Wyzard v. Wyzard

• Decision Date: 18 July 2002
• Docket Number: No. 22A04-0109-CV-401.,22A04-0109-CV-401.
• Citation: 771 N.E.2d 754
• Parties: Bobbie Ann WYZARD, Appellant-Respondent, v. Joe Pat WYZARD, Appellee-Petitioner.
• Court: Indiana Appellate Court

771 N.E.2d 754

Bobbie Ann WYZARD, Appellant-Respondent, v. Joe Pat WYZARD, Appellee-Petitioner.

No. 22A04-0109-CV-401.

Court of Appeals of Indiana.

July 18, 2002.

Sally A. Thomas, Lorch & Naville, LLC, New Albany, IN, Attorney for Appellant.

Derrick H. Wilson, Mattox, Mattox & Wilson, New Albany, IN, Attorney for Appellee.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Bobbie Ann Wyzard ("Wife") appeals the trial court's order distributing the assets from her marriage to Joe Pat Wyzard ("Husband").

We reverse and remand.

ISSUE

Whether the trial court erred in its valuation of the marital estate.

FACTS

Wife and Husband married on June 26, 1965. They had one child, a daughter, born in 1971. On March 23, 1999, Husband filed for dissolution. Since April 1, 1970, Husband had worked as a firefighter for the City of New Albany. During that entire time, Husband also held a second part-time job. Throughout the long marriage, Wife also worked outside the home. The parties' joint income derived approximately 2/3 from Husband and 1/3 from Wife.

Wife never had any opportunity to participate in a 401K or company retirement plan until 1995. Her 401(K) plan, funded since that time, was worth $11,443.97 at the time of the dissolution.

Husband was covered by the Police Officers' and Firefighters' Pension and Disability Fund ("the Fund"). Effective July 1, 1999,¹ the Fund provides retirement benefits to a firefighter who retires after the age of fifty-two with twenty years of service. Maximum retirement benefits are earned by working as a firefighter for thirty-two years. At the time of the final hearing, Husband was nearly fifty-four and had nearly twenty-nine years of service as a firefighter.

At the final hearing, Husband's expert testified that to determine the "present value" of a pension, one calculated "that amount of money which if placed on deposit would be sufficient to pay out benefits over the lifetime of the recipient of those benefits" under the terms of the pension plan. (Tr. 26). Husband's expert further testified that based upon mortality tables and investment return rates, he valued Husband's current "vested pension benefits" from the Fund at $340,897.49. Id. That value did not include any possible future cost-of-living increases in benefits. Wife's expert, who did include possible future cost-of-living increases in benefits, valued the pension at $518,174. Testimony at the hearing established that should Husband die before retiring, his estate would only receive the $32,409.53 he contributed to the Fund; however, if Husband was married, his wife would receive 60% of his benefits after his death; Wife, as an ex-spouse, would receive nothing from the Fund upon Husband's retirement or upon his death before retirement.

The trial court found the value of Husband's pension to be $32,409.53, "as of July 1, 1999," based on the following:

(a) [ ] Husband was eligible to retire as of the date of separation because he had completed 20 years of active service.

(b) [ ] Husband was not eligible to receive retirement benefits as he had not yet reached 55 years of age as of the date of separation.

(c) [ ] Husband's contributions to his retirement fund totaled $32,409.53 as of the date of separation. He is fully vested in this amount.

(d) [ ] Husband is on active duty and is not retired. [ ] Husband is not required to retire. If he dies prior to retirement, his survivors, or his estate would only receive his contributions, plus accumulated interest;

(1) If he has no survivors eligible for benefits under the retirement fund, his contributions, plus accumulated interest will be refunded to his estate.

(2) If he has survivors eligible for survivor benefits and the survivor benefits paid do not exceed his total contributions plus accumulated interest, the difference would be paid to his estate.

(e) [ ] Husband's benefits are exempt from attachment, garnishment, judicial process such as a Qualified Domestic Relations Order and he may not transfer, assign or sell his benefits.

(f) There is no pre-retirement survivor benefit annuity in the event that [ ] Husband would die prior to retirement.

(g) [ ] Husband will not be eligible to receive Social Security retirement benefits upon retirement except through his part-time job.

(h) [ ] Wife will be eligible to receive Social Security retirement benefits upon retirement.

(App.13-14).

