Opinion
Docket No. 123653.
Decided May 7, 1991, at 9:15 A.M.
John A. Watts, for the plaintiff. Lawson Marcus (by Thomas A. Lawson), for the defendant.
Before: MICHAEL J. KELLY, P.J., and DOCTOROFF and NEFF, JJ.
Plaintiff appeals as of right from a November 10, 1989, judgment of divorce following a trial which encompassed 4 1/2 days scattered over more than a year. We reverse in part.
At oral argument, this Court expressed dismay at the onerous burden placed on these parties in completing a trial which should have taken two days, but actually took sixteen months from the time it began until the time the court rendered its opinion. Since neither party has claimed error requiring reversal due to the fragmented and protracted treatment administered in the circuit court, we can do little more than flag this trouble spot. Responding to questions at oral argument, counsel alluded to an unwritten 17th Circuit Court policy that operated to severely circumscribe trial time — a sort of oppression against divorce litigants. Canon III of the Code of Judicial Conduct exhorts diligence as well as impartiality and, although this may not be the forum for affording relief, we are constrained to admonish against any such tyranny.
Plaintiff-appellant raises six specifications of error, the first of which we find meritorious. The trial court erred in excluding from a 60/40 property division the defendant's employee profit sharing and retirement plan. We hold that the trial court's view of the evidence in this regard is not plausible and we reverse, employing the standard enunciated in Beason v Beason, 435 Mich. 791; 460 N.W.2d 207 (1990). While the court did not err in assessing fault or in its division ratio, the court's professed reason for excluding this major asset from that division is contradictory and implausible. The court stated:
And although the other assets are being divided 60/40, the court is dividing the present value of the pension plan as of the date of the filing of the divorce equally, since this appears to be one of the major assets and should in all fairness to both parties be divided that way.
The court did not err in its determination of the valuation date because that determination is committed to the court's sound discretion and, in this case, the court clearly had a plausible reason for choosing the date on which the divorce complaint was filed rather than the date of the divorce judgment. Sullivan v Sullivan, 175 Mich. App. 508; 438 N.W.2d 309 (1989). To the extent that Kurz v Kurz, 178 Mich. App. 284; 443 N.W.2d 782 (1989), holds otherwise, we disagree with the majority therein and agree with the partial dissent by Judge MURPHY. It would take an exercise in casuistry to fix a judgment date valuation in a divorce case where the trial court specifically found that the objects of matrimony had been irreconcilably destroyed by the time the complaint was filed. Notwithstanding the broad rule of Kilbride v Kilbride, 172 Mich. App. 421, 437; 432 N.W.2d 324 (1988), that an employee's retirement plan must be valued at the time of the divorce and should not include "[a]ny accrual of value before or after the marriage," we believe the termination date of the marriage for asset valuation purposes need not be irreducibly identical with the calendar date on which the judgment of divorce was entered. In some situations, and this appears to be one, the termination date of the marriage for purposes of the valuation of an employee retirement plan can predate the entry of the judgment of divorce. In this case, the trial judge did not err in equating the date of the filing of the complaint as the cutoff for valuation of the plan as accrued during the course of the marriage. To the extent that Kilbride, Kurz, and Lesko v Lesko, 184 Mich. App. 395; 457 N.W.2d 695 (1990), may be read as disregarding and discounting the lengthy course of divorce proceedings, we would disagree. However, we do not see so much a conflict as an extension of factual application.
We have examined the four remaining specifications of error and find plausible support in the record for the trial court's view of the evidence. Hence, we may not reverse the trial court's decisions with respect to these issues. Beason v Beason, supra at 805.
Affirmed in part, reversed in part, and remanded for entry of an order awarding the plaintiff sixty percent of the value of defendant's employee retirement plan on the date of the filing of the complaint for divorce. Costs to plaintiff.