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Bishop v. Bishop

3/1/1994

les of the Pension Benefit Guaranty Corporation, a corporation within the United States Department of Labor, are well suited for this purpose. Id. Finally, the trial court must reduce the present value to account for contingencies such as involuntary or voluntary employee-spouse termination and insolvency of the pension plan. This calculation cannot be made with reference to any table or chart and rests within the sound discretion of the trial court.


Distribution


In the absence of an agreement of the parties, there are two methods for dividing retirement benefits: (1) award the pension to the employee-spouse and award other marital property of offsetting value to the other spouse, N.C. Gen. Stat. § 50-20(b)(3)d, or (2) divide the pension benefits if and when paid, N.C. Gen. Stat. § 50-20(b)(3)c. The first method is known as the present value method, Seifert, 319 N.C. at 371, 354 S.E.2d at 508; Workman v. Workman, 106 N.C. App. 562, 568, 418 S.E.2d 269, 273 (1992), or the immediate offset method, Troyan § 45.21 , while the second method is known as the fixed percentage method, Seifert, 319 N.C. at 370, 354 S.E.2d at 509, or the deferred distribution method, Troyan § 45.21 . "Where the value of the total marital estate is sufficient to permit it," the trial court has the discretion to choose between the present value method and the fixed percentage method. Seifert, 319 N.C. at 370, 354 S.E.2d at 509. In both instances, the trial court is required to value the pension and retirement benefits as of the date of separation. Id. at 371, 354 S.E.2d at 509; but see Golden § 7.13, at 311 (Supp. 1993) ("majority holds that pension need not be valued" if court uses deferred distribution method).


In reviewing the order of the trial court with respect to the DuPont defined benefit pension, we determine the trial court correctly assumed that the defendant ceased working for DuPont on the date of separation. As we have stated, the valuation must be made as of the date of separation and cannot include "compensation" accruing after that date. Workman, 106 N.C. App. at 570-71, 418 S.E.2d at 273-74. Thus it would have been error for the trial court to have valued the pension, as plaintiff suggests, "assuming continuous employment" beyond the date of separation. We do note that the order does not reflect that the trial court considered, as it must, any projected "gains and losses" on the portion of the pension which was vested as of the date of the separation. Our review of the record, however, does not reflect that any evidence was presented on this issue and this cannot therefore support reversal. See Miller v. Miller, 97 N.C. App. 77, 80, 387 S.E.2d 181, 184 (1990) (requirement that trial court value property "necessarily exists only when evidence is presented").


The plaintiff further contends that the trial court erred "in not determining that the value [of the pension] on the date of separation . . . was in fact, $47,455.00." The plaintiff argues that the method used by the trial court "operated as a double reduction of the benefits allocable to the [plaintiff]." We disagree. The trial court, having determined the value of the pension at defendant's age sixty-five, was then, as we have stated, required to reduce that amount to a value as of the date of separation.


The trial court did, however, commit error when it valued the pension on the basis that defendant wou

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