Van Maerssen v. Gerdts, No. 4D19-133
| Decision Date | 06 May 2020 |
| Docket Number | No. 4D19-133 |
| Parties | Otto Hans VAN MAERSSEN, Appellant, v. Diana GERDTS, Appellee. |
| Court | Florida District Court of Appeals |
Otto Hans Van Maerssen, Walnut Creek, California, pro se.
Andrew S. Berman and Brian M. Karpf of Young, Berman, Karpf & Gonzalez, P.A., Miami, for appellee.
Otto Hans Van Maerssen ("Husband") appeals the final judgment of dissolution of marriage asserting multiple errors by the trial court. Diana Gerdts ("Wife") cross-appeals, asserting additional errors. As to the errors asserted by Husband, we reverse as to three of the issues raised and affirm the trial court's rulings as to the remainder of the issues without discussion. We explain our reasons for reversing, based on our determination that the trial court erred by: (1)(a) equitably distributing as marital assets to Husband certain accounts, even though they had been liquidated and spent prior to the final hearing, and (b) equitably distributing to Wife a survivor benefit attached to Husband's pension, without determining the value of the survivor benefit and determining who bears the cost of the benefit; (2) awarding Wife an amount of permanent periodic alimony without determining the income she could receive from her share of certain equitably distributed marital assets; and (3) failing to make findings to support the ruling requiring Husband to secure Wife's alimony award with life insurance. As to the errors asserted by Wife on cross-appeal, we affirm the trial court without discussion. Thus, we affirm in part, reverse in part, and remand for further proceedings.
The parties had been separated for several years prior to Husband filing the dissolution action. At the time of the final hearing, they had been married seventeen years. When the action was filed, Florida was Husband's primary residence, but he was living out of the country and working as a diplomat employed by the federal government. Wife was residing in Florida and had been a homemaker during most of the marriage, caring for their minor child, who reached majority age during the pendency of the proceedings. Having been admitted to practice law in four bars, Husband represented himself throughout the majority of the proceedings below. Husband was ordered to pay Wife temporary alimony, child support, and temporary attorney's fees during the proceedings.
Relevant to the issues raised in this appeal, the evidence at the final hearing indicated the primary marital assets for equitable distribution were: the marital home; Husband's Thrift Savings’ Plan, a federal employee retirement investment account ("TSP account"); and Husband's federal pension plan. Regarding alimony, Husband testified and argued at the final hearing that he would be retiring from his State Department career within two months after the hearing. According to Husband, his retirement pension would provide a fraction of his salary. He asserted Wife should not receive any alimony because after the division of the proceeds from the pending sale of the marital home and his TSP account, Wife would be getting just over half a million dollars, in addition to a share of his pension. Husband also argued that the trial court should impute income to Wife, asserting that despite her medical problems, she had been, and was then, working.
Only three witnesses testified at the final hearing: Husband, Wife, and Wife's accountant.
Husband testified that as a foreign service officer, he was facing involuntary retirement in the next two months. However, Husband did not present admissible evidence to corroborate that contention. He testified that after his retirement, he intended to obtain other employment and that the State Department would provide him with a program to help him obtain employment after retirement.
Husband attempted to testify concerning his investment funds, but Wife's objections to his testimony concerning performance of those funds and rates of return were sustained. Notably, Husband did not enter an updated financial affidavit into evidence. When asked about the earlier financial affidavit he filed, he maintained it had been accurate. However, Husband was impeached by his deposition testimony in which he admitted his financial affidavit was in fact inaccurate in terms of his income and expenses and needed to be updated.
Regarding Wife's request that her alimony award be secured by life insurance, Husband testified that his federal employee group life insurance policy would continue after his retirement if he so chose, but that there was also the option to receive a survivor's benefit under his pension plan. He argued that it would not make sense to have both the life insurance and the monthly survivorship benefit, since both would pay out upon his death.
