                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                SEPTEMBER 13, 2007 Session

   ANTHONY JOSEPH ZIOBROWSKI v. MARCY HAYS ZIOBROWSKI

                 Direct Appeal from the Circuit Court for Williamson County
                             No. 95160    Russ Heldman, Judge



                   No. M2006-02359-COA-R3-CV - Filed December 20, 2007


                                             DISSENT
                                     ________________________

HOLLY M. KIRBY, J., DISSENTING:

        I must respectfully dissent from the majority’s interpretation of the 1995 final decree of
divorce to award only $338.30 per month out of the monthly retirement benefit to Ms. Ziobrowski.
        In its discussion of the language used in the final decree, the majority notes that the trial court
observed that the value of certain assets, including the GM retirement plan, were “not discernible,”
and that it went on to amend Ms. Ziobrowski’s “one-half of the $676.60 monthly benefit payable on
account of the old General Motors retirement account.” Importantly, however, the majority skims
over the trial court’s statement of its intent. The final decree states:

        The value of the parties’ household furnishings, the GM retirement benefits (old) and
        the cause of action . . . are not discernable. The court intends an equal division of
        these assets.

This decree was not appealed. Our job, then, is to implement the original intent of the final decree.

      This Court discussed the valuation and distribution of pensions at length in Kendrick v.
Kendrick, 902 S.W.2d 918, 926-30 (Tenn. Ct. App. 1994); see also JANET L. RICHARDS, RICHARDS
ON TENNESSEE FAMILY LAW § 11-13 (2d ed. 2004). In Kendrick, the Court explained:


                Like the courts in other states, this court has recognized two techniques for
        valuing and distributing pensions. The first technique is the present value method;
        the second is the retained jurisdiction or deferred distribution method.
                The present value method requires the court to place a present cash value on
        the pension interest acquired during the marriage . . . . Once the court computes the
        present cash value of the pension rights, it awards the pension to the employee spouse
        and then awards the other spouse marital property of equal value. If the marital estate
       is insufficient to make an offsetting award, then the court may make an award
       payable in installments.
               The retained jurisdiction method, as its name indicates, requires the court to
       retain jurisdiction over the case and to defer dividing the pension interest until the
       pension vests or matures. In some jurisdictions, the courts using this method
       determine the nonemployee spouse’s share in advance and then enter an order
       identifying the portion that the spouse will receive if and when the employee spouse
       begins drawing his or her retirement benefits. The nonemployee spouse’s share is
       commonly expressed as a fraction or a percent of the employee spouse’s monthly
       pension benefit.

Kendrick, 902 S.W. 2d at 927 (internal citations and footnotes omitted). Here, it appears that the
trial court may have done a combination of the two methods, valuing the present value of the
monthly benefit payable at that time at $676.60. However, the trial court did not make an immediate
award to the wife; under the order, she was to receive her benefits when the husband retires. Thus,
the trial court retained jurisdiction and stated the wife’s share “as a fraction or a percent of the
employee spouse’s monthly pension benefit.” Id.

        The majority interprets this to give Ms. Ziobrowski the worst of both worlds; she gets half
of the benefit in 1995 dollars. Our mandate to value pension rights as of the date of the divorce does
not mean that we ignore the change in the value of money over time. To award Ms. Ziobrowski only
$338.30 in 2007 dollars is to ignore the trial court’s statement of its overall intent: “The court
intends an equal division of these assets.”

         The QDRO signed by the trial court to implement its 1995 decree gives Ms. Ziobrowski half
of Mr. Ziobrowski’s “accrued vested benefit as of September 27, 1995, or the next closest valuation
date . . . .” This appears to be an appropriate implementation of the final decree, and so I would
affirm. In the alternative, I would award Ms. Ziobrowski half of the present day value of a 1995
monthly benefit of $676.60.

       For these reasons, I respectfully dissent.




                                               __________________________________________
                                               HOLLY M. KIRBY, JUDGE




                                                 -2-
