Sakow v. Blaylock

Decision Date30 December 2022
Docket Number1D21-1711,1D21-2346
PartiesHenry Sakow, Appellant/Cross-Appellee, v. Linda Blaylock f/k/a Linda Sakow, Appellee/Cross-Appellant.
CourtFlorida District Court of Appeals

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

On appeal from the Circuit Court for Leon County. Dawn Caloca-Johnson, Judge.

Luke Newman, Luke Newman, P.A., Tallahassee, for Appellant/Cross-Appellee.

Diane DeWolf, Akerman LLP, Tallahassee, for Appellee/Cross-Appellant.

M.K THOMAS, J.

This appeal arose from two final orders granting Ms. Blaylock, the former wife's, motion and amended motion to enforce the final judgment of dissolution of marriage and for contempt relief, clarification, and attorney's fees and costs. Dr Sakow, the former husband, appealed both final orders which required him to pay Ms. Blaylock approximately $1,000,000.00 he has owed her for over twelve years pursuant to a Marital Settlement Agreement (MSA) and Final Judgment of Dissolution of Marriage entered March 24, 2010. Ms. Blaylock cross-appealed the order denying her motion for rehearing and for reconsideration.

Dr Sakow did not pay the amounts contained in the orders, did not seek a stay pending appeal, nor did he post a bond for the money judgment entered against him. In a prior order citing McLemore v. McLemore, 567 So.2d 23 (Fla. 1st DCA 1990), this Court dismissed Dr. Sakow's direct appeal for his failure to abide by the trial court's orders. Yet the cross-appeal of Ms. Blaylock remains viable. Ms. Blaylock argues the trial court erred by not awarding her a lump sum representing 50% of Dr. Sakow's Georgia state retirement benefits. We find merit in Ms. Blaylock's argument and reverse.

I. Facts

The parties divorced in 2010, and the Final Judgment of Dissolution of Marriage incorporated the terms of an MSA entered by the parties. The MSA states, in part, that Ms. Blaylock shall receive 50% of Dr. Sakow's retirement benefits from the State of Georgia and required that "[a]ny marital property not addressed in [the] Agreement, or inadvertently omitted shall be addressed between the parties or placed before the court if necessary." A Qualified Domestic Relations Order was completed to implement the award of retirement benefits, but Georgia would not honor it.

In 2020, Ms. Blaylock filed the subject motions seeking to enforce the terms of the final judgment of dissolution of marriage and asking that Dr. Sakow be held in contempt. Ms. Blaylock alleged that despite the passage of ten years since the final judgment, Dr. Sakow had failed to abide by many of the terms set forth in the MSA, including the award of Georgia state retirement benefits, survivor benefits, and payment of a lump sum.

A hearing occurred on the enforcement motion in August 2020, at which time the trial court became aware that Dr. Sakow had recently applied for his retirement pension through the State of Georgia. Noting that in Georgia once the first pension check is issued the beneficiary cannot be changed, the trial judge ordered Dr. Sakow to immediately contact the Employment Retirement System of Georgia and terminate his application requesting payments directly to him. At the hearing, counsel for Dr. Sakow further instructed Dr. Sakow not to "do a darn thing until Judge Calcoa-Johnson tells you you can do it."

The hearing was continued, and Dr. Sakow was scheduled to testify when the hearing was reconvened. However, upon reconvening the hearing, Dr. Sakow was a no show. Ultimately, the trial court determined that the survivor benefit associated with Dr. Sakow's Georgia retirement was a marital asset not addressed in the MSA. The trial court granted Ms. Blaylock's request for Option 2 of the pension-100% Joint & Survivor-with her listed as 100% beneficiary. However, these awards could not be effectuated because Dr. Sakow did not terminate his pension application (as directed by the trial judge and his counsel at the prior hearing) and his pension benefits were initiated under the maximum plan option with payments made directly to him.

As a result, Ms. Blaylock filed a motion for reconsideration or rehearing. She asserted that Dr. Sakow had ignored the trial court's oral and written orders regarding the Georgia retirement benefits and had willfully started his pension, failing to list her as survivor beneficiary. Thus, because the pension plan does not allow for modification, a prior order granting her Option 2 of the pension could not be executed. In the alternative, she requested a lump sum money judgment in lieu of the original award.

A hearing was conducted on the motion for reconsideration or rehearing. Despite being subpoenaed, Dr. Sakow was again a no-show. Ms. Blaylock's counsel called a manager with the Employee's Retirement System of Georgia to testify. She stated that on September 18, 2020 (weeks after the enforcement hearing in which Dr. Sakow was ordered to immediately terminate his application for pension benefits with payments made directly to him), Dr. Sakow sent an email requesting to resume his retirement application process with no changes made and selecting the maximum plan with an October 1, 2020, effective date for retirement. There is no survivor benefit associated with the maximum plan. The pension was initiated. The manager confirmed that once the plan is initiated, it cannot be changed.

Ms. Blaylock also presented expert testimony on the estimated value of the retirement and survivor benefits. Barbara Pople, a certified public accountant, certified divorce financial analyst, and certified financial planner, opined that based on the monthly retirement payments, the age of the parties, the social security life expectancy calculator, and a 4.31% interest rate, the estimated total for Ms. Blaylock's portion of the Georgia pension plus the survivor benefit is $328,007.10. The trial court asked Ms. Pople if her estimate included future payments, and she confirmed that they did. The trial court then asked if the calculations would be incorrect if Dr. Sakow died tomorrow. She explained that the figure provided was indeed an estimate of the present value because exact life spans cannot be known, so estimates are based on the most appropriate inputs available, such as social security life expectancies and Florida judgment interest rates.

The trial judge entered the May 18, 2021 orders finding that Dr Sakow had violated the court's prior order by commencing the pension process and selecting a pension option that did not permit a survivor beneficiary. The orders also noted that the pension option Dr. Sakow selected cannot now be...

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