In re: Amendments to the Florida Small Claims Rules

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Richard A. Nx v. Brenda W. Nix

SC06-1326

,
>> PLEASE RISE.
>> GOOD MORNING.~
>> WE'RE A LITTLE WORRIED SOME
OF US MAY HAVE HAD BAD BREATH
OR SOMETHING HERE!
>> LADIES AND GENTLEMEN,
PLEASE BE SEATED.
>> NIX VERSUS NIX.
THANK YOU.
>> I'M USED TO LOSING A LOT OF
-- JUSTICE ANSTEAD --
>> WE'LL TAKE NO OFFENSE IT
HAPPENS VERY AUFERP.
>> MAY IT PLEASE THE CORE, I'M
ROSS KEENE ON BEHALF OF PET
NATION -- PETITIONER, RICHARD
NIX AND TWO QUESTIONS, ONE IS
A CERTIFIED QUESTION AND I'LL
ADDRESS THE FIRST STHIRX
CERTIFIED QUESTION SECOND.
THE FIRST ISSUE IS WHETHER OR
NOT THE TRIAL COURT IN THE
QUALIFIED DOMESTIC RELATIONS
ORDER THAT WAS ENTERED FOUR
YEARS AFTER THE FINAL JUDGMENT
USED AN IMPROPER VALUATION
DATE IN RELATION TO THE
FORMULA THAT WAS USED FOR THE
QUAD DRO --
>> CAN I ASK A QUESTION, DOES
IT CERTIFIED QUESTION REALLY
ADDRESS THE UNDERLYING FACTS
BECAUSE OF THE STIPULATION AND
THE DREEMENT REFLECTED IN THE
OPINION?
>> JUSTICE LEWIS THE CERTIFIED
QUESTION THIS IS E DROP ISSUE,
WHICH IS --
>> JURISDICTION IS BASED, WHY
I WAS WONDERING WHETHER THAT
QUESTION SEEMS TO PHRASE IT
BROADLY.
DO WE NOT HAVE A VERY SPECIFIC
UNDERLYING FACT OF THE
AGREEMENT?
>> NO, I DISPUTE THAT AND I
KNOW THAT IS A POSITION
JUSTICE IRVING WAS AT ODDS
WITH THE MAJORITY IN THE FIRST
DCA OPINION ON THAT AND
SPECIFICALLY HIS DISSENTING
OPINION I THINK WENT THROUGH
LINE BY LINE ALMOST AND
ARTICULATED WHERE THERE WAS
LACK OF DECISIVENESS AND
CLARITY WITH RESPECT TO WHAT
WAS OR WAS NOT AGREED TO, IN
THE --
>> WAIT A MINUTE.
I THOUGHT JUSTICE LEWIS WAS
ASKING ABOUT THE DROP ISSUE.
AND YOU SEEM TO NOW BE GOING
OFF OF THAT ON THE OTHER ISSUE
BUT ON THE DROP ISSUE ITSELF.
IS THAT ISSUE REALLY SOMETHING
THAT IS BEFORE THIS COURT?
SHOULD WE EVEN ANSWER THAT
CERTIFIED QUESTION?
BECAUSE YOUR CLIENT, AS I
UNDERSTAND IT, IS NOT ELIGIBLE
TO BE IN A DROP PROGRAM AT
LEAST AT THIS TIME.
>> JUSTICE QUINCE, I BELIEVE
THAT THERE IS A RIPENESS ISSUE
AND I DO AGREE AND JUSTICE
IRVIN INDICATED THAT IN HIS
DISSENTEDDING OPINION THAT HE
DID NOT BELIEVE THAT THE
MATTER WAS PROPERLY BEFORE ONE
DCA AND WE BELIEVE THE ISSUE
-- AND I KNOW THERE HAS BEEN
OVERLAP OF WHETHER IT IS
RIPENESS, BUT I BELIEVE IT IS
CAPABLE OF REPETITION AND
OBVIOUSLY THE COURT IS
INTERESTED IN THAT AND YES,
YOU ARE CORRECT THE FACTS OF
THIS CASE AND MY CLIENT, HE IS
NOT IN A DROP-ELIGIBLE
POSITION.
HE LIKELY NEVER WILL BE, HE IS
A SENIOR MAJOR IN THE ESCAMBIA
SHERIFFS DEPARTMENT WHO IS
OVER -- HAS OVER 30 YEARS OF
SERVICE AND HAD ONE
POSSIBILITY FOR MOVING INTO A
DROP-ELIGIBLE PROGRAM AND
WOULD HAVE BEEN IF HE HAD RUN
FOR THE BOARD OF ELECTIONS IN
ESCAMBIA COUNTY WHICH HE DID
AND DID NOT SUCCEED AT AND AT
THIS POINT IS LIKELY GOING TO
RETIRE, DEPENDING ON CERTAIN
MATTERS BEFORE THIS COURT.
