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discussing the distribution of the marital portions of retirement accounts
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Case No. 2D18-4635
03-12-2021
David E. MURPHY, Appellant/Cross-Appellee, v. Jennifer H. MURPHY, Appellee/Cross-Appellant.
Matthew Thatcher of The Solomon Law Group, P.A., Tampa, for Appellant/Cross-Appellee. Jennifer J. Kennedy of Abbey, Adams, Byelick & Mueller, L.L.P., St. Petersburg, for Appellee/Cross-Appellant.
Matthew Thatcher of The Solomon Law Group, P.A., Tampa, for Appellant/Cross-Appellee.
Jennifer J. Kennedy of Abbey, Adams, Byelick & Mueller, L.L.P., St. Petersburg, for Appellee/Cross-Appellant.
BLACK, Judge. David E. Murphy, the former husband, appeals from the amended final judgment of dissolution; the former wife, Jennifer H. Murphy, cross-appeals. We find merit in two of the issues raised by the former husband and therefore reverse the amended final judgment in part. We find no merit in the former wife's arguments on cross-appeal.
As relevant to the former husband's argument regarding the distribution of certain contributions to his Thrift Savings Plan (TSP), the parties were married in 2001 and the former husband opened his TSP in 2003. The TSP is a retirement savings and investment plan for members of the uniformed services and federal employees. The former husband contributed to the TSP throughout the parties' marriage, including after the petition for dissolution had been filed. Although the petition was filed in August 2014, the former husband did not serve the former wife with the petition until July 2015. As found by the trial court, the eleventh-month delay in service was due to the former husband's doubts as to whether the marriage was irretrievably broken and his desire for reconciliation. The trial court found that during the period between filing and service of the petition, the parties lived together in the marital residence, attended marriage counseling, and otherwise attempted to mend their marriage.
The former husband does not challenge the trial court's factual findings in any respect.
The trial court determined that the TSP was a marital asset and set its valuation as of the date of the final hearing. See § 61.075(7), Fla. Stat. (2018). The former husband contends that the trial court incorrectly distributed the contributions the former husband made to the TSP after the petition for dissolution had been filed, contending that those contributions were a nonmarital asset.
The trial court determined that an unequal distribution of assets was justified in this case. See § 61.075(1). In that respect, we note that the court distributed the entirety of the TSP to the former wife, including the former husband's portion. The former husband has not challenged the trial court's determination that unequal distribution was justified; he takes issue only with the distribution of the postpetition contributions, arguing that they are a nonmarital asset not subject to distribution whether equal or unequal.
Section 61.075 requires that the trial court clearly identify "nonmarital assets and ownership interests," as well as marital assets. § 61.075(3)(a). Because there was no separation agreement in this case, "[t]he cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is ... the date of the filing of a petition for dissolution of marriage." § 61.075(7). Relevant to the issue raised by the former husband, section 61.075 also provides that "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement ... plans and programs" are marital assets. § 61.075(6)(a)(1)(e). Thus, "[t]he marital portion of a retirement account is to be equitably distributed under section 61.075, Florida Statutes ([2018])." See Horton v. Horton, 62 So. 3d 689, 691 (Fla. 2d DCA 2011) ; cf. Smith v. Smith, 934 So. 2d 636, 640 (Fla. 2d DCA 2006) ("[I]t is clear that if a pension with a marital portion exists, the entire marital portion must be incorporated into the scheme."). The distributable portion may include enhancements and appreciation of any nonmarital portion through "the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both." § 61.075(6)(a)(1)(b). Inclusion of such enhancements and appreciation recognizes the "nonemployee spouse's contribution to the economic success of the other" and the "marital teamwork" which resulted in those benefits. Johnson v. Johnson, 602 So. 2d 1348, 1350 (Fla. 2d DCA 1992) ; see Diffenderfer v. Diffenderfer, 491 So. 2d 265, 268 (Fla. 1986) ; Pfleger v. Pfleger, 558 So. 2d 198, 199 (Fla. 2d DCA 1990).
