Rumler v. Rumler, 2D05-2261.

• Decision Date: 28 June 2006
• Docket Number: No. 2D05-2261.,2D05-2261.
• Citation: 932 So.2d 1165
• Parties: David F. RUMLER, Appellant, v. Victoria J. RUMLER, Appellee.
• Court: Florida District Court of Appeals

Page 1165

932 So.2d 1165

David F. RUMLER, Appellant, v. Victoria J. RUMLER, Appellee.

No. 2D05-2261.

District Court of Appeal of Florida, Second District.

June 28, 2006.

Matthew D. Branz of Paul & Elkind, P.A., DeLand, for Appellant.

Robert L. Vaughn, Fort Myers, for Appellee.

LaROSE, Judge.

David F. Rumler (the Husband) appeals the final judgment dissolving his marriage to Victoria J. Rumler (the Wife). He argues that the trial court erred in (1) ruling that his City of Homestead police pension was a marital asset subject to equitable distribution, (2) directing equitable distribution of approximately one-third of his pension to the Wife as permanent periodic alimony, and (3) ordering an unequal distribution of marital assets. Although the Husband receives a disability pension, the trial court treated the entire pension as a marital asset because the payment is calculated based upon the Husband's accrued retirement benefit. This was error. Additionally, without making specific findings the trial court directed the Husband to pay the Wife's portion of his pension as permanent periodic alimony. This, too, was error. Thus, we reverse as to these two issues. The record amply supports the trial court's unequal distribution of marital assets. However, the trial court may reconsider that distribution in light of future proceedings on the alimony and pension issues.

Retirement Benefits Subject to Equitable Distribution

"[A] spouse's entitlement to pension or retirement benefits must be considered a marital asset for purposes of equitably distributing marital property." Acker v. Acker, 904 So.2d 384, 386 (Fla.2005) (quoting Diffenderfer v. Diffenderfer, 491 So.2d 265, 270 (Fla.1986)); see also § 61.075(5)(a)(4), Fla. Stat. (2003) (defining "marital assets" to include "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs"); § 61.076(1) ("All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, 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).

The trial court concluded that the Husband's pension was a marital asset. See § 185.18(5), Fla. Stat. (2003). The Husband argues that his pension was a disability pension not subject to equitable distribution. See Gay v. Gay, 573 So.2d 180, 180 (Fla. 2d DCA 1991) (holding husband's "disability plan" was not marital asset) (citing Freeman v. Freeman, 468 So.2d 326, 328 (Fla. 5th DCA 1985) (holding retirement pension may be marital asset; disability pension designed to compensate employee for lost earnings and injuries (including pain and suffering) sustained on job not marital asset)).

When a disability pension is involved, 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." Brogdon v. Brogdon, 530 So.2d 1064, 1066 (Fla. 1st DCA 1988). Only the retirement portion is subject to equitable distribution. Id.; cf. Weisfeld v. Weisfeld, 545 So.2d 1341, 1345-46 (Fla.1989) (employing analytical approach focusing on purpose of personal injury compensation to determine what portion is marital property).

Under section 185.18(1), police officers may receive early retirement benefits if they have ten years of service and become disabled other than in the line of duty or if they become disabled in the line of duty with fewer than ten years' service.¹ The Husband falls into the latter category. His "disability retirement" payments are the accrued normal retirement benefit, but not less than forty-two percent of his average monthly compensation at retirement. See § 185.18(5).² Therefore the accrued retirement benefit portion, if any, of the Husband's "disability" pension is actually deferred compensation. The trial court can equitably distribute only that portion. See Sweeney v. Sweeney, 583 So.2d 398, 398 (Fla. 1st DCA 1991); cf. Pilny v. Pilny, 658 So.2d 1110, 1112 (Fla. 5th DCA 1995) (explaining that police disability pensions grant employees some portion of deferred compensation to which they would have been entitled absent injuries preventing attainment of normal retirement age). If the deferred compensation portion is less than the minimum disability retirement benefit of forty-two percent of average compensation, the difference is a disability benefit not subject to equitable distribution.

The trial court did not make an allocation of the retirement and disability portions of the Husband's pension. Therefore, we reverse and remand for further proceedings to determine what portion of the Husband's pension, if any, is for his disability and, thus, excluded from equitable distribution. We note that the Husband may be able to obtain an official statement from his former employer that reflects the appropriate allocation. See id.

Payment of Pension as Alimony

The final judgment directed the Husband to pay a portion of his pension to the Wife as alimony because a municipal pension is not subject to equitable distribution by a qualified domestic relations order. § 185.25; Edwards v. Edwards, 819 So.2d 837, 838 (Fla. 2d DCA 2002); Carollo v. Carollo, 920 So.2d 16, 20 (Fla. 3d DCA 2004). Equity empowers the trial court to fashion an alternative remedy to safeguard the Wife's interest in the pension. Edwards, 819 So.2d at 838; see also Acker, 904 So.2d at 388 ("In dissolution cases, the trial judge possesses the broad, discretionary authority to do equity between the parties.").

[The court] is entitled to devise a remedy through other means to safeguard the former wife's interest in the pension which is rightfully hers, and to insure she receives the funds which are hers. It may be possible to construct a decree which requires payment of the pension funds to a trustee to be held in a joint account for the parties' joint benefit, and requires the trustee to distribute the funds when received to the party entitled to them. Or perhaps the former husband could be required to post a bond with the court to ensure the former wife receives her share of the funds on a timely basis. Failing that, the court is also free to reconsider the total equitable distribution and alimony scheme contemplated by the original decree and settlement, since a key portion of the total plan cannot now be achieved.

Bd. of Trs. of Orlando Police Pension Plan v. Langford, 833 So.2d 230, 235 (Fla. 5th DCA 2002).

The trial court ordered the Husband to pay thirty-two percent of his pension to the Wife as permanent periodic alimony. We cannot sustain this alternative for distribution absent the statutorily required findings for an alimony award. See § 61.08(2), Fla. Stat. (2003); Smith v. Smith, 912 So.2d 702, 703 (Fla. 2d DCA 2005); but see Broadfoot v....