DAVID CHARLES GAGNON,
Plaintiff,
v
.
CECELIA ROTHWELL GAGNON,
Defendant.
Andrew A. Lassiter for plaintiff appellant.
James Q. Wallace, III, for defendant appellee.
TIMMONS-GOODSON, Judge.
David Charles Gagnon ("plaintiff") appeals from the equitable
distribution order by the trial court granting plaintiff's former
wife, Cecelia Rothwell Gagnon ("defendant"), a twenty-six percent
share of plaintiff's military retirement benefits. For the reasons
stated herein, we affirm the trial court.
The facts pertinent to the instant appeal are as follows: On
18 November 1997, plaintiff filed a complaint in Carteret County
District Court seeking a divorce from bed and board and equitable
distribution of the marital assets. On 9 May 2000, the trial court
entered a consent order distributing a portion of the marital
assets. The consent order reserved for further consideration two
contested issues between the parties, one of which was the division
of plaintiff's military retirement benefits. These outstandingissues subsequently came before the trial court, which made the
following relevant factual findings:
11. The parties were married to each other on
October 5, 1975.
12. The parties separated from each other on
February 1, 1997.
. . . .
15. The Plaintiff testified concerning the
dates and activity of his military career. He
first enlisted in the United States Army on
December 27, 1965 and served nine (9) years,
nine (9) months and four (4) days until
September 30, 1975 when he was discharged at a
rank of Captain.
. . . .
17. On July 19, 1976, the Plaintiff reenlisted
in the United States Army at a rank of E-5
(Sergeant) and he served ten (10) years, three
(3) months and twelve (12) days until he was
discharged on October 31, 1986 at a rank of
Sergeant 1st Class.
18. In November of 1986, the Plaintiff began
receiving his military retirement money on a
monthly basis. This retirement was based on a
rank of Sergeant and not as Captain because
his earlier enlistment was less than ten (10)
years.
19. On September 30, 1996, the Plaintiff
received an increase in his retirement pay
which was an increase based on the fact that
he had twenty (20) years of service plus ten
(10) years of retirement. This increased pay
raised the Plaintiff's retirement benefit up
to a sum equaling a Captain's retirement pay.
Based on the above-stated dates, the trial court further found
that “the Defendant was married to the Plaintiff 51.25 percent ofthe time in which he was in the military service accruing his
military retirement pay.” The trial court therefore concluded,
inter alia, that “the Defendant is entitled to a Twenty-Six Percent
(26%) share of the Plaintiff's military retirement.” The trial
court thereafter entered an order awarding defendant a twenty-six
percent share of plaintiff's military retirement benefits, from
which order plaintiff now appeals.
____________________________________________________
The sole issue on appeal is whether the trial court erred by
awarding defendant a twenty-six percent share of plaintiff's
military retirement benefits. For the reasons stated herein, we
affirm the trial court.
Plaintiff argues that the trial court improperly awarded
defendant a portion of the benefits he earned prior to entering the
marriage. Plaintiff asserts that benefits attributable to his
first period of military service were not built upon a foundation
of marital effort by defendant. Thus, plaintiff argues, the 30
September 1996 retirement pay increase to the rank of Captain was
a statutory increase due to the passage of years based on a period
of time during which plaintiff was not married. Plaintiff
acknowledges that these benefits vested during the marriage, but
contends that it is unjust to allow defendant to share in this
portion of plaintiff's retirement benefits, and that her share
should be confined to benefits earned by plaintiff during his
second period of active service in which the marriage overlapped. The division of marital property is a matter within the sound
discretion of the trial court. See Johnson v. Johnson, 78 N.C.
App. 787, 790, 338 S.E.2d 567, 569-70 (1986). Accordingly, a trial
court's ruling in an equitable distribution award is entitled to
great deference upon appellate review, and will be disturbed only
if it is “so arbitrary that [it] could not have been the result of
a reasoned decision.” Lawing v. Lawing, 81 N.C. App. 159, 162, 344
S.E.2d 100, 104 (1986).
