Merle M. BOYETT, Jr., Appellant,
v.
Eldis Raymell BOYETT, Appellee.
District Court of Appeal of Florida, Fifth District.
*1141 George E. Adams of Adams, Hill, Reis, Adams, Hall & Schieffelin, Orlando, for Appellant.
Patrick A. Raley of Infantino and Berman, Winter Park, for Appellee.
GOSHORN, Judge.
Merle Boyett, Jr. ("the former husband") appeals the final judgment and order denying rehearing and/or new trial entered pursuant to a dissolution proceeding involving him and Eldis Raymell Boyett ("the former wife"). The former husband asserts that the trial court erred in (1) requiring him to pay the parties' Sears and appraisal debts and three fourths of the former wife's attorney's fees where it had substantially equalized their monthly incomes, (2) distributing his retirement plan in a manner that will entitle the former wife to benefit from the former husband's labor after the divorce, and (3) awarding the former wife $1,200 per month in permanent alimony. We find that the first two arguments have merit, and accordingly, we reverse in part.
The parties were married on August 20, 1960. At the time of the marriage, the former husband had been employed at the Orlando Utilities Commission ("OUC") for approximately three years and had continued to work at OUC during the marriage. He has a vested retirement plan with OUC, with an anticipated retirement date of September 1, 2001, his 62nd birthday. The present value of the benefit as of the valuation date, June 1, 1993, is $158,931.49, which would entitle the former husband to $2,860.86 per month beginning on the date of retirement. There is a two percent penalty per year for early retirement. If he took retirement on June 1, 1993, the former husband would collect $2,388.82 per month.
The parties owned four pieces of property: (1) a single family home in Groveland, Florida valued at $71,000 that is encumbered by a $37,000 mortgage; (2) eight acres adjoining the Groveland home valued at $36,000; (3) a single family home in Bithlo, Florida valued at $57,000, owned free and clear; and (4) forty acres in Lake County, Florida valued at *1142 $28,000 with approximately a $10,000 mortgage.
The trial court entered final judgment of dissolution, distributing the Groveland home and attached eight acres to the former wife and the Bithlo home and forty acres in Lake County to the former husband. Each party received approximately one half of the tangible personal property. In paragraph H of the final judgment, the court treated the former husband's retirement plan as follows:
1. Benefits accrued as of June 1, 1993 will be distributed 50% to wife and 50% to husband upon husband's retirement; and
2. Benefits accruing after June 1, 1993 will be distributed to wife under the following formula and the remainder to husband: 50% × (360 divided by [360 ÷ number of months from June 1, 1993 to date of retirement]);
The court also awarded the former wife $1,200 per month in permanent alimony, citing the factors listed in subsection 61.08(2), Florida Statutes (1993). Further, it required the former husband to contribute $10,000 of the former wife's $15,000 attorney's fees and, citing the former husband's superior earning ability, ordered him to pay 75 percent of the parties' Sears and appraisal debts.
1. Attorney's Fees and Sears and Appraisal Debts
The purpose of section 61.16, Florida Statutes (1993) is to assure that each party to a dissolution action can secure competent counsel. See Canakaris v. Canakaris,
We recognize that in making an attorney's fees award, trial courts are given broad discretion, and therefore, an appellate court will not reverse absent a showing that the trial court abused that discretion. See Ball v. Ball,
2. Former Husband's Retirement Plan
In distributing the former husband's retirement benefits, the trial court utilized the approach taken in DeLoach v. DeLoach,
In those instances where it is difficult to place a present value on the pension or profit sharing interest due to uncertainties regarding vesting or maturation, or when the present value can be ascertained by the type, or lack, of other marital property makes it impractical or impossible to award sufficient offsetting marital property to the nonemployee spouse, then the trial court in its discretion may award each spouse an appropriate percentage of the pension to be paid "if, as and when" the pension becomes payable. The marital interest in each payment will be a fraction of that payment, the numerator of the fraction being the number of years (or months) of marriage during which benefits were being accumulated, the denominator being the total number of years (or months) during which benefits were accumulated prior to when paid. The trial court, when using this method of allocation, will retain jurisdiction and award the non employee spouse some percentage of the marital interest in each payment.