Wife's accountant testified as a forensic accounting expert. He prepared and presented schedules to support his testimony about Wife's proposal for equitable distribution. On cross examination, Husband elicited testimony from the accountant that two of the accounts listed in his equitable distribution schedule under Husband's column had been liquidated. When asked why he kept those values on the schedule of proposed assets to be distributed to Husband when the accounts were liquidated to pay temporary attorney's fees awarded to Wife, the accountant testified that, in his opinion, Husband did not need to liquidate those accounts to pay Wife's temporary attorney's fees because Husband had a monthly surplus of income from his nonmarital assets to pay the fee awards.
The trial court issued its final judgment dissolving the marriage and made numerous findings and determinations not relevant to the issues discussed in this opinion. We focus on the findings and determinations pertinent to our discussion.
Regarding equitable distribution, the trial court noted three primary marital assets to be distributed: the marital home and Husband's TSP account, which the parties agreed made up the majority of the marital estate, as well as Husband's pension plan. The final judgment reflected that after the conclusion of the final hearing, the trial court was advised the marital residence was sold and the parties agreed as to the amount of the net proceeds. The trial court ordered that the net proceeds be divided equally between the parties.
Regarding Husband's TSP account, the trial court determined a portion of the account was nonmarital. The amount of Husband's nonmarital portion was determined by the trial court, and the remaining marital portion was distributed equally between the parties.
The trial court also determined that a portion of Husband's pension plan was nonmarital. After determining the amount of the nonmarital portion, Wife was awarded one-half of the marital portion. The trial court also awarded to Wife the monthly survivor benefit option under the plan. The trial court noted that Husband did not object to Wife receiving the survivor benefit option. However, the trial court made no findings as to the value of the survivor benefit or the cost of the benefit and which party was to bear the cost of the benefit.
The trial court awarded Wife permanent periodic alimony. In addition, the trial court found that Husband admitted to having multiple life insurance policies, including one in the amount of $162,000. The trial court ordered Husband to secure his alimony obligation with life insurance of at least $162,000 in death benefits or, if his existing life insurance policies had a death benefit of more or less than that amount, then in the full sum of the death benefit of the current policies up to a maximum of $162,000.
After the final judgment was entered, both parties gave notice of appeal.
The standard of review for the equitable distribution of marital assets and liabilities is abuse of discretion. Canakaris v. Canakaris , 382 So. 2d 1197, 1202-03 (Fla. 1980). Moreover, "any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the [statutory] factors." § 61.075(3), Fla. Stat. (2015). Where "there is substantial competent evidence to support the trial court's finding[s], the appellate court cannot" substitute its judgment for that of the trial court. Schriefer v. Schriefer , 831 So. 2d 1284, 1286 (Fla. 5th DCA 2002) ; see also Rowl v. Rowl , 864 So. 2d 1236, 1239 (Fla. 5th DCA 2004).
Husband makes various arguments that the trial court erred in its equitable distribution of marital assets and liabilities. We affirm without discussion all of the trial court's rulings as to the various equitable distributions contested by Husband, except for two of Husband's arguments, which we agree merit reversal. We address one of his arguments in this section. We address the second argument in the third section of our analysis because it relates to the trial court's decision regarding security for the alimony award.
Husband contends that the trial court erroneously awarded him a brokerage account and three retirement accounts as assets even though they had been liquidated prior to the final hearing to pay marital debts.1 The evidence showed that Husband liquidated the brokerage account and the retirement accounts a few months before the final hearing and used the funds to pay two temporary attorney's fees awards entered against him in favor of Wife a month prior to the liquidation. There was no evidence that Husband used the funds for any other purpose. Although Wife contends on appeal that Husband did not need to liquidate those marital assets, based on her accountant's testimony that Husband was yielding a monthly surplus of income from his nonmarital assets at the time, Husband testified he did not have sufficient funds to comply with the temporary fee awards. The trial court made no finding as to whether Husband could have paid the temporary fee awards without liquidating...
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