BETTY B. SUMMERS, APPELLANT,
v.
CLIFFORD W. SUMMERS, APPELLEE
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This case involves a wife appealing the equitable distribution of marital assets and child support in a dissolution of marriage action. The appellate court remanded the case to determine if the wife's pension plan was vested, as its value was considered in the equitable distribution.
The court held that the wife's pension plan could be considered for equitable distribution if it was vested. The court did not address the social security benefits issue as it was not raised below.
[1] A trial court may consider the present value of a vested pension plan in the equitable distribution of marital assets.
[2] If a pension plan is not vested at the time of dissolution, its value should not be considered in equitable distribution.
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Join FLexlaw to unlock all legal intelligence“But if the plan is not vested, its value should not have been so considered because then the plan would not have been established as security for the future; in that event any entitlement to payments from the plan might be lost, if, for example, there was a change of employment.”
Explains why the vested status of the pension plan is crucial for equitable distribution.
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Join FLexlaw to unlock all legal intelligenceThe parties were married for twenty-four years with three children. The wife appealed the equitable distribution of assets and child support. A key is…
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LEHAN, Acting Chief Judge.
In this dissolution of marriage action, the wife appeals the trial court’s equitable distribution of marital assets and some aspects of the child support award. We remand for further proceedings.
The parties were married twenty-four years and had three children. One of their children was a minor at the time of the dissolution. Custody of this child was awarded to the husband, and the wife was ordered to make child support payments to the husband. The husband was also given use and possession of the marital home until the child reaches his majority.
Up to the time of their separation the parties were apparently the sole support of one minor grandchild. The parties had entered into a written agreement with the grandchild’s parents several years earlier in which the parents assigned custody and guardianship of the child to the parties. After the separation, the wife took over the support of the grandchild. In her petition the wife requested custody of and child support for the grandchild.
The trial court in its final order determined that neither the husband nor the wife is guardian of the grandchild and that neither has a duty to support the child. The wife does not dispute that determination but argues that the trial court erred in not taking into account the expenditures she makes to support the grandchild when the court made the awards to the husband of child support and exclusive possession of the marital home.
However, there is nothing in the final judgment or elsewhere in the record establishing that the trial court did not consider those expenditures in making the awards, and we do not conclude that the trial court abused its discretion in that regard.
The wife’s other points on appeal concern the equitable distribution of the marital assets. The trial court found that the parties had incomes and assets which were approximately equal, with the exception of their respective pension plans. The wife had been an employee of the U.S. Postal Service for twelve years and was covered by a pension plan that had a present value of $210,750, according to testimony by the husband’s expert witness. That witness also testified that the present value of the husband’s pension plan was $8,177. At the time of the dissolution, the wife was 42 years old and the husband was 43 years old.
Because of the disparity between the values of the pension plans, the trial court in making equitable distribution ordered the wife to pay the husband lump sum alimony of $20,000, payable at the termination of the wife’s duty to support their minor child and secured by a non-interest-bearing mortgage on the wife’s one-half undivided interest in the marital home. The wife contends that the trial court erred in considering the present value of her pension plan in the absence of testimony that the plan was vested.
We agree with the trial court that the value of the wife’s pension plan was properly considered for the purpose of equitable distribution if the plan is vested. See Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986); Bogara v. Bogara, 490 So. 2d 43 (Fla.1986); Reyher v. Reyher, No. 85-1274 (Fla. 2d DCA June 27,1986) [11 FLW 1450]; Clarke v. Clarke, 443 So. 2d 486 (Fla. 2d DCA 1984).
See also Adamson v. Adamson, 458 So. 2d 1152 (Fla. 2d DCA 1984); Coined v. Coined, 392 So. 2d 577 (Fla. 3d DCA 1980).
But if the plan is not vested, its value should not have been so considered because then the plan would not have been established as security for the future; in that event any entitlement to payments from the plan might be lost, if, for example, there was a change of employment. While there was substantial testimony about the wife’s pension plan, it is conceded that the testimony did not establish whether or not the plan is vested. On remand the trial court should determine whether or not or to what extent the plan is vested. If it is vested to the extent of its foregoing value, no further action is necessary, and the final judgment would be affirmed. If it is not, the foregoing lump sum alimony award should be withdrawn and the trial court may re-examine the subject of equitable dis tribution without consideration of any un-vested value of the wife’s pension plan.
The wife also contends that the trial court erred in not considering the husband’s future entitlement to social security benefits which would supplement any benefits he would receive from his pension plan. The wife notes that the evidence shows that F.I.C.A. contributions are regularly made by the husband and that the wife’s coverage by her pension plan is in lieu of social security retirement coverage.
However, while evidence about the husband’s contributions to F.I.C.A. is in the record, it is conceded that the trial court’s attention was not directed to any implications from that evidence as to whether the husband may be eligible in the future for social security benefits while the wife may not be. Because this issue was not raised below the trial court was not given an opportunity to rule on it and the husband was not given an opportunity to present any additional relevant evidence in that regard.
Accordingly, we should not and do not direct the trial court to reevaluate the parties’ assets except for the determination directed above as to whether or not the wife’s plan is vested.
Remanded for proceedings consistent herewith.
FRANK and HALL, JJ., concur.
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DeLOACH v. Ruthie Mae DeLOACH, 590 So. 2d 956 (Fla. 1st DCA 1991)…er wife. I. In arguing that the trial court erred in considering his military pension, which had neither vested1 nor matured,2 as a marital asset, the former husband relies upon the Second District Court of Appeal’s decision in Summers v. Summers, 491 So. 2d 1270 (Fla. 2d DCA 1986). In that case, the Second District held that a pension plan could not be considered an asset for equitable distribution purposes until it had vested, for the reason that the employee’s entitlement to future payments from such a pl…
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Addison L. Bain v. Ingeborg K. Bain, 553 So. 2d 1389 (Fla. 5th DCA 1990)…e Reepy, Community and Separate Interests in Pensions and Social Security Benefits After Marriage of Brown and Erisa, 25 UCLA Law Review 417 (1978), for a thorough discussion of the valuation of social security benefits. See also Summers v. Summers, 491 So. 2d 1270, 1272 (Fla. 2d DCA 1986), where the appellate court would have considered FICA contributions for purposes of equitable distribution had the issue been properly raised at the trial court level. . See Zachary v. Zachary, 551 So. 2d 577 (Fla. 2d DCA 1…
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Glover v. Glover, 601 So. 2d 231 (Fla. 1st DCA 1992)…ated that the supreme court in Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986), did not preclude consideration of nonvested pensions as marital property. See Hennessey v. Hennessey, 551 So. 2d 597 (Fla. 4th DCA 1989); cf. Summers v. Summers, 491 So. 2d 1270 (Fla. 2d DCA 1986). We reverse that part of the final judgment awarding the parties their own respective retirement benefits and remand for additional evidence and appropriate findings of fact consistent with our holdings in Moon, DeLoach and Huntle…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986)
- Colucci v. Colucci, 392 So. 2d 577 (Fla. 3d DCA 1980)
- Bogard v. Bogard, 490 So. 2d 43 (Fla. 1986)
- Clarke v. Clarke, 443 So. 2d 486 (Fla. 2d DCA 1984)
- Adamson v. Adamson, 458 So. 2d 1152 (Fla. 2d DCA 1984)