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975 So. 2d 628

Docket No. 4D06-972.

Bardowell v. Bardowell

Patricia E. BARDOWELL, Appellant, v. Philip E. BARDOWELL, Appellee.

District Court of Appeal of Florida · decided 2008-03-05

Cited by 11 later decisions — most recently February 2018

11 state decisions

Key passage — most relied on by later courts

“(3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital asset's or marital liabilities shall be supported by factual findings in the judgment or order based' on competent substantial evidence with reference to the factors enumerated in subsection (1). The distribution of all marital assets and marital liabilities, whether equal.or unequal, shall include specific written findings of fact as to the following: ■ (a) Clear identification of nonmarital assets and ownership interests; (b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset; (c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability; (d) Any other findings necessary to - advise the parties or the reviewing court of the trial court’s rationale for .the distribution of marital assets and allocation of liabilities.”

quoted by 1 later decision, including Buckalew v. Buckalew

“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 was approximately $17,438 as of December 2004. This is not a nominal value. While the trial coui-t 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.”

quoted by 1 later decision, including Coleman v. Bland

Relies on 382 So. 2d 1197 - Canakaris v. Canakaris · 491 So. 2d 265 - Diffenderfer v. Diffenderfer · 839 So. 2d 867 - Ondrejack v. Ondrejack

Good law ✅— No negative treatment on recordhow we know

Decided 2008-03-05

View the full empirical analysis of this case →

¶1*629 Patricia E. Bardowell, Plantation, pro se.

¶2Philip Michael Cullen, III, Fort Lauderdale, for appellee.

¶3BELANGER, ROBERT E., Associate Judge.

¶4The wife, Patricia Bardowell, timely appeals a final judgment of dissolution of marriage. Of the several points the wife has raised on appeal only one — relative to the valuation and award of the husband's pension — has merit.

¶5"The standard of review of a trial court's determination of equitable distribution is abuse of discretion." Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla. 4th DCA 2003). Distribution of marital assets and liabilities must be supported by factual findings in the judgment or order based on competent substantial evidence. § 61.075(3), Fla. Stat.

¶6We find that the trial court abused its discretion in failing to award the wife any portion of the husband's pension under the Florida Retirement System ("FRS"). "A spouse's entitlement to pension or retirement benefits must be considered a marital asset for purposes of equitably distributing marital property." Diffenderfer v. Diffenderfer, 491 So.2d 265, 270 (Fla.1986). While courts have applied several means for valuing potential future rights, "[t]he most preferable approach involves a reduction to present value factoring in the contingencies of vesting, maturity, and the pensioner's mortality." Id. at 269. However, the court cautioned: "No recitation of formulae, considered in the abstract, could capture the variety of considerations necessary in order to do equity. While reduction to present value may often best ensure an equitable distribution of property, we cannot say it would do so in every case." Id.

¶7Here, the trial court's conclusion that the FRS pension was of "nominal" value was clearly erroneous. "Property valuation which is not supported by competent, substantial evidence cannot stand." Mullen v. Mullen, 825 So.2d 1078, 1079 (Fla. 4th DCA 2002).

¶8At 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 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 *630 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.

¶9The wife also argues that the trial court erred in awarding only $1000 per month in permanent alimony. An award of alimony is reviewed for an abuse of discretion. Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003). In crafting an award of alimony, the trial judge should ensure that, viewing the totality of the circumstances, one party is not "shortchanged." Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980). Here, while the amount of alimony may seem objectively low, we do not find that the court abused its discretion in determining the alimony award.

¶10We have considered the other issues raised and find that they are without merit. The final judgment is reversed and the case is remanded for further proceedings.

¶11SHAHOOD, C.J., and STEVENSON, J., concur.

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