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DIVORCE 50: WHILE THE COURT HELD THAT THE TRIAL COURT COMMITTED A LEGAL ERROR IN RULING THAT DEFENDANT’S PENSION WAS NOT A MARITAL ASSET, REVERSAL WAS NOT REQUIRED.

The parties were married in 1988 and have three adult children. During their marriage, the parties purchased the marital home in 1994 (1994 home) with marital funds. After plaintiff’s father died in 2006, the home next door to the marital home was purchased, (2006 home) ostensibly for plaintiff’s mother. Following a bench trial, the trial court issued an opinion and order regarding the distribution and division of the parties’ assets. A judgment of divorce was entered thereafter consistent with the court’s opinion and order. On appeal, plaintiff challenges the trial court’s division of assets, arguing that the trial court’s findings of fact are clearly erroneously and the distribution is inequitable.

ANALYSIS

Plaintiff first argues that the trial court clearly erred by finding that defendant’s pension was not a marital asset. We agree that the trial court committed legal error by so ruling, however, we find that, following review of the record as a whole, such error does not necessitate reversal for the reasons more fully articulated below. “However, treatment of pension benefits may vary. Depending on the equities and the circumstances, pensions may be distributed through either the property division or the award of alimony.” Defendant’s pension was clearly marital property because it was accrued by defendant during the marriage. However, the trial court has discretion in its treatment of a pension. Because the pension was in pay status, we cannot find, on this record, that the trial court abused its discretion by determining that the pension should be treated as defendant’s income and awarded only as spousal support. Moreover, the trial court properly considered the situation and circumstances of the parties in determining that plaintiff was not entitled to an award of spousal support, and plaintiff does not challenge that finding. Following our review of the record evidence in its entirety, we are not left with a definite and firm conviction that the trial court erred by finding that plaintiff could work at least part-time and by awarding defendant his entire pension.

Plaintiff next argues that the trial court erred by failing to award her an interest in the 1994 home, by using an improper valuation date of the home, and by failing to find that funds used by defendant from his inheritance to pay off the mortgage were marital assets. Again, we review a trial court’s factual findings, including the valuation of particular marital assets, for clear error. The trial court set off the approximately $20,000 that plaintiff received from the sale of the 2006 home. Accordingly, by awarding defendant the 1994 home, the trial court awarded the parties marital property of approximate equal value. This division was fair and equitable and the trial court did not abuse its discretion.

Next, plaintiff also argues that the trial court’s setoff of $120,000 against the AXA Equitable account was inequitable. As previously stated, we review the trial court’s factual findings, including the valuation of particular marital assets, for clear error. Plaintiff argues that the setoff was inequitable because the $120,000 that she took no longer existed and had been used by plaintiff as income. The fact that it no longer existed, however, is irrelevant because the trial court found that plaintiff had taken the $120,000 and dissipated that marital asset. Therefore, the trial court did not err by awarding defendant the AXA Equitable account, which was worth approximately the same amount as the marital asset dissipated by plaintiff.

Plaintiff argues that the valuation date of the National Western Annuity used by the trial court was clearly inequitable. “The determination of the proper time for valuation of an asset is in the trial court’s discretion.” The trial court did not clearly err by finding that the parties manifested an intent to lead separate lives when they separated in 2013. Thus, the trial court did not abuse its discretion by using a 2013 valuation date for the National Western Annuity.

CONCLUSION

The trial court’s factual findings regarding the marital assets are not clearly erroneous. The trial court’s dispositional ruling was fair and equitable in light of those findings.

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