Reyher v. Reyher, 85-1274

• Decision Date: 19 September 1986
• Docket Number: No. 85-1274,85-1274
• Citation: 495 So.2d 797,11 Fla. L. Weekly 2017
• Parties: , 11 Fla. L. Weekly 2017 Charles R. REYHER, Appellant, v. Ruth Ann REYHER, Appellee.
• Court: Florida District Court of Appeals

Page 797

495 So.2d 797

55 USLW 2275, 11 Fla. L. Weekly 2017

Charles R. REYHER, Appellant, v. Ruth Ann REYHER, Appellee.

No. 85-1274.

District Court of Appeal of Florida,

Second District.

Sept. 19, 1986.

Michael L. Volpe of Monaco, Cardillo, Keith & Volpe, P.A., Naples, for appellant.

John R. Asbell, Daniel A. Gregory of Asbell, Hains, Doyle & Pickworth, Naples, for appellee.

RYDER, Judge.

Ruth Ann Reyher filed a petition for dissolution of marriage with Charles Reyher. The parties were married in 1956 and have no children.

At the time of their marriage, the husband was an airline captain with TWA. When his employment with TWA commenced in 1947, the company had a small retirement plan. A formal plan, Retirement Plan for Pilots of Trans World Airlines, Inc. ("retirement plan"), was adopted in 1950 and the husband became a member then. He was given credit for his service back to the date of his hire in 1947. TWA paid for the entire cost of the retirement plan by contributing an amount equal to 4% of the husband's monthly earnings.

In addition to the retirement plan, the husband receives income from the Trust Annuity Plan for Pilots of Trans World Airlines, Inc. ("annuity plan"). The annuity plan was adopted by TWA in December of 1954 and provided for a contribution by TWA of 11% of the employee's current earnings. The plan also allows for contributions by the employee, but the husband did not testify at trial as to whether he contributed to the annuity plan.

The husband retired on July 21, 1982 at the age of sixty. He now receives from the retirement plan the sum of $2,835.08 per month. In addition, he receives a monthly payment from the annuity plan, the amount of which varies quarterly depending upon the stock market, but at the time of trial was $1,450.00. The husband designated the wife as the irrevocable joint annuitant on both the fixed dollar retirement plan and on the annuity plan. Because of such designation on the husband's plans, the wife will receive 50% of the husband's retirement income upon the husband's death regardless of their marital status.

The parties have recently sold their marital residence for approximately $149,705.07. The net proceeds from the sale of this property were held in a trust account. The parties stipulated and agreed that each would be permitted to withdraw individually the sum of $56,000.00 from this sale, with the sum of $40,975.00 remaining on deposit in the trust account. Other marital assets included a thirty-five foot Hallberg Rassy sailboat which was purchased in 1977 for $50,000.00. It has a current market value of approximately $65,000.00. Also, the parties had a membership in the Naples Yacht Club which cost approximately $7,500.00.

The circuit court heard the merits of this cause of action at trial and subsequently ordered the marriage dissolved. The order included an equal division of the funds in the trust account (proceeds from the sale of the marital house), an award to the wife of one-half ownership interest in the sailboat, and an award to the wife of one-half ownership of the husband's interest in the retirement and annuity plans. The court specifically mandated that the payments from these plans be made directly to Ruth Reyher from each plan's administrator. The order implies that the plans were viewed by the trial court as a marital asset (i.e., property right). That implication is wholly supported by the record. Mrs. Reyher's counsel characterized the plans as property rights in the petition for dissolution of marriage and argued them as such in the summation of the trial. Indeed, the trial court stated during his oral recitation of his order: "I consider this to be ... part of the mutual assets accrued during the marriage."

The husband appealed the final judgment of dissolution of marriage, raising two issues. First, he alleged that the trial court erred in considering the plans as marital assets and as such subject to equitable distribution. The Florida Supreme Court has, of late, decided this issue squarely against the husband. Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986).

The husband's second issue presents a question that apparently has not been addressed yet in a Florida court vested with appellate jurisdiction: In making an equitable distribution of a pension plan as authorized by Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986), should the trial court exclude the premarital contributions to the plan?

Although no decision has addressed this issue head-on, a few have decided related issues. Summers v. Summers, 491 So.2d 1270 (Fla. 2d DCA 1986) (this court remanded case to trial court instructing it to consider only vested amount of pension in award of lump sum alimony); Howerton v. Howerton, 491 So.2d 614 (Fla. 5th 1986) (fifth district remanded case to trial court instructing it to consider only pension benefits acquired during marriage, not "benefits acquired after the dissolution of marriage") (emphasis in original); Smith v. Smith, 487 So.2d 339 (Fla. 4th DCA 1986) (fourth district remanded case to trial court instructing it to consider in equitable distribution the $175,000.00 contributions to the pension plan made during the four-year marriage). Earlier cases have skirted the issue also. Clarke v. Clarke, 443 So.2d 486, 487 (Fla. 2d DCA 1984) ("the right to the great bulk [of the pension plan] was built up during the...