Reyher v. Reyher, 85-1274

Decision Date19 September 1986
Docket NumberNo. 85-1274,85-1274
Citation495 So.2d 797,11 Fla. L. Weekly 2017
Parties, 11 Fla. L. Weekly 2017 Charles R. REYHER, Appellant, v. Ruth Ann REYHER, Appellee.
CourtFlorida District Court of Appeals

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...

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14 cases
  • Waldman v. Waldman
    • United States
    • Florida District Court of Appeals
    • February 16, 1988
    ...1987) (because wife did not receive house as lump sum alimony she was entitled to share in husband's retirement plan); Reyher v. Reyher, 495 So.2d 797 (Fla. 2d DCA 1986) (premarital value of pension plan must be excluded from equitable distribution to avoid awarding wife a windfall); Howert......
  • Bain v. Bain, 89-451
    • United States
    • Florida District Court of Appeals
    • January 4, 1990
    ...pensions, premarital contributions should be excluded. Zaborowski v. Zaborowski, 547 So.2d 1296 (Fla. 5th DCA 1989); Reyher v. Reyher, 495 So.2d 797, 800 (Fla. 2d DCA 1986). Similarly, the valuation of a retirement plan should exclude any contributions made after the original final judgment......
  • Jahnke v. Jahnke, No. 3D01-1316
    • United States
    • Florida District Court of Appeals
    • December 26, 2001
    ...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,......
  • Gibbons v. Gibbons
    • United States
    • Florida District Court of Appeals
    • March 18, 2009
    ...deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution."); Reyher v. Reyher, 495 So.2d 797, 799 (Fla. 2d DCA 1986). Rumler v. Rumler, 932 So.2d 1165, 1166 (Fla. 2d DCA 2006) (alterations in original). Thus benefits payable to a disabled ......
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1 books & journal articles
  • § 7.10 Pensions
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 7 Property Acquired or Improved with Both Separate and Marital Property
    • Invalid date
    ...marital share. See McCoy v. McCoy, 125 Idaho 199, 868 P.2d 527 (Idaho App. 1994). See also, N. 89 infra. [459] Florida: Reyher v. Reyher, 495 So.2d 797 (Fla. App. 1986). Illinois: In re Marriage of Walker, 304 Ill. App.3d 223, 237 Ill. Dec. 836, 710 N.E.2d 466 (1999); In re Marriage of Davi......

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