IN THE SUPREME COURT OF THE STATE OF FLORIDA SCOTT T ...

[Pages:6]IN THE SUPREME COURT OF THE STATE OF FLORIDA _________________________________________________

SCOTT T. DAVIDSON

Appellant

CASE NO.:

vs.

# SC04-2040

LOIS S. DAVIDSON Appellee

On appeal from the District Court of Appeal of the State of Florida, Fourth District (Case No 4D03-4260)

Jurisdictional Brief of Appellant __________________________

Submitted by:

Scott T. Davidson Pro se 9536 SW 1st Ct Coral Springs, Fl 33071

Table of Contents

Page Table of Contents........................................................ i

Table of Citations........................................................ ii

Certificate of Interested Persons........................................ iii

Statement of the Case and Facts........................................ 1

Summary of the Argument............................................... 2

Arguments

Point I

The Fourth District Court of Appeal erroneously affirmed the trial court's

decision that the husband's disability pension was a marital asset subject to

equitable distribution...................................................... 3-6

Point II

The Fourth District Court of Appeal failed to correct the mathematical error

made by the trial court by not crediting the husband with the sums being

received by the two minor children through Social Security due to

appellant's disability, Re: monthly child-support obligation.......... 7

Conclusion................................................................... 8

Certificate of service/Compliance with the font requirements........ 8 -i-

TABLE OF CITATIONS

CASES

PAGE

______

_____

Freeman vs. Freeman, 468 So. 2d 326(Fla 5th DCA, 1985)....... 3-6

Brogdon vs. Brogdon, 530 So. 2d 1064(Fla 1st DCA, 1988)...... 3

Gay vs. Gay, 573 So. 2d 180(Fla 2nd DCA, 1991)..................... 3

Bloch vs Bloch, 688 2d 945, 947(Fla 3rd DCA, 1997)................ 3

Hoffner vs Hoffner,577 So. 2d 703,704(Fla 4th DCA, 1991).......... 3

Hanks vs Hanks, 553 So. 2d 340(Fla 4th DCA, 1989).................. 3

Swedlow vs Swedlow, (Fla 4th DCA)..................................... 3

Pilny vs. Pilny, 658 So. 2d 1110(Fla 5th DCA, 1995)................... 6

White vs. White 705 So. 2d 123(Fla 2nd DCA, 1998)................... 6

Weisfeld vs. Weisfeld, 545 So. 2d 1341(Fla 1989)...................... 5-6 Noone vs Noone,727 So. 2d 972, 974(Fla 5th DCA, 1999)............. 7

STATUTES: __________ SECTION 61.075(6), FLORIDA STATUTE............................ 2,4

FLORIDA RULES OF APPELLATE PROCEDURE __________________________________________

RULE 9.030(a)(2)(A)(iv).....................................................3

CERTIFICATE OF INTERESTED PERSONS _____________________________________ Appellant certifies the following persons and entities have or may have an interest in the outcome of this appeal. 1. Scott T. Davidson, Appellant 2. Lois S. Davidson, Appellee 3. Fourth District Court of Appeal 4. Honorable Julie Koenig, trial court 17th Judicial Circuit 5. David S. Nicnick Esq. counsel for Appellee

-iii-

Statement of the Case and Facts Appellant on June 14, 2000 was forced into early retirement by a service connected disability with the city Hollywood, Florida Police Department. On that date June 14, 2000 Appellant filed an application where it was notarized and certified. Appellee on June 15, 2000 filed petition for dissolution of marriage per Florida statute 61.075(6). On August 18, 2000 after the administrative process the Appellant was granted a service related total disability pension. Appellant was not close to receiving a regular pension. Appellant would have had to complete 10 more years of service to receive a regular pension. Several hearings were held between the parties and were transcribed for the record. On October 23, 2003 a final Judgment of Dissolution of Marriage was signed by the trial judge. On October 30, 2003 Appellant filed notice of appeal with the Fourth District Court of Appeal. On August 11, 2004 the Fourth District Court of Appeal filed their opinion. On August 18, 2004 appellant filed a notice for rehearing on the issues and was denied by the Fourth District Court of Appeal on October 15, 2004. On October 18, 2004 Appellant filed notice of Appeal to the Florida Supreme Court.