WITHOUT ANY POSSIBILITY OF
GOING INTO DROP.
--
>> YOU ARE SAYING IN EFFECT --
VIRTUALLY THEN WITH AN
ADVISORY OPINION OF NOT REALLY
A JU -- JUSTICIBLE.
>> WITH RESPECT TO THE DROP,
JUSTICE ANSTEAD I WOULD NOT
DISPUTE THAT AND THERE WAS A
COMPANION CASE THAT CAME OUT
OF ONE DCA JUST BEFORE THE NIX
CASE CAME UP FOR PROCEDURAL
REASONS MY UNDERSTANDING IS
THE COUNSEL WAS NOT ALLOWED
REVIEW BEFORE THIS COURT.
PERHAPS, THAT WAS SOME REASON
WHY THE COURT IN FACT LOOKED
AT THE NIX CASE.
I BELIEVE, AGAIN, IT'S AN
ISSUE THAT IS CAPABLE OF BEING
ADDRESSED.
I THINK IT IS GOING TO HAPPEN
IN RELATION TO BOYETTE AND I
TRY TO GET BACK --
>> AND I KNOW WITH -- THE
PROBLEM WE HAVE GOT HERE IS
THAT, YOU KNOW, THE MAIN
OPINION -- YOU KNOW, THEY GO
THROUGH THE WHOLE THING OF, IF
IT'S AN ISSUE AND IF HE IS NOT
IN DROP AND NEVER GOING TO BE
IN DROP, THEN THE ISSUE THAT
THE OTHER DISTRICTS HAVE
TALKED ABOUT, WHETHER THEY ARE
RIGHT OR WRONG, WAS IRRELEVANT
TO THE DETERMINATION OF THE
ISSUES IN THIS CASE.
DO YOU AGREE WITH THAT?
>> I BELIEVE THERE IS A
RELATIONSHIP, JUSTICE PARIENTE
BETWEEN OUR ISSUE RAISED AND
THE DROP ISSUE AND THE FIRST
ISSUE WITH RESPECT TO WHAT WE
RAISED ON THE VALUATION DATES.
ON THE DROP ISSUE ITSELF, IT
IS NOT AN ISSUE THAT AT THIS
POINT IS RELEVANT TO MY -- I
CANNOT DISAGREE WITH THAT,
JUSTICE PARIENTE AND THAT WAS
AN ISSUE THAT WAS A CONCERN
WHEN WE WERE COMING BEFORE THE
COURT AND REVIEW WAS GRANTED
WITH RESPECT TO THE CERTIFIED
QUESTION AND OBVIOUSLY WE HAVE
RAISED THE OTHER ISSUE ON THE
VALUE -- VALUATION AND I
BELIEVE THAT IS RELEVANT AND
THE DROP CAN AND IS RELEVANT
IN RELATION TO THAT BECAUSE I
THINK BOTH ISSUES IMPACT ON
THIS COURT'S DECISION IN BOYETTE
GOING BACK TO POST DISSOLUTION
ASSETS AND ACCUMULATION OR
ACCRUAL, IF YOU WILL, IN
PENSION ASSETS --
>> JUSTICE LEWIS'S FIRST ISSUE,
WHICH IS, YOU'VE GOT AN
AGREEMENT, AND EVEN IF -- FOR
US TO GET INVOLVED WITH AN
INTERPRETATION OF AN AGREEMENT
ON SOMETHING THAT WE ARE THEN
SAYING, YOU CAN APPLY ACROSS
THE BOARD, I DON'T KNOW IF YOU
QUITE ADDRESS THAT.
BUT YOU DO HAVE AN AGREEMENT
THAT SAYS HOW IT IS -- HOW THE
-- HOW THINGS SHOULD BE VALUED,
CORRECT.
>> NO, I DISAGREE WITH THAT.
AND I -- THERE IS FINAL
JUDGMENT, THE FINDINGS OF FACT
IN THAT WITH RESPECT TO THE
FORMULA THAT WAS USED FOR THE
DISTRIBUTION OF THE PENSION.
