Van Den Berg v. Van Den Berg

• Decision Date: 10 December 2010
• Docket Number: No. 5D09-475.,5D09-475.
• Citation: 49 So.3d 283
• Parties: Egerton K. VAN DEN BERG, Appellant/Cross-Appellee, v. Caroline M. VAN DEN BERG, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

49 So.3d 283

Egerton K. VAN DEN BERG, Appellant/Cross-Appellee,

v.Caroline M. VAN DEN BERG, Appellee/Cross-Appellant.

No. 5D09-475.

District Court of Appeal of Florida, Fifth District.

Oct. 15, 2010.

Rehearing Denied Dec. 10, 2010.

Kathleen M. Skambis and Christopher C. Skambis, of The Skambis Law Firm, Orlando, for Appellant/Cross-Appellee.

Marcia K. Lippincott, of Marcia K. Lippincott, P.A., Lake Mary, for Appellee/Cross-Appellant.

PARSONS, W., Associate Judge.

This case involves an appeal and cross-appeal from a Final Judgment of Dissolution.We affirm the trial court's decision as to all matters except two.We reverse the trial court's decision as to the disposition of the Foley and Lardner pension contract and farm expenses.

At the time of trial, the Husband was 77 years old and the Wife was 65.They married on April 29, 1972, and separated on January 7, 2007.The Wife filed for dissolution on April 9, 2007, and the Husband filed a counter-petition for dissolution.The Husband suffers from heart disease and prior to May of 2007, had undergone quadruple coronary bypass surgery.The Wife appeared to be in good health.

FOLEY AND LARDNER PENSION ACCOUNT

The Husband, an attorney, was admitted to The Florida Bar in November of 1959, and continued practicing law until his retirement in 1995.In 1964, he formed the law firm of Van Den Berg, Gay and Burke which was later known as Van Den Berg, Gay, Burke, Wilson and Arbin.At the time the parties married he had been practicing law for 12 1/2 years.His firm merged with the national firm of Foley and Lardner on March 1, 1985, where he worked until his retirement.At the time of the merger the Husband was given full credit for his years of service with the new firm without that firm requiring any contribution of money or a buy-in.

At trial, the Husband asserted a partial non-marital interest in the Foley and Lardner pension contract as well as a non-marital interest in the NBC IRA account which was apparently funded from accumulations that occurred at his law firm.The trial court found that both the NBC IRA and the Foley and Lardner pension contract obligation were marital assets.The Husband, on appeal, concedes that the trial court was correct as to the NBC IRA but challenges both the finding that the Foley and Lardner pension contract was entirely marital and that it was an appropriate subject for the immediate offset method in determining the Wife's present value in light of the plan's characteristics.

The Foley and Lardner pension contract arose as a result of the 1985 partnership agreement.The plan involved the firm's contractual obligation to provide a defined benefit to its retirees which was initially unfunded.The partnership agreement was changed in 1992 to create a defined contribution segment as well as the already existing but unfunded defined benefit portion.

The defined contribution segment only partially funded the firm's pension contract obligation with employee contributions but did not change or add value to the Foley and Lardner pension contract.The Husband's contribution to the defined contribution segment between 1992 and 1995, when he retired, was only $12,000.

The defined benefit pension contract provided money benefits to the retiree based on years of service and a salary calculation during his remaining life.In other words, receipt of the plan benefits was contingent on his longevity.This plan, unlike many, had a provision that the monthly benefit would decrease by forty percent when the retiree reached the age of 80.In addition, payment was contingent on the survival of Foley and Lardner as an entity and was also conditioned to the extent that the Foley and Lardner pension contract was limited to a payment to its retirees of no more than ten percent of its net profit in any given year.

The Husband was credited with 31 years and 11 months of service which equals 383 months with Foley and Lardner.He was married for 23 years and 7 months during that time, or a total of 283 months.The Husband's expert, Gary David Kane, therefore calculated the marital portion of the Foley and Lardner contract obligation at 73.8% and applied that percentage to the expected pension payout over the Husband's life adjusting for the scheduled reduction at the age of 80.The Wife's expert, Leslie W. Eiserman, did a parallel analysis where he arrived at a "blended rate" of 80.73%, but only if the court found a non-marital component.

The Final Judgment, dealing with the Foley and Lardner pension contract, indicated that "the court was not persuaded by his proof as to the value of the non-marital share and in light of the comingling of withdrawals deems all of it marital."As aresult the trial court found that the Foley and Lardner pension contract was a 100% marital asset subject to equal distribution.

Section 61.075(5)(b) 1., Florida Statutes(2007), defines a non-marital asset as one acquired by either party prior to the marriage.The facts fully show that the Husband received a defined benefits credit for 100 months of service before his marriage.Therefore, some portion of the retirement asset was a result of non-marital labor which makes that portion a non-marital asset as a matter of law.Bain v. Bain,553 So.2d 1389(Fla. 5th DCA1990);Zaborowski v. Zaborowski,547 So.2d 1296(Fla. 5th DCA1989).

Non-marital assets lose their character if the asset itself becomes comingled and untraceable.Archer v. Archer,712 So.2d 1198(Fla. 5th DCA1998);see alsoBelmont v. Belmont,761 So.2d 406(Fla. 2d DCA2000).That occurred in this case only as each payment was received and to the extent that those funds were used by the parties jointly.There is no legal authority for the proposition that the use of the payments as received would change the nature of the entire asset.SeeLakin v. Lakin,901 So.2d 186(Fla. 4th DCA2005).

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