Id. at 963 (quoting In re Marriage of Hunt,
Later, in Kirkland v. Kirkland,
The former husband primarily contends that the approach taken in DeLoach unfairly compensates the former wife for the former husband's efforts and labor following the dissolution. While this argument was considered and rejected in DeLoach and Kirkland, this court has consistently stated that "the valuation of a retirement plan should exclude any contributions made after the original final judgment of dissolution." Bain v. Bain, *1144
3. Permanent Alimony
Trial courts have broad discretion in determining whether permanent periodic alimony is appropriate under the circumstances of each case. Absent a clear abuse of discretion, a reviewing court cannot substitute its judgment for that of the trial court. Murray v. Murray,
In sum, we reverse the part of the order that requires the former husband to pay 75 percent of the cost of the former wife's attorney's fees and their Sears and appraisal debts. We disagree with DeLoach, reverse the retirement plan award, and certify conflict with the First District. Finally, the alimony award is affirmed.
REVERSED in part; AFFIRMED in part; and CONFLICT CERTIFIED.
HARRIS, J., concurring, with opinion.
GRIFFIN, J., concurring in part; dissenting in part, with opinion.
HARRIS, Judge, concurring:
The dissent raises the issue as to what extent one spouse should benefit from the post-dissolution employment efforts of the other spouse in the allocation of benefits from a fully vested, defined benefits pension plan when the true (present) value of the plan (monthly income) is determinable on the date of dissolution. Mr. Boyett has worked the requisite 30 years and thus is fully vested in his pension plan. The value of his pension is readily determinable as of the date the dissolution action was filed or the date of the final judgment.
The testimony indicates that the value of Mr. Boyett's pension as of the date of the dissolution action was $2,860 per month assuming Mr. Boyett was 62 years of age at that time. But Mr. Boyett was not 62. At the time of filing for dissolution he was considerably younger. Had he retired on that date, his pension would only generate $2,388 per month because it would be reduced by 2% for each year he was under 62.
Even though Mr. Boyett is fully vested and cannot increase his pension over the 75% of his qualifying income, he must refrain from seeking retirement benefits for several more years in order to receive the full $2,860 per month pension. And although he is not required to continue employment in order to receive full benefits when he reaches 62, if he *1145 chooses to continue to work for the same employer, by working the additional years his qualifying income may increase (and thus also his monthly benefit check) by virtue of his post-dissolution services.
The dissent urges that Mrs. Boyett should not only receive a share of the pension generated by Mr. Boyett's marital efforts, but also share in any increase in those benefits caused by his post-dissolution employment efforts. This is because her right to receive her interest in the pension is being delayed. The fairest solution, of course, would be for Mr. Boyett to merely "buy out" Mrs. Boyett's interest in the pension at the time of dissolution. That is, he should immediately start paying her $1,194 per month (one half of the "present value") as her share of the pension.[1] This would have the same effect on her as if he elected to retire on the date of the dissolution action. In this manner, the receipt of her interest in the pension is not delayed. Further, since she would be currently receiving this "income," Mr. Boyett's alimony obligations would be considerably different.
If, however, Mr. Boyett is unwilling (or unable) to purchase Mrs. Boyett's interest at this time, Mrs. Boyett should be compensated for the delay in receiving her share of the pension at the same rate that Mr. Boyett is compensated by delaying his retirement. This compensation should be in the form of adding 2% to the $1,194 for each year that she is delayed in receiving distribution of her share of the pension. By compensating Mrs. Boyett only at the rate of 2% per year for the delayed payment of the pension, she is limited to the current qualifying income and does not share in any increase in salary earned by Mr. Boyett after the dissolution. This would be the same as if Mr. Boyett chose to leave his current employment and sought work elsewhere without choosing retirement until he is 62. In such case, the interest of both Mr. and Mrs. Boyett in the pension plan would increase by 2% per year.