ON THE DROP ISSUE ITSELF, THAT
ISSUE CAME UP ONLY IN THE
QUADRO WHEN WAS ADDRESSED FOUR
YEARS LATER AND THAT ISSUE WAS
RAISED, IT WAS -- INITIAL
QUADRO WAS VACATED BY THE
TRIAL COURT AT THE REQUEST OF
COUNSEL FOR MR. NIX BECAUSE OF
TWO ISSUES, ONE THE VALUATION
DATE AS OF THE DATE OF
RETIREMENT AND, NUMBER 2, THE
DROP ISSUE THAT WAS IN THERE.
>> WELL, AS TO THE DROP ISSUE.
>> YES, YOUR HONOR.
>> DO YOU AGREE AT LEAST THAT
DROP PAYMENTS ARE IN FACT
RETIREMENT PAYMENTS?
>> I GUESS DROP PAYMENTS ARE
RETIREMENT, BUT --
>> SO, TO THAT EXTENT, WOULD
YOU AGREE THAT A SPOUSE WHO IS
ENTITLED -- AN EX-SPOUSE WHO
IS ENTITLED TO A PORTION OF A
RETIREMENT IS ENTITLED TO A
PORTION OF A DROP PAYMENT?
>> YES, I BELIEVE THAT THAT IS
TRUE, JUSTICE QUINCE BUT I
THINK IT DEPENDS ON, AGAIN
WHEN THE VALUATION DATE --
>> WE'RE NOT TALKING ABOUT
WHAT PERCENTAGE OR WHAT
AMOUNT.
BUT, THE PURE QUESTION OF
ENTITLEMENT TO DROP, YOU AGREE
WITH.
>> YES, I DO.
>> AND WHAT IS YOUR ISSUE WITH
THE WAY THE DROP IN THIS
PARTICULAR ONE WAS DETERMINED?
BECAUSE AS I UNDERSTAND IT, IT
IS -- SIMPLY SAID THAT YOU
WERE ENTITLED TO DROP A
ADDITION TO A CRUDE INTEREST
AND -- COBO, I BELIEVE IT WAS.
>> IT INDICATED THERE WOULD BE
ENTITLED TO DROP IF THE
INDIVIDUAL -- STEPHANIE NIX,
EVER WENT INTO DROP WHICH HE
WASN'T BECAUSE HE WAS IN
HAZARD DUTY WITH THE SHERIFFS
DEPARTMENT AND THE ISSUE IS
IRRELEVANT AGAIN AS TO WHEN
THE VALUATION DATE IS ON THIS,
BECAUSE THIS AGREEMENT, I
THINK.
>> HAS TO BE LOOKED AT IN
TOTALITY IN TERMS OF THE
VALUATION ON THE PPX AM AND
POTENTIALLY ON THE DROP AND
I'M NOT TRYING TO EVADE YOUR
QUESTIONS, JUSTICE QUINCE.
>> WE ARE TRYING TO GET TO
WHAT YOU WANT TO TALK ABOUT
WHICH THIS IS VALUATION DATE
AS OPPOSED TO THE CERTIFIED
QUESTION, THAT --
>> I CONCEDE MY EFFORTS, ARE,
TO DO JUST THAT AND.
>> LET ME HELP YOU IN THAT
REGARD.
YOUR ARGUMENT ON THE FIRST
ISSUE IS THE VALUATION DATE
SHOULD BE THE DATE OF -- THAT
THE PETITION WAS FILED.
>> YES, SIR.
>> 1998.
>> YES, SIR.
>> WHY WOULDN'T THE PARTIES
HAVE PUT 1998 INSTEAD OF
NUMBER OF YEARS OF HUSBAND'S
EMPLOYMENT AS THE DENOMINATOR.
>> BECAUSE THE PARTIES, WERE
ENDEAVORING TO FOLLOW THE ONE
DCA STANDARD THEY NEEDED TO
FOLLOW AT THAT TIME AND IF YOU
LOOK AT QUADRO FORMULA.
>> WHY WOULDN'T THEY HAVE PUT
THE DATE OF THE PETITION AS
THE --
>> THIS THAT IS THE DATE.
LOOK AT THE ENUMERATOR OF
THAT.
>> 27.
>> YES, 27-7 WAS THE DATE OF
THE FILING ON IT AND HOW MANY
YEARS OF SERVICE AND MONTHS OF
SERVICE DEPUTY DEPUTY NIX HAD
AT THE TIME OF THE FILING AND
WE HAVE A REGULATED DATE
RECOGNIZING AT THAT POINT OR
THE ENUMERATOR OF THE FORMULA
THAT IS THE VALUATION CUT-OFF
PERIOD AND THE DENOMINATOR AND
AGAIN IS CONSISTENT WITH OTHER
QUADRO FORMULAS USED
THROUGHOUT FLORIDA AND ALSO I
THINK YOU DO FACTOR AS THE
DENOMINATOR THE NUMBER OF
TOTAL YEARS OF SERVICE, AND
THAT IS NOT IN CONSISTENT WITH
SAYING YOU VALUED THE PENSION
AT THE TIME OF RETIREMENT.
