DELAPLANE v. DELAPLANE (2025)

MEMORANDUM DECISION

[1] Matthew Delaplane (Husband) appeals the trial court's valuation and division of his unvested pension in this dissolution proceeding. Because Indiana law excludes this unvested pension from the marital estate, we reverse and remand.

Facts

[2] During the parties’ 11-year marriage, Husband served for approximately six years in government positions in which he participated in the Indiana Public Employees’ Retirement Fund (PERF). PERF consists of two components: a defined contribution account whose value is not at issue here and a defined benefit pension plan that vests after a minimum of 10 years of creditable service. At the time of the divorce, Husband was 4 years short of service time to be eligible for his pension.

[3] At the dissolution hearing, Husband presented his PERF statement which identified the “Closing Value” of Husband's account (his defined benefit) as $10,793.79. The statement then provided the following information as to his later pension eligibility:

Defined Benefit Plan Information

Years of Service: 5.83

High Five: $47,463.35

Remember, there are two parts to your PERF ․ plan. This statement primarily focuses on your defined contribution account. However, we have included information on your years of service and ‘high five’ salary that are relevant to a future defined benefit pension benefit.

For vested members, a pension benefit can be calculated based on the following formula:

1.1% (benefit multiplier) X Average five (5) highest salaries X Years of service.

***

Exhs., p. 88 (emphasis in original). The court added the estimated future pension amount to Husband's defined benefit and then purported to distribute that amount equally between the parties.

[4] Husband filed a Motion to Correct Error challenging both the inclusion of the unvested pension in the marital estate and the equalization payment. Because the trial court did not rule on the motion within the prescribed period, it was deemed denied. See generally Ind. Trial Rule 53.3 (specifying that a motion to correct error is deemed denied if not decided within 45 days after filing when no hearing on the motion is required or set). Husband appealed, and Wife does not participate in the appeal.

Discussion and Decision

[5] Husband contends the trial court erred by including his unvested pension in the marital estate and by using that asset as a partial basis for ordering an equalization payment to Wife. Because Wife did not file an appellee's brief, Husband need only show prima face error to prevail on appeal. Walking with Jesus Ministries v. Alexander, 240 N.E.3d 183, 185 (Ind. Ct. App. 2024). Prima facie error is defined as error “at first sight, on first appearance, or on the face of it.” Id. (quoting Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind. Ct. App. 2006)). We conclude that Husband has met this burden.

[6] The relevant portion of Indiana Code § 31-9-2-98(2) defines “property” in the context of divorce proceedings as including “the right to receive pension or retirement benefits that are ․ vested.” (emphasis added). Indiana courts have consistently ruled that unvested pension benefits may not be included in the marital estate. See, e.g., Harris v. Harris, 31 N.E.3d 991, 997 (Ind. Ct. App. 2015); Waggoner v. Waggoner, 531 N.E.2d 1188, 1189 (Ind. Ct. App. 1988).

[7] The PERF statement on which the trial court relied listed the Husband's “High Five” salary average—that is, the average of his highest five years of public employment salary—as $47,463. Exhs., p. 88. The “High Five” average is a component in the calculation of potential future pension benefits for employees vested after 10 years of service—not the pension's actual value. Id.

[8] The record shows that at the time of separation, Husband had about 5.83 years of creditable service for PERF purposes, but he needs 10 years to qualify for his pension ¹ . Indiana Code § 5-10.2-4-1(b). The undisputed evidence thus shows that Husband had not met this requirement. The trial court essentially added to the marital estate $47,463.35 of money that did not exist and then purported to divide it amongst the parties. In doing so, the court committed clear error.

[9] We reverse the marital property division and equalization payment ordered by the trial court and remand with instructions to the trial court to divide the marital property consistent with this opinion.

FOOTNOTES

1.   There are exceptions to this rule but they do not apply here.

Weissmann, Judge.

Pyle, J., and Felix, J., concur.