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2011-UP-301 - Asmussen v. Asmussen

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

 

Linda R. Asmussen, Appellant,

v.

Patrick M. Asmussen, Respondent.


Appeal From Greenville County
Deborah Neese, Family Court Judge


Unpublished Opinion No. 2011-UP-301  
Submitted March 1, 2011 – Filed June 17, 2011


AFFIRMED


O.W. Bannister, of Greenville, for Appellant.

H. Michael Spivey, of Mauldin, for Respondent.

PER CURIAM:  Linda Asmussen (Wife) appeals from the family court's final divorce decree, arguing the court erred in (1) using Patrick Asmussen's (Husband's) contributions plus interest as the value of a defined benefit pension plan, and (2) not awarding her attorney's fees and costs.  We affirm.[1]

FACTS

Husband and Wife were married in 1992 in Iowa, and no children were born of the marriage.  In 2007, Husband and Wife separated, and Wife moved to South Carolina.  Husband testified he moved to South Carolina two months after Wife moved to reconcile with Wife based on her request.  Wife testified she moved to be closer to her brother, and she did not want Husband to move to South Carolina.

In 2008, Wife filed a complaint in the Greenville County Family Court, seeking separate support and maintenance, equitable division of marital assets and debts, and attorney's fees and costs.  Husband filed an answer and counterclaimed for separate support and maintenance, equitable division of the marital property, alimony, and attorney's fees and costs.

At the final hearing on April 9, 2009, Wife moved to amend to seek a divorce on one-year's continuous separation.  Husband did not object, and the court granted the motion.  Husband and Wife agreed they had divided all personal property and each would keep the property in his or her possession.  Husband also withdrew his claim for alimony.  At the end of the hearing, Husband and Wife stipulated that: (1) they would equally divide the marital estate; and (2) the court would determine the present value of Husband's Iowa Retirement Plan.  Wife's expert testified that, using the life expectancy method of calculation, the value of Husband's retirement plan was $76,901.46 at the time of the hearing; however, Husband testified he called the Iowa Retirement Plan immediately before the hearing, and his retirement was valued at $31,000, including contributions and interest.[2]  On cross-examination, Wife's expert admitted Husband's cash surrender value, as of July 4, 2008, would have been a little less than $31,888.71.  Also, he admitted that as of the date of the hearing, the only amount Husband could have withdrawn from the plan was the cash surrender value.  The court found it noteworthy that Husband's retirement was negatively impacted by Wife's desire to move to South Carolina; his relocation to South Carolina; and her decision to seek a divorce. 

The family court filed its final divorce decree on June 24, 2009.  In the decree, the court made the following rulings: (1) Wife was entitled to a divorce on one-year's separation; (2) Husband and Wife were to keep all personal property currently in his or her possession; (3) all other marital assets were to be divided as provided in the order; (4) Husband's Iowa retirement account's present value was to be determined by the contributions plus interest method, resulting in a value of $31,000; (5) Husband and Wife were responsible for his or her own attorney's fees and costs; (6) Wife was to pay Husband $294.67 within 30 days of the filing of the order for half of the difference in distributions; and (7) Husband was responsible for the preparation of any qualified domestic relations orders necessary to effect distribution.  Wife filed a Rule 59(e), SCRCP, motion, which was denied by the court.  This appeal followed.

STANDARD OF REVIEW

On appeal from the family court, this court reviews factual and legal issues de novo.  Simmons v. Simmons, Op. No. 26970 (S.C. Sup. Ct. filed May 9, 2011) (Shearouse Adv. Sh. No. 16 at 29); see Lewis v. Lewis, Op. No. 26973 (S.C. Sup. Ct. filed May 9, 2011) (Shearouse Adv. Sh. No. 16 at 44).  Although this court reviews the family court's findings de novo, we are not required to ignore the fact that the trial court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Lewis, Op. 26973 at 46-48.  The burden is upon the appellant to convince this court that the family court erred in its findings.  Id. at 49-51.

LAW/ANALYSIS

I.  Pension Plan

Wife argues the family court erred in using Husband's contributions plus interest to determine the value of his defined benefit pension plan.  We disagree.

