Russell v. Russell, 4D04-4555.

Decision Date22 March 2006
Docket NumberNo. 4D04-4555.,4D04-4555.
Citation922 So.2d 1097
PartiesKathy H. RUSSELL, Appellant, v. Barry M. RUSSELL, Appellee.
CourtFlorida District Court of Appeals

Perry W. Hodges, Jr. of Rogers, Morris & Ziegler LLP, Fort Lauderdale, for appellant.

Howard S. Friedman of Fischler & Friedman, P.A., Fort Lauderdale, for appellee.

TAYLOR, J.

The former wife appeals a Qualified Domestic Relations Order (QDRO), which denied her any share in her former husband's Deferred Retirement Option Plan (DROP). We reverse.

The parties entered into a property settlement agreement, which was incorporated into the final judgment of dissolution on January 26, 1998. With respect to the parties' pension plans, the agreement's apparent intention was to grant each party a one-half interest in those accumulations to the other party's pension plan accruing during the marriage. The settlement agreement provided that the date of valuation for the parties' pensions would be the date the petition for dissolution was filed, July 19, 1995.

On July 1, 1998, after entry of the final dissolution, DROP came into existence. DROP is an option under the Florida Retirement System which allows the participant to accrue retirement benefits while continuing to work.1 The retirement benefits are paid into a separate account and accrue 6 1/2 % interest during the five year term. A 3% cost-of-living adjustment is also applied to the plan. At the end of the five year term, the participant actually retires and receives the accumulations in the DROP account as a lump-sum.

DROP is a sort of "virtual" retirement. Because the employee accrues retirement benefits five years earlier, his or her monthly benefit amount is effectively reduced in comparison to what it would have been had DROP not been elected. However, the lump-sum payout can be considerable. Here, the former husband will receive a lump-sum payout of $269,000.

The former husband's expert calculated the former wife's share of her former husband's pension benefit as $601.52. This figure was based on the value of the pension at the time of filing of the divorce petition and upon an anticipated retirement age of 62. In her motion for a QDRO, the former wife requested that her share of the pension benefit be paid into the DROP account along with the former husband's and earn interest and cost-of-living adjustments at the same rate as her husband's share.

The trial court denied the former wife's request, ruling that she was not entitled to participate in DROP benefits, which accrued to the former husband subsequent to the filing for dissolution. The court reasoned that DROP benefits were not a detriment to the former wife and that she should receive only what she bargained for under the marital settlement agreement. The QDRO entered by the trial court set the former wife's portion of the former husband's pension at $601.52, but with respect to DROP, stated:

6. DROP: The Participant is accruing monthly benefits in the DROP. The Alternate Payee shall not be entitled to participate in DROP and shall not be entitled to receive her awarded benefit until such time as Participant's participation in DROP...

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4 cases
  • Pullo v. Pullo
    • United States
    • Florida District Court of Appeals
    • 13 Abril 2006
    ...has been addressed by our sister court, the Fourth District Court of Appeal, in similar cases to this appeal. See Russell v. Russell, 922 So.2d 1097 (Fla. 4th DCA 2006); Ganzel v. Ganzel, 770 So.2d 304 (Fla. 4th DCA 2000); Swanson v. Swanson, 869 So.2d 735 (Fla. 4th DCA 2004). We agree with......
  • Arnold v. Arnold
    • United States
    • Florida District Court of Appeals
    • 19 Octubre 2007
    ...significance, we note that the supreme court refrained from disturbing the ruling in Nix. See 959 So.2d 209. See also Russell v. Russell, 922 So.2d 1097 (Fla. 4th DCA 2006); Swanson v. Swanson, 869 So.2d 735 (Fla. 4th DCA 2004); Ganzel v. Ganzel, 770 So.2d 304 (Fla. 4th DCA Allocating DROP ......
  • Kunsman v. Wall
    • United States
    • Florida District Court of Appeals
    • 10 Abril 2013
    ...to accumulated interest and cost-of-living adjustments on her share of the DROP fund when it is disbursed. Russell v. Russell, 922 So.2d 1097, 1099 (Fla. 4th DCA 2006); Swanson v. Swanson, 869 So.2d 735, 738 (Fla. 4th DCA 2004). We remand for the trial court to correct the DROP fund award t......
  • Williams v. Williams, 1D05-2389.
    • United States
    • Florida District Court of Appeals
    • 31 Julio 2006
    ...as a non-marital asset not subject to equitable distribution. See Nix v. Nix, 930 So.2d 711 (Fla. 1st DCA 2006); Russell v. Russell, 922 So.2d 1097, 1099 (Fla. 4th DCA 2006). Accordingly, we AFFIRM that portion of the final judgment dissolving the parties' marriage, REVERSE the ruling in Pa......
1 books & journal articles
  • Equitable distribution and property issues
    • United States
    • James Publishing Practical Law Books Florida Family Law and Practice - Volume 1
    • 30 Abril 2022
    ...husband’s Deferred Retirement Option Plan (DROP), as non-marital asset not subject to equitable distribution. • Russell v. Russell, 922 So. 2d 1097 (Fla. 4th DCA 2006). Wife who entered into marital settlement agreement that entitled her to half the value of husband’s pension plan that accr......

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