>> I DON'T UNDERSTAND IF YOU
THEY'RE ONE MAKING THE
PAYMENTS, AND THE LONGER YOUR
YEARS OF SERVICE THE GREATER
THE DENOMINATOR AND, THEREFORE
THE LESSER THE MONTHLY PAYMENT,
WHY ARE YOU MAKING THE
ARGUMENT.
>> JUSTICE, -- JUSTICE CANTERO,
IF YOU LOOK AT THE LAST
COMPONENT OF THE FORMULA IT IS
THE MONTHLY PAYMENT ITSELF AND
THAT IS WHERE OUR CONCERN IS
AND WOULD BE ON THE CONCERN OF
THE DROP AS WELL AND IF YOU
LOOK AT THE MONTHLY PAYMENT,
TAKE 1/2 TIMES THE FRACTION,
THE 27 YEARS SEVEN MONTHS AND
THIS DENOMINATOR, HIS TOTAL
YEARS OF SERVICE TIMES THE
MONTHLY PAYMENT.
AND THE WAY PENSIONS ARE
VALUED ON THIS, YOU TAKE THE
HIGHEST FIVE YEAR WITH DROP
AND THOSE YEARS WILL BE THE
YEARS RIGHT NOW, DEPUTY NIX IS
EARNING, FOR INSTANCE, IF HE
WAS ELIGIBLE TO GO INTO DROP.
HE WILL TAKE THE HIGHEST YEARS
THAT ARE GOING IN THERE, ALL
OF WHICH HAVE APPROVED -- THIS
IS NINE YEARS, WE NEED TO LOOK
AT.
>> YOUR BASIC POSITION IS IT
SHOULD HAVE BEEN THE PAYMENT
MADE AS THE DATE OF FILING OF
THE PETITION.
>> ABSOLUTELY.
>> AND IF THIS WAS VESD AND
MATURED, WAS THE FIGURE NOT
DETERMINEABLE AT THE TIME OF
THE DISSOLUTION OF MARRIAGE.
>> IT WOULD HAVE BEEN AND THAT
IS WHY TRIAL COUNSEL, FOR
MR. NIX OBJECTED TO THE FORM
OF THE INITIAL QUADRO BECAUSE
IT STATED VALUATION AS OF THE
DATE OF RETIREMENT AND THE
RESPONDENT IN THE CASE,
MS. NIX, WOULD GET THE BENEFIT
OF THE DATE OF MR. NIX'S
ULTIMATE RETIREMENT WHICH
WOULD BE FACTORED IN WITH THE
HIGHEST NUMBER OR HIGHEST
INCOME THAT HE HAD WHICH HE IS
EARNING NOW, ONE OF THE
HIGHEST --
>> WHY DIDN'T YOU, OR WHY
DIDN'T MR. NIX'S ATTORNEY AT
THE TIME OF THE FORMULA --
THAT THE FORMULA WAS ACTUALLY
ENTERED INTO, WHEN THEY AGREED
ON THE FORMULA, WHY DIDN'T
THAT FORMULA SAY MONTHLY
PAYMENT AS OF 1998.
WHATEVER YEAR THAT WAS AS
OPPOSED TO JUST MONTHLY
PAYMENTS.
>> BECAUSE THE QUADRO, JUSTICE
QUINCE WAS NOT DONE UNTIL FOUR
YEARS LATER.
>> I'M NOT TALKING ABOUT THE
QUADRO, I'M TALKING ABOUT THE
FORMULA ITSELF, BECAUSE YOU
ARE TAKING ISSUE WITH WHAT IS
THE FINAL NUMBER IN THE
FORMULA.
WHICH IS THE MONTHLY PAYMENT,
CORRECT.
>> THAT IS CORRECT.
>> AND SO, WHY WAS NOT THE
FORMULA MADE SO THE FINAL
NUMBER WOULD HAVE SAID,
MONTHLY PAYMENT AS OF WHATEVER
DATE IT WAS THAT THE PETITION
WAS FILED OR THE DATE THAT THE
ACTUAL AGREEMENT WAS ENTERED
INTO.
