Graham v. Graham

123 So. 3d 625, 2013 WL 4712999, 2013 Fla. App. LEXIS 14071
CourtDistrict Court of Appeal of Florida
DecidedSeptember 3, 2013
DocketNo. 1D12-4416
StatusPublished
Cited by4 cases

This text of 123 So. 3d 625 (Graham v. Graham) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graham v. Graham, 123 So. 3d 625, 2013 WL 4712999, 2013 Fla. App. LEXIS 14071 (Fla. Ct. App. 2013).

Opinion

BENTON, J.

JoAnn Graham appeals an order granting post-judgment relief on grounds it fails to effectuate the marital settlement agreement she and Nathaniel Graham entered into in September of 1994 in anticipation of the dissolution of their marriage later that year. She maintains the trial court erred [627]*627both in calculating her share of the former husband’s 401(k) account and in calculating her share of his Army pension. Persuaded she is right in both instances, we reverse and remand.

The parties’ twenty-year marriage ended with a final judgment of dissolution of marriage, entered on December 22, 1994, which did not specifically address either Mr. Graham’s Army pension or his 401 (k) account. The judgment ordered instead that the “Agreement entered into by the parties at mediation is hereby confirmed and made a part of this Final Judgment of Dissolution of Marriage, and the parties shall comply with its terms and conditions in their entirety.” In September of 1994, the parties had signed a typewritten marital settlement agreement that gave Ms. Graham “10/23 of the Husband’s Army retirement as of the date of this agreement ... and 1/2 of the Husband’s 401K retirement as of July 24, 1993.” Although the marital settlement agreement called for entry of qualified domestic relations orders (QDROs) both for Ms. Graham’s share of the 401 (k) account and for her share of Mr. Graham’s military retirement benefits, no QDROs were entered at that time.

The parties communicated sporadically about the QDROs for the next sixteen years, but Ms. Graham did not formally petition for entry of the QDROs until 2010. The trial court took evidence and ultimately awarded Ms. Graham $18,111.49 as her portion of Mr. Graham’s 401 (k) account.1 The trial court also awarded her $18,922.42 as her share of Army retirement benefits Mr. Graham had already received, and $401.39 per month as her share of his future Army retirement benefits.2 Ms. Graham appeals both the $18,111.49 valuation and award of her share of the 401(k) account and the $401.39 monthly award based on Mr. Graham’s Army pension.

The 401 (k) Account

Below, Ms. Graham introduced expert testimony that her portion of the 401 (k) account was worth approximately $103,000. (When Mr. Graham closed this 401 (k) account in 2008, the whole account was worth $705,027.12.3) Mr. Graham, on the other hand, maintained Ms. Graham was entitled only to the value of her half share as of July 24, 1993, namely $18,111.49. He also introduced evidence that, if Ms. Graham was entitled to the present value of the account, her portion of the 401 (k) account should be valued at only around $37,000.4 The trial court agreed with Mr. Graham’s primary contention, and awarded Ms. Graham $18,111.49. It refused to award interest or otherwise adjust for the present value of the account.

Interpretation of marital settlement agreements is subject to de novo review, just as any other contract interpretation is, at least in the absence of parol evidence. See, e.g., McIlmoil v. McIlmoil, 784 So.2d 557, 561-62 (Fla. 1st DCA 2001). As with any contract, the starting point is the language of the agreement. See Duval [628]*628Motors Co. v. Rogers, 73 So.3d 261, 265 (Fla. 1st DCA 2011). That the agreement is incorporated into a court decree does not alter the rule. Here, rather than granting Ms. Graham half the value of the 401(k) account as of July 24, 1993, the marital settlement agreement granted her half ownership in the 401(k) account (and its contents) as of that date. This ownership entitles her to gains (and puts her at risk of losses) on her share. See Hoffman v. Hoffman, 841 So.2d 695, 696 (Fla. 4th DCA 2003) (holding wife’s entitlement to a specific share of her husband’s IRA account carried with it an entitlement to an equal proportion of the gains and losses until distribution).

The phrase “1/2 of the Husband’s 401K” describes a one-half ownership interest in the 401 (k) account itself. Half ownership of any asset, real or tangible personal property, say — for example, a house— plainly means something other than entitlement to a fixed sum of money. The same is true of intangible personal property, the value of which may also fluctuate. If the parties wanted to agree to a specific dollar amount, they could have done so easily enough by specifying a sum certain. In the present case, the marital settlement agreement lacks not only a sum certain, but also any reference to the dollar value of the 401 (k) account. If the parties had wanted Ms. Graham to receive a fixed number of dollars, they should not have written the marital settlement agreement to give her one-half of the portfolio of investments then in the account. The agreement does not contain a dollar amount or speak in terms of the account’s value, as opposed to the account itself. Cf. Rivero v. Rivero, 963 So.2d 934, 935-36 (Fla. 3d DCA 2007) (determining provision that husband and wife “shall be entitled to 1/2 of the present value of the Husband’s profit sharing plan” awarded a monetary interest in the plan rather than an ownership interest, and that the former wife was therefore “not entitled to receive any dividends or appreciation in value of the stock” in the former husband’s plan).5

Mr. Graham argues that the language “as of July 24, 1993” limits Ms. Graham’s interest to one-half the dollar value of the 401(k) account on that date. But the language “as of July 24, 1993” simply serves to identify what was in the account as of that date. Thereafter, Mr. Graham was free to add and did add to the 401(k) account from time to time until his retirement. Anticipating this, the parties separated the post-dissolution portion of the 401 (k) account from that portion which constituted a marital asset. The phrase “as of July 24,1993” no more suggests that the parties intended to fix a specific monetary value than the “1/2 of the Husband’s 401K” language. By analogy, an agreement referencing Thistle Dew Farm as of a date certain serves to fix the acreage referred to, but the value of the acreage may fluctuate over time, and any additional acreage that may be annexed after the date certain is excluded.

[629]*629The present case resembles In re Marriage of Gardner, 973 S.W.2d 116, 118 (1998), where a dissolution of marriage decree entered September 21, 1993, gave the former wife “ ‘[a] fifty percent interest in [the former husband’s pension fund] as of December 31, 1991 ... [$]216,252.50.’ ” The QDRO effecting distribution to the former wife was not signed until June 24, 1997, and included a proportionate adjustment for the increased value of the pension plan. Id. at 126. The former husband appealed, arguing the trial court erred by awarding the former wife earnings on her share of the plan retroactive to December 31,1991, because the dissolution decree, he argued, did not purport to award the former wife earnings, having awarded her only a fifty percent interest in the plan “which, as of December 31, 1991, the trial court valued at $216,252.50.” Id. The court noted that, although the dissolution decree was silent regarding the earnings on the former wife’s share of the plan, “the decree was entered September 21, 1993, twenty-one months after the date used by the trial court to value [her] share (December 31,1991).” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
123 So. 3d 625, 2013 WL 4712999, 2013 Fla. App. LEXIS 14071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-graham-fladistctapp-2013.