In the amended final judgment, the trial court correctly identified the date the petition for dissolution was filed as the classification date of the parties' assets while also finding that the former husband engaged in "financial gamesmanship" warranting use of the final hearing date as the valuation date. The court failed, however, to address how the contributions made to the TSP after the date the petition was filed—to the extent that they constitute an "asset[ ] that did not exist on the date of filing"—are to be classified; such a failure is error in this case. See Tritschler v. Tritschler, 273 So. 3d 1161, 1166 (Fla. 2d DCA 2019) ; see also Pearson v. Pearson, 268 So. 3d 863, 867 (Fla. 2d DCA 2019) ("[W]e reverse and remand for the trial court to make findings regarding what portion of Former Wife's [Florida Retirement System] pension should be classified as a marital asset."); Fortune v. Fortune, 61 So. 3d 441, 445 (Fla. 2d DCA 2011) ("Assets and liabilities not in existence on that date should not be classified as marital."). We are not asked to, nor do we, address the trial court's valuation of the TSP. Cf. Weininger v. Weininger, 290 So. 3d 928, 934 (Fla. 3d DCA 2019) (recognizing that "courts generally avoid selecting a [valuation] date that would result in distributing an increase in property value" resulting from nonmarital efforts and finding no abuse of discretion in the trial court's valuation of the retirement account as of the date of filing where "the post-filing contributions were nonmarital because [the husband] earned the contributions by continuing to work for Delta during the nine years of protracted divorce proceedings while the parties lived apart"); Jahnke v. Jahnke, 804 So. 2d 513, 516 (Fla. 3d DCA 2001) (recognizing that "assets should not, ordinarily, be valued as of a post-dissolution date because the subsequent change in the property's value due to nonmarital labor or efforts cannot be distributed" but finding no abuse of discretion in trial court's valuation of assets, including pension and management savings plans, as of the date of the final hearing rather than the earlier dissolution date). Nonetheless, we recognize that a determination on remand that any or all of the former husband's postfiling contributions to the TSP constitute a nonmarital asset may require the trial court to reconfigure the unequal distribution of assets in this case. See, e.g., Caruso v. Caruso, 814 So. 2d 498, 505 (Fla. 4th DCA 2002) (Gross, J., concurring specially) (concurring that an asset not in existence on the statutory "cut-off date" is not a marital asset but noting that such determination "does not preclude the trial court from using some other tool in its equitable belt to acknowledge the value the wife's contribution to the [nonmarital asset's] creation").
We must also reverse the amended final judgment of dissolution insofar as it includes an incorrect child support calculation. The former husband correctly argues, and the former wife appropriately concedes, that the trial court miscalculated the number of overnights awarded to the former husband for purposes of determining child support. On remand, the trial court shall recalculate the number of overnights awarded to the former husband and the corresponding child support award. See Lennon v. Lennon, 264 So. 3d 1084, 1086 (Fla. 2d DCA 2019) ; Liguori v. Liguori, 210 So. 3d 117, 119 (Fla. 2d DCA 2016).
We note that at least one of the children has reached the age of majority, a fact that may impact the trial court's calculations on remand.
Accordingly, we reverse that portion of the amended final judgment addressing distribution of the former husband's TSP. On remand, the trial court must determine how to classify the postfiling contributions to the TSP. The court may take additional evidence as necessary. We also reverse that portion of the amended final judgment addressing child support. The determinations made on remand may require the court to reconsider not only the distribution of assets but the interrelated issues of alimony and attorney's fees. See Jackson v. Blazer, 296 So. 3d 984, 986 (Fla. 2d DCA 2020) ; Santiago v. Santiago, 51 So. 3d 637, 638-39 (Fla. 2d DCA 2011).
The court must also consider any federal regulations to which the former husband's TSP is subject. See, e.g., 5 U.S.C. § 8435 (2018).
Affirmed in part; reversed in part; remanded.
LaROSE and STARGEL, JJ., Concur.