Jahnke v. Jahnke, No. 3D01-1316

Decision Date26 December 2001
Docket Number No. 3D01-1316, No. 3D01-738., No. 3D01-108
Citation804 So.2d 513
PartiesWalter M. JAHNKE, Appellant, v. Debra A. JAHNKE, Appellee.
CourtFlorida District Court of Appeals

Judith H. Hayes, Miami, for appellant.

Murphy & O'Brien and William F. Murphy, III, Miami, for appellee.

Before JORGENSON, FLETCHER, and RAMIREZ, JJ.

PER CURIAM.

In these consolidated appeals, the former husband appeals from a post-dissolution final judgment on financial issues, an order of distribution concerning a management savings plan, and an amended order of distribution in the form of a qualified domestic relations order (QDRO) distributing the savings plan. We affirm in part and reverse in part.

The parties were married in November 1977. During the marriage the former husband was employed with BellSouth and maintained a pension plan and management savings plan. Prior to the marriage, the former husband purchased the home in which the parties lived until the date of their separation. The parties separated in 1993.

The former husband filed a petition to dissolve the marriage in 1994. As a result of mediation, the parties entered into a settlement agreement in 1996 in which they agreed, among other things, that the former husband would pay the former wife $56,000 in the form of BellSouth stock. The court subsequently entered a final judgment of dissolution of marriage on February 14, 1996, incorporating the settlement agreement.

The former wife then filed a petition, and a second amended petition, to set aside the final judgment due to the former husband's failure to disclose the existence of his BellSouth Management Savings Plan having a balance of $73,773.47. The trial court granted the former wife's second amended petition to set aside the judgment and found that the settlement included in the original final judgment had been reached under fraud, deceit and misrepresentation. An appeal followed and this court affirmed. See Jahnke v. Jahnke, 730 So.2d 688 (Fla. 3d DCA 1999).

Thereafter, a hearing was held and the trial court entered a "Final Judgment on Financial Issues." The trial court established the value of the parties' assets as of the date of the final hearing in 2000. The trial court also awarded alimony to the former wife and determined that she was entitled to attorney's fees from the former husband. The trial court credited the former husband with the $80,894.87 he had previously paid to the former wife pursuant to the settlement agreement. The trial court also awarded the former wife 47% of the enhanced value of the home that was purchased by the former husband before the marriage, one-half of the pension plan, and one-half of the management savings plan. The former wife was awarded $1,500 per month in permanent periodic alimony for the twenty-three months from the parties' separation to the date of the former wife's remarriage. The former husband appeals from this final judgment in case number 01-108.

The former wife then filed a petition seeking immediate distribution of the portion of the management savings plan awarded to her by the final judgment on financial issues. The trial court granted the petition and entered an order of distribution. The former husband appeals from that order in case number 01-738. Because the order of distribution did not qualify as a QDRO, the trial court entered an amended order of distribution. The husband appeals from that order in case number 01-1316.

The former husband raises numerous issues; we address only those which merit discussion.

I

The former husband first argues that the trial court erred in awarding relief not requested in the former wife's petition to set aside a judgment based on fraud, deceit or misrepresentation. We disagree. "When a court vacates a judgment pursuant to a rule 1.540 motion, the effect of that ruling is to return the case and the parties to the same position that they were in before the court entered the judgment." Bane v. Bane, 775 So.2d 938, 941 (Fla. 2000). A rule 1.540 motion is a motion filed in the underlying proceeding. Id. The part of the final judgment pertaining to financial issues became void when the court set it aside. We agree with the former husband that a court cannot award relief that was not requested in the pleadings. See Hines v. Hines, 494 So.2d 297 (Fla. 3d DCA 1986); Hernandez v. Hernandez, 444 So.2d 35 (Fla. 3d DCA 1984); McDonald v. McDonald, 732 So.2d 505 (Fla. 4th DCA 1999). However, the former wife's rule 1.540 motion was not a "pleading." See Fla. R. Civ. P. 1.110. The only relevant pleading is the former wife's counterpetition for dissolution of marriage, which she filed in 1994. In her counterpetition, the former wife requested distribution of all the items included in the final judgment on review, except the management savings plan, which was the basis for the wife's petition to set aside the original final judgment. Therefore, the former wife had specifically sought the relief granted.