Section 50-20 of the General Statutes of North Carolina
governs the distribution of marital and divisible property upon
divorce. "Marital property includes all vested and nonvested
pension, retirement, and other deferred compensation rights, and
vested and nonvested military pensions eligible under the federal
Uniformed Services Former Spouses' Protection Act." N.C. Gen.
Stat. § 50-20(b)(1) (1999) (emphasis added). A pension “vests”
when “'an employee has completed the minimum terms of employment
necessary to be entitled to receive retirement pay at some point in
the future.'” George v. George, 115 N.C. App. 387, 389, 444 S.E.2d
449, 450 (1994) (quoting Milam v. Milam, 92 N.C. App. 105, 107, 373
S.E.2d 459, 460 (1988), disc. review denied, 324 N.C. 247, 377
S.E.2d 755 (1989)), cert. denied, 342 N.C. 192, 463 S.E.2d 236
(1995). In the case at bar, there is no dispute that plaintiff's
retirement benefits vested on 30 September 1996, approximately five
months before the parties separated. Moreover, according to
section 50-20.1 of the North Carolina General Statutes, an award of
retirement benefits is determined using the proportion of time the
marriage existed (up to the date of separation
of the parties), simultaneously with the
employment which earned the vested and
nonvested pension, retirement, or deferred
compensation benefit, to the total amount of
time of employment. The award shall be based
on the vested and nonvested accrued benefit,
as provided by the plan or fund, calculated as
of the date of separation, and shall not
include contributions, years of service, or
compensation which may accrue after the date
of separation. The award shall include gains
and losses on the prorated portion of the
benefit vested at the date of separation.
N.C. Gen. Stat. § 50-20.1 (d) (1999). Such retirement benefits
include "vested and nonvested military pensions." N.C. Gen. Stat.
§ 50-20.1 (h) (1999). The valuation method prescribed by section
50-20.1(d), known as the "fixed percentage method," can be
expressed as a fraction, the numerator of which "is the total
period of time the marriage existed (up to the date of separation)
simultaneously with the employment which earned the vested pension
or retirement rights[,]" with the denominator being "the total
amount of time the employee spouse is employed in the job which
earned the vested pension or retirement rights." Lewis v. Lewis,
83 N.C. App. 438, 442-43, 350 S.E.2d 587, 589 (1986); see also
Seifert v. Seifert, 82 N.C. App. 329, 337, 346 S.E.2d 504, 508
(1986) (approving the fixed percentage method for distribution of
military retirement benefits), affirmed, 319 N.C. 367, 354 S.E.2d
506 (1987).
Following the statutory provisions, the trial court in the
instant case correctly determined that plaintiff served in the Army
for approximately ten years while he was married. Comparing thislength of time to plaintiff's total number of years in the military
(twenty), the trial court valued the percentage of time during the
marriage in which plaintiff was accruing military retirement
benefits as 51.25 percent. As plaintiff's benefits vested before
the date of separation, the trial court did not err in including
such benefits in the above-stated calculations. See Atkinson v.
Chandler, 130 N.C. App. 561, 563-65, 504 S.E.2d 94, 95-97 (1998)
(approving the trial court's utilization of the fixed percentage
method for equitable distribution of plaintiff-wife's military
retirement benefits that vested during the marriage, although the
majority of the benefits were earned prior to the parties'
marriage). We therefore hold that the trial court properly awarded
defendant a twenty-six percent share of plaintiff's retirement
benefits.
(See footnote 1)
Defendant also argues the trial court erred in considering
plaintiff's post-separation payment of defendant's college expenses
as a factor in the equitable distribution calculations. Defendant
filed no notice of appeal concerning this alleged error, however,
and has therefore failed to comply with Rule 3(a) of the Rules of
Appellate Procedure. See N.C.R. App. P. 3(a) (2001) (requiring a
party to file a notice of appeal with the clerk of the superior
court). We therefore do not address defendant's assignment of
error. We hold that the trial court did not err in its equitable
distribution award. We therefore affirm the trial court's order
awarding defendant twenty-six percent of plaintiff's military
retirement benefits.
Affirmed.
Judge HUDSON concurs.
Judge TYSON concurs in part and dissents in part.
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