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In re Marriage of Zappanti6/19/2003
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Kapelke and Pierce , JJ., concur
Larry J. Zappanti, Sr. (husband) appeals from the trial court's permanent orders entered in connection with the dissolution of his marriage to Victoria Zappanti (wife). We affirm in part, reverse in part, and remand for further proceedings.
The decree terminating the parties' twenty-three-year marriage was entered on January 22, 2002. The permanent orders hearing occurred in February, and the court signed the written orders on March 13, 2002.
Among other provisions, wife received her PERA retirement pension and was assigned responsibility for various marital debts. Husband also received his entire railroad pension, which included a current benefit of $2031 per month, and was assigned liability for the remaining marital debt.
The trial court allocated sole decision-making authority for the parties' minor child to wife and ordered husband to pay child support in the amount of $358 per month.
Husband challenges the trial court's valuation of wife's pension, the classification of his retirement, the valuation of the marital portion of his pension, and the calculation of child support . We find no reversible error as to the wife's pension and child support, but we reverse as to husband's railroad pension.
I.
Husband first contends that the trial court erred as a matter of law in valuing wife's PERA retirement fund based solely upon the amount of her contributions. We agree that the court erred in its valuation, but find no basis for reversal.
In its bench order, the trial court found that wife's PERA retirement was vested, but not matured, and therefore, if she left her job , the only money she could withdraw would be the amount of her contributions. Wife had testified that she had contributed $60,349.22 to her PERA fund. That same amount was listed as the value on her financial affidavit. The court, basing its valuation on wife's contributions, found that her PERA fund was worth $60,000.
Because PERA combines elements of defined benefit and defined contribution plans, the present value of a PERA account cannot be based purely upon the contributions as of the date of dissolution. Rather, a determination of present value requires application of a series of actuarial and investment assumptions relating to the employee's life expectancy and probable retirement age to the contractual or statutorily awarded benefit. In re Marriage of Kelm, 912 P.2d 545 (Colo. 1996).
Thus, it appears that the trial court erred in valuing wife's pension based solely upon her contributions. However, we conclude that husband acquiesced in this error.
Normally, the valuation of future retirement payments is the subject for expert testimony, usually from an actuary. Perry v. Perry, 133 Mich. App. 453, 350 N.W.2d 275 (1984). It is the parties' duty to present the trial court with the requisite data that would allow it to make a sufficient valuation of the retirement fund, and any failure by the parties in that regard should not provide them with grounds for review. In re Marriage of Smith, 114 Ill. App. 3d 47, 448 N.E.2d 545 (1983). Accordingly, a party who fails to present sufficient evidence at trial should not be allowed on appeal to challenge the inadequacy of the evidence. Hartland v. Hartland, 777 P.2d 636 (Alaska 1989).
Here, not only did husband fail to present any evidence of the value of wife's PERA pension, he also made no objection or argument challenging wife's valuation during the permanent orders hearing. In addition, husband's counsel informed t
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