No. 94-1972 | Fla. Dist. Ct. App. | Jul 21, 1995
Lead Opinion
The husband appeals, and the wife cross-appeals, a final judgment of dissolution which equitably distributed the parties’ assets and liabilities and awarded the wife alimony. The husband argues the trial court did not have sufficient evidence before it to make a proportionate allocation between pension and disability benefits of an accidental disability retirement benefit he receives as a result of his former employment with the New York City Police Department. We agree and reverse. We find no merit in the wife’s cross-appeal.
The husband was a New York City police officer from 1973 to 1984, during all of which time the parties were married. He was separated from this employment on January 31, 1984, and immediately began receiving a benefit of $2,600 per month. The parties moved to Florida, and at the time of the dissolution, they had substantial assets, including a marital residence, a condominium in Gainesville, vehicles, furnishings, jewelry, life insurance policies, and a business.
At the final hearing, the husband alleged his accidental disability retirement was disability income and not subject to equitable distribution
We look to New York law to resolve this issue and discern the nature of these payments. The benefit received by the husband is referred to as an “accidental disability retirement allowance.” Retirement and Social Security Law § 363.a. (McKinney’s 1994), provides that such allowance consists of: (1) an annuity which shall be the actuarial equivalent of the member’s accumulated contributions; (2) a pension which is the actuarial equivalent of the reserve for increased take-home pay to which the member may be entitled, if any; and (3) a pension of ¾ of the member’s final average salary.
In determining the portion which represents retirement benefits in dissolution cases under its equitable distribution law, New York courts require specific, official evidence on the issue. Mylett v. Mylett, 163 A.D.2d 463" court="N.Y. App. Div." date_filed="1990-07-16" href="https://app.midpage.ai/document/mylett-v-mylett-5927604?utm_source=webapp" opinion_id="5927604">163 A.D.2d 463, 558 N.Y.S.2d 160 (N.Y.A.D.2d Dept.1990); West v. West, 115 A.D.2d 601" court="N.Y. App. Div." date_filed="1985-12-16" href="https://app.midpage.ai/document/west-v-west-5882326?utm_source=webapp" opinion_id="5882326">115 A.D.2d 601, 496 N.Y.S.2d 263 (N.Y.A.D.2d Dept.1985). The Mylett court noted that:
*1112 The basis utilized by the New York City Police Pension Fund in computing disability retirement payments depends, in large part, upon the police officer’s number of years of service and salary. (See, Retirement & Social Security Law s. 363[e].) [PJolice disability pensions awarded employees whose injuries have prevented them from attaining normal retirement age take into account that unfortunate and involuntary fact and seek to grant those employees some portion of the deferred compensation to which they would have been entitled but for the unexpected event, (emphasis supplied)
Id. at 558 N.Y.S.2d 162" court="N.Y. App. Div." date_filed="1990-07-16" href="https://app.midpage.ai/document/zabbia-v-dicks-5927613?utm_source=webapp" opinion_id="5927613">558 N.Y.S.2d 162. See also Newell v. Newell, 121 Misc. 2d 586" court="N.Y. Sup. Ct." date_filed="1983-11-04" href="https://app.midpage.ai/document/newell-v-newell-6203909?utm_source=webapp" opinion_id="6203909">121 Misc.2d 586, 468 N.Y.S.2d 814 (N.Y.Sup.1983).
The difference between a benefit received with and without disability can be considerable. In West, it was noted that the plaintiff, a former detective with the New York City Police Department, was receiving an accidental disability retirement allowance of $21,-733.55 per year, but would have been entitled to only $12,596.68 per year had he retired without a physical disability. There, a pension would have been only 58% of the pension/disability benefit, far less than the 75% figure arrived at by the trial court in this case.
It is apparent that the husband’s benefit in this ease represents both traditional retirement and disability income. Competent evidence is required to establish the allocation between pension and disability benefits. This cannot be established by an overall description, as contained in the brochure, about the benefit generally. The determination by the trial judge that seventy-five percent of the husband’s income from this source represented retirement is not based on evidence which considers the variables involved in a determination of this party’s specific benefit.
We therefore must reverse that portion of the final judgment and remand to the trial court with directions to give the husband
REVERSED AND REMANDED.
. Benefits paid for noneconomic damages such as pain and suffering, loss of future wages and future medical expenses are the separate property of the party receiving the benefit. Weisfeld v. Weisfeld, 545 So. 2d 1341" court="Fla." date_filed="1989-06-15" href="https://app.midpage.ai/document/weisfeld-v-weisfeld-1749705?utm_source=webapp" opinion_id="1749705">545 So.2d 1341 (Fla.1989); Stem v. Stem, 636 So. 2d 735" court="Fla. Dist. Ct. App." date_filed="1994-04-06" href="https://app.midpage.ai/document/stern-v-stern-1788404?utm_source=webapp" opinion_id="1788404">636 So.2d 735 (Fla. 4th DCA 1993).
. Diffenderfer v. Diffenderfer, 491 So. 2d 265" court="Fla." date_filed="1986-06-26" href="https://app.midpage.ai/document/diffenderfer-v-diffenderfer-1807669?utm_source=webapp" opinion_id="1807669">491 So.2d 265 (Fla.1986).
. Since the husband is the legal owner of this benefit we presume that only he has access to this information.
. Disability income may be viewed as a source for alimony. Freeman v. Freeman, 468 So. 2d 326" court="Fla. Dist. Ct. App." date_filed="1985-04-11" href="https://app.midpage.ai/document/freeman-v-freeman-1820932?utm_source=webapp" opinion_id="1820932">468 So.2d 326 (Fla. 5th DCA 1985); Baker v. Baker, 419 So. 2d 735" court="Fla. Dist. Ct. App." date_filed="1982-09-20" href="https://app.midpage.ai/document/baker-v-baker-7520359?utm_source=webapp" opinion_id="7520359">419 So.2d 735 (Fla. 1st DCA), pet. denied, 422 So.2d 842 (Fla.1982).
Concurrence in Part
concurring and concurring specially.
Reluctantly, I agree that the value of the pension as a marital asset needs to be reconsidered by the lower court. I am reluctant because the trial court did the best it could with what it was given. As appellee notes, there is normally a presumption that an asset acquired during the marriage is marital and the burden of establishing the nonmarital status of any part of the asset is on the proponent — in this case, Mr. Pilny. Here, Mr. Pilny offered no evidence of the nonmar-ital asset status of a portion of his pension, as the New York ease law cited by Judge Sharp clearly indicates can and must be done. Mr. Pilny preferred an all-or-nothing approach that failed. It was Mrs. Pilny who offered the brochure containing the formula used by the judge. Because, however, the New York case law plainly describes a disability pension like the one at issue here as consisting of both marital and nonmarital components, I