Submitted under sec. (Rule) 251.54 December 2, 1974.
This is an appeal from a portion of a judgment of divorce granted to the plaintiff Anna C. Pinkowski from Leonard A. Pinkowski, defendant, on the ground of voluntary separation.
Two questions are raised on the appeal by the appellant Anna C. Pinkowski: (1) Did the trial court err in not including among the assets for division between the
Mr. and Mrs. Pinkowski had been married for thirty years at the time the divorce was heard on December 19, 1972. Five children had been born to them, four of whom were of age. Custody of a minor daughter Audrey, born January 11, 1957, was awarded to Mrs. Pinkowski and the court ordered the defendant to pay $80 per month support for Audrey's care and maintenance. That portion of the judgment is not at issue in this appeal.
The plaintiff wife was fifty-three years of age, worked as a school-crossing guard for $8.91 per day and had a net monthly income after taxes of approximately $123 per month. In addition she received $15 per week from each of two adult employed sons for room, board and laundry. The court in its directions for findings of fact and conclusions of law found that the plaintiff had worked full time when the parties were first married and part time ever since and that their property had been accumulated from their joint efforts. The court found the plaintiff lacked substantial skills which limited her employment opportunities.
Mr. Pinkowski, aged fifty-three years at the time of the divorce, had been employed throughout their married life and was employed by the Falk Corporation. With some help from her relatives and his, he had built the home they occupied. After taxes and social security deductions he had a weekly pay of $139.65.
In dividing the property the court ordered that the homestead should be occupied by the wife and the minor daughter until one month after the daughter achieved the age of eighteen years, at which time the home was to be put up for sale and the proceeds after deducting the expenses of sale were to be divided equally between the parties. In addition, the court awarded Mr. Pinkowski the checking account, the savings account, and the coin collection.
In addition to $80 a month support for Audrey during her minority, the court ordered that Mr. Pinkowski pay $70 a month alimony and the taxes on the property of $1,100 a year until the property was sold.
Other items such as two cars, household goods, and furniture, and insurance policies owned by each of the parties were not valued and their division by the court is not challenged in this appeal.
The court also found that the defendant had an interest in a pension fund with his employer and that were he to terminate his employment it would pay him $23,551. If Mr. Pinkowski should stay with the Falk Corporation until age sixty-five, the pension fund would pay him $347 per month, which added to his social security would give him $596 per month.
The trial court in its directions for findings of fact and conclusions of law said, "It is clear that Mr. Pinkowski should not be required to terminate his employment so that the proceeds of his retirement program would be available for division." We agree. However, the present value of the fund as determined by the trial court must
The trial court held that alimony should be awarded to Mrs. Pinkowski and said, "Provision for alimony is the only practical way under the circumstances of this case that Mrs. Pinkowski can have some benefit of her husband's pension system." The value of the pension fund was not included in the assets which were divided.
The plaintiff wife contends that the value of the pension should have been included.
The judgment in this case would put off for at least twelve years the time when Mrs. Pinkowski would receive any benefit from this asset, assuming Mr. Pinkowski stayed at Falk Corporation and retired at age sixty-five. If he should leave earlier and draw out the fund, she could very well get nothing from this asset.
This court first considered the value of pension plans and their inclusion for purposes of division of property in a divorce case in Schafer v. Schafer (1958), 3 Wis.2d 166, 170, 87 N.W.2d 803.
In Schafer at the time of the divorce Mr. Schafer was fifty-six years of age and for thirty-two years he had been an employee of the postal department and had made contributions of his salary to the federal civil service retirement fund. His interest in the fund at the time of the divorce had ". . . no realizable cash surrender value unless he separates himself from the postal service." No value was attempted to be placed thereon by the trial court; his contributions had amounted to $4,065.08 and at his then age of fifty-six he was eligible to retire and receive an annuity payable at the rate of $240 per month. However, if he waited until age sixty to retire, his annuity would yield him approximately $277 per month. The trial court gave no weight to the fact Mr. Schafer had an interest in the retirement fund. The question before this court was, should the retirement
The next time this court considered the matter was in the case of Schneider v. Schneider (1961), 15 Wis.2d 245, 112 N.W.2d 584. In Schneider, the husband was forty-four years of age and was employed by the Falk Corporation. There the profit-sharing trust had deposited $5,000 to his retirement account and payments were to be made out of this account to him upon retirement or resignation or to beneficiaries at his death. The trial court had awarded the deposit in this fund to the husband but ordered him not to use or dispose of any portion of it until the children became self-supporting and ordered that he use it as security for payment of support money.
This court modified the judgment to award to the wife $2,000 which had been awarded by the trial court to the husband from a bank account and in so doing stated, page 248, "We have held that, although a husband's interest in a retirement fund cannot be divided between the parties, its value should be taken into account in making a division of estate." The court in Schneider, citing Schafer, further stated: "Doubtless the interest in the trust should be valued at a little less than that [$5,000] because [he] cannot withdraw the money at will."
In the case of Kronforst v. Kronforst (1963), 21 Wis.2d 54, 123 N.W.2d 528, the parties had approximately $60,000 worth of assets, among which the husband's interest in a profit-sharing trust amounting to $9,749 as
Here, Mrs. Pinkowski contends the trial court abused its discretion in awarding only $70 a month as alimony. At the time that alimony was set in this case the court found that Mr. Pinkowski had a take-home pay after income taxes and social security of $579 a month. The court then found that another $100 would have to be deducted to cover real estate taxes, insurance on the premises, and some medical expenses which he pays for allergy treatment for Audrey. This left $479 out of which he was to pay $70 alimony and $80 support, leaving him a balance of $329 a month. In addition the court ordered him to pay the sum of $2,300 in bills of the
In view of the fact that there are sufficient assets for the court to make a distribution to the wife out of the proceeds of the house after including the value of the pension fund, we reverse that portion of the judgment. The court may then exercise its discretion in determining what the division of the assets between the parties should be. The court may, on the other hand, impose a trust on the pension fund and require the husband to pay any part received into court. The court may determine either a percentage or a specific amount that the wife should receive of such fund and provide for payment to her of her share in lump sum or in instalments depending upon how the funds are eventually received by the husband. Thus the court may withhold distribution of a pension fund asset between the parties until the money is actually received when he retires.
The trial court was concerned with using the pension fund as a source of alimony payments in the future after the husband reached the age of sixty-five and retired. This was twelve years away from the time of the divorce. If the wife remarried within these twelve years, she would receive no benefit from the fund if it is regarded merely as a source for the payment of future alimony and was not included among the assets. In Cary v. Cary (1970), 47 Wis.2d 689, 693, 694, 177 N.W.2d 924, the husband, who the briefs on file show was sixty years old at the time of the divorce and was to retire at sixty-five, complained that the trial court improperly considered his interest in an employee retirement fund twice, once as a present asset and a second time as the sole source of his retirement income which, in the near
". . . the trial court was not required to include in its alimony award an adjustment effective upon the plaintiff's retirement, . . . The adjustment required to meet the changed circumstance of retirement is best considered at the time of the event, when contingent possibilities such as substitute or supplementary employment will be before the court."
We also reverse the award of alimony as well as the property division so that the trial court can exercise its discretion as to alimony in view of the new division of estate to be made pursuant to this opinion. Schafer v. Schafer, supra, page 172.
By the Court.—Judgment affirmed, in part; reversed, in part; and cause remanded for further proceedings not inconsistent with this opinion.