Coleman v. Bland , 187 So. 3d 298 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
ARVITA M. COLEMAN,
Appellant,
v. Case No. 5D14-3779
MICHAEL BLAND,
Appellee.
________________________________/
Opinion filed March 4, 2016
Appeal from the Circuit Court
for Orange County,
Sally D.M. Kest, Judge.
Carlton Pierce, of Carlton Pierce, P.A.,
West Palm Beach, for Appellant.
Michael B. Jones, of The Wheelock Law
Firm, LLC, Orlando for Appellee.
PALMER, J.
Arvita M. Coleman, the former wife, appeals the trial court's order entered on
September 22, 2014, upon remand from this court. Determining that the trial court erred
in ruling that the value of the marital portion of the former husband's pension plan was de
minimis, we reverse.
Michael Bland, the former husband, worked for the Yonkers School Board of
Education for approximately 31 years. After 49 weeks of marriage to the former wife, the
former husband retired from this position. After a 39-month marriage, the former
husband filed a petition seeking dissolution of the parties' marriage. The trial court
dissolved the parties' marriage and equitably distributed the marital property. The former
wife appealed. We affirmed the dissolution judgment, in all respects except one. We
held:
Arvita M. Coleman [“Former Wife”] appeals the final judgment dissolving
her marriage to Michael Bland [“Former Husband”]. We find no reversible
error in any of the issues raised on appeal, save one. Among the issues in
dispute between these parties was the question whether any part of
Former Husband's pension was a marital asset. The trial court made no
finding in the final judgment concerning whether this asset was marital or
non-marital, as required by section 61.075(3), Florida Statutes (2009).
Former Wife contends on appeal that the lack of findings constitutes
reversible error as to this and other assets; however, as to all except the
pension, we find, after our review of the record, that any error was
harmless. We are unable to make an adequate review of the pension
issue without findings, however. The record seems to show that some
portion of the pension, although small, was earned during the marriage
and should be classified as a marital asset. We therefore reverse as to
that issue only and remand for the trial court to hear and to make proper
findings on the disposition of the Former Husband's pension.
Coleman v. Bland, 73 So. 3d 795, 795-96 (Fla. 5th DCA 2011).
On remand, the trial court conducted a hearing which addressed the former
husband’s pension. The trial court applied the following methodology to determine the
marital portion of the pension:
31 years times 52 weeks . . . [equals] 1,612 weeks of which 49 were
during the marriage. So . . . 49 divided by one – [1]612 is three percent
which would be the marital portion and divided in half would equal 1.5
percent. [1.5% multiplied by $5,900 [the amount received monthly] equals
$88.50]. But three percent is the marital portion.
At the close of the hearing, the trial court stated:
The Court finds that given all of the circumstances of the case including
the fact that the wife received a car which was purchased with the
husband's non-marital funds and was supported for three years, in fact
almost longer than the term of the marriage, in the home after the filing of
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the petition as well as other items that the d[e] minimus amount of the
retirement account that would be marital, that it is a d[e] minimus amount
and that the Court will find that at this time it's not an equitable distribution
given all the circumstances particularly those presented today concerning
the support provided by the husband for three years following the filing of
the petition and is sufficient that the Court will find that the amount of the
marital portion of the husband's retirement should remain his sole -- to be
his sole property.
In a written order, the trial court awarded the former wife no portion of the former
husband's pension. The former wife appeals.
“The standard of review of a trial court's determination of equitable distribution is
abuse of discretion. Distribution of marital assets and liabilities must be supported by
factual findings in the judgment or order based on competent substantial evidence.”
Bardowell v. Bardowell, 975 So. 2d 628, 629 (Fla. 4th DCA 2008) (citations omitted)
(internal quotation marks omitted). Also, “the trial court's valuation and distribution of the
marital assets” is reviewed for abuse of discretion. Claughton v. Claughton, 625 So. 2d
853, 855 (Fla. 3d DCA 1993).
The former wife contends that the trial court erred in its de minimis valuation,
arguing that
the transcript reveals that the trial court’s calculation of [her] share was
$89.67 per month based on [the former husband's] receiving $5,900 per
month in pension times 1.5%. The $89.67 might be de minimis to [the
former husband]; however, it is clearly not de minimis to [her] as it would
increase her $331 per month income by 27.1%.
We agree.
In Bardowell, the court observed:
At trial, the wife submitted evidence of a “retirement forecast” document
prepared by the FRS, which stated that, as of December 2004, the
husband's current FRS balance was worth $17,438. The document noted
that the current FRS balance “is the present value of your accrued FRS
benefit given current years of service.” The FRS documentation provided
competent evidence that the present value of the husband's FRS pension
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was approximately $17,438 as of December 2004. This is not a nominal
value. While the trial court would have been within its discretion to value
the pension at an amount lower than $17,438 to account for the fact that
the pension was not yet vested, the trial court was not free to ascribe a
nominal value to the FRS pension. The trial court's decision to assign a
nominal value to the FRS pension was not reasonable or equitable.
475 So. 2d at 629-30. See also Locke v. Locke, 832 So. 2d 971, 972 (Fla. 2d DCA
2002) ("We find that a difference of several thousand dollars should not have been
dismissed [as de minimis] without a more precise inquiry.").
Here, as in Bardowell, some portion of the pension was earned during the course
of the parties' marriage. Over the course of ten years, the payout of the marital portion
of this pension would be roughly $21,600. Thus, the trial court erred when it determined
that the marital portion of the pension was of de minimis value.
Accordingly, we reverse the order entered on September 22, 2014, and remand
for the trial court to reconsider the proper disposition of the marital portion of the pension.
AFFIRMED in part; REVERSED in part; and REMANDED.
LAWSON, C.J. and EVANDER, JJ., concur.
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