TERESA N. LOVELASS f/k/a TERESA HUTCHINSON, Appellant,
CHRISTOPHER HUTCHINSON, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Rosemarie Scher, Judge; L.T. Case No. 2016
DR 6120 FH.
D. Boykin of Ciklin Lubitz & O'Connell, West Palm
Beach, for appellant.
D. Burgs of Robert D. Burgs, P.A., Plantation, for appellee.
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.
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.
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.
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.
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
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).
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.
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.
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, ...