>> PERHAPS IN RETROSPECT, ANY
AGREEMENT COULD BE MADE MORE
CLEAR, IN THOSE RESPECTS, BUT,
TO ANSWER YOUR QUESTION, THE
AGREEMENT DOES STATE THAT AND
THE AGREEMENT STATES THE
PARAGRAPH FOLLOWING THAT, IT
TATES THE VALUATION DATE WILL
BE AND THAT IS THE DATE OF THE
FILING OF THE DISSOLUTION
PETITION AND DOES NOT -- I
AGREE, THE AGREEMENT DOES NOT
SET UP AND JUSTICE IRVIN
FOCUSED IN ON THIS IN HIS DIS
SENT AND DOES NOT STATE A
VALUATION DATE FOR THE NORMAL
REGULAR ASSETS IN THE CASE AND
VALUATION DATE FOR THE PENSION,
IT STATES IN THE PARAGRAPH AND
DOES FOLLOW THE PARAGRAPHS
ADDRESSING THE PENSION ISSUES.
IT DOES STATE THE VALUATION
DATE IS THE DATE OF FILING IT.
I THINK WITHOUT INTERRUPTING,
I THINK THAT THAT OKAY CHILLY
SATISFIES I THINK WHAT THE
COURT IS INQUIRING AS TO
WHETHER OR NOT COUNSEL PUT THE
PROTECTIVE LANGUAGE IN THERE.
>> LET ME ASK YOU THIS.
IT SEEMS THAT THE -- AS THE
SHERIFFS DEPARTMENT PENSION IS
A LITTLE BIT DIFFERENT FROM A
REGULAR STATE PENSION -- OR IS
IT?
IS IT THE SAME -- DOES IT
OPERATE ON THE SAME BASIS AS
THE REGULAR FLORIDA RETIREMENT
SYSTEM.
>> IT IS, YES, YOUR HONOR,
THERE ARE VARIATIONS, I HAVE
LEARNED THROUGH MANY DIFFERENT
DIVISIONS WITHIN THE STATE
UNDER THAT BUT IT FALLS
GENERALLY UNDER FIRST.
>> BECAUSE AS I UNDERSTAND
YOUR CLIENT'S RETIREMENT WAS
VESTED AT THE TIME THAT THIS
DIVORCE TOOK PLACE.
THAT HE ALREADY HAD 25 YEARS
IN, AS A SPECIAL RISK AND HE
COULD HAVE, IN FACT, RETIRED
AT THAT POINT?
>> YES, YOUR HONOR.
>> AND SO --
BUT JUST BECAUSE HE WAS
ELIGIBLE TO RETIRE, HE WAS NOT
ELIGIBLE FOR A DROP PROGRAM.
>> HE'S NOT ELIGIBLE FOR DROP
BECAUSE IT IS CONSIDERED A
RISK OR HAZARD AT THE TIME.
ACTUALLY I RETRACT THAT, AT
THE TIME OF THE DISSOLUTION OF
MARRIAGE, IT DIDN'T EXIST, IT
IS AFTER THE FACT BUT AT THE
TIME THE FINAL OR THE --
RATHER THE QUADRO ISSUE CAME
UP FOUR YEARS DOWN THE ROAD IN
2002 -- DROP WAS IN EXISTENCE.
>> LET'S TAKE IT FURTHER.
IN THE REGULAR RETIREMENT, IF
YOU WORKED BEYOND THOSE -- YOU
KNOW, SAY YOU GOT 30 YEARS IN,
AND YOU -- BUTTERY NOT 62,
WHICH IS THE NORMAL RETIREMENT
AGE, AND EACH OF THOSE YEARS
WILL COUNT UP AS, YOU KNOW,
THE REGULAR RETIREMENT RATE OF
1.6% PER YEAR, IS THAT THE
YEAR -- IS THAT THE WAY IT
WORKS IN THIS SITUATION, THAT
EVERY YEAR BEYOND 25, HE IS
ELIGIBLE TO RETIRE IS STILL
ADDED IN TOWARD HIS PERCENTAGE
OF RETIREMENT.
>> HE CONTINUES TO ACCUMULATE
RETIREMENT AND PROPORTIONATELY
INCREASES IN -- AND ENHANCES
UP TO LT DATED --
>> HOW?
IS IT PERSONAL?
OR WHAT?
>> JUSTICE QUINCE, I DON'T
KNOW THE EXACT ANSWER.
>> THE PROBLEMS ARE, WE ARE
HAVING IS I WAS LOOKING AT THE
CASE, TRYING TO FIGURE OUT
WHAT BEYOND THE 25 YEARS ARE
ADDED IN TOWARDS HIS
RETIREMENT?
IS IT MORE PERCENTAGE?
IS IT MORE SALARY BASED ON
RACES?
