked in the naval yard in Charleston and during that period a substantial contribution was made to a civil service retirement fund. The exact amount contributed is difficult to ascertain from the record. The husband, however, withdrew $23,921 from his contributions. As it stands, the husband's civil service retirement plan provides a gross monthly benefit of $2,526 until the husband becomes 65 years of age when the monthly benefit is reduced to $1,040. The reduction obviously is designed so that the husband and wife's social security monthly benefit combined with the civil service retirement benefit will amount to $2,526 per month. From the The appealed order attempted to evaluate the husband's civil service pension as having a present day value of $43,991, the actual amount contributed by the husband. The trial court allotted the wife one-third of his valuation of the present day value of the pension and deducted from it $6,000 which the husband had expended for the wife's education as a registered nurse.
monthly gross, the government deducts, among other things, $183 as a premium for a survivorship benefit payable to the wife on the death of the husband.
As stated the husband received $23,921 in cash upon retirement; he deposited this amount in the NCNB branch office in Summerville, South Carolina. The trial judge failed to include this in the marital property, but the wife failed to make a Rule 59(e) motion for reconsideration. For that reason, this Court is barred from ruling on this issue. Talley v. SC Higher Educ. Tuition Grants, 289 S.C. 483, 347 S.E.2d 99 (1986). There the court pointed out that prior to July 1, 1985, the effective date of the S.C. Rules of Civil Procedure, an issue which was raised before the trial judge but was not ruled upon by the trial judge and no timely motion was made to correct the oversight was not preserved for appeal. Rule 59(e) S.C.R.C.P. simply codified this pre-existing law.
Additionally, the trial judge failed to make an award to the wife of an interest in a timeshare condominium at Hilton Head Island; the wife failed to make a 59(e) S.C.R.C.P. motion and therefore failed to preserve the issue for appeal.
We hold that the trial judge erred in valuing the husband's civil service pension. This is obvious from an examination of what he did and the applicable facts. At the time of the divorce, according to S.C. Code Ann. § 19-1-150 (1976), the husband had a life expectancy of 19.74 years and the wife had a life expectancy of 23.67 years. As stated, the monthly benefit of the pension is $2,526 or on an annual basis $30,312 until the husband reaches 65 years of age. With these figures, it becomes obvious, on first blush, that a valuation of $43,991 for the total pension is not tenable. It becomes equally obvious that in order to evaluate the present cash value of a pension, the testimony of an actuary is essential. A valuation of the present day value of a pension involves complicated procedures of actualization; testimony about these procedures and their application to the facts of each case must be placed in the record for the trial judge's consideration and, of course, for the consideration of the court upon appeal.
In Martin v. Martin, 292 S.C. 436, 373 S.E.2d 706 (Ct.App.1988) this Court recognized the two common methods of valuing pensions which are: (1) present cash value, and (2) distribution from each payment. Since we have no actuarial evidence of record, we modify the appealed order by adopting the "distribution from each payment" method of valuation.
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... ... pension was both a marital asset and income: Smith v ... Smith, 308 S.C. 372, 375, 418 S.E.2d 314, 316 (Ct. App ... 1991) ("[T]he two ... ...
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Altman v. Altman, Appellate Case No. 2008-107646
...As to whether the family court erred by finding Husband's pension was both a marital asset and income: Smith v. Smith, 308 S.C. 372, 375, 418 S.E.2d 314, 316 (Ct. App. 1991) ("[T]he two common methods of valuing pensions [ ] are: (1) present cash value, and (2) distribution from each paymen......
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Belton v. Belton, 2613
...two common methods of valuing pensions: "(1) present cash value, and (2) distribution from each payment." Smith v. Smith, 308 S.C. 372, 375, 418 S.E.2d 314, 316 (Ct.App.1991) (citing Martin v. Martin, 296 S.C. 436, 373 S.E.2d 706 (Ct.App.1988)). Each method has its pros and cons, and in the......
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Way v. Way
...Wife's distribution from each payment rather than setting a present value for the divisible account. See Smith v. Smith, 308 S.C. 372, 375, 418 S.E.2d 314, 316 (Ct.App.1991) (recognizing “two common methods of valuing pensions ...: (1) present cash value, and (2) distribution from each paym......