Wife asserts this is error because it ignores the additional value the plans have to the holder.  Wife asserts the use of only contributions to value a pension plan was specifically rejected in Smith v. Smith, 308 S.C. 372, 418 S.E.2d 314 (Ct. App. 1991).  Wife also claims that in Belton v. Belton, 325 S.C. 456, 461, 481 S.E.2d 174, 174 (Ct. App. 1997), the court reiterated that defined benefit pension plans are calculated using actuarial evidence to arrive at the present cash value.  Thus, Wife requests we reverse the family court's determination of the value of Husband's retirement account; find the plan's present day value was $76,901.46; and remand the issue to the family court for an adjustment based on our finding.

The family court found the retirement plan in this case differed from those in Martin v. Martin, 296 S.C. 436, 373 S.E.2d 706 (Ct. App. 1988), and Smith because, unlike here, benefits were being paid at the time of the litigation.  The court stated there were two common methods the court could use to value Husband's retirement plan: (1) the distribution from each payment method; and (2) the method of determining present value.  The court determined the distribution from each payment method was not appropriate under the facts of the case, and the parties agreed.  Thus, the court found the plan's present value could be determined by either contributions plus interest, or by a calculation using actuarial evidence and other factors.  The court concluded there is no set rule for determining present cash value, and each case must be individually analyzed based on its facts.  The court also noted courts are "encouraged to award the plan to the employee spouse where, as here, there are sufficient other marital assets to allow for an offset."  Therefore, the court found the present value of Husband's retirement plan to be $31,000, as reflected by contributions plus interest.

"[T]he [South Carolina] Code does not specifically define pension benefits as marital property, but this [c]ourt has consistently held that both vested and nonvested retirement benefits are marital property if the benefits are acquired during the marriage and before the date of filing."  Shorb v. Shorb, 372 S.C. 623, 629, 643 S.E.2d 124, 127 (Ct. App. 2007).  "Even if the vested benefits have yet to mature, they are properly includable in the marital estate."  Id. at 630, 643 S.E.2d at 128.  In Tiffault v. Tiffault, 303 S.C. 391, 393, 401 S.E.2d 157, 158 (1991), our supreme court determined that vested retirement benefits accrued during the marriage constituted an earned property right that is subject to equitable distribution.  In Ball v. Ball, 314 S.C. 445, 447, 445 S.E.2d 449, 450 (1994), our supreme court agreed with the Tiffault court and found nonvested pension plans are also marital property.  The court determined "[i]t is within the discretion of the [f]amily court to determine, from the facts of each case, what portion, if any, of the benefits spouse is entitled to receive."  Id.  The court further found "the pension plan essentially has no value until vestment," and "a finding of no current value is sufficient" because "the court must only determine the portion of the plan to which the spouse is entitled."  Id. at 447-48, 445 S.E.2d at 450-51.  

In Martin, the husband had already begun receiving pension benefits at the time of the divorce hearing.  Id. at 439, 373 S.E.2d at 708.  The wife presented expert testimony concerning the value of the husband's retirement plan.  Id.  The expert based his computation on the following assumptions: (1) a twenty-seven year life expectancy for the husband under the mortality tables; (2) a constant real income stream of $735 per month; and (3) a discount rate of 1.1% based on the average real rate of return on long-term government bonds.  Id.  The husband's expert witness gave no opinion on the value of the retirement account because he thought it was too speculative to value.  Id.  The court used the wife's expert's computation and an offset approach in the final distribution of the marital property.  Id. at 439-40, 373 S.E.2d at 708.  On appeal, the husband argued the court erred in using the present cash value method to value and distribute his pension.[3]  Id. at 440, 373 S.E.2d at 709.  In rejecting his argument, this court determined "there were sufficient other marital assets to permit an application of an offset without working an inequity on the husband."  Id. at 441, 373 S.E.2d at 709.  This court further stated "[t]he trial court has wide discretion in determining equitable distribution of marital property and its judgment will not be disturbed on appeal absent an abuse of discretion."  Id.  The court found no abuse of discretion in the family court's use of the present cash value method, but "emphasize[d] there is no set rule in this area and each case must be analyzed and determined on its own facts."  Id.    