JUST WHAT IS BEING ADDED IN
THAT YOU MAY CLAIM THE WIFE IS
NOT ENTITLED TO.
>> I CAN ABSOLUTELY ON THAT
ISSUE, ANSWER THAT, JUSTICE.
IT IS THE INCREASE IN SALARY,
BECAUSE THE ACTUAL PENSION
AMOUNT IS GOING TO BE BASED ON
THE HIGHEST LEVEL OF SALARY,
THE FIVE AND FIVE AS THEY CALL
IT.
A SALARY THE MAJOR NIX EARNED
WITH THE SHERIFFS DEPARTMENT
AND THE HIGHEST EARNING
POTENTIAL, NINE YEARS REMOVED
FROM THE DATE THAT THE FINAL
JUDGMENT WAS ISSUED WHICH IS
WHY I THINK THAT, YOU KNOW,
AGAIN, VOYEZ ADDRESSES THE
ISSUES IN GENERAL AND WITH
SPECIFICTY AND THE NEED FOR IT
IN THESE CIRCUMSTANCES IS
SOMETHING I THINK IS CRYING
OUT RIGHT NOW AND THAT IS WHY
I THINK THE ISSUE IS CERTAINLY
BEFORE THE COURT.
>> THE PROBLEM IS, IF YOU TAKE
POLO, IT WAS AN IN-BANK
OPINION AND THERE IS -- POLO
CAME UP WITH -- IN TERMS OF
QUADRO OR THE FINAL JUDGMENT,
A SPECIFIC AMOUNT USING, I
GUESS, DEFERRED DISTRIBUTION
METHODS THAT REDUCED BACK TO
FIGURE OUT WHAT -- IF THAT
PERSON HAD RETIRED, WITHOUT A
PENALTY ON THIS DATED OF THE
FINAL HEARING, WOULD THEY BE
ENTITLED TO AND THERE IS THIS
SPECIFIC AMOUNT AND WHAT I'M
HAVING TROUBLE WITH, BECAUSE
IF THAT IS WHAT WE AGREE,
REALLY IS THE INTENT OF
VOYETTE AND THESE OTHER CASES,
YOU DON'T GET ANY MORE, THAN
WHAT THE PERSON WOULD HAVE
BEEN ENTITLED TO, IF THEY
RETIRED THE DATE OF RETIREMENT
AND MAYBE IS A FRIENDLY
QUESTION AND I DON'T
UNDERSTAND WHY IN POLO A
PERSON SHOULD GET EITHER --
BECAUSE OF DROP, SHOULD EITHER
BE -- SHOULDN'T BE PENALIZED,
BUT ALSO SHOULDN'T GET A
WINDFALL BUT DO YOU -- BUT
THAT ONE, WAS A PELVIC AMOUNT,
AND YOU KNOW, YOU ARE TELLING
ME, YOUR FORMULA WAS --
ATTEMPTED TO DO THAT, BUT THE
WAY THE MAJORITY -- READS THE
AGREEMENT, THEY DON'T SAY THAT
IT WAS LIKE THAT SITUATION AND
DO WE HAVE TWO DIFFERENT
SITUATIONS, AND ISN'T THAT
REALLY THE PROBLEM IN TRYING
TO COME UP WITH A -- AN
OPINION THAT WILL OFFER
SUFFICIENT GUIDANCE TO THE
LOWER COURT?
>> AND I CAN OFFER THE COURT A
CLEAR DISTINCTION THAT WOULD
ALLOW THE COURT TO ENGAGE IN
THAT ANALYSIS THAT I THINK IS
APPROPRIATE IN WHAT WE
CERTAINLY ARE SEEKING AND THAT
IS IF IT HAD NOT BEEN FOR THE
LANGUAGE, JUSTICE PARIENTE, IN
THE AMENDED QUADRO INDICATING
THE DATE OF THE RETIREMENT AS
BEING THE VALUATION DATE ON
THAT, WE CERTAINLY WOULD HAVE
BEEN ABLE TO GO BACK SOMEWHAT
RETRO ACTIVELY AND GONE TO THE
DATE OF RETIREMENT AT THAT
TIME IN 1998 AND LIKELY COME
UP WITH THE SAME SCENARIO AND
PROBABLY DOWN TO THE PAYMENT
AMOUNT, AS THE COURT WAS ABLE
TO DO, BECAUSE THEY HAVE THAT
CLARITY.
I SEE -- MY REBUTTAL TIME, IF
IF I MAY...
>> MAY IT PLEASE THE COURT,
FOR MISS BRENDA NIX SHOULD.
