Carollo v. Carollo

• Decision Date: 29 December 2004
• Docket Number: No. 3D03-464.,3D03-464.
• Citation: 920 So.2d 16
• Parties: Joseph CAROLLO, Appellant, v. Maria Ledon CAROLLO, Appellee.
• Court: Florida District Court of Appeals

Page 16

920 So.2d 16

Joseph CAROLLO, Appellant, v.Maria Ledon CAROLLO, Appellee.

No. 3D03-464.

District Court of Appeal of Florida, Third District.

December 29, 2004.

Rehearing and Rehearing En Banc Denied January 24, 2005.

Marks & West, Miami; Cynthia L. Greene, Miami, for appellant.

Ira L. Dubitsky; Lauri Waldman Ross, Miami, for appellee.

Before SCHWARTZ, C.J., and LEVY and SHEPHERD, JJ.

PER CURIAM.

Joseph Carollo("Husband") appeals from a Final Judgment and Dissolution of Marriage.Maria Ledon Carollo("Wife") cross-appeals.

Husband and Wife were married in November 1985, and Wife petitioned for dissolution of the marriage in November of 2000.The parties have two minor children from the marriage.At issue on appeal are several rulings made by the trial court.Specifically, the court's finding that Husband's City of Miami"Elected Officers Retirement Trust"(EORT) was an asset subject to equitable distribution, and the court's valuation and distribution of Husband's EORT; the imputation of income against Husband for purposes of alimony and child support; the award of rehabilitative alimony to Wife to allow her to attend law school; and the attorney's fee award to Wife.The issues raised on cross-appeal concern the trial court's denial of Wife's request to order that Husband obtain life insurance to secure Wife's alimony award, and the court's denial of Wife's request for a QDRO (Qualified Domestic Relations Order) to secure the equitable distribution of Husband's EORT.

The court was faced with several issues regarding Husband's EORT; (1) whether the EORT was an asset or income, (2) how to value the EORT and compute the marital portion, and (3) whether the City of Miami's reduction of Husband's EORT after the court's ruling but before the entry of Final Judgment, should have been considered on rehearing, thereby allowing the court to recalculate the equitable distribution.

The trial court found that Husband's EORT was a marital asset subject to equitable distribution, placed a present value upon Husband's EORT, accepted Wife's expert's computation, and determined that Husband's interest in the EORT was $1,483,688.00, with the marital portion being $741,834.00.Consequently, the court found that from Husband's monthly payment of $9,404.63, the monthly marital portion was $8,180.80, and ordered Husband to pay Wife her share of the total value in sums of $4,090.40 per month.

The trial court announced its ruling regarding the EORT on June 7, 2002, and on June 10, 2002, supplemented its oral ruling with a letter to the parties' counsel.On July 25, 2002, before the court entered its written Final Judgment, the City Commission reduced the amount of Husband's monthly pension payments.In light of the reduction, Husband filed a Motion for Rehearing and New Trial.The trial court denied Husband's Motion for Rehearing on the ground that the court's "ruling" was non-modifiable because it was a "property provision."Additionally, the trial court denied argument that the issue was newly discovered evidence because it was not in existence at the time of trial.

With respect to the rehabilitative alimony, the Record reflects that Husband was the primary income source for the family during the marriage and that Wife held the family together and supported Husband's political career.Additionally, the court considered the fact that Husband owned and worked several companies and business ventures during the late 80s and early 90s; that Wife received her college degree in psychology in 1981 but worked primarily for Husband's business ventures; that in 1994, Wife was admitted to law school but did not pursue the education; and that Wife ultimately stopped working in 1995 to remain with the children.Thus, the trial court awarded rehabilitative alimony for a period of five years to Wife so that she may attend law school.

