Scott v. Scott

888 So. 2d 81, 2004 Fla. App. LEXIS 16648, 2004 WL 2481363
District Court of Appeal of Florida·Decided November 5, 2004·No. No. 1D03-5119·Published·Cited by 5 cases

Opinion

PER CURIAM.

Appellant, Frederick M. Scott, the husband, appeals the trial court’s Order on Wife’s Motion for Contempt and argues that the court erred in awarding appellee, Sandra P. Scott, the wife, retirement benefits from the military portion of his civil service retirement benefits. The husband also argues that the trial court erred in awarding the wife attorney’s fees without making the requisite findings. We agree with both arguments and, therefore, reverse and remand for further proceedings.

According to the Consent Final Judgment of Dissolution of Marriage, the wife was to receive half of the present value of the marital portion of the husband’s civil service retirement pension. The husband, likewise, was entitled to half of the present value of the wife’s retirement fund. The husband was also required to pay the wife alimony until she began receiving her portion of his retirement benefits. Paragraph twenty-four of the final judgment addressed “Ownership of Intangible Accounts,” and stated: “Except as otherwise provided herein, each party shall retain as his or her sole property all checking, savings, credit union, investment, and other intangible accounts in his or her name.” Listed among the husband’s assets on his financial affidavit was an account in the amount of $7,500, described as a “military payback.” This account was in the husband’s name only and was not specifically mentioned anywhere in the judgment of dissolution. Following the dissolution, and prior to the commencement of the instant action, the husband used the $7,500, and an additional amount of over $2,500 to have his military service added to his civil service retirement benefits.

A year and a half later, the wife filed a Motion for Contempt, alleging that the husband had ceased paying her alimony although she had yet to begin receiving her portion of his retirement benefits. Following a hearing on the motion, the trial court entered an order in favor of the wife, ordering the husband to pay the wife one-half of his civil service retirement benefits, which now included benefits from the husband’s premarital military service. The trial court found that the parties had used marital funds to acquire the right to include the husband’s premarital military service time towards his civil service retirement benefits. The order retroactively enforced the wife’s entitlement to retirement benefits to the time when the husband first stopped paying alimony. The trial court also granted the wife $400 in attorney’s fees, without making any factual findings on that point. This appeal followed.

An asset is marital if it is “acquired during the marriage, created or [83] produced by the work efforts, services, or earnings of one or both spouses.” Witowski v. Witowski, 758 So.2d 1181, 1185 (Fla. 2d DCA 2000) (citation omitted). If the value of a premarital asset is not enhanced by marital labor or funds, then the asset is not a marital asset subject to equitable distribution. Moon v. Moon, 594 So.2d 819, 822 (Fla. 1st DCA 1992). Conversely, premarital property is subject to equitable distribution to the extent its value has been enhanced by marital labor or funds. Cole v. Roberts, 661 So.2d 370, 371 (Fla. 4th DCA 1995).

Premarital contributions to retirement pensions are not to be included in the distribution of marital assets. Livingston v. Livingston, 633 So.2d 1162, 1164 (Fla. 1st DCA 1994). In distributing the value of a retirement pension fund upon dissolution of marriage, the party not in ownership of the fund is entitled to an equitable distribution of that portion attributable to the marital contributions. Witowski, 758 So.2d at 1186 (citing. § 61.075, Fla. Stat.); Downey v. Downey, 843 So.2d 932, 933 (Fla. 4th DCA 2003) (“[0]nly the marital portion of the pension may be equitably distributed.”) (citations omitted). The party owning the pension is entitled to the premarital value of the fund, along with its subsequent passive appreciation, not attributable to the marriage. Id.; Adkins v. Adkins, 650 So.2d 61, 68 (Fla. 3d DCA 1994) (citing § 61.075(5)(a)(2), Fla. Stat. (1991)). In determining spousal rights to retirement benefits, the trial court may not include any contributions to the retirement account “made after the original judgment of dissolution.” Boyett v. Boyett, 703 So.2d 451, 452 (Fla.1997). “Valuation of retirement benefits is fact-intensive and varies depending upon the plan, and the trial judge must determine the equitable valuation with the limitation being the valuation is not to include post-marriage contributions.” Id. at 453. (emphasis added).

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Scott v. Scott, 888 So. 2d 81, 2004 Fla. App. LEXIS 16648, 2004 WL 2481363 (Fla. Ct. App. 2004).

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