II

The former husband next contends that the trial court erred in valuing the assets as of the 2000 hearing, rather than the date of dissolution. The trial court determined that the former husband caused the delay in the distribution of marital assets through his deceit, which warranted valuation of the assets as of the date of the 2000 hearing, rather than the 1996 settlement. Although assets should not, ordinarily, be valued as of a post-dissolution date because the subsequent change in the property's value due to non-marital labor or efforts cannot be distributed, see Claughton v. Claughton, 625 So.2d 853, 855 (Fla. 3d DCA 1993), we find no abuse of discretion in the trial court's decision to choose the latter date. See § 61.075(6), Fla. Stat. (1999) ("The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances."); Perlmutter v. Perlmutter, 523 So.2d 594 (Fla. 4th DCA 1987) (holding that because asset values often change drastically during course of dissolution proceedings, the determination of appropriate date for valuation must be made on a case by case basis and in light of the surrounding circumstances); see also Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980) (holding that in making financial awards in dissolution proceedings, the trial court possesses broad discretionary authority to do equity between the parties). The former wife had an interest in the marital part of the assets, and any passive accumulations thereon, through the year 2000. To value the assets as of 1996 would reward the former husband for his deceit with the full market appreciation of the marital portion of the assets between 1996 and 2000, while depriving the former wife of the appreciation of her interest in the assets. See Perlmutter, 523 So.2d at 596.

III

The former husband next argues that the trial court erred in awarding one half of the pension and management savings plans ("the plans") because portions of each were nonmarital. Pension plan contributions during the course of the marriage, and accumulations thereon, are marital property. See Griffiths v. Griffiths, 563 So.2d 773 (Fla. 3d DCA 1990). As the trial court acknowledged in the final judgment, passive accumulations on the nonmarital portions of an asset are not subject to equitable distribution. See Blase v. Blase, 704 So.2d 741 (Fla. 4th DCA 1998); Hargrave v. Hargrave, 728 So.2d 366 (Fla. 4th DCA 1999); Bain v. Bain, 553 So.2d 1389, 1391 (Fla. 5th DCA 1990); see also § 61.075(5)(a)2, Fla. Stat (1997).

Notwithstanding, "[w]ith regard to the designation as marital or nonmarital, `[t]he burden of proof is on the spouse who wishes to show that an asset or liability acquired during the marriage is not ... marital....'" Gladstone v. Gladstone, 733 So.2d 1090 (Fla. 4th DCA 1999) (quoting Deas v. Deas, 592 So.2d 1221, 1222 (Fla. 1st DCA 1992)); Childers v. Childers, 640 So.2d 108 (Fla. 4th DCA 1994) (holding that the owner of the asset had the burden to show whether some portion of his pension benefits accrued prior to marriage and should not be included as marital asset); cf. Adkins v. Adkins, 650 So.2d 61 (Fla. 3d DCA 1994) (holding that once a non-owner spouse establishes that marital labor or funds were used to make improvements to a home which was nonmarital, it becomes the owner spouse's burden to show which parts are exempt). "Absent any proof of premarital contributions to the plan, the trial court can treat the whole amount as a marital asset.... [T]he owner must prove the value of the premarital contributions (and appreciation of that value, if any)." Reyher v. Reyher, 495 So.2d 797 (Fla. 2d DCA 1986). The former husband failed to adduce competent substantial evidence of the nonmarital value of the plans. The trial court, as finder of fact, was within its discretion to discredit the former husband's assertion that the information necessary to deduct nonmarital portions of the pension and management savings plan was unavailable. We therefore affirm that award.

