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12/20/93 MARIA E. DE LIEDEKERKE v. PATRICK E. DE

DISTRICT OF COLUMBIA COURT OF APPEALS


December 20, 1993

MARIA E. DE LIEDEKERKE, APPELLANT/CROSS-APPELLEE
v.
PATRICK E. DE LIEDEKERKE, APPELLEE/CROSS-APPELLANT

Appeal from the Superior Court of the District of Columbia; (Hon. Susan R. Winfield, Trail Judge)

Before Steadman and Sullivan, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: This is an appeal from property division aspects of a trial court judgment of divorce. Both parties are citizens of Belgium and were married in Belgium one week after the execution of a premarital agreement governing their respective property rights. The parties are both current employees of the World Bank entitled to pension benefits on death or on retirement or resignation from the bank.

The parties raise two principal issues on appeal. The first is whether the trial court permissibly applied the "when, as, and if" principle to the treatment of the parties' respective interests in the World Bank pension plan. The second is whether the trial court properly divided the parties' marital home in the District under D.C. Code § 16-910(b) (1989) rather than under the premarital agreement, granting the husband seventy-five percent and the wife twenty-five percent. We affirm. *fn1

I.

The trial court applied the provisions of the premarital agreement in determining that each party had a fifty percent interest in the pension plan payments of the other under the World Bank pension plan. Neither party contests this ruling. The only issue is whether the trial court properly refused to make a determination of the present worth of each party's interest in the pension plan and to require a cash settlement based upon such present net worth.

Neither party has yet retired from the Bank, and there was considerable disagreement as to the age at which the parties would in fact retire and begin to receive their pension benefits and as to the physical conditions of the parties that might affect normal life expectancies. The trial court determined that instead of attempting to estimate the present value of each party's interest in the plan it would instead apply the "when, as, and if" method. Such a treatment means that the pension payments are divided when, as, and if they are in fact paid out by the employer. This court expressly approved the "when, as, and if" method in Barbour v. Barbour, 464 A.2d 915, 920 n.6 (D.C. 1983) (approving trial court ruling that "a fixed percentage of any future benefits received under appellant's pension should be paid to appellee"). In a divorce proceeding the trial court has discretion over the method by which the division of property will be effectuated. See id. (noting that other methods of valuation and apportionment may be appropriate).

The appellant wife, however, asserts that the trial court abused its discretion in making such a determination because of the unenforceability of a qualified domestic relations order against the World Bank. The World Bank is an international organization and is immune from the effects of any decree by a United States court. Imagnu v. Wodajo, 85 Md. App. 208, 582 A.2d 590, 594 (Md. Ct. Spec. App. 1990). The wife asserts that this fact mandates that the trial court determine the present value of the expected future pension plan benefits. *fn2 Because such a determination involves certain assumptions as to future events, it is, to some degree, necessarily speculative. Id. at 592. Although it is possible to assign a present value to future payments and it may be appropriate to do so in some circumstances, Imagnu does not, in our judgment, mandate the use of present value calculations with World Bank pension plans. The decision simply suggests that present value is one of several possible ways in which a trial court could resolve the matter upon a divorce and under the circumstances before the Maryland court, the employee contribution plus interest method was inappropriate. Id. at 594-95.

The parties do not dispute that the agreement controls the pension division. The articles of the agreement contain no provision for contingent rights, showing no intent to require a present distribution of such rights. The agreement merely states that each party owns an undivided one-half interest in acquired property. Moreover, the agreement's requirement of an exact calculation bears upon the options to be considered by the trial court. The court in Imagnu "needed only achieve equity between the parties, not necessarily an equal distribution." Id. at 595 n.4. The "when, as, and if" method is appropriate to divide the pensions accurately under the agreement because it "nullifies any risk of error in the evaluation." Id. at 592. By contrast, the present value method purportedly favored by Imagnu is not likely to provide a precisely equal division because the value is affected by factors which are "impossible to predict with any degree of certainty." Id.

