Acker v. Acker, 3D00-3096.

• Decision Date: 22 May 2002
• Docket Number: No. 3D00-3096.,3D00-3096.
• Parties: Charles Frederick ACKER, Appellant, v. Barbara Drumm ACKER, Appellee.
• Court: Florida District Court of Appeals

821 So.2d 1088

Charles Frederick ACKER, Appellant, v. Barbara Drumm ACKER, Appellee.

No. 3D00-3096.

District Court of Appeal of Florida, Third District.

May 22, 2002.

Rehearing Denied July 31, 2002.

Russo & Kavulich and Jerome J. Kavulich, for appellant.

Nancy A. Hass, Hallandale, for appellee.

Shannon McLin Carlyle, Leesburg; John G. Crabtree, Key Biscayne; Miller, Schwartz and Miller, Hollywood, for the Family Law Section of The Florida Bar as amicus curiae.

Before SCHWARTZ, C.J., and JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN, SORONDO and RAMIREZ, JJ.

On Rehearing En Banc

COPE, J.

The former husband was granted his pension plan as part of his equitable distribution at the time of the parties' divorce. Subsequently the former husband retired.

The question before us is whether the pension benefits equitably distributed to the husband may be considered in determining the former husband's ability to pay alimony.¹ We conclude that the answer is yes. This follows from the Florida Supreme Court opinion in Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986).

More important, this issue is now controlled by later-enacted legislation. Under the applicable Florida Statutes, the pension benefits equitably distributed to the former husband may be considered in determining his ability to pay alimony.

I.

The parties divorced in 1993 after a twenty-three-year marriage. The husband was fifty-three. He was a pilot for Delta Airlines earning approximately $160,000 per year. The wife earned approximately $10,000 per year from employment.

The parties entered into a marital settlement agreement under which the husband was granted, as part of his equitable distribution, his pension benefits. The wife was granted the marital residence and other assets.

The marital settlement agreement provided for the wife to receive $3,000 per month in permanent alimony. After three years, the alimony award would be subject to modification. The agreement provided that when the husband retired from Delta, the parties would "revisit the matter of the amount of any alimony that he pays, thereafter."² (R. 11).

In 1996, Delta offered an early retirement option which the former husband accepted. He received a lump sum payment of approximately $1 million, plus $7,803 per month, or approximately $93,636 per year.

The former husband moved for termination of his alimony obligation. He argued that, as a matter of law, it is impermissible to consider his pension benefit as a source of funds with which to pay his alimony obligation, because the pension benefit had been received as equitable distribution at the time of the divorce. He contended that this follows from the Florida Supreme Court's decision in Diffenderfer and certain post-Diffenderfer cases. The trial court denied the motion to terminate alimony, and the husband has appealed.³

A panel of this court heard oral argument of the appeal. The panel then referred the case to the court for en banc consideration. The en banc court directed the parties to address, among other things, whether the court should recede in whole or in part from two cases which interpret Diffenderfer: Hollinger v. Baur, 719 So.2d 954 (Fla. 3d DCA 1998), and Waldman v. Waldman, 520 So.2d 87 (Fla. 3d DCA 1988).

II.

We first consider how the issue should be analyzed under Diffenderfer. As will be explained below, some of the difficulty in analyzing the issue stems from the fact that there was a typographical error in the Westlaw and CD-Rom versions of the Diffenderfer decision.

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). The court was making the obvious point that 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. Indeed, the half which has been transferred to the wife would reduce the wife's need for alimony at such time as the parties were able to draw on the pension benefits.⁴

It appears that when the Diffenderfer decision was entered into the Westlaw database, and was also published in CD-Rom format, there was a typographical error. In the Westlaw/CD-Rom versions, the phrase "her interest in his pension" became "his interest in his pension." This error, of course, changed the meaning.

The erroneous version read as follows:

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, his interest in his pension should not be considered as an asset reflecting his ability to pay.

Diffenderfer, 491 So.2d at 267 (emphasis added) (quoted in Schlafke v. Schlafke, 755 So.2d 706, 707 (Fla. 4th DCA 1999)).

Under the erroneous Westlaw/CD-Rom version of Diffenderfer, the meaning has changed completely. Under the erroneous version, if the pension is divided one-half to the wife and one-half to the husband, the half received by the husband cannot be considered as an asset reflecting the husband's ability to pay alimony.

It thus appears that since 1986, there have been two versions of Diffenderfer existing side by side.⁵ Under the published version (which is authoritative), the half of the pension benefit received by the husband in the court's example can be considered in determining the husband's ability to pay alimony. Under the electronic/CD-Rom (erroneous) version, the half of the pension benefit received by the husband cannot be considered in determining the husband's ability to pay alimony.

In the years since Diffenderfer, this court and others have issued opinions interpreting Diffenderfer to say "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." Rogers v. Rogers, 746 So.2d 1176, 1179 (Fla. 2d DCA 1999); Hollinger v. Baur, 719 So.2d 954 (Fla. 3d DCA 1998); Paris v. Paris, 707 So.2d 889, 890 (Fla. 5th DCA 1998); Ellis v. Ellis, 699 So.2d 280, 283 (Fla. 5th DCA 1997); Bain v. Bain, 687 So.2d 79, 81 (Fla. 5th DCA 1997); Gentile v. Gentile, 565 So.2d 820 (Fla. 4th DCA 1990); Waldman v. Waldman, 520 So.2d at 90. We surmise that this line of cases evolved from the erroneous Westlaw/CD-Rom version of Diffenderfer.⁶

In any event, we conclude that the authoritative version of Diffenderfer is the decision published in the bound volume of the Southern Reporter, Second Series. Based on the plain words of the published opinion, a court is allowed to consider a pension which has been equitably distributed to the payor in determining the payor's ability to pay alimony. We therefore find it necessary to recede from Hollinger v. Baur, and to recede from the discussion of Diffenderfer contained in Waldman v. Waldman.⁷

III.

The foregoing discussion of Diffenderfer has become academic, because in 1988 (two years after the Diffenderfer decision), the legislature enacted statutes which are now controlling on this exact issue. Ch. 88-98, Laws of Fla. In so doing, the legislature created the equitable distribution statute, and also amended the statute governing alimony.

The current version of the equitable distribution statute⁸ provides that a pension benefit accrued during the marriage is a marital asset. § 61.075(5)(a)4., Fla Stat. (2001). Important for our purposes, the equitable distribution statute states:

(8) The court may provide for equitable distribution of the marital assets and liabilities without regard to alimony for either party. After the determination of an equitable distribution of the marital assets and liabilities, the court shall consider whether a judgment of alimony shall be made.

§ 61.075(8), Fla. Stat. (2001) (emphasis added). Thus, the trial court is first to do the equitable distribution of assets, and once the assets have been equitably distributed, make a determination whether alimony should be awarded.

The 1988 legislature also amended the alimony statute. Ch. 88-98, § 2, Laws of Fla. The current version⁹ provides:

(2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.

(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

(g) All sources of income available to either party.

The court may consider any other factor necessary to do equity and justice between the parties.

Id. § 61.08(2) (emphasis added). By its plain language, section 61.08 requires the court to consider the assets and liabilities which have been equitably distributed to each party. Id. § 61.08(2...