In the Matter of the Marriage of JUDITH K. TULLENERS, Appellant, and ANDRE J. TULLENERS, Respondent.
Tulleners appeals the trial court's division of property
in the decree dissolving her marriage to Andre Tulleners.
After her appeal was filed, Andre Tulleners died, and his
estate, which was substituted as respondent, has moved the
court to find the action abated and dismiss the appeal.
that because Judith is challenging only property provisions
of a final decree, abatement does not apply. On the merits,
we conclude that the trial court's findings in support of
two adjustments to the property division are inadequate for
appellate review. We reverse the trial court's total
dollar awards of community property and remand for the entry
of additional findings.
AND PROCEDURAL BACKGROUND
Tulleners and Andre Tulleners were married for 18½
years, in what was a second marriage for both. When Judith
filed for divorce in May 2016, she and Andre were both in
their early 70s and retired. Both were living on social
security and retirement assets.
divorce trial, Judith was able to provide a calculation from
the administrator of her public employment retirement plan
for the percentage of her pension payment that was community
versus separate property. The administrator determined it was
67.6 percent separate property and 32.4 percent community
property. Her retirement plan included a small defined
contribution component, worth $11, 872, to which she
contributed before and during the marriage. The court
characterized it as commingled and, therefore, community
had worked for 32 years for Williams Companies, which
provided a pension benefit and later a 40l(k) plan.
Contributions were made to both during the 8½ years of
his marriage preceding his retirement in 2006. He cashed out
his pension benefit upon retirement. At the time of the
divorce trial, he held what remained of that lump sum payment
and his 401(k) in two individual retirement accounts (IRAs)
and an annuity. At the time of the parties' separation,
the combined value of those assets was $767, 924.
offered virtually no evidence of the contributions made
toward his retirement benefits during the 8½ employed
years of the marriage. He offered evidence that at the time
the dissolution of his first marriage became final-which was
six months before his marriage to Judith-his 401(k) account
was worth $375, 000, half of which ($187, 500) was awarded to
him in that earlier divorce. He offered evidence that when he
retired in 2006, the value of the account was $357, 017.
Judith's position that much of the $357, 017 value at
retirement was community property. She testified that when
Williams Companies' stock crashed in the early 2000s, her
husband told her that the value of his 401(k) had declined to
$40, 000. She claims that he asked, and she agreed, that they
would rely primarily on her income to pay expenses so that he
could maximize contributions to rebuild his 401(k). Although
Mr. Tulleners denied at trial that he ever told Judith his
401(k) account had declined in value to $40, 000, he
acknowledged that it did decline because of problems with its
investment in Williams Communications stock. He also agreed
that he told Judith he wanted to maximize his contributions
to the account, and that he did maximize his contributions to
the 401(k) account during the marriage.
Tulleners provided evidence that when he retired in May 2006,
the lump sum he received in lieu of a pension benefit was
$514, 106. He rolled that amount into one of two IRAs, later
moving assets back and forth between the IRAs. In 2013, he
used $300, 000 of the IRA funds to purchase an annuity.
trial court's decision explaining its division of assets
stated that Mr. Tulleners offered "no evidence ... as to
the structure of [the] pension, such as the amounts or timing
of the contributions by Mr. Tulleners' employer."
Clerk's Papers at 87. Mr. Tulleners also offered "no
documentation as to how and when contributions were made to
[the 401(k)] account between May 1997 and May 2006 when he
took the funds upon retirement." Id. at 87-88.
Because there was no tracing done by Mr. Tulleners, the trial
court characterized his IRAs and annuity as entirely
court placed the following values on the parties'
community and separate property:
Community property: $1, 019, 914, plus a 32.4 percent
interest in Judith's pension payments. ($767, 924 in
value of the community property comprised investment assets
acquired with Andre's part separate-part community
pension payout and 401(k) account)
Judith's separate property: $251, 730 plus her 67.6
percent separate property interest in her pension payments
Andre's separate property: $20, 000
separate property consisted of assets inherited from her
mother that she had maintained as separate. The nature of
Andre's separate property is not clear, but the
characterization and values of these separate properties is
not challenged on appeal.
trial court divided the community property equally, each
party would have received approximately $510, 000. Had it
combined all of the separate and community property for which
it had values and divided the total equally, each party would
have received $645, 822. Instead, in a memorandum opinion,
the court awarded the assets in the following manner:
$718, 172 plus a QDRO addressing the community
interest in Judith's pension payments
$301, 742, plus a QDRO addressing the community
property interest in her pension payments
$251, 730 plus the 67.6 percent separate property
interest in her pension payments
See Report of Proceedings (RP) at 293.
challenged the significant disparity in her and Andre's
community property awards. The trial court addressed her
objection at the presentment hearing on the final papers. It
pointed out that the total community and separate property
awarded to Judith was $553, 472, approximately $184, 500 less
than the $738, 172 total of community and separate property
it awarded to Andre, and then explained:
[Judith's public employment pension] wasn't valued.
And I appreciate that when we split something exactly in half
on a pension, it doesn't really matter what we value. In
this case it had to matter to me, if you will, because
[Judith] was receiving . . . roughly 68 percent of that
pension as a separate property asset. And so there is a value
to that. And then she received half the community. And there
is a value to that. So ultimately she received 82, 83
Secondly, although I characterized [Andre's] pension,
which is a two-part item, the pension and his 401k that he
had, or the defined benefit and defined contributions portion
of his pension as community, because [Andre] failed to trace
appropriately, and I thus divided it.
I did have in mind that the evidence in my mind was clear
that [Andre] walked away from his prior marriage with $ 187,
000 sitting in what I'll ...