Finally, although the husband may leave the United States after retirement, *fn3 both parties retain their Belgian citizenship and own considerable other assets besides their pension rights. *fn4 The rights of the parties in the pensions flow ultimately from the premarital agreement, enforceable by any court, and not from a property division percentage decreed by the trial court. There is no requirement that a trial court order a lump sum present value payment whenever a decision affects future rights, any more than with respect to child support or alimony, which may also present enforcement problems. In sum, we conclude that the trial court did not abuse its discretion by applying the "when, as, and if" method to divide the pensions in the circumstances here.

II.

The second issue raised on appeal is the trial court's treatment of the marital home in the District of Columbia. The wife argues that the trial court correctly found that the property was subject to division under D.C. Code § 16-910(b) (1989), rather than under the premarital agreement, but that the trial court erred in the application of the statutory factors when it granted the wife twenty-five percent instead of a larger interest in the home. *fn5 The husband in his cross-appeal asserts that the trial court erred in not finding the home to be separate property of the husband within the terms of the premarital agreement and thus entirely owned by him. We are not persuaded by either of these arguments.

With respect to the wife's assertions that the trial court improperly weighed the factors of section 16-910(b), we have repeatedly held that the trial court has broad discretion over the division of marital property under that section. *fn6 Powell v. Powell, 457 A.2d 391, 393 (D.C. 1983). As required, the trial court expressly considered the principal factors relevant here as set forth in section 16-910(b). Id. It was undisputed that at least a major portion of the funds which were used to purchase the marital home derived from the separate property of the husband. *fn7 In dividing the marital home, the court took into account the wife's non-financial contributions to the farm which was sold to purchase the disputed property. The court considered that some of the wife's separate funds were used for marital expenses, and also considered the parties' health, occupations, ages, and "positive and negative" non-financial contributions to the marriage. On the record before us, we can find no abuse of discretion in the trial court's application of the § 16-910(b) factors.

The husband in his cross-appeal claims that the home was his separate property under the premarital agreement and hence not subject to division under section 16-910(b). He bases this argument on the first and second articles of the premarital agreement which he reads as providing that separate property must remain separate although titled in both names. We find great difficulty in so interpreting the agree- ment. *fn8 Article one does not state whether property titled in both names, such as the parties' marital home, may be separate property. It merely provides that "each spouse shall retain as his and her sole property all presently owned property and all property acquired in the future by (donation) or inheritance." Article two sheds no light on the issue in its provision that title is irrelevant for acquired property, remaining silent or at least highly ambiguous regarding separate property. It states that acquired property "shall include . . . all property acquired during the marriage by the spouses in their individual names or in both names other than for the utilization or re-utilization of personal non-marital assets whether lost or recovered." Thus, the first and second articles are at best ambiguous about the parties' intent with respect to separate property which becomes jointly titled and in which, moreover, the individual owner appears to intend to give the other spouse some interest, as the trial court found here. *fn9

The law of the relevant jurisdiction will then provide some insight as to the proper treatment of disputed property. We are not cited to any provisions of the law of Belgium governing the interpretation and the scope of the agreement or the ownership of property by married couples. Where foreign law is at issue, but not proven or even argued by either party, the law of the District of Columbia shall apply. Gilper v. Kiamesha Concord, Inc., 302 A.2d 740, 745 n.5 (D.C. 1973); see Adamsen v. Adamsen, 151 Conn. 172, 195 A.2d 418, 421 (Conn. 1963) (Norwegian law on modification of custody orders presumed same as Connecticut law absent evidence to the contrary); Pernikoff v. Ken- nedy, 219 F. Supp. 854, 860 (D.D.C. 1963) (foreign law is a question of fact).

Here, the marital home was placed into tenancy by the entirety ownership form. Under our decision in Turpin v. Turpin, 403 A.2d 1144, 1146 (D.C. 1979), putting even separate property in joint names "for whatever reason" subjects it to division under section 16-910(b). Furthermore, all property, even though separately titled, is treated as acquired during the marriage unless the party who claims separate ownership meets the burden of establishing the separate status of the disputed property. Jordan v. Jordan, 616 A.2d 1238, 1239 (D.C. 1992). Considering these principles in light of the record here, we conclude that the husband failed to establish that the home should be treated as separate property under the premarital agreement and hence owned entirely by him alone. *fn10

Affirmed.


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