SIMS v. SIMSNo. 11471.
349 So.2d 974 (1977)
Winston H. SIMS
Marcella McGinnis SIMS.
Marcella McGinnis SIMS.
Court of Appeal of Louisiana, First Circuit.
July 11, 1977.
Rehearing Denied August 24, 1977.
Writ Granted November 4, 1977.
Charles W. Wilson, III, Baton Rouge, for plaintiff-appellee Winston H. Sims. Michael A. Cavanaugh, Baton Rouge, for defendant-appellant Marcella McGinnis Sims.
Before ELLIS, CHIASSON and PONDER, JJ.
This is an appeal from a judgment partitioning a pension plan.
The only issue is the method of computing the value of the wife's share.
The community was established in 1946. Since 1956, plaintiff has been employed as an air traffic controller for the federal government. As of the date the community was dissolved in 1975, Mr. Sims had contributed $14,446.95 to the retirement plan in which he is enrolled. There were no employer contributions. The parties stipulated that the contributions to the plan were community property.
Mrs. Sims has pointed out in her brief there are available three methods of computing the value of the pension plan:
1. the amount that could be withdrawn as employed in Langlinais v. David [La. App.],
2. a general formula ascribing to the community that portion that was earned during the community of the annuity that ultimately is drawn, as employed in Lynch v. Lawrence [La.App.],
3. the present actuarial value of the right to participate in the retirement plan at a later time. Mrs. Sims cited no case, and we have none, employing this method.
The lower court used the first method. Mrs. Sims urges the use of the second and cites the case of Lynch v. Lawrence, supra, which gave the general formula for the computation and mandated the beginning of payment upon employee's retirement.
The Lynch case is distinguishable, however, because there were no employee contributions; the employer contributions and the earnings of the trust were not apportioned to an individual account for each employee. The vested interest in the deferred plan could not be discounted, assigned or converted into cash. The husband
In Swope v. Mitchell, La.App.,
In T. L. James v. Montgomery, La.,
In Messersmith v. Messersmith,
Instead, we find this case is very similar to Langlinais v. David, La.App.,
Mr. Sims had no option to receive monthly benefits from the fund before retirement; as of the date of dissolution, he had not reached the required age to retire. Therefore, as in Langlinais, the only immediate value of the retirement fund was the amount Mr. Sims could withdraw, and Mrs. Sims is entitled to one-half of that amount.
It is to be emphasized that this is a suit to partition the community property not to seek an abstract declaration of the interest of the community in the pension plan.
Mrs. Sims argues that this is unfair to the wife. The result might prove to be inequitable to the spouse in some instances; in others, however, the result will be advantageous, since it is conceivable that the employee might never retire and draw benefits. In the absence of proof of a different and more equitable method of partitioning the community, the lower court was correct.
For the above reasons, the judgment of the trial court is affirmed; defendant to pay all costs of this appeal.
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