Rust v. Rust , 143 Mich. App. 704 ( 1985 )

143 Mich. App. 704 (1985) 373 N.W.2d 197

RUST
v.
RUST

Docket No. 74215.

Michigan Court of Appeals.

Decided June 19, 1985.

Dean, Dean, Segar, Hart & Shulman, P.C. (by Cameron Dean), for plaintiff.

Trembley & Trembley, P.C. (by James Trembley), for defendant.

Before: D.E. HOLBROOK, JR., P.J. and ALLEN and E.M. THOMAS,^[*] JJ.

PER CURIAM.

Plaintiff-wife appeals as of right from the trial court's distribution of the marital estate pursuant to a judgment of divorce. On appeal plaintiff contends that the court abused its discretion in the handling of the division of defendant's pension and that the court was unfairly biased against plaintiff.

This Court reviews property settlements in divorce cases de novo, however we will not substitute our judgment for that of the trial court unless there has been an abuse of discretion, Gregg v Gregg, 133 Mich. App. 23, 26; 348 NW2d 295 (1984), or unless we are convinced that we would have reached a different result had we been sitting in the trial court's position. Hatcher v Hatcher, 129 Mich. App. 753, 760; 343 NW2d 498 (1983). The objective of the property settlement is to reach a fair and equitable division in light of all the circumstances. Such division need not be equal, it needs only to be equitable. Gregg, supra, p 26.

Plaintiff contends that she is not receiving an equitable share of defendant's pension. We disagree. The pension was considered a marital asset. Perry v Perry, 133 Mich. App. 453, 457; 350 NW2d 275 (1984). The court, in its findings of facts, determined that defendant receives $1,706.22 per month in pension benefits. So that plaintiff could receive defendant's full pension after his death, defendant gave up $204 per month that he would otherwise be receiving so as to have plaintiff named as a contingent beneficiary. This future interest of plaintiff does have a present value. The court further determined that 21/25ths, or $1,433.22 of the $1,706.22, was earned during the marriage. The court ordered alimony in the amount of $225 per month, which is an acceptable way in which to distribute pension benefits. Perry, supra, p 460.

Taking into consideration the $204 value plus the $225 alimony, plaintiff received approximately 30% of defendant's monthly pension. When the contingency of defendant's predeceasing plaintiff in the future, thus having plaintiff receiving all of defendant's pension, is taken into account, we cannot say that there is any abuse of discretion here.^[1]

Plaintiff contends that since the alimony award may be terminated upon her remarriage or cohabitation she is not receiving her portion of defendant's pension. We find this claim to be meritless. As plaintiff currently earns a weekly salary of $152 and defendant earns $100 per week, the alimony cannot be based on salary. Plaintiff was not awarded a sum certain and there is no requirement that pension benefits be distributed in that manner. Perry, supra, and Diephouse v Diephouse, 127 Mich. App. 526; 339 NW2d 42 (1983).

This Court has allowed pension benefits to be awarded as alimony and permitted such payments to be halted if the spouse remarries. Perry, supra.

Plaintiff also claims error occurred in that the trial judge was biased against her. We do not agree. There is no indication that the trial judge was prejudiced or biased against plaintiff by his recognition that defendant's election of plaintiff as a contingent beneficiary was permanent. A party seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality. Plaintiff has not met this burden. Arnholt v Arnholt, 129 Mich. App. 810, 817-818; 343 NW2d 214 (1983).

Defendant asks us to determine the effect that this appeal has on the parties' marital status. In the instant case, the judgment of divorce was written and entered. Tiedman v Tiedman, 400 Mich. 571; 255 NW2d 632 (1977). GCR 1963, 808.1 provides in pertinent part:

"No appeal to the Court of Appeals shall operate as a stay of execution unless and until there is filed a bond * * *."

While the powers of this Court are not limited and we could stay, suspend, modify or restore a judgment, GCR 1963, 530.6, we have not done so in this case. Accordingly, when a divorce judgment is entered,^[2] we hold that the parties are formally divorced at that point.

Affirmed. Costs to defendant.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.

[1] At this point in time there is no set method for the valuation of a pension plan. The trial court had the option to award plaintiff only one-half of the defendant's actual contribution to the pension plan during the marriage. Giesen v Giesen, 140 Mich. App. 335; 364 NW2d 327 (1985).

[2] We do not address the question that may arise if one spouse contests the validity of the entire divorce. In this situation the parties are only contesting the property settlement and not the divorce itself.