Opinion
Case No. 20060899-CA.
Filed October 12, 2007. Not For Official Publication
Appeal from the Second District, Farmington Department, 994701467 The Honorable Glen R. Dawson.
Benjamin C. Rasmussen and Brad C. Smith, Ogden, for Appellant.
Jon J. Bunderson, Brigham City, for Appellee.
Before Judges Billings, Davis, and Orme.
MEMORANDUM DECISION
Brian C. Lamano (Husband) appeals the trial court's decision in a divorce action to award him a future share, rather than a present-value share, of an employer-funded, defined-benefit pension plan (Pension) belonging to his former wife, Pamela A. Lamano (Wife). We affirm.
Under the rule from Woodward v. Woodward, 656 P.2d 431 (Utah 1982), Husband would be entitled to a one-half share of the portion of Wife's Pension that accrued during their marriage. See id. at 433.
In divorce actions, we review the trial court's determination regarding distribution of property under an abuse of discretion standard. See Van Dyke v. Van Dyke, 2004 UT App 37,¶ 9, 86 P.3d 767;see also Gibbons v. Gibbons, 656 P.2d 407, 409 (Utah 1982). Husband argues that it was an abuse of discretion for the trial court to award him a future share, instead of a present-value share, of the Pension (which was solely funded by Wife's employer) when all other assets were divided at the time of the divorce.
First, Husband contends that the parties' stipulated agreement prohibits the court from awarding him a future share in the Pension. After the trial court determined how to divide all known cash retirement accounts, Wife agreed that if another account was discovered, Husband would receive a present-value credit for his one-half interest in the account. The trial court accepted this agreement and alluded to it in the findings of fact accompanying the divorce decree. Later, when the Pension was discovered, the trial court held that the agreement of the parties did not apply to that account because the Pension was a defined-benefit plan, not a cash retirement account. After reviewing the parties' agreement in context, it is clear that the agreement was in reference to undiscovered cash retirement accounts, not defined-benefit accounts, and that the trial court's adoption of the parties' agreement refers to retirement accounts having "definitive cash amounts." Therefore, we conclude that the trial court did not abuse its discretion in ruling that the stipulation did not apply to the Pension and that the trial court was not required to consider that agreement when it awarded Husband his future share of the Pension.
The record states that counsel for both parties were discussing an account where "there was money" and where "money was rolled over," not a defined-benefit pension plan where benefits would be paid later.
Second, Husband contends that the doctrine of judicial estoppel prevents the trial court from awarding him a future share in the Pension. Under the doctrine of judicial estoppel, a party is prohibited from making a sworn statement in one judicial proceeding and then later denying that statement in a subsequent proceeding. See Nebeker v. State Tax Comm'n, 2001 UT 74,¶ 26, 34 P.3d 180. However, the doctrine of judicial estoppel does not apply here because the trial court's ruling was not a separate judicial proceeding, but part of the same divorce action. The trial court made numerous determinations on various issues as part of the parties' divorce action, both before and after entering the initial divorce decree, and the trial court explicitly left open the issue of how to distribute undiscovered retirement accounts — a fact both parties knew. Therefore, we conclude that judicial estoppel did not preclude the trial court from awarding Husband a future share in the Pension.
Third, Husband contends that because it is possible to assign a present value to the Pension, the trial court is required to give Husband an immediate credit for one-half the present value rather than a future share. In Woodward v. Woodward, 656 P.2d 431 (Utah 1982), the supreme court gave the trial court discretion to determine the issue of when a deferred distribution is the best way to divide an asset.See id. at 433. Further, in Bailey v. Bailey, 745 P.2d 830 (Utah Ct.App. 1987), this court held that when there are contingencies or variables that would significantly affect the value of a defined-benefit pension plan, the "distribution of [retirement benefits] should generally be postponed until benefits are received or at least until the earner is eligible to retire." Id. at 832. When such contingencies exist, it becomes "unnecessary" for the trial court "to compute the present value of the pension rights." Id.
The trial court did not determine that a present value could not be calculated. In fact, Husband had an expert witness ready to testify as to the Pension's present value. Rather, the court simply decided to award a future share based on facts that suggested a future distribution was more appropriate.
In the present case, the trial court based its decision to award Husband a future share on the presence of several "variables" and "assumptions" that would affect the value of the Pension. These included the bankruptcy reorganization of Wife's employer, the length of time Wife would continue to work for her employer, and Wife's estimated future salary. Because there are several contingencies and variables that could affect the value of the Pension over time, we cannot say that the trial court abused its discretion in awarding Husband a future share in the Pension.
Finally, we address Husband's claim that the trial court erred in calculating his future share in the Pension from the date of the trial, rather than from the date the court ruled on the distribution of the Pension. The general rule in Utah is that assets should be "valued at the time of the divorce decree." Rappleye v. Rappleye, 855 P.2d 260, 262 (Utah Ct.App. 1993) (citing Berger v. Berger, 713 P.2d 695, 697 (Utah 1985)). This has been interpreted to mean that trial courts should fix the value of an asset based on its value at the time of trial. See, e.g., Berger, 713 P.2d at 697-98; Rappleye, 855 P.2d at 262-63;Morgan v. Morgan, 795 P.2d 684, 688 (Utah Ct.App. 1990). Thus, we conclude that the trial court did not abuse its discretion when it valued the Pension and calculated Husband's share of the Pension as of the trial date.
Accordingly, we affirm.
Judith M. Billings, Judge
WE CONCUR: James Z. Davis, Judge
Gregory K. Orme, Judge