Board of Trustees of Orlando Police Pension Plan v. Langford

Decision Date20 December 2002
Docket NumberNo. 5D02-91.,5D02-91.
Citation833 So.2d 230
PartiesBOARD OF TRUSTEES OF the ORLANDO POLICE PENSION PLAN, et al., Appellants, v. Sue Carroll LANGFORD, et al., Appellees.
CourtFlorida District Court of Appeals

James B. Loper, Tampa, for Appellants.

Charles R. Trulock, Jr., Orlando, for Appellees.

PER CURIAM.

The Board of Trustees of the Orlando Police Pension Plan ("The Board") and G. Michael Miller, Plan Administrator of the City of Orlando Police Pension Plan, appeal from an order rendered by a trial judge in a post-dissolution marriage proceeding which required the Plan Administrator to pay one-half of a former employee's pension benefits to his former spouse as part of a plan of equitable distribution. We reverse, but certify a question as one of great public importance to the Florida Supreme Court.

The former employee in this case, Thomas Langford, and his wife, Sue, were divorced on April 11, 1989. The final judgment of dissolution required him to pay her $350.00 per month in permanent alimony and it incorporated by reference a settlement agreement entered into by the parties. With regard to the pension, the settlement agreement provided:

5. RETIREMENT PENSION. The parties acknowledge that the Husband is vested in a Retirement Plan through the Orlando Police Department and that said Retirement Plan is a marital asset subject to equitable distribution between the parties. Accordingly, the parties agree that the Wife shall be entitled to fifty (50%) percent of the value of the Retirement Plan as of the date of the dissolution of marriage and that through the entry of a Qualified Domestic Relations Order, fifty (50%) percent of the Husband's retirement account balance at the date of the dissolution of marriage shall be placed in separate account in the name of the Wife to be invested and administered separately from that of the Husband. At the Wife's option she may elect to take her share in a lump sum upon written notification to the plan administrator or may allow her portion of the retirement plan to be administered according to the plan separately from the funds of the Husband to be distributed to her at such time as the Husband is entitled to distribution from the plan.

The former wife waited until Langford retired and then moved for entry of a Qualified Domestic Relations Order (QDRO) pursuant to the settlement agreement. The court entered an apportionment order requiring the administrator of the pension plan to make monthly payments to the former wife of an amount equal to her fifty percent interest in the accrued benefits as of April 11, 1989. It recognized the payments were being made as part of "the equitable distribution of marital assets" between the parties.

Langford appealed, arguing the settlement required a one-time payment of onehalf of the yearly pension benefits, payable over twelve months, and not annual payments. This court affirmed, requiring ongoing payments every year. Langford v. Langford, 792 So.2d 473 (Fla. 5th DCA 2001).

On December 18, 2000, the Board and Plan Administrator petitioned the trial court to clarify or dissolve the apportionment order. They argued, as they do here, that under Florida and federal law, QDRO's cannot be used to force direct payment to a non-participating spouse of a part of a participating spouse's municipal pension benefit as part of an equitable distribution plan. They point to section 15 of the city's pension plan and section 185.25, Florida Statutes, which apply to this pension plan.

Section 15 provides that pension payments are not assignable or subject to garnishment, execution, levy or attachments, but are subject to court orders to pay child support or alimony. Equitable distribution orders are not expressly included:

(1) Except as provided in subsections (2) and (3) of this section, none of the moneys, [sic] pensions, or other benefits mentioned in this retirement plan shall be assignable, either in law or in equity, or be subject to execution, levy, attachment, garnishment, or other legal process.
(2) The right of a member to a pension, to the return of accumulated member contributions, or to any other benefit under the provisions of this retirement plan shall be subject to an award by a court of competent jurisdiction pertaining to alimony or child support, if so provided under applicable Florida law. If an award or order requires the retirement plan to withhold payment of a pension, accumulated member contributions, or other benefits from the person to whom it is due, or requires the retirement plan to make payment to a spouse, former spouse or child, the withholding or payment provisions of the award shall be effective only against the amounts as they become payable to the individual being paid the pension or other benefit. These limitations shall not apply to accumulated member contributions of an individual who is neither a participant or a vested former participant. (emphasis supplied)

Section 185.25 makes the following exempt from tax and execution:

For any municipality, chapter plan, local law municipality, or local law plan under this chapter, the pensions, annuities, or any other benefits accrued or accruing to any person under any municipality, chapter, plan, local law municipality, or local law plan under the provisions of this chapter and the accumulated contributions and the cash securities in the funds created under this chapter are exempt from any state, county, or municipal tax of the state, and shall not be subject to execution or attachment or to any legal process whatsoever and shall be unassignable. (emphasis supplied)

The trial court ruled that Langford had waived the anti-alienation provisions of the pension plan and section 185.25, Florida Statutes, by agreeing in the settlement to divide the plan as part of an equitable distribution of his and his wife's marital assets, and by his agreement to entry of an appropriate apportionment order. This appeal followed.

