Acker v. Acker

• Decision Date: 14 April 2005
• Docket Number: No. SC02-1925.,SC02-1925.
• Citation: 904 So.2d 384
• Parties: Charles Frederick ACKER, Petitioner, v. Barbara Drumm ACKER, Respondent.
• Court: Florida Supreme Court

904 So.2d 384

Charles Frederick ACKER, Petitioner, v. Barbara Drumm ACKER, Respondent.

No. SC02-1925.

Supreme Court of Florida.

April 14, 2005.

Jerome J. Kavulich of Ruso and Kavulich, P.L., Coral Gables, FL, for Petitioner.

Nancy A. Hass, Hallandale, FL, for Respondent.

WELLS, J.

We have for review the decision in Acker v. Acker, 821 So.2d 1088 (Fla. 3d DCA 2002), which certified conflict with the decisions in Rogers v. Rogers, 746 So.2d 1176 (Fla. 2d DCA 1999); Paris v. Paris, 707 So.2d 889 (Fla. 5th DCA 1998); Ellis v. Ellis, 699 So.2d 280 (Fla. 5th DCA 1997); Bain v. Bain, 687 So.2d 79 (Fla. 5th DCA 1997); and Gentile v. Gentile, 565 So.2d 820 (Fla. 4th DCA 1990). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we approve the decision of the Third District Court of Appeal in the instant case and disapprove the decisions of the other district courts.

FACTS

Petitioner Charles Acker (Mr. Acker) and respondent Barbara Acker (Mrs. Acker) were divorced after twenty-three years of marriage. Mr. Acker was fifty-three years old at the time of dissolution and a pilot for Delta Airlines, earning approximately $160,000 per year. Mrs. Acker earned approximately $10,000 per year from part-time employment.

At the time of dissolution in 1993, the parties entered into a settlement agreement under which the parties' substantial assets were distributed between them. As part of his equitable distribution, Mr. Acker received his pension benefits from Delta Airlines. Mrs. Acker received, among other things, the marital residence, Mr. Acker's 401(k) plan, and other IRA accounts and stock plans. Mrs. Acker was also awarded permanent alimony in the amount of $3000 per month. The settlement agreement provided that the alimony awarded to Mrs. Acker was not modifiable for any reason for the first three years but could be modified at the end of those three years. The parties also agreed to revisit the alimony award in 1999, when Mr. Acker reached Delta's mandatory retirement age of sixty.

In 1996, Delta offered an early retirement option, which Mr. Acker accepted. Under this retirement option, Mr. Acker's pension benefits were substantially larger than the value of the pension at the time of dissolution. At the time of dissolution, Mr. Acker's pension was valued at approximately $487,000. At the time of retirement, Mr. Acker received a lump-sum payment of $1,066,378, plus $7803 per month.

Mr. Acker turned sixty on March 1, 1999, at which time he ceased paying alimony to Mrs. Acker and moved for termination of his alimony obligation, arguing that because his monthly income had decreased from approximately $13,000 to approximately $7803, he no longer had the ability to pay alimony.

The trial court denied Mr. Acker's motion to terminate alimony, finding that the provision of the parties' 1993 settlement agreement which stated that the issue of alimony would be "revisited" when Mr. Acker retired did not mean that alimony payments would automatically be terminated. The trial court further rejected Mr. Acker's argument that he took a risk by giving his wife his savings plans and keeping only his pension because the monthly value of his pension benefits could have decreased. The trial court reasoned that Mr. Acker's monthly benefits did not decrease but, rather, generated a one-million-dollar cash payoff, which had increased by $250,000. The court therefore concluded that, taking into consideration the benefits received from Mr. Acker's pension, Mr. Acker continues to have the ability to pay Mrs. Acker $3000 per month in permanent alimony, and Mrs. Acker continues to have the need for such payments. Acker v. Acker, No. 92-51581 (Fla. 11th Cir. Ct. order filed Sept. 21, 2000).

Mr. Acker appealed the trial court's order to the Third District Court of Appeal, arguing that the trial court erred as a matter of law in considering his pension benefits as a source of funds with which to pay alimony because his pension had been treated as property and awarded to him in equitable distribution. He argued that to now consider the pension benefits in a determination of alimony would violate this Court's decision in Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986). After a panel of the district court heard oral argument on this issue, the case was referred to the district court for en banc review. The parties were thereafter directed to address whether the court should recede from two of its prior decisions that interpreted Diffenderfer.

