Johnson v. Johnson

283 So.3d 883

Steven R. JOHNSON, Former Husband, Appellant,

v.Denise P. JOHNSON, Former Wife, Appellee.

No. 1D18-3966

District Court of Appeal of Florida, First District.

October 30, 2019

Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant.

R. Gregory Colvin of R. Gregory Colvin, LLC, Orlando, for Appellee.

B.L. Thomas, J.

In this family law case, Appellant (Former Husband) appeals the trial court's "Qualified Domestic Relations Order" allowing Appellee (Former Wife) to receive accrued earnings from Appellant's retirement plans when the final judgment did not address Appellee receiving such earnings.

In a "Final Judgment of Dissolution of Marriage" entered on February 18, 1998, nunc pro tunc to January 7, 1997, Appellee was awarded one-half of Appellant's deferred compensation plan and one-half of Appellant's deferred compensation/social security replacement plan. The approximate total value of one-half of each of the plans was $72,906.00.

On December 14, 2017, approximately twenty years after entry of the underlying final judgment, Appellee filed a "Motion for Clarification and Motion for Entry of Qualified Domestic Relations Order." The trial court's ruling on the order denied the motion for clarification and granted Appellee the specific sums of money set forth in the final judgment, plus accrued earnings on those sums. Appellant appeals the trial court's order granting Appellee the accrual of the sums entered in the final judgment.

To determine whether a former spouse is entitled to gains or losses of a retirement plan, the court must decide who has the ownership interest in the asset. See Graham v. Graham , 123 So. 3d 625, 628 (Fla. 1st DCA 2013) ; Rivero v. Rivero , 963 So. 2d 934, 936 (Fla. 3d DCA 2007). When a former spouse is designated an owner of an asset, they are entitled to any increases (or decreases) in the asset from the date of the final judgment. McHugh v. McHugh , 702 So. 2d 639, 643 (Fla. 4th DCA 1997).

"Half ownership of any asset, real or tangible personal property, say – for example, a house – plainly means something other than entitlement to a fixed sum of money." Graham , 123 So. 3d at 628. However, when a final judgment contains a sum certain or references the dollar value of a retirement plan, a monetary interest in the plan is created and the spouse with that interest is not considered an owner of the asset. See Rivero , 963 So. 2d at 935-36. Without ownership, a spouse cannot collect appreciation as to a plan's value. Id.

In the present case, the final judgment clearly stated, "[a]t the Husband's retirement, the Wife is entitled to receive one-half (1/2) of each plan's value as of the date of filing the Petition for Dissolution of Marriage. One-half of the value of both plans is...