Walker v. Walker3/19/1999
s case because she failed to file a timely brief and to pay sanctions. We recently allowed Toni to file her brief, which we have considered.
ANALYSIS
I. Standard of Review
John cites State v. Wilburn, 51 Wn. App. 827, 828, 755 P.2d 842 (1988), in a supplemental statement of authorities, for the proposition that "absent a respondent's brief, appellate review {is} limited to examining the appellant's brief to determine if its assignments of error present a prima facie showing of error." But Wilburn was overruled four years ago: There is no basis for a lower standard of review under the Rules of Appellate Procedure, and "{t}he quantity or quality of briefing should not affect the standard of review used by the court." Adams v. Dep't of Labor & Indus., 128 Wn.2d 224, 229, 905 P.2d 1220 (1995). Because we have allowed Toni to file her brief after oral argument, we base our review on appellant John Walker's argument and brief, the record before us, and respondent Toni Walker's brief.
We review a trial court's property Disposition for a manifest abuse of discretion. Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984). We will not disturb the trial court's valuation of an asset if it is within credible range of the evidence. Worthington v. Worthington, 73 Wn.2d 759, 764-65, 440 P.2d 478 (1968). Thus, if a reasonable person could have ruled as the trial court did on the facts before it, there is no manifest abuse of discretion. Marriage of Pilant, 42 Wn. App. 173, 176, 709 P.2d 1241 (1985).
II. Pension Fund Value
Once a pension is before the court in a dissolution action, the court must determine the present cash value of this asset. Pilant, 42 Wn. App. at 179. Deferred earnings, such as pensions, that are not subject to forfeiture are vested, and vested earnings that may be received immediately are matured; vested and matured pension plans must be valued as if the pensioner retired on the date of dissolution, not at some future date when the pensioner may retire. Marriage of Hurd, 69 Wn. App. 38, 45-48, 848 P.2d 185, review denied 122 Wn.2d 1020 (1993).
Once the date of retirement is known, the court must determine the pensioner's life expectancy in order to ascertain the pension's present value. Pilant, 42 Wn. App. at 179. Although courts are urged to use the mortality tables promulgated by the Insurance Commissioner, average life expectancy is a factual question and these tables are but guidelines. Bradshaw v. Seattle, 43 Wn.2d 766, 784, 264 P.2d 265, 42 A.L.R.2d 800 (1953); Pilant, 43 Wn. App at 180.
Here, the trial court valued John's pension at $153,331 based on the Insurance Commission's mortality table, showing that John had a life expectancy of 29.62 years; he was eligible immediately to receive $989.21 per month. John argues that the trial court erred in valuing his pension at three times its lump sum value and in referencing the life expectancy tables, which did not reflect that he was suffering from Huntington's disease.
John contends that: (1) Hurd requires the court to award the lump-sum amount immediately available under a pension; and (2) because he could elect to receive his pension as an immediate lump sum rather than as an annuity over time, the court should have valued the asset at the lower, lump-sum amount of $42,966. The 51-year-old pensioner in Hurd could have retired and claimed his pension at any time, but he had chosen to continue working; the trial court valued the pension assuming the pensioner would retire at age 60. Hurd, 69 Wn. App. at 44-45. Division One held that the pension should have been valued assuming immediate retirem
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