Richardson v. Richardson
| Decision Date | 01 April 2005 |
| Docket Number | No. 2D04-551.,2D04-551. |
| Citation | 900 So.2d 656 |
| Parties | Edward RICHARDSON, Appellant, v. Jean S. RICHARDSON, Appellee. |
| Court | Florida District Court of Appeals |
Thomas D. Casper, Tampa, for Appellant.
Herbert W. Fiss, Jr., of Herb Fiss, P.A., Tampa, for Appellee.
Edward Richardson, the Former Husband, seeks review of the supplement to a partial final judgment of dissolution of marriage which determined several issues regarding equitable distribution of the parties' pensions and security for the alimony award to Jean S. Richardson, the Former Wife. We reverse for a new trial because the trial court abused its discretion in failing to grant the Former Husband's motion for a continuance.
The trial court entered a partial final judgment of dissolution of the parties' nineteen-year marriage by stipulation of the parties on June 19, 2003. The partial final judgment provided that the Former Wife would have the primary residential care of the parties' minor children subject to the Former Husband's rights of visitation and access. The Former Wife was awarded permanent periodic alimony in the amount of $2000 per month. Child support was established pursuant to the Florida Child Support Guidelines at $1424 per month. Both awards were based on the Former Husband's annual income of $102,000 as a special agent with the FBI and the Former Wife's annual income of $7500 from her part-time employment. In addition there was an agreed-upon equitable division of the tangible personal property, provision for disposition of the marital home, and an equitable division of marital debt.
By agreement of the parties, the trial court reserved jurisdiction on the remaining issues for resolution at a subsequent bifurcated hearing. The parties subsequently resolved the reserved issues pertaining to the division of their IRAs, the Former Wife's 401k plan, the Former Husband's Thrift Savings Plan, real estate they held as tenants in common, and the American Express annuity. The issues remaining for resolution by the court were:
A final hearing on the bifurcated issues was scheduled for August 6, 2003. The trial court subsequently granted each party a continuance, and the trial was ultimately rescheduled for November 12, 2003.
The order on pretrial conference required that all exhibits to be used at trial be exchanged seven days prior to the trial date, and the parties agreed to extend that deadline to November 7, 2003, which was the Friday before the Wednesday trial. The parties were using a Qualified Domestic Relations Order (QDRO) to distribute the Former Wife's Delta pension and a Court Order Acceptable for Processing (COAP) to distribute the Former Husband's FBI pension, but the QDRO and COAP exhibits prepared by the Former Wife's expert were not provided to the Former Husband's attorney until noon on Monday, November 10, 2003, one business day before trial.1
At the start of the trial, the Former Husband's attorney moved for a continuance or bifurcation of the issues regarding the QDRO and COAP for the reason that he did not have sufficient time to review the documents with his client or his expert, much less to prepare a rebuttal to them. The court denied the motion, and the court proceeded to hear evidence and argument regarding the bifurcated issues. The Former Husband renewed the motion at the conclusion of the trial.
The court subsequently entered a supplement to the partial final judgment of dissolution of marriage. The supplement accepted the Former Wife's proposed QDRO and COAP, along with the proposed order for entry of the QDRO and COAP.2 The COAP and court order for entry of QDRO and COAP regarding division of the Former Husband's retirement included the following requirements:
We note that the supplement to the partial final judgment, which was rendered on November 19, 2003, did not expressly incorporate the Former Wife's QDRO, COAP, and the proposed order for entry of the QDRO and COAP. This provides jurisdictional problems for the review of these documents, which were not even entered in the record until some time after the Former Husband filed his notice of appeal.
The supplemental final judgment also granted the Former Wife's request for life insurance to secure the alimony award by ordering the Former Husband to maintain $500,000 of insurance on his life with the coverage to continue until the death or remarriage of the Former Wife.
On appeal, the Former Husband challenges (1) the trial court's denial of his motion for a continuance, (2) the distribution of the Former Husband's pension, and (3) the requirement that the Former Husband maintain life insurance to secure payment of alimony. We conclude that the trial court abused its discretion in denying the Former Husband's motion for a continuance, and we reverse and remand for a new trial.
This court reviews the denial of a continuance for an abuse of discretion. Fasig v. Fasig, 830 So.2d 839 (Fla. 2d DCA 2002). The court ordered the parties to exchange any documents or exhibits upon which their testimony would be based not less than seven days before the date of trial. The Former Husband agreed to extend that date for the service of the Former Wife's QDRO and COAP exhibits to the Friday before trial, or November 7, and it is undisputed that the Former Wife did not provide the exhibits until November 10, one business day before trial.
The Former Husband explained to the court that QDROs and COAPs are a very complicated subject matter and that he needed to confer with his expert before he could properly examine the Former Wife's expert. He was prevented from doing this when the Former Wife presented the exhibits for his review one day before trial, and the trial court abused its discretion in refusing to grant a continuance.
We therefore reverse and remand for a new trial on the issues reserved in the partial final judgment that have not been resolved by agreement. Our reversal based on the trial court's denial of the Former Husband's motion for a continuance renders the remainder of the Former Husband's issues moot. However, because these issues are likely to recur on remand, we will address them to offer the court some guidance in this complicated area of the law.
A pension benefit earned by one spouse is jointly acquired property to the extent that it was earned during the marriage. Diffenderfer v. Diffenderfer, 491 So.2d 265, 267 (Fla.1986). In this case, the parties agreed to have their pensions distributed via the "deferred distribution" method as explained by this court in Trant v. Trant, 545 So.2d 428, 429 (Fla. 2d DCA 1989).
Under this approach, the court determines what the employee's benefit would be if he retired on the date of the final hearing without any early retirement penalty. Id. The court then multiplies this dollar amount by the percentage to which the other spouse is entitled. This method yields a fixed dollar amount which the spouse receives from each of the employee's pension payments after retirement. Id.
In this case, the Former Wife's expert calculated her portion of the Former Husband's pension based on what the benefit would have been at his retirement. This calculation is erroneous because it includes contributions the Former Husband makes to the pension after the dissolution of the parties' marriage. See Boyett v. Boyett, 703 So.2d 451, 453 (Fla.1997)
; see also Giovanini v. Giovanini, 894 So.2d 275 (Fla. 1st DCA 2004) (...
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