>> LET ME ASK YOU THE QUESTION
I'M NOT SURE.
IS THERE ANYTHING IN THE
RECORD THAT SHOWS HOW THIS
PARTICULAR COUNTY SHERIFFS
RETIREMENT WORKS.
>> THERE IS AN INDICATION,
JUSTICE QUINCE, IN THE RECORD
THAT MR. NIX' HIGHEST FIVE
YEARS WILL BE USED IN THE
CALCULATION OR THE MONTHLY
PAYMENT AND THOSE HIGHEST FIVE
YEARS WILL BE AT THE TIME THAT
HE RETIRES.
THIS PARTICULAR FORMULA,
THOUGH, THAT WAS SET FORTH IN
THE FINAL JUDGMENT, AND IN THE
ORDER OF FINDINGS WAS
SPECIFICALLY LABELED AS A
STIPULATION BETWEEN THE
PARTIES.
THERE IS ONE PARAGRAPH THAT
TALKS ABOUT THE FORMULA, IT
SAYS IT IS A STIPULATION AND
THE COURT THEN MOVES TO THOSE
ISSUES THAT WERE TO BE
LITIGATED, BOTH IN THE ORDER
OF FINDINGS AND THE FINAL
JUDGMENT AND IN THE ORDER OF
FINDINGS, BEGINNING IN
PARAGRAPH 4, IS WHERE WE SEE
THE DATE --
>> LET ME JUST STOP YOU THERE.
THE PROBLEM IS THAT THE
PARAGRAPH THAT HAS THE FORMULA
IN IT, JUST SAYS MONTHLY
PAYMENTS.
AND THAT CAN BE READ -- OR
MAYBE I'M WRONG -- THAT -- CAN
THAT BE READ IN A COUPLE OF
WAYS?
THAT IS THE MONTHLY PAYMENT AT
THE TIME THAT HE ACTUALLY
BEGINS TO RECEIVE PAYMENTS, OR
THE MONTHLY PAYMENT THAT WOULD
HAVE BEEN PAID AT THE TIME OF
THE PETITION.
>> AND IF YOU CAN READ IT IN
THOSE TWO WAYS, DOESN'T
VOYETTE REQUIRE YOU TO READ IT
IN THE WAY THAT IT WOULD HAVE
BEEN THE MONTHLY PAYMENT AT
THE TIME THE PETITION WAS
SNILD I BELIEVE THE SHORT
ANSWER TOWER QUESTION IS NO
AND THE REASON IS WE HAVE MORE
INFORMATION THAN JUST THE
FORMULA SIMPLY HAVING AN
UNKNOWN MONTHLY PAYMENT
QUANTITY.
WE HAVE ANOTHER UNKNOWN VALUE
IN THE FORMULA AND IT IS THE
DENOMINATOR IN THE FRACTION
AND IF WE ACCEPT THE
APELLANT'S ARGUMENT HERE TODAY
WE HAVE TO DETERMINE THAT AS
UNKNOWN VALUE IN THE FORMULA
WAS ACTUALLY DETERMINEABLE AT
THE TIME OF RETIREMENT.
>> THEN IT SEEMS YOU WOULD NOT
HAVE HAD ANEE ENUMERATOR AND
DENOMINATOR YOU WOULD HAVE
BEEN WOULD HAVE HAD A NUMBER
THAT WOULD HAVE BEEN 1/2 OF
WHATEVER THE PAYMENT WOULD
HAVE BEEN AS OF THAT DAY.
>> I BELIEVE CORRECT IF WE
ACCEPT THE PETITIONER'S
ARGUMENT IN THIS CASE, THE
FRACTION COULD HAVE BEEN
REDUCED TO A PERCENTAGE,
BECAUSE WHAT WAS KNOWN AS THE
LENGTH OF THE MARRIAGE AND WAS
IN THE ENUMERATOR, WHAT WAS
ALSO KNOWN AT THE TIME OF THE
DECISION WAS THE DENOMINATOR
WHICH WOULD HAVE BEEN THE
LENGTH OF THE MARRIAGE AS
COMPARED TO THE LENGTH OF
CREDIBLE SERVICE UP UNTIL THAT
POINT.
>> AT THAT POINT.
>> THAT WAS CERTAINLY A VALUE
AND -- SEEMS TO ME FROM
READING THE FRACTION ORDER, IT
IS DESIGNED TO SAY YOU AROUND
TITLED TO A PORTION OF MY
RETIREMENT INSOFAR AS OUR
MARRIAGE INCLUDED MY
EMPLOYMENT.
