Crocker v. Crocker

• Docket Number: 5D23-103
• Decision Date: 21 July 2023
• Parties: ELROY CROCKER, Appellant, v. ROBIN TRUMAN CROCKER, Appellee.
• Court: Florida District Court of Appeals

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ELROY CROCKER, Appellant, v. ROBIN TRUMAN CROCKER, Appellee.

No. 5D23-103

Florida Court of Appeals, Fifth District

July 21, 2023

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Appeal from the Circuit Court for Clay County, LT Case No 10-2019-DR-000925 Angela M. Cox, Judge.

Brian P. North, of Kenny Leigh and Associates, Pensacola, for Appellant.

Michael J. Korn, of Korn &Zehmer, P.A., Jacksonville, for Appellee.

WALLIS, J.

Elroy Crocker ("Husband") appeals an Amended Final Judgment of Dissolution of Marriage and an Order on Motions for Rehearing, arguing that the trial court erred by awarding Robin Crocker ("Wife") a share of his preage 62 Federal Employee Retirement System ("FERS") Disability Retirement benefits as marital property subject to equitable distribution. Because those benefits are nonmarital disability benefits, we reverse.

Facts

The parties were married in 2005. Wife petitioned for dissolution in 2019. At trial, the parties agreed that the portions of their retirement benefits that accrued during the marriage should be equitably distributed. Those retirement benefits included Husband's FERS, Husband's military retirement, Husband's ExxonMobil Pension, Wife's FERS retirement, and Wife's Texas Retirement System Pension.

However Wife also sought, as equitable distribution, a portion of the FERS disability benefits Husband was currently receiving. In support of her claim, Wife presented uncontroverted documentary evidence, including a letter approving Husband's disability benefits and his benefits booklet, entitled, "Your Federal Retirement Benefits." Wife also presented the testimony of Annette Ozuna, an expert in federal retirement benefits. Based on her review of Husband's benefits booklet and current materials from the Office of Personnel Management ("OPM"), Ozuna opined that Husband was currently receiving "federal disability" benefits and would continue to receive such benefits until age 62, at which point his benefits would be recomputed according to his benefit booklet. Ozuna opined that Wife was entitled to receive part of Husband's federal disability payment before he reached age 62, according to the "wording to that effect in the attorney's handbook."^[1] Her payments could commence upon the granting of the divorce and proper application for the payments. Husband's attorney did not object to this testimony or conduct any cross-examination of Ozuna. Finally, Wife called Husband, who confirmed that he was currently unemployed and was receiving "disability" due to cluster headaches. He also agreed that the trial court should "fairly and equitably split the retirement between you and your wife."

In its final judgment, the trial court distributed the aforementioned retirement benefits, but also included Husband's pre-age 62 FERS disability benefits in the distribution, stating:

Husband receives his retirement in the form of Federal Disability Payments until he attains the age of 62 years. Pursuant to Federal Law, Wife shall be and is entitled to her share of the payments prior to the Husband's attaining the age of 62 years commencing with the first payment to be made in the first month after the entry of this Final Judgment of Dissolution of Marriage.

Husband filed a motion for rehearing, arguing for the first time that under Florida caselaw, employer disability benefits are considered nonmarital property and thus not subject to equitable distribution, citing to Hoffner v. Hoffner, 577 So.2d 703 (Fla. 4th DCA 1991); Kay v. Kay, 988 So.2d 1273 (Fla. 5th DCA 2008); Rumler v. Rumler, 932 So.2d 1165 (Fla. 2d DCA 2006). After hearing arguments and considering written submissions from the parties, the court rejected Husband's argument, stating,

As to the Respondent's benefits, the Court has reviewed the testimony provided by Annette Ozuna as well as Petitioner's Exhibits 28 and 29. There is competent and substantial evidence that the benefit is a retirement benefit. The exhibits are specific to the Respondent's benefit. Petitioners Exhibit 29 is a letter to the Respondent from the retirement services office about the annuity. Petitioners Exhibit 28 is the Respondent's benefit booklet. Throughout the booklet, Respondent's benefit is referred to as a retirement benefit. Although on page 6, the benefit is referred to as disability retirement, the booklet goes on to refer to the Respondent as a disability retiree. The expert witness testified that the Petitioner can get her award before the Respondent reaches the age of 62. This testimony is credible and unrefuted. Notably, Respondent did not make this argument during trial.

The court entered an amended final judgment, again finding that, "[p]ursuant to Federal Law," Wife was entitled to her share of Husband's pre-age 62 FERS benefits beginning after entry of the amended final judgment.

