ROBERT DOWNEY, APPELLANT,
v.
MARGHERITA DOWNEY, APPELLEE
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In this post-judgment appeal, the Florida Fourth District Court of Appeal reversed a Qualified Domestic Relations Order that divided the husband's pension 50-50 as a marital asset, holding that the trial court erred as a matter of law by failing to exclude the non-marital (pre-marriage) portion of the pension from equitable distribution.
The court held that the trial court erred as a matter of law in awarding to the wife any portion of the husband's pension earned prior to the marriage. While a retirement pension is a marital asset subject to equitable distribution, only the marital portion accrued during the marriage may be distributed; the pre-marital portion must be allocated to the husband.
[1] A trial court errs as a matter of law when it fails to apply the correct legal rule regarding the division of a pension, where a portion of the pension is non-marital.
[2] Only the marital portion of a retirement pension may be equitably distributed in a dissolution proceeding.
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Join FLexlaw to unlock all legal intelligence“a retirement pension must be viewed as a marital asset in order to achieve an equitable distribution of property”
Establishes that pensions are marital assets subject to equitable distribution under Florida law
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Join FLexlaw to unlock all legal intelligenceThe parties were married for approximately 16 years. The husband had a pension reflecting over 39 years of service. A final judgment of dissolution wa…
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POLEN, C.J.
This appeal arises from the post final judgment entry of a Qualified Domestic Relations Order. We now reverse that order and remand for proceedings consistent with this opinion.
A final judgment of dissolution was entered between the parties on December 11, 2000. That final judgment was appealed by the wife and affirmed by this court on August 29, 2001. Downey v. Downey, 793 So. 2d 961 (Fla. 4th DCA 2001).
The subject of this appeal is the Qualified Domestic Relations order (“QDRO”) that was entered subsequent to the original appeal. The QDRO divided the husband’s pension fifty-fifty as a marital asset. We conclude that this was an error, and reverse the entry of that order. The parties were married for approximately sixteen years. The husband had earned a pension reflecting over 39 years of service. On or about October 24, 2001, the lower court entered a QDRO awarding the wife 50% of the husband’s total pension. In Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), the Florida Supreme Court held that “in order to properly review orders of the trial judge, appellate courts must recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion. Where a trial judge fails to apply the correct legal rule, as when he refuses to terminate periodic alimony upon remarriage of the receiving spouse, the action is erroneous as a matter of law.” In the case at bar the trial court failed to apply the correct legal rule, that is, the proper division of a pension a part of which is non-marital, and the result is erroneous as a matter of law.
The Florida Supreme Court has specifically held that “a retirement pension must be viewed as a marital asset in order to achieve an equitable distribution of property.” Bogard v. Bogard 490 So. 2d 43 (Fla.1986). However, only the marital portion of the pension may be equitably distributed. Blythe v. Blythe, 592 So. 2d 353 (Fla. 4th DCA 1992)(“It was error for the court not to have allocated to the husband that portion of the pension fund that accrued to him before the couple’s marriage”) (citing Gerbas v. Gerbas, 564 So. 2d 648 (Fla. 4th DCA 1990)); Blase v. Blase, 704 So. 2d 741 (Fla. 4th DCA 1998) (holding that husband was entitled to his premarital share of his 401k plan.).
We find unpersuasive the wife’s argument that the husband should be precluded from raising this argument as it is inconsistent with arguments raised in earlier proceedings in front of this court. Although the husband has previously supported the court’s distribution of property, the QDRO was not entered until after the previous appeals were decided. Thus, the earliest time the husband could have noticed the inequitable distribution of his pension and challenged the QDRO was after the QDRO was entered, which is what took place. As a result, we now hold that the trial court erred as a matter of law in awarding to the wife any portion of the husband’s pension earned prior to the marriage.
GUNTHER and HAZOURI, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Julia v. Julia, 263 So. 3d 795 (Fla. 4th DCA 2019)…tributions to retirement pensions are not to be included in the distribution of marital assets.” Scott v. Scott, 888 So. 2d 81, 83 (Fla. 1st DCA 2004). “[O]nly the marital portion of the pension may be equitably distributed.” Downey v. Downey, 843 So. 2d 932, 933 (Fla. 4th DCA 2003). The burden is on the pensioner “to prove whether some portion of [the] pension benefits accrued prior to marriage and therefore should not be included as a marital asset.” Childers v. Childers, 640 So. 2d 108, 109 (Fl…
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Blaine v. Thais Blaine, 872 So. 2d 383 (Fla. 4th DCA 2004)…rmer wife with more than her yearly percentage of the pension plan. They provided her with future improvements, cost of living adjustments, and early retirement subsidies. None of these were contained within the final judgment. In Downey v. Downey, 843 So. 2d 932 (Fla. 4th DCA 2003), this court reversed a QDRO that had awarded the former wife a portion of the former husband’s pension plan earned prior to the marriage. This court recognized that a retirement pension must be viewed as a marital asset, but only…
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Scott v. Scott, 888 So. 2d 81 (Fla. 1st DCA 2004)…d upon dissolution of marriage, the party not in ownership of the fund is entitled to an equitable distribution of that portion attributable to the marital contributions. Witowski, 758 So. 2d at 1186 (citing. § 61.075, Fla. Stat.); Downey v. Downey, 843 So. 2d 932, 933 (Fla. 4th DCA 2003) (“[0]nly the marital portion of the pension may be equitably distributed.”) (citations omitted). The party owning the pension is entitled to the premarital value of the fund, along with its subsequent passive appreciation, n…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Blythe v. Blythe, 592 So. 2d 353 (Fla. 4th DCA 1992)
- Bogard v. Bogard, 490 So. 2d 43 (Fla. 1986)
- Blase v. Blase, 704 So. 2d 741 (Fla. 4th DCA 1998)
- Forrest v. State, 564 So. 2d 648 (Fla. 4th DCA 1990)
- Gerbas v. Gerbas, 564 So. 2d 648 (Fla. 4th DCA 1990)