AS SOON AS MY EMPLOYMENT IS
OUTSIDE THE MARRIAGE YOU ARE
NOT ENTITLED TO THAT ANYMORE
AND IN OTHER WORDS, IF YOU
WERE MY WIFE, FOR 75% OF MY
WORKING YEARS, AS A SHERIFF,
YOU ARE ENTITLED TO 75%.
>> THAT IS CORRECT.
SEEMS TO BE THE GOAL OF THAT
FRACTION.
>> IT IS, AND IF WE ACCEPT THE
OTHER SIDE OF THE ARGUMENT WE
COULD REDUCE TO IT A NUMBER
AND KNOW IT IS AN UNKNOWN
VALUE AND THIS IS THE FORMULA
THAT WAS DISCUSSED AT LENGTH
AND A SHORTHAND FORMULA AND A
STIPULATION BETWEEN THE
PARTIES.
>> YOU ARE YOU WOULD SAY
BECAUSE IT INVOLVES
STIPULATION BETWEEN THE
PARTIES WE SHOULDN'T MESS WITH
IT.
BUT, LET'S --
>> I DO AGREE WITH THAT AND IF
WE --
>> MY PROBLEM, THOUGH, IS
GOING BACK AS I'M LOOKING AT
THE PULO OPINION, YOU AGREE
THEY WERE ABLE TO COME UP WITH
A SOME CERTAIN THAT THE WIFE
WOULD BE ENTITLED TO, IF --
ASSUMING THE RETIREMENT DATE
BEING AT THE TIME OF
DISSOLUTION OF MARRIAGE.
I WILL NOT -- WHETHER THE
PETITION IS FILED OR FINAL
HEARING.
I WON'T GET THAT SPECIFIC.
BUT, WHAT I'M CONCERNED ABOUT,
WHAT HAS HAPPENED IN THESE
OTHER CASES, AND I THINK I
HAVE A MODERATE UNDERSTANDING
OF DROP BECAUSE I CAN'T SAY
THAT I COMPLETELY UNDERSTAND.
IS THAT THOUSANDS ARE GETTING
THE BENEFIT OF A COST OF
LIVING INCREASE AND INTEREST
WHICH IS OCCURRING BECAUSE OF
AN EVENT THAT WAS PUT INTO
PLACE THAT IS REALLY -- AFTER
THE DISSOLUTION OF MARRIAGE
AND SEEMS COMPLETELY CONTRARY
TO BOYETTE AND IF YOU GET MORE
BECAUSE YOU ARE GETTING THOSE
-- THAT PERIOD OF TIME, THAT
DROP, SOMEONE SHOULDN'T
BECAUSE THEY -- ENTERS DROP,
THE ABSENCE OF THE MONEY
SHOULDN'T BE PENALIZED BUT
SHOULDN'T GET A WINDFALL.
ISN'T THAT REALLY THE GOAL OF
WHAT WE ARE TRYING TO DO HERE.
>> I AGREE BUT IN THIS CASE,
AGAIN --
>> GO BACK TO PULO, THOUGH, AS
LONG AS THE SPOUSE GOT THAT
AMOUNT, WHATEVER, $1900, OR A
MONTH, STARTING AT THE TIME OF
THE PROJECTED RETIREMENT, WHY
SHOULD THE SPOUSE ACTUALLY GET
MORE THAN WHAT HAD BEEN VALUED
AT THE TIME OF THE DISSOLUTION
OF MARRIAGE.
>> WELL, I BELIEVE OUR
ARGUMENT WOULD BE THE SPOUSE
SHOULD GET -- HIS OR HER --
THE NONPARTICIPANT SPOUSE
SHOULD GET HIS OR HER MONEY
THAT THEY WOULD HAVE RECEIVED
IF NOT FOR THE ELECTION OF THE
DROP ACCOUNT AND PLUS ANY
INTEREST, BECAUSE IT WOULD BE
UNFAIR FOR THE PARTICIPANT
SPOUSE TO RECEIVE INTEREST ON
MONEY OF THE NONPARTICIPANT
SPOUSE THAT HAS BEEN FOR
BETTER -- A BETTER WORD,
HIJACKED INTO THE DROP
ACCOUNTED FOR FIVE YEARS.
>> WHAT I UNDERSTOOD, THE
WHOLE PLAN SHOULD BE HERE, IS
THAT THE DROP IS A -- IS
REALLY A DEFERRED PAYMENT
MECHANISM.
AND -- AND BUT FOR THE DROP,
THE PERSON WOULD HAVE RETIRED
FIVE YEARS EARLIER.
AND SO THERE IS A DEFERRED
PAYMENT OF THAT AMOUNