This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §subd.(1994).


In Re the Marriage of:
Marilyn Louise Grabanski, petitioner,


James Edward Grabanski,

Filed August 20, 1996
Affirmed in part, Reversed in part, and Remanded
Lansing, Judge

Polk County District Court
File No. F695440

Shirley A. Dvorak, Moosbrugger, Dvorak & Carter, P.L.L.P., 219 South Third Street, Post Office Box 5159, Grand Forks, ND 58206-5159 (for Appellant)

Karl Lindquist, Lindquist & Jeffrey, 306 American Federal Building, 124 Demers Avenue NW, East Grand Forks, MN 56721 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Davies, Judge.


This appeal challenges a district court's conclusions of law controlling property division in a marital dissolution action. Because the findings of fact do not support all of the conclusions of law, we affirm in part, reverse in part, and remand to the district court for further proceedings.

Marilyn Nelson and James Grabanski were married for thirty-four years and have two children who have reached majority. Grabanski worked as a public employee for approximately twenty-five years during the marriage and accrued pension benefits valued in excess of $300,000 through the Public Employees Retirement Association (PERA). Nelson has worked as a licensed practical nurse and during the marriage accrued 401K benefits valued at $12,698.34. Other marital assets total less than $54,000 net. Grabanski's PERA pension is the major marital asset.
The district court ordered that Nelson and Grabanski each receive approximately half of the marital property and granted half of Nelson's monthly pension benefits to Grabanski and half of Grabanski's pension benefits to Nelson. The court then ordered each of them to elect the life annuity option and specifically ordered that no form of joint and survivor annuity option could be selected or implemented.
Nelson requested a clarification of the order, and the court responded by letter stating that "it was not the court's intent to forceto make an election of the joint survivor annuity, other than what is indicated in the format by whichcourt] framed the order." Without a joint survivor annuity option, pension benefit payments to Nelson cease at the time of Grabanski's death. Nelson applied for and received an emergency order enjoining Grabanski from cashing any benefit checks issued under the life annuity option. Grabanski's attorney was unable to notify Grabanski of the order until after Grabanski had deposited the first benefit check.
Nelson brought a formal motion for reconsideration, which Grabanski opposed. The court issued an order denying the reconsideration motion, stating that "[i]t was the court's intent, and remains the court's intent, thatneed not select any particular survivor annuity option with regard to his retirement plan." Nelson challenges the district court's conclusion.
The only other issue appealed relates to unused vacation and sick time accrued before Grabanski retired and paid to Grabanski before entry of the dissolution decree. Grabanski received $13,829.77 in a lump-sum payment for unused vacation and sick leave. The district court did not include this money as a marital asset, but explained that it had been used to pay marital debts. Nelson appeals the district court's refusal to include the lump sum as a marital asset.

The district court has broad discretion in evaluating and dividing property in a marital dissolution action. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). A reviewing court will uphold the district court's division of property absent an abuse of discretion that demonstrates "a clearly erroneous conclusion that is against logic and the facts on [the] record." Id. But exercise of the district court's discretion "is not unlimited and should be supported by either clear documentary or testimonial evidence or by comprehensive findings issued by the court." Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn. 1983).

Pension benefits are a marital asset to be considered by the district court in making a just and equitable division of marital property. Taylor v. Taylor, 329 N.W.2d 795, 797-98 (Minn. 1983). The district court is authorized by statute to award a nonemployee spouse survivor benefits provided under a pension plan. Minn. Stat. §subd.(1994). Grabanski's PERA pension permitted an award of surviving spouse benefits to Nelson. Minn. Stat. §subd.(c) (1994).
The district court ordered Grabanski to refuse pension survivorship benefits for Nelson. The parties do not dispute that the PERA pension is a marital asset, built up by the parties' combined effort. Both parties acknowledge that they had planned to rely on the pension benefits during their retirement. Under the district court's order, Nelson will stop receiving the PERA pension benefits if Grabanski predeceases her, but Grabanski will continue to receive those pension benefits regardless of whether Nelson predeceases him. This order placed the parties in significantly different positions: Grabanski will receive the benefits of the parties' major marital asset as long as he lives, but Nelson will obtain those benefits only if her former spouse survives, even though the benefits were earned during the parties' marriage. The disparity is underscored by the district court's finding that Grabanski is under a physician's care for high blood pressure and diabetes and that his physical condition limits his employment.
The district court ordered an equal division of the parties' real and personal property, bank accounts, and debts. The court stated that the pension benefits were to be divided equally, but the court's order denying survivorship benefits allows the possibility of greatly unequal results. See Taylor, 329 N.W.2d 798 (district court's distribution of pension assets in dissolution of nearly thirty-four-year marriage not just or equitable when it had the effect of awarding employee spouse all pension benefits in certain circumstances such as employee spouse's death).
The district court's conclusion and order prohibiting an election of the survivor annuity option is not supported by any factual findings. Absent findings justifying the rejection of survivorship benefits, this court cannot evaluate the property division, and we remand to the district court for further proceedings. On remand the parties should also be allowed to present evidence and arguments on their opposing positions of whether PERA permits a change in benefit options after negotiation of benefit checks. See Minn. Stat.§subd.(recognizing court's power to enter orders affecting spousal survivorship plan under certain circumstances).

Nelson also asserts that the district court abused its discretion by failing to include Grabanski's lump-sum $13,829.77 payment for unused sick and vacation time as a marital asset. The district court allowed Grabanski $6,395 for necessary living expenses during the pendency of the dissolution. The district court did not abuse its discretion in accepting that $6,395 of the lump-sum payment was used for necessary living expenses including temporary spousal maintenance. The district court noted that Grabanski used the remaining $7,434 to pay off a marital debt on a boat and trailer. But the dissolution decree reflects that the proceeds from the sale of the boat were used to pay off the debt on the boat. Apparently, the debt on the boat was credited twice. One or both of the findings supporting the disposition of the funds is clearly erroneous. We remand to the district court for factual findings resolving the disposition of the remaining $7,434 and for disbursement consistent with those findings.
Nelson and Grabanski each seek attorneys' fees associated with this appeal. Both parties present good-faith claims. Neither party has a superior ability to pay attorneys' fees. We deny the motions for attorneys' fees.
Affirmed in part, reversed in part, and remanded.