IV

The former husband next challenges the trial court's calculation of his special equity in the home and the award of interest on the home. The trial court found that the home was a nonmarital asset, the value of which was substantially enhanced by marital contributions. See Adkins v. Adkins, 650 So.2d 61 (Fla. 3d DCA 1994) (holding that the enhanced value of the home is a marital asset to be equitably distributed by the court). The trial court found that the home was encumbered by two mortgages, the original mortgage, the balance of which was $15,800, and a second mortgage incurred...

To continue reading

Request your trial
19 cases
  • Norwood v. Anapol-Norwood
    • United States
    • Florida District Court of Appeals
    • May 10, 2006
    ... ... Byers, 910 So.2d 336 (Fla. 4th DCA 2005)(applying post-1994 statute and citing Perlmutter); Jahnke ... ...
  • Weininger v. Weininger
    • United States
    • Florida District Court of Appeals
    • October 10, 2019
    ... ... result in distributing an increase in property value that was "due to nonmarital efforts." Jahnke v. Jahnke, 804 So. 2d 513, 516 (Fla. 3d DCA 2001). Here, the pre-filing contributions to the Delta ... ...
  • Murphy v. Murphy
    • United States
    • Florida District Court of Appeals
    • March 12, 2021
    ... ... during the nine years of protracted divorce proceedings while the parties lived apart"); Jahnke v. Jahnke, 804 So. 2d 513, 516 (Fla. 3d DCA 2001) (recognizing that "assets should not, ordinarily, ... ...
  • Martin v. Martin
    • United States
    • Florida District Court of Appeals
    • June 20, 2019
    ... ... Childers, 640 So. 2d 108, 109 (Fla. 4th DCA 1994)). See also Jahnke v. Jahnke, 804 So. 2d 513, 517 (Fla. 3d DCA 2001) (finding the pension owner was required to prove ... ...
  • Request a trial to view additional results
6 books & journal articles
  • Marriage dissolution
    • United States
    • James Publishing Practical Law Books Florida Small-Firm Practice Tools - Volume 1-2 Volume 2
    • April 1, 2023
    ...remained the wife’s non-marital property even though it had been used as collateral for the parties’ joint debt); Jahnke v. Jahnke , 804 So. 2d 513, 517 (Fla. 3d DCA 2001) (“[p]assive accumulations on the non-marital portions of an asset are not subject to equitable distribution.”).] The ap......
  • Final judgment; rehearing; motions related to judgment
    • United States
    • James Publishing Practical Law Books Florida Family Law and Practice - Volume 1
    • April 30, 2022
    ...the client hire a specialist to prepare the QDRO, rather than assume the responsibility for preparation of the QDRO. [ Jahnke v. Jahnke, 804 So. 2d 513 (Fla. 3d DCA 2002)(no abuse of discretion in trial court’s decision to order lump sum distribution of management savings plan by way of QDR......
  • Equitable distribution and property issues
    • United States
    • James Publishing Practical Law Books Florida Family Law and Practice - Volume 1
    • April 30, 2022
    ...Wife from benefiting from rise in value of stock occasioned by husband’s efforts made after filing of petition.); Jahnke v. Jahnke, 804 So. 2d 513 (Fla. 3d DCA 2001) (it is in court’s discretion to value marital assets as of date of hearing; ordinarily assets should not be valued as of date......
  • Determining the nonmarital portion of retirement benefits and other property.
    • United States
    • Florida Bar Journal Vol. 81 No. 2, February 2007
    • February 1, 2007
    ...the Fifth District Court has expanded its ruling on presumed interspousal gifts to exclude titling in Crouch. (21) See Jahnke v. Jahnke, 804 So. 2d 513 (Fla. 3d D.C.A. Matthew Miller practices in the Hollywood office of Miller, Schwartz & Miller, P.A. He is board certified by The Florid......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT