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- 1 - STATE OF MINNESOTA DISTRICT COURT COUNTY OF __________ __________ JUDICIAL DISTRICT FAMILY COURT DIVISION In Re the Marriage of: Court File No. __________ __________, Petitioner, REPLY BRIEF OF APPELLANT AND __________, Appellant, REPLY BRIEF OF APPELLANT ____________________ (Name of Attorney) (Name of Attorney) (Attorney Reg. No.:) (Attorney Reg. No.:) (Name of Law Firm) (Name of Law Firm) (Address) (Address) (Address) (Address) (City, State, Zip) (City, State, Zip) (Telephone Number) (Telephone Number) Attorneys for Appellant Attorney for Respondent - 2 - TABLE OF CONTENTS Table of Authorities......................................… _________ Legal Issues................................................. _________ Argument I. SHELTERING OF A FIXED SUM OF APPELLANT'S PENSION IS REQUIRED BY MINNESOTA CASE LAW. - 3 - Minnesota CasesARGUMENT I. SHELTERING OF A FIXED SUM OF APPELLANT'S PENSION IS REQUIRED BY MINNESOTA CASE LAW. At the time of the parties' dissolution, Appellant's pension was divided in kind equally between the parties. Such a division, pursuant to a qualified domestic relations order, positively required the plan administrator to calculate the present value of that pension immediately prior to dividing the asset and transferring one-half to Petitioner/Respondent below). The original Judgment and Decree of dissolution dated __________, Findings of Fact, paragraph , found, Petitioner/Respondent's accrued benefit in the _________ as of __________ was approximately $ and it shall be valued and divided equally between the parties as of __________, the date of the scheduled pre-trial hearing in this matter. Id. (Emphasis added.) Conclusions of Law, paragraph , provides for a qualified domestic relations order, the text of which immediately followed in the decree, including the language, The Alternate Payee shall be entitled to receive a benefit under the Pension Plan, the amount of which can be provided by 50% of the actuarial present value of the Participant's benefit under the Pension Plan as reflected in its value on December 22, 1989, the date of the scheduled pre-trial hearing in this matter. Id. (Emphasis added.) That sum constitutes property, which was awarded to each party by that decree. A trial court does not have authority to modify that award after the time for appeal has expired. Arzt v. Arzt, 361 N.W.2d 135, 136-7 (Minn. Ct. App. 1985). The court in Richards v. Richards, 472 N.W.2d 162, 165 (Minn. Ct. App. 1991), specifically provided, At the time of the parties' divorce, Robert's pension was valued at $50,556 and the parties projected monthly payments of $1,377. Upon restructuring after the divorce, the value of the pension grew and the scheduled monthly payout rose to $3,655. Nancy claims the trial court should have considered the difference to be an unsheltered asset and therefore available to be paid out as maintenance. - 4 - Whatever the total current value of the pension, under Kruschel Robert is entitled to exclusive possession of no less than $50,556 in pension benefits under the original decree. Under Kruschel, until Robert receives this amount, Nancy may not claim a share of increased pension income in excess of the original award. Id. (Emphasis added.) Petitioner/Respondent argues that Richards is not applicable because appellant's pension was not divided actuarially at the time of the Judgment and Decree. Clearly, Petitioner/Respondent is mistaken as to what the Judgment and Decree provided. Petitioner/Respondent further argues that a finding that Appellant limited his/her income in bad faith is not required in order for the trial court to impute income to Appellant, either from the fact of his/her retirement or from the fact of his restructuring his pension payments to include a survivor benefit for his/her to his/her current income rather than to a distribution of property based -- in the trial court's view -- upon his/her restructuring to provide a survivor benefit to his/her contention that income should be imputed to Appellant due to his/her retirement. With respect to invasion of an enhanced portion of Appellant's pension payments, the trial court was wholly in error. Richards specifically provided, A property award may be invaded if the obligor limited his income in bad faith. Sieber v. Sieber, 258 N.W.2d 754, 757 (Minn. 1977). Richards at 165. In invading Appellant's pension payment, the trial court invaded a property award without a finding of bad faith. Such an invasion is barred by the rule of Kruschel v. Kruschel, 419 N.W.2d 119 (Minn. Ct. App. 1988), and of Richards. Absent a finding of bad faith, the exception provided by Sieber and refered to at Richards, p. 165, does not apply. Further, Appellant's provision for his/her current spouse is wholly reasonable. Appellant is now partially responsible for the welfare of his/her current family. Petitioner/Respondent 's assertion that Appellant's [husband/wife] contributes to Appellant's individual and personal household expenses ((Brief of Petitioner/Respondent, Statement of Facts, page ) is wholly inappropriate with respect to this action between two divorced parties. Similarly, Petitioner/Respondent asserts that the two parties each has - 5 - investments worth $ (Statement of Facts, page ), citing, inexplicably to page . That assertion fails to consider that his/her current spouse's personal assets are mixed with his/her in his/her current investment accounts. Conclusion. All of the proceeds from Appellant's pension account up to a specific, ascertainable figure are sheltered property awarded by the Judgment and Decree of dissolution. The present continuation of current maintenance is barred by case law.