 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Feldhaus v. Schreiner6/5/2002
R>
[ ] A review of the record reveals that a judicial mind could legitimately have reached the same decision as was reached by the trial court in this case. The court considered all seven of the relevant factors for property division and concluded there were certain inequities that justified the uneven distribution. See Pellegrin v. Pellegrin, 1998 SD 19, , 574 NW2d 644, 648. Feldhaus is younger than Schreiner, still fully employed, and has the potential to continue increasing her earnings. Schreiner contributed "twice as much as Feldhaus, by way of earnings, towards the accumulation of assets during the course of the marriage." Felhaus is in good health, while Schreiner has a heart condition that could cause significant problems down the road, one of which is surgery. But most importantly, the court was "mindful of the fact that nearly three quarters of [Schreiner's] marital estate is comprised of his retirement plan that has no cash value." (emphasis added).
[ ] Feldhaus spends much of her brief arguing that the court impermissibly disregarded the expert testimony, which established the policy's current value at $550,320 by means of statistical prediction, when it stated that the value of the policy was speculative. See Kennedy v. Hubbard Milling Co., 465 NW2d 792, 795 (SD 1991) (stating trial court "should not arbitrarily disregard uncontradicted or undiscredited expert testimony."). This is not, however, a correct characterization of the trial court's actions or statement. The court correctly adopted the current value (not cash value), as supported by the expert testimony. But it also recognized "the speculative nature of the value," in that it is wholly dependent upon how long Schreiner lives. (emphasis added). This is not to say that Schreiner has supported, with medical or scientific evidence, the assertion that his life expectancy will be shorter than the projected 78 years. It is merely a common sense recognition that Schreiner's retirement policy is not liquid. See Baltzer v. Baltzer, 422 NW2d 584, 587 (SD 1988) (upholding trial court's consideration of asset liquidity when making equitable distribution). There is no $550,000 account that Schreiner can access at any time. He can only reap the full amount of the investment by living a certain number of years.
[ ] By contrast, Feldhaus' policies do have a "cash" value, albeit less than current value, which may be accessed at any time. Feldhaus' retirement plans have a combined cash value of over $195,000. The court also stated, "If [Feldhaus] desires a [Qualified Domestic Relations Order] for an absolute 50/50 split, then will receive her marital share of [Schreiner's] monthly benefit and an equalization payment of $109,993 will need to be made to [Schreiner]." In other words, Feldhaus cannot have her cake and eat it too. She was given the opportunity to receive the 50/50 split that she desired, but she would have to wait for the monthly retirement payments just as Schreiner would. She would also share equally in the risk that he would not live to receive the full value of the policy.
[ ] We find no abuse of discretion in the trial court's distribution of property and we will not second-guess the trial court's decision where there is sufficient evidence to support its findings. Therefore, we affirm the trial court's distribution of property.
[ ] SABERS, AMUNDSON, and, KONENKAMP, Justices, and MARTIN, Retired Circuit Judge, concur.
[ ] MARTIN, Retired Circuit Judge, sitting for ZINTER, Justice, disqualified.
Page 1 2 3 4 South Dakota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|