-1-

Summary of the Argument The Fourth District Court of Appeal's decision that the husband's disability pension is a marital asset for purposes of equitable distribution is clearly erroneous and is in direct conflict with Florida statute 61.075(6). Case law in all five District Courts of Appeal arrives at the same conclusion. The courts have specifically distinguished a disability pension from a regular pension and concluded that unlike a retirement pension a disability pension is not a marital asset for purposes of equitable distribution. The Fourth District Court Appeal further erred in ruling that a regular pension existed on the cutoff date and was then voluntarily changed to a disability pension. On June 15, 2000 the cutoff date per Florida statute 61.075(6) no pension benefits existed; Husband merely had potential of receiving future benefits. The potential future early retirement benefits do not constitute presently existing property. Therefore it is a basic principle of property division law that rights which did not constitute property cannot be divided upon divorce. The clear language of the statute does not allow for flexibility in the identification of a marital asset. This case stands for the proposition that for asset to be characterized as a marital asset; it must be in existence on the statutory cutoff date. If the Husband had been terminated or quit on or before the cutoff date there would be no pension at all.

I. The Fourth District Court of Appeal erred in affirming the trial court's decision that the Husband's disability pension is a marital asset subject to equitable distribution.

The Supreme Court has discretionary jurisdiction to review the decision in Davidson v Davidson because it expressly and directly conflicts with decisions with other District Courts of Appeal. Florida Rules of Appellate Procedure 9.030(a)(2)(A)(iv). The decision in Davidson v Davidson conflicts with several rulings regarding disability benefits. In Freeman v. Freeman 468 So. 2d 326 (Fla DCA, 1985), Bloch v Bloch, 688 So. 2d 945, 947(Fla 3rd DCA 1997), Brogdon v Brogdon, 530 So. 2d 1064(Fla 1st DCA, 1988), Gay v Gay, 573 So. 2d 180 (Fla 2nd DCA, 1991). The decision in Davidson v Davidson conflicts with the Fourth District Court of Appeal's own decision in Hoffner v. Hoffner,577 So.2d 703, 704(Fla 4th DCA 1991), Hanks v Hanks, 553 So. 2d 340(Fla 4th DCA 1989) and Swedlow v Swedlow (Fla 4th DCA 2003) on the question of a Florida trial court to award a portion of a disability pension to the non-injured spouse in a dissolution of marriage proceeding. Based on its interpretation in Freeman the Fifth District Court of Appeal held that a disability pension, which was designed to compensate him for lost earnings and injuries

including pain and suffering due to injuries sustained on-the-job, was the separate property of the husband. The Freeman court specifically distinguished a disability pension from a retirement pension and concluded that unlike a retirement pension a disability pension is not a marital asset for purposes of equitable distribution.

The issue presented before this court on appeal is whether a spouse's disability benefit is the separate property of the disabled spouse and is not a marital asset. The husband submits that the answer is yes. The award of any share of the husband's disability benefits as a part of an equitable distribution scheme is clearly erroneous and abuse of discretion. The disability in this case occurred during the marriage. The administrative process started on June 14, 2000 where the husband in this case provided the medical information necessary to his employer for processing. The cutoff date was June 15, 2000 when the wife filed petition for dissolution of marriage per Florida statute 61.075(6). The clear language of the statute does not allow for flexibility in the identification of marital asset. This case stands for the proposition that for an asset to be characterized as a marital asset, it must be in existence on the statutory cutoff date. On the cutoff date of June 15, 2000 the husband had no existing pension benefits; husband

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download