The Third District divided its opinion into two sections, the first discussing this Court's decision in Diffenderfer. The Third District noted that some of the difficulty in analyzing this issue resulted from a typographical error contained in the Westlaw and CD-Rom versions of the Diffenderfer decision. The pertinent portions of the correct Diffenderfer opinion in the words of the Third District are as follows:

In Diffenderfer, the Florida Supreme Court held "that a spouse's entitlement to pension or retirement benefits must be considered a marital asset for purposes of equitably distributing marital property." 491 So.2d at 270. The court also said that "such benefits may be considered as a source of payment of permanent periodic alimony." Id. at 267. The court then said:

Obviously, however, injustice would result if the trial court were to consider the same asset in calculating both property distribution and support obligations. If the wife, for example, has received through equitable distribution or lump sum alimony one-half of the husband's retirement pension, her interest in his pension should not be considered as an asset reflecting his ability to pay.

Id. (emphasis added).

Acker v. Acker, 821 So.2d 1088, 1090 (Fla. 3d DCA 2002). Thus, if one-half of the husband's pension is given to the wife, that half is no longer available to the husband in calculating the husband's ability to pay alimony. The half which has been transferred to the wife, however, would reduce the wife's need for alimony at such time as the parties were able to draw on the pension benefits. Id.

At the time Diffenderfer was released, the Westlaw and CD-Rom versions erroneously substituted the word "his" for "her" in the above-emphasized phrase. The incorrect decision therefore provided: "If the wife, for example, has received through equitable distribution or lump sum alimony one-half of the husband's retirement pension, his interest in his pension should not be considered as an asset reflecting his ability to pay." Id. The Third District concluded that the incorrect version of Diffenderfer entirely changed the meaning of the opinion, causing all five district courts to erroneously conclude that "a pension could be treated as an asset for equitable distribution or as income available to determine a spouse's ability to pay alimony, but not both." Id. at 1091 (quoting Rogers v. Rogers, 746 So.2d 1176, 1179 (Fla. 2d DCA 1999)). The court reasoned that under the plain language of the correct version of Diffenderfer, a court is in fact permitted to consider a pension which has been equitably distributed to the payor in determining the payor's ability to pay alimony. In so holding, the court receded from its prior decisions in Hollinger v. Baur, 719 So.2d 954 (Fla. 3d DCA 1998), and Waldman v. Waldman, 520 So.2d 87 (Fla. 3d DCA 1988).

The second portion of the Third District's opinion went on to note, however, that the foregoing discussion of Diffenderfer is rendered academic because the Legislature subsequently enacted statutes which are now controlling on this issue. In 1988, the Legislature created the equitable distribution statute¹ and amended the alimony statute.² The court concluded that the plain language of these statutes requires the court to consider the assets and liabilities that have been distributed to each party, which means that an equitably distributed pension is an asset to be considered on the issue of alimony. Acker, 821 So.2d at 1092. Thus, the district court held that Mr. Acker's pension was properly considered by the trial court in the instant case and certified conflict with Rogers v. Rogers, 746 So.2d 1176 (Fla. 2d DCA 1999); Paris v. Paris, 707 So.2d 889 (Fla. 5th DCA 1998); Ellis v. Ellis, 699 So.2d 280 (Fla. 5th DCA 1997); Bain v. Bain, 687 So.2d 79 (Fla. 5th DCA 1997); and Gentile v. Gentile, 565 So.2d 820 (Fla. 4th DCA 1990).

ANALYSIS

The issue presently before this Court is whether pension benefits equitably distributed to a party may be considered in determining the proper amount of alimony. We agree with the Third District that pension benefits can be so considered.

In this case, the parties appear to have contemplated that at the time of Mr. Acker's retirement, the issue of the alimony paid to Mrs. Acker would be reexamined. The 1993 settlement agreement specifically provided that "at the end of approximately six years, when the husband retires, no longer flies for Delta and is living off his pension, [the parties] agree to revisit the matter of the amount of alimony that he pays, thereafter." Acker v. Acker, No. 92-51581, agreement at 11 (Fla. 11th Cir. Ct. agreement filed Mar. 24, 1993). Based upon the specific provision of the parties' settlement agreement, we find no error in the trial court considering the income received from Mr. Acker's pension in denying Mr. Acker's petition to terminate his alimony payments. By the agreement, the trial judge could have reduced the alimony payment if the evidence indicated that such reduction was then equitable. But the trial judge did not make that decision, and the decision made by the trial judge was within the trial judge's proper discretion based upon the evidence.

We reject Mr. Acker's argument that the trial court's decision is in conflict with a correct application of this Court's decision in Diffenderfer. Rather, we approve the Third District Court of Appeal's opinion in respect to Diffenderfer and ...