The trial court imputed income against both parties, finding that they were both underemployed.The court found that Husband's monthly income was $5,314.23 ($4,090.40 — Husband's half of the marital portion of his EORT + $1,223.83 — Husband's non-marital interest in his EORT).The court found that credible evidence supported a finding that Husband could earn at least $95,000.00 per year working.Accordingly, the court imputed an annual income of $65,000.00 against Husband.With respect to Wife, the court found that Wife's monthly income is $4,090.40 (from the marital interest in Husband's EORT).The court found that Wife had the potential and history to earn approximately $25,000.00 and thus, imputed an annual income of $25,000.00 against Wife.

The court awarded attorney's fees to Wife, finding that Husband had the ability to pay her fees.The trial court also ordered Husband to maintain a $150,000.00 life insurance policy to secure child support, but did not require life insurance to secure Wife's rehabilitative alimony.Additionally, the trial court denied Wife's request for a QDRO to secure her equitable distribution of Husband's EORT.Husband appeals, and Wife cross-appeals.We find that only Husband's claims regarding the EORT and rehearing, and Wife's claims regarding the QDRO merit discussion.

EORT

Section 61.075(5), Florida Statutes, includes "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs" as a marital asset for purposes of equitable distribution.§ 61.075(5)(a)(4), Fla. Stat.(2003);see alsoAcker v. Acker,821 So.2d 1088, 1092(Fla. 3d DCA2002).In Diffenderfer v. Diffenderfer,491 So.2d 265(Fla.1986), the Supreme Court of Florida explained:

Whether the [pension] plan is contributory or noncontributory, the employee receives a lesser present compensation plus the contractual right to the future benefits payable under the pension plan.The value of those contractual rights will vary depending upon the number of years employed but where, as here, the rights are vested, or where they are matured, they have an actuarially calculable value.To the extent that they result from employment time after marriage and before commencement of a matrimonial action, they are contract rights of value, received in lieu of higher compensation which would otherwise have enhanced either marital assets or the marital standard of living and, therefore, are marital property.

Diffenderfer,491 So.2d at 267(citingMajauskas v. Majauskas,61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15(1984)).In the instant case, Husband receives disbursements from the City of Miami Elected Officer Retirement Trust(EORT) pursuant to section 40-296, City of Miami Municipal Code.The EORT is a non-contributory "retirement system" that was established "for the purpose of providing retirement benefits."City of Miami Municode, §§ 40-292, 40-295.Thus, Husband's EORT is, at least in part, a marital asset subject to equitable distribution pursuant to section 61.075, Florida Statutes.

The trial court possesses broad discretionary authority to do equity between the parties when making financial awards in dissolution proceedings.Canakaris v. Canakaris,382 So.2d 1197(Fla.1980).In Diffenderfer,the Court recognized that there are several means of valuing retirement and pension trusts.Diffenderfer,491 So.2d at 269.

On the issue of valuation in the instant case, the trial court heard testimony from Wife's expert, an actuary, and Husband's expert, a certified tax attorney.Husband argued, and his expert explained, that Wife should only be entitled to 25% of the full amount of the pension value; Husband's expert explained that the parties were married approximately fourteen years and that Husband served the City for seven years before he was married, and therefore, Husband proposed, the value of the pension should be divided in half (to represent the pre-marital portion) and the marital portion equally divided among the parties.Wife's expert, on the other hand, proposed valuing the non-marital portion of the trust, Husband's pre-marital interest in the trust prior to his marriage to Wife and his post-separation portion, subtracting husband's non-marital amount from the current value, and then dividing the sum equally between the parties.Wife's expert testified that Husband's interest in the trust as of May 1, 2002 was $1,483,668.00; that the martial portion was $741,834.00 (or $97,212.00 annually); that Husband currently received $9,404.63 per month and that $1,223.83 of the monthly disbursements was non-marital.The trial court accepted Wife's expert evaluation and accordingly, awarded Wife $4,090.40 of the pension, and Husband $5,314.23 ($1,223.83-nonmarital, plus $4,090.40).

Based on the testimony/evidence presented, and the case law regarding valuation of pensions and retirement funds, the trial court acted within its discretion in accepting Wife's expert's valuation testimony and distributing the property...