The leading case on using a QDRO to force direct payment to a spouse of a portion of a municipal pension plan as part of the parties' equitable distribution of marital assets is Board of Pension Trustees of the City General Employees Pension Plan v. Vizcaino, 635 So.2d 1012 (Fla. 1st DCA 1994). As in this case, the plan in Vizcaino was created by the Legislature and it also contained an anti-alienation provision. As part of an equitable distribution of the parties' assets, the trial court entered a QDRO which required the municipal employer to pay the former wife a percentage of the former husband's net retirement pension benefits. The Vizcaino court agreed with the employer that it could not be ordered to pay the former wife pension benefits directly in order to achieve an equitable distribution of marital assets. It expressly rejected the argument that the order could be upheld under Florida law under section 61.1301, since that statute authorizes the use of income deduction orders to collect alimony and child support. It also rejected the argument that the anti-alienation provisions of the city's plan had been implicitly repealed by the enactment of a variety of later statutes, including those under chapter 61, which establish that pensions are marital property if earned during the course of a couple's marriage.

Accordingly, the Vizcaino court reversed the trial court's order which required direct payment to the former wife. However, it agreed the assets in the plan were marital and subject to equitable distribution, although they could not be transferred to the former wife. It concluded the former wife was not completely without a remedy. It stated the former husband could be ordered to pay the former wife her allotted portion of the pension each month, upon receipt, and that the order was enforceable by contempt.1 Accord Weber v. Weber, 783 So.2d 333 (Fla. 1st DCA 2001)

(pension of former husband who was employed as city fireman was not subject to a qualified domestic relations order in order to effect equitable distribution).

Vizcaino has been followed by the Second District Court of Appeal. See Edwards v. Edwards, 819 So.2d 837 (Fla. 2d DCA 2002)

(a QDRO could not be used to force direct payment to a nonparticipating spouse of a portion of a spouse's municipal pension benefits in order to achieve an equitable distribution). It has also been cited with approval by the Second and Third District Courts of Appeal for the general proposition that income deduction orders are not available to achieve an equitable distribution of marital assets. See Motil v. Motil, 771 So.2d 1251 (Fla. 2d DCA 2000) (income deduction orders cannot be used to achieve equitable distribution of pension); Silversmith v. Silversmith, 797 So.2d 653 (Fla. 3d DCA 2001) (income deduction order garnishing husband's wages reversed when used to effectuate equitable distribution); Colligan v. Colligan, 759 So.2d 688 (Fla. 3d DCA 2000) (income deduction order cannot be used to effectuate equitable distribution). This court has cited Vizcaino only tangentially, noting in one case that the order under review did not violate Vizcaino. See Abernethy v. Fishkin, 638 So.2d 160 (Fla. 5th DCA 1994) (noting that order entered by trial court did not purport to assign federal FSI benefits to wife, in violation of Vizcaino). By contrast, the Fourth District in McDonald v. McDonald, 731 So.2d 132 (Fla. 4th DCA 1999), held that the trial court was entitled to enter an order which was the "functional equivalent" of a QDRO to effect an equitable distribution of a municipal pension, without any reference to Vizcaino. However, there is no indication that the pension in McDonald contained anti-alienation provisions and the pension plan agreed to honor an alternative order.

We reluctantly agree with Vizcaino that we are not authorized in the construction of a statute to create exceptions not specifically made. The special act creating the pension and section 185.25 purport to make the...

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5 cases
  • Carollo v. Carollo
    • United States
    • Florida District Court of Appeals
    • 29 Diciembre 2004
    ...the trial court to order payment of the spouse's allotment each month, enforceable by contempt. Board of Tr. of the Orlando Police Pension Plan v. Langford, 833 So.2d 230 (Fla. 5th DCA 2002); Board. of Pension Tr. of the City Gen. Employees Pension Plan v. Vizcaino, 635 So.2d 1012 (Fla. 1st......
  • Rumler v. Rumler, 2D05-2261.
    • United States
    • Florida District Court of Appeals
    • 28 Junio 2006
    ...the original decree and settlement, since a key portion of the total plan cannot now be achieved. Bd. of Trs. of Orlando Police Pension Plan v. Langford, 833 So.2d 230, 235 (Fla. 5th DCA 2002). The trial court ordered the Husband to pay thirty-two percent of his pension to the Wife as perma......
  • In re Kauffman, 02-5888-3F7.
    • United States
    • U.S. Bankruptcy Court — Middle District of Florida
    • 15 Septiembre 2003
    ...or child support. We are bound by the plain language of the statute and special act." Board of Trustees of the Orlando Police Pension Plan v. Langford, 833 So.2d 230, 233-234 (Fla. 5th Dist.Ct.App.2002). The court noted that such anti-alienation provisions may be irreconcilable with Florida......
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    • Florida District Court of Appeals
    • 20 Diciembre 2002
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