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Suess v. Suess

Florida Court of Appeals, Second District

December 20, 2019

DARBY ELIZABETH SUESS, Appellant,
v.
JOHN FRANCIS SUESS, III, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Hillsborough County; Nick Nazaretian, Judge.

          S. David Anton of Anton Legal Group, Tampa, for Appellant.

          Rebecca A. Guthrie and Mark D. Shelnutt of The Law Office of Mark D. Shelnutt, Ocala, for Appellee.

          SMITH, Judge.

         Darby Elizabeth Suess (Former Wife) seeks review of the trial court's post-dissolution order on her motion to enforce final judgment of dissolution of marriage, which incorporated her marital settlement agreement (MSA) with the Former Husband, John Francis Suess, III. The Former Wife also appeals the trial court's denial of her request for attorney's fees. Because we find the trial court erred in its interpretation of the MSA by limiting the Former Wife's entitlement to the Former Husband's retirement benefits and in its statutory interpretation determining she could not be designated the death beneficiary under chapter 121, Florida Statutes-the Florida Retirement System Act (Act)-we reverse. We affirm without comment all other aspects of the trial court's March 5, 2018, order, including the denial of the Former Wife's motion for attorney's fees.

         I

         The parties had a long-term marriage of twenty-nine years. The divorce proceedings were uncontested and wrapped up in less than sixty days. On the same day the divorce proceedings commenced, on July 30, 2009, the parties, who were both college-educated, entered into the MSA.[1] On September 15, 2009, the trial court entered a Final Judgment of Dissolution of Marriage incorporating the MSA. Pursuant to the MSA, the parties agreed the Former Wife would receive fifty percent of the Former Husband's three specified retirement accounts and would remain the death beneficiary on these same accounts. The relevant provision of the MSA provides:

Wife will receive 50% of all retirement benefits from husband (City of Ocala, Ocala Police, and State of Florida).[2] Additionally, she will remain the death beneficiary on each of these retirement accounts.

         A Qualified Domestic Relations Order (QDRO) recognizing the Former Wife's entitled share in the retirement accounts was never issued by the trial court, likely because neither of the parties were represented by counsel from the time they entered into the MSA until the entry of the final judgment.

         In June 2016, after the Former Husband remarried, a disagreement arose regarding the parties' rights and obligations under the MSA with respect to the Former Husband's retirement accounts. The Former Wife filed a motion seeking to enforce the MSA and seeking entry of a QDRO to formalize the division of the Former Husband's FRS Pension. In the motion, the Former Wife argued that under the terms of the MSA she was entitled to: (1) "50% of all retirement benefits from [the Former Husband]" that accrued during and after the parties' marriage (emphasis added); and (2) she should "remain the death beneficiary on each of [the Former Husband's] retirement accounts." The Former Wife requested that the trial court issue a QDRO consistent with the terms of the MSA, as prepared by her pension expert. The Former Husband responded to the Former Wife's motion disagreeing with her interpretation of the terms of the MSA and arguing the Former Wife is only entitled to fifty percent of the retirement benefits that accrued during the marriage. The Former Husband also claimed the Former Wife could not be named the death beneficiary of the FRS Pension because the Act does not recognize a "death beneficiary," and only allows for the designation of a "survivor beneficiary;" further, the Act specifically provides that only a current spouse may be designated a survivor beneficiary.

         During a three-day evidentiary hearing, the Former Wife offered expert testimony from her pension expert, who opined that the clear and unambiguous language of the MSA requires a fifty percent division of all the Former Husband's retirement accounts, including fifty percent of all retirement benefits accruing during and after the MSA. This is because the parties explicitly used the term "all" when referring to the Former Husband's retirement benefits and chose not to include a cut-off date. The expert witness testified that a QDRO could be, and was, prepared consistently with the "all retirement accounts" language in the MSA. He also testified that the Former Wife's proposed QDRO had been "preapproved" by the FRS plan administrator with this language.

         No competing expert testimony was offered by the Former Husband, although he rebutted the Former Wife's expert's testimony by testifying himself that the FRS does not preapprove QDROs. The Former Husband based his opinion upon his personal knowledge regarding the division of FRS pensions following divorce, which he garnered through his employment as Chief Deputy Clerk of the Marion County Clerk of Court, as well as his own independent research. The Former Husband also testified that the Former Wife could not be named beneficiary of the FRS Pension because she does not "qualify as the surviving spouse" under the Act. During the Former Husband's testimony, the Former Wife objected to the Former Husband's attempts to introduce parole evidence in contradiction of the clear and unambiguous language of the MSA. The trial court reserved ruling on these objections.

         Following the evidentiary hearing, the trial court entered its order denying the Former Wife's requested relief. The trial court found the MSA clear and unambiguous and sustained the Former Wife's objections to the parole evidence presented by the Former Husband at the hearing. Notwithstanding, the trial court found the Former Wife was only entitled to the marital portion of the Former Husband's FRS Pension as defined in section 61.075(7), Florida Statutes (2009). In other words, the trial court determined the Former Wife ...


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