The trial court determined that the other marital assets totaled $165,172.50, resulting in a total marital estate of $192,582.03. The trial court then concluded that an equal division of the marital estate would not be just and reasonable and awarded 63% of the assets to Wife and 37% to Husband.

DECISION

Here, the trial court entered findings of fact and conclusions of law, which triggers the following standard of review:

[W]e ... first determine whether the evidence supports the findings and second, whether the findings support the judgment. The judgment will be reversed only when clearly erroneous, i.e., when the judgment is unsupported by the findings of fact and conclusions entered on the findings. Findings of fact are clearly erroneous when the record lacks any evidence or reasonable inferences from the evidence to support them. To determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh the evidence or assess witness credibility.

Breeden v. Breeden, 678 N.E.2d 423, 425 (Ind.Ct.App.1997) (citations omitted). When the trial court engages in valuing assets in the course of acting on a dissolution action, it "has broad discretion" and

its valuation will only be disturbed for an abuse of that discretion. So long as there is sufficient evidence and reasonable inferences to support the valuation, an abuse of discretion does not occur. We will not weigh the evidence and will consider the evidence in the light most favorable to the judgment.

Id. (quoting Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996)).

Wife argues that the trial court abused its discretion when it found that Husband's pension as of July 1, 1999 had a value of only $32,409.53. We agree.

More than a decade ago, our supreme court held that when the husband had worked during the entire span of a long-term marriage so as to be entitled to pension benefits under a pension plan at the time of dissolution, and such benefits would not be forfeited should the husband's employment subsequently terminate, then those benefits were marital assets acquired by the joint efforts of the parties and necessarily became part of the marital estate. In re Marriage of Adams, 535 N.E.2d 124 (Ind.1989).² Thus, a pension that "accrues ... during the marriage... is subject to distribution as part of the marital estate." Leisure v. Leisure, 605 N.E.2d 755, 759 (Ind.1993). Further, when determining the marital estate, "property" of the parties is statutorily defined to include "the right to receive pension or retirement benefits that are not forfeited upon termination of employment." IND.CODE § 31-9-2-98(b)(2). When the trial court divides property in a dissolution proceeding, it "shall divide" all property acquired by the joint efforts of the parties. IND.CODE § 31-15-7-4(a). This "`one pot' theory specifically prohibits the exclusion of any asset from the scope of the trial court's power to divide and award." Coffey v. Coffey, 649 N.E.2d 1074, 1076 (Ind.Ct.App.1995).³

It is undisputed that (1) at the time of the dissolution order, Husband was entitled to vested pension benefits from the Fund,⁴ and (2) the right to receive pension benefits was not contingent upon Husband's continued future employment. See Hann v. Hann, 655 N.E.2d 566, 570 (Ind. Ct.App.1995),trans. denied, ("in order for a future pension benefit to be considered marital property in Indiana, the right to the pension must not be contingent upon future employment."). It is also undisputed that the evidence before the trial court as to the value of Husband's pension plan, based upon the definition of how such a value is determined as explained by Husband's and Wife's experts, ranged between $340,897.49 and $518,174. Therefore, given the absence of any evidence to support the valuation given Husband's pension plan by the trial court, we find that the trial court abused its discretion when it did not value Husband's pension plan within the range of the evidence presented.

As to Husband's arguments that (1) if he "died prior to retirement the only funds that his estate would receive would be his contributions plus accumulated interest," and (2) he was "not eligible to receive Social Security benefits upon retirement except through a part-time job, but ... [Wife] would be eligible to receive Social Security retirement benefits," Husband's Br. at 7, such may be proper considerations for the trial court in determining a just and reasonable division of the marital estate,⁵ but are not relevant to a determination of the value of Husband's vested and non-forfeitable pension plan.

Accordingly, we reverse and remand with instructions to the trial court to value Husband's pension as an asset of the marriage within the range of the evidence presented.

SULLIVAN, J., concurs.

BAKER, J., dissents with separate opinion.

BAKER, J. dissenting.

I respectfully dissent and part ways with the majority's decision to reverse this case because the trial court valued Joe's pension at $32,409.53. Although the trial court did not value Joe's pension plan within the range of the parties' expert testimony, the record shows that the trial court considered the amount of non-forfeitable funds and essentially awarded Bobbie a share of those benefits even though Joe would not be entitled to them in a lump sum at present, and would not be automatically entitled to those funds at the time of retirement. Thus, I cannot agree that there was an "absence of any evidence to...