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Lovelass v. Hutchinson

Florida Court of Appeals, Fourth District

June 27, 2018

TERESA N. LOVELASS f/k/a TERESA HUTCHINSON, Appellant,
v.
CHRISTOPHER HUTCHINSON, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Rosemarie Scher, Judge; L.T. Case No. 2016 DR 6120 FH.

          John D. Boykin of Ciklin Lubitz & O'Connell, West Palm Beach, for appellant.

          Robert D. Burgs of Robert D. Burgs, P.A., Plantation, for appellee.

          Levine, J.

         The wife appeals a final judgment of dissolution of marriage. She raises three issues: whether the trial court incorrectly valued the martial portion of the husband's pension, whether the trial court erred in not allowing her to reopen the evidence to place an exhibit into evidence relating to the husband's accrued vacation and sick leave, and finally whether the trial court erred in sua sponte eliminating the unequal distribution the trial court previously awarded to the wife. We find the trial court did not err in valuing the husband's pension by using a 2.5% multiplier rather than the 3% multiplier that would become effective only upon the husband accruing twenty years of service. However, it did err in not allowing the admission of the husband's accrued vacation and sick leave and in eliminating the unequal distribution award on the basis that it was not pled. Thus, we affirm on the first issue and reverse on the second and third issues.

         The parties were married in 2003 and a petition for dissolution of marriage was filed in 2016. At the time the petition was filed, the husband had been working for as a fireman for the City of Delray Beach for sixteen years. As a fireman, the husband received a pension that accrued from the beginning of his employment at a rate of 2.5% per year worked. The husband intended to work for twenty-five years as a fireman for the city. When the husband reached twenty years of service, the annual rate for the computation of retirement benefits would increase to 3% per year, and this higher multiplier would apply from the beginning of service. Nevertheless, at the time of filing, the husband had accrued only the multiplier of 2.5% per year.

         The only expert who testified at trial was the husband's expert, Timothy Voit. Using the 2.5% multiplier, Voit calculated that the gross monthly benefit accumulated in the pension plan during the marriage was $2, 254.80, of which the wife was entitled to one-half or $1, 127.40. Voit used the 2.5% multiplier because his calculation was based on the amount of benefit that accrued as of the date of filing of the petition and did not take the husband's post-marital efforts into consideration.

         The parties returned a week and a half after the close of evidence for closing arguments. At that time, the wife sought to reopen trial to introduce an exhibit reflecting the husband's accrued vacation and sick leave. The husband had not disclosed his accrued vacation and sick leave on his financial affidavits. The trial court declined to reopen trial and declined to admit any further evidence.

         The trial court entered a final judgment of dissolution of marriage and later entered an amended and second amended judgment. The second amended judgment found that the wife was entitled to $1, 127.40 per month for the husband's pension. Although the original final judgment of dissolution of marriage awarded an unequal distribution of marital assets in favor of the wife, the second amended judgment awarded an equal distribution, stating that the trial court was unable to award an unequal distribution because an unequal distribution was not pled. From this judgment, the wife appeals.

         As to the first issue, we review de novo the determination of assets being either marital or non-marital, see Witt-Bahls v. Bahls, 193 So.3d 35, 37 (Fla. 4th DCA 2016), whereas the valuation of a marital asset is reviewed for competent substantial evidence, see Jordan v. Jordan, 127 So.3d 794, 796 (Fla. 4th DCA 2013).

         The wife argues that the trial court erred in valuing the husband's pension utilizing the 2.5% annual multiplier rather than the 3% multiplier that will apply once the husband reaches twenty years of service. The husband testified that he intended to work for twenty-five years.

         The husband argues that the trial court correctly valued his pension. He points to the fact that there is no penalty provision in his pension and that the trial court correctly valued the pension using the annual 2.5% multiplier at the time of filing with sixteen years of service.

         Our analysis of this issue begins with the statute. Marital assets are defined by statute to include "[a]ssets acquired . . . during the marriage, individually by either spouse or jointly by them." § 61.075(6)(a)(1), Fla. Stat. (2016). Marital assets also include "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, ...


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