It seems only fair that any increases generated by Mr. Boyett's post-dissolution efforts should be his. While it is true that his subsequent employment might increase his pension payments "based on the foundation of marital effort," this should be considered merely an incident of the fact that the pension was derived from his past employment. This seems fairer than to say that Mrs. Boyett can continue to accrue marital property long after the marriage is dissolved.
Since I think the majority opinion reaches this result, I concur.
GRIFFIN, Judge, concurring in part; dissenting in part.
I respectfully dissent from the majority's ruling on the issue of equitable distribution of the pension. The relevant facts are not in dispute. Mr. Boyett had been employed by OUC for approximately three years when the parties married in 1960. They divorced in 1994, after thirty-four years of marriage. As of the time of the filing of the petition for dissolution on or about June 1, 1993 ["the filing date"], Mr. Boyett was already fully vested in OUC's defined benefit plan and his own contributions had ceased. He had reached the maximum salary percentage for benefit calculation. As of the filing date, the present value of his pension benefit was $158,931.49, or $2,860 per month; however, he is unable to draw his pension until the year 2001, the year he reaches age 62, without incurring a substantial penalty. Thus, if Mr. Boyett were actually to retire as of the filing date, his pension would have yielded only $2,388.82.[1] Significantly, Mr. Boyett does not have to retire at 62; he may continue to work.[2]
*1146 The amount at which the appellant urged below the court should value the pension was $2,388.82. This was clearly wrong and the court correctly rejected appellant's theory. Appellee's position, relying on DeLoach v. DeLoach,
The lower court was made aware of the value of the pension and the monthly benefit as of August 1994, a date much closer to the final hearing than the filing date. This fourteen-month difference added approximately three hundred dollars per month to the payable benefit. The only variable to which the increase was attributable was Mr. Boyett's salary. Because of his thirty-year fully vested pension entitlement (fifty percent of which was appellee's), as Mr. Boyett's salary rose, so increased the pension. We do not know if Mr. Boyett's salary increase was attributable to Mr. Boyett's efforts or whether it was attributable to the cost of living, but it does not matter. Though the post-dissolution salary increases were Mr. Boyett's, the consequent increases in the jointly held monthly pension payment were properly jointly shared in accordance with the percentages described in DeLoach.
The majority's rejection of DeLoach based on prior decisions of this court is puzzling since DeLoach is really not inconsistent with those decisions. At issue in DeLoach and in this case is the application of deferred benefit sharing. The cases cited by the majority do not address that issue. In fact, the case which appears to be the source of the law of this district, Howerton v. Howerton,
The excellent opinions of the First District Court in DeLoach and Kirkland demonstrate why this court is wrong to require that the valuation of the marital pension to occur no later than the judgment, even though distribution will not occur then. There is no such requirement in Chapter 61. See § 61.075(6), Fla. Stat. (1995). See also Robinson v. Robinson,
NOTES
[1] The First District again cited DeLoach with approval in a case involving a vested retirement plan. See Robinson v. Robinson,
[1] This is very close to the amount the court has ordered him to pay in the form of alimony.
Notes
[1] In addition to my many other quarrels with the majority opinions, the insistence on valuing the pension as if Mr. Boyett had retired early on the filing date, thus subjecting him to the penalties for doing so, is a basic error. The record is clear that he did not retire as of that date and that the correct present value of the pension does not and should not include such a penalty. The suggestion that a waiver of the early retirement penalty to Mrs. Boyett is adequate compensation for having her principal asset involuntarily converted to a contingent future interest in her husband's pension is incorrect.
[2] The concurring opinion, in offering a waiver of the two percent penalty as compensation for the delay in payment, appears not to consider that the penalty expires at age sixty-two but retirement and the attendant receipt of the pension benefit may not occur until much later.
[3] It is worth nothing that this court has already enthusiastically embraced DeLoach as the vehicle for valuing a non-vested plan. Vaccaro v. Vaccaro,