In Smith, the husband had already received a lump sum of his retirement benefits and was receiving monthly benefits at the time of the divorce hearing.  308 S.C. at 373, 418 S.E.2d at 315.  Based on that and other facts, this court determined the trial court erred in valuing the husband's pension.  Id. at 374, 418 S.E.2d at 316.  The Smith court stated that to evaluate the present cash value of a pension, the testimony of an actuary is essential.  Id.  Because the court did not have any actuarial evidence of record, the court adopted the distribution from each payment method of valuation.  Id.

In Belton, the family court valued the husband's three pension plans at $15,000, using the present cash value method.  325 S.C. at 460-61, 481 S.E.2d at 176.  On appeal, the wife argued this was error because the only evidence presented was that the accounts were valued at $42,854.25.  Id.  The evidence presented to the family court included: (1) the wife's expert accountant's testimony; (2) a letter from the husband's employer; (3) the husband's financial statement; and (4) each party's general testimony.  Id. at 461, 481 S.E.2d at 176.  This court noted the two methods for valuing pensions, present cash value and distribution from each payment, have both pros and cons.  Id.  The court stated the present cash value method "promotes finality and the severance of the entanglements between the parties, but its downside can be difficulty in valuation."  Id.  It also stated "[t]here is no set rule for how to determine present cash value."  Id. at 461, 481 S.E.2d at 177.  The court quoted Martin, holding that courts typically use actuarial evidence to calculate the present cash value of a defined benefit plan.  Id.  This court concluded the family court erred in its valuation of the husband's plan because the evidence presented did not support the court's amount.  Id. at 462, 481 S.E.2d at 177.  Specifically, the husband's financial declaration failed to include anything that actually quantified the present value of his plans; the letter from the husband's employer listed the current value of husband's two defined contribution plans at $6,603.00, but it did not provide the current value of the husband's defined benefit plan; and neither the husband's nor the wife's testimony provided any specific dollar amount for the values of the three plans.  Id.  Thus, the court remanded the case to the family court to use $42,854.25 as the corrected value of the husband's plans, to determine what percent was marital property, and to divide the assets accordingly.  Id. at 463, 481 S.E.2d at 178.    

Based on our review of the relevant case law and the evidence presented, we find the evidence supports the family court's determination that Husband's retirement was valued at $31,000 at the time of the divorce hearing.  Although Wife's expert testified he calculated the value of Husband's retirement plan to be $76,901.46, Husband testified his retirement plan was valued at $31,000 immediately before the hearing.  Further, on cross-examination, Wife's expert admitted that as of the hearing, the only amount Husband could have gotten from his plan was the cash surrender value, which would probably have been a little less than $31,888.71.  We do not find any error in the family court's use of the present cash value method.

II.  Attorney's Fees and Costs

Wife argues the family court erred in not awarding her attorney's fees and costs.  We need not address this issue.

Wife asserts that Husband rejected her offer to divide his plan; thus, she had to have his plan valued by an expert at a cost of $1,106.25.  Wife asserts that we should award her attorney's fees and costs if we reverse the family court's determination of the value of Husband's pension plan.  However, we need not address this issue because we do not find any error in the family court's determination of the value of Husband's pension plan.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining issues when its determination of another issue is dispositive of the appeal).

CONCLUSION

Accordingly, the family court's order is

AFFIRMED.

HUFF, SHORT and PIEPER, JJ., concur.


[1]  We decide this case without oral argument pursuant to Rule 215, SCACR. 

[2]  Wife's expert testified Husband's plan is a defined benefit plan, and Husband did not object.  Wife's expert calculated the value of Husband's plan using the following assumptions: (1) a four percent discount rate; (2) a benefit rate of twenty-four percent; (3) retirement at age fifty-five; and (4) a life expectancy of 77.39 years.

[3]  The court described this method:  "The trial court calculates, using actuarial evidence, the present value of the pension.  The court further calculates the percentage of the present value attributable to the marriage and the appropriate equitable share of the other spouse.  Usually, the pension is awarded to the employee spouse and there is an offset of other marital property to the nonemployee spouse."  Id. at 440 n.2, 373 S.E.2d at 709 n.2.