Preservation

Under Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule 12.530, trial courts have discretion to consider and address arguments raised for the first time in a motion for rehearing, in part to "prevent an injustice that would be caused by an error or omission by one of the lawyers." Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So.3d 269 (Fla. 1st DCA 2012). And, where a trial court exercises its discretion to address an argument raised for the first time on rehearing, the argument is considered preserved for appeal. See Goetz v. AGB Tampa LLC, 335 So.3d 228, 231 (Fla. 2d DCA 2022) (finding arguments preserved for appeal where "trial court had discretion to entertain-and did entertain-the arguments presented" in rehearing motion); Pisano v. Mayo Clinic Fla., 333 So.3d 782, 788 (Fla. 1st DCA 2022) ("Appellants may have preserved their arguments through a motion for rehearing because a trial judge has discretion to consider new arguments raised on rehearing."). Because the trial court addressed Husband's rehearing argument, we find that it was sufficiently preserved for appeal.

Standard of Review

Appellate courts "review a trial court's characterization of an asset as marital or nonmarital de novo and any factual findings necessary to make this legal conclusion for competent, substantial evidence." Sturms v. Sturms, 226 So.3d 1004, 1006 (Fla. 1st DCA 2017) (quoting Dravis v. Dravis, 170 So.3d 849, 852 (Fla. 2d DCA 2015)).

Applicable Florida Law

"Generally speaking, an employer-sponsored disability pension does not constitute a marital asset subject to equitable distribution." Gibbons v. Gibbons, 10 So.3d 127 (Fla. 2d DCA 2009). Instead, a spouse's "disability benefits" are considered income, section 61.046(8) Florida Statutes (2019), and may be considered for alimony purposes. Frank v. Frank, 314 So.3d 634, 637 n.3 (Fla. 3d DCA 2021); see also Freeman v. Freeman, 468 So.2d 326, 328 (Fla. 5th DCA 1985) ("[A] disability pension should not be considered a marital asset subject to equitable distribution. However, the pension may be considered in determining an award of alimony."). In contrast to disability benefits, a spouse's retirement benefits accrued during the marriage are considered marital property subject to equitable distribution. §§ 61.075(6)(a)1.e., 61.076(1), Fla. Stat. (2019); Acker v. Acker, 904 So.2d 384, 386 (Fla. 2005).

Florida courts recognize, however, that disability pensions may serve different purposes, including compensating a disabled person for the "loss of earnings resulting from compelled premature retirement and from a diminished ability to compete in the employment market"; "for personal suffering caused by the disability"; or to "replace a retirement pension by providing support for the disabled worker and his family after he leaves the job." Gibbons, 10 So.2d at 131 (quoting Ciliberti v. Ciliberti, 374 Pa. Super. 228, 542 A.2d 580, 582 (1988)). Only the retirement portion of the disability pension is subject to equitable distribution. Id. (quoting Rumler, 932 So.2d at 1166). Thus, the trial court must determine "what portion of the pension represents compensation for pain and suffering, disability and disfigurement, and what portion, if any, represents retirement pay." Id. (quoting Brogdon v. Brogdon, 530 So.2d 1064, 1066 (Fla. 1st DCA 1988)).

In Weisfeld v. Weisfeld, 545 So.2d 1341, 1346 (Fla. 1989), the Florida Supreme Court adopted an analytical approach to determining whether workers' compensation benefits and personal injury damages awarded to a spouse are subject to equitable distribution. This approach was later applied to determining what portion of disability benefits are subject to equitable distribution. See, e.g. Kay, 988 So.2d at 1275; Rosen v. Rosen, 655 So.2d 153, 154 (Fla. 3d DCA 1995) (holding trial court may not award an interest in spouse's disability income to other spouse "absent the appropriate analysis as set forth in Weisfeld"); Stern v. Stern, 636 So.2d 735, 739 (Fla. 4th DCA 1993). The analytical approach requires "careful analysis" of the "nature and purpose of the benefits at issue." Gibbons, 10 So.3d at 131. "[R]eaching a correct result relative to the equitable distribution of 'disability benefits' requires looking beyond labels to the character and purpose of the benefit under review." Id.; see also Gaffney v. Gaffney, 965 So.2d 1217, 1221 (Fla. 4th DCA 2007) ("Despite its 'disability pension' designation, the marital portion of Husband's pension was a marital asset subject to equitable distribution to the extent it does not represent actual compensation for disability."); Brogdon, 530 So.2d at 1065 ("Although it is undisputed that the husband's pension is denominated a 'disability' pension, it appears, based on the record evidence, that at least some portion of the pension may actually constitute deferred...