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Oregon Court of Appeals


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Malpass and Malpass

Summarized by: 

Date Filed: 02-13-2013
Case #: A146655
Sercombe, J. for the Court; Ortega, P.J.; and Hadlock, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A146655.pdf

Family Law: The proper calculation of the marital portion of husband's pension should use a fraction of the entire actual pension, not a hypothetical pension, and adjust the wife's survivor benefits.

Wife in dissolution of marriage action appealed the decision of the trial court. Husband joined the U.S. Army in 1997 and married Wife in 2000. At the time of dissolution, Husband's pay grade was E-7. Husband testified at trial that he was planning to serve another seven years and then retire. Husband also testified that his military pension was "loaded heavy the last three years in the military prior to retirement." Wife appealed the trial court’s award to the Husband, the noncustodial parent, the right to claim tax exemptions on their dependent children and also assigned error to the court's decision to use Husband's hypothetical pension based off his current pay grade instead of using the actual value of the pension at retirement. The Court of Appeals held that the first assignment of error was unpreserved, and thus declined to consider the merits. Wife argued that the pension division should be consistent with the decision in Kiser and Kiser, which held that the retirement benefits should be determined at the time of retirement. The Court agreed, stating that the proper "calculation of the marital portion of husband's pension is considered as a fraction of the entire actual pension" and should adjust the wife's benefits. Reversed and remanded with instructions to divide husband's military pension consistently with this opinion; otherwise affirmed.