Sally Sutton Britt v. Bobby Glenn Britt ( 1999 )

IN THE COURT OF APPEALS
AT KNOXVILLE
FILED
October 15, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
) WASHINGTON COUNTY
SALLY SUTTON BRITT, ) 03A01-9812-CH-00416
)
Plaintiff-Appellant, )
)
v. )
) HON. G. RICHARD JOHNSON
BOBBY GLENN BRITT, ) JUDGE
)
Defendant-Appellee. )
)
)
) REVERSED AND REMANDED
)
ROBERT D. ARNOLD of ARNOLD, HAYNES & SANDERS, Johnson City, for
Appellant
JUDITH FAIN, Johnson City, for Appellee
O P I N I O N
Goddard, P.J.
This appeal involves an action to determine whether the
Trial Court erred in its division of the marital estate. Sally
Sutton Britt, the Plaintiff/Appellant, presents as her sole
issue, which we restate, whether the Trial Court erred in its
valuation of her Civil Service Retirement Account in its division
of the marital estate in her divorce from Bobby Glenn Britt, the
Defendant/Appellee.
The parties were married for thirty-seven years and at
the time of their divorce, their marital estate was valued at
over $1 million.
Mrs. Britt, who is now retired, was employed for
thirty-one years as a registered nurse at the Veterans
Administration Hospital in Johnson City. She receives $1,709 per
month gross from the federal government in a civil service
retirement pension.
In its division of the marital estate, the Trial Court
awarded Mrs. Britt the entire estimated value of her Civil
Service Retirement Account, $270,000. Each party received
approximately $649,499 from the division of the marital estate.
Mrs. Britt argues that the value of her portion of the
marital estate is less than that received by Mr. Britt. James
Fraser, an investment broker with J. C. Bradford who is
experienced in evaluating retirement accounts, stated that Mrs.
Britt had no access to any lump sum amount from her Civil Service
Retirement Account, unlike an IRA or a 401(k) account.
Therefore, Mrs. Britt contends that the value of her portion of
the marital estate is less than that received by Mr. Britt.
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Mr. Britt argues that the Trial Court did not err in
the division of the marital estate. He contends that Mrs. Britt
argued at trial that her Civil Service retirement benefits were
not a marital asset, so she should not be allowed to argue on
appeal that her retirement is a marital asset and should be
divided. However, Mrs. Britt maintains that she did not assert
at trial that her Civil Service retirement benefits were not
marital property, but did assert that these benefits “should be
considered the same way that Social Security is considered.”
Mrs. Britt does not contest the Trial Court’s finding that her
Civil Service retirement is marital property, but she does
contest the Trial Court’s division of the marital estate.
It is well established that division of a marital
estate need not be equal to be equitable. Wade v. Wade, 897
S.W.2d 702, 713 (Tenn. Ct. App. 1994). Courts often divide
marital property retirement benefits by awarding a spouse
periodic payments directly from the pension fund. Towner v.
Towner, 858 S.W.2d 888, 891 (Tenn. 1993).
“One advantage to the deferred distribution method is
that it allows an equitable division without requiring present
payment for a benefit not yet realized and potentially never
obtained.” Cohen v. Cohen, 937 S.W.2d 823, 831 (Tenn. 1996).
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Furthermore, such an approach “equally apportions any risk of
forfeiture.” Cohen, 937 S.W.2d at 831.
The Trial Court awarded the value of Mrs. Britt’s Civil
Service retirement pension, which it determined to be $270,000,
to her in a lump sum, despite the fact that she cannot receive
her retirement in a lump sum amount like other retirement
accounts such as an IRA or a 401(k) plan. She can receive only
a fixed amount, $1,709, per month. Furthermore, Mrs. Britt’s
Civil Service Retirement Account constitutes the largest asset in
her portion of the marital estate. Therefore, in light of the
value of the marital estate at over $1 million, we find that Mrs.
Britt’s portion of the marital estate in liquid assets is not
equitable when compared with the value of Mr. Britt’s portion of
the marital estate.
For the foregoing reasons, we reverse the judgment of
the Trial Court with respect to the division of the marital
estate and remand to the Trial Court for a division of the
marital estate that provides for an equitable monthly payment to
Mr. Britt from Mrs. Britt’s Civil Service retirement pension and
that provides for Mrs. Britt’s receipt of an equitable amount
from the couple’s liquid assets such as various retirement
accounts. Costs are adjudged against Mr. Britt.
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___________________________
Houston M. Goddard, P.J.
CONCUR:
__________________________
Herschel P. Franks, J.
_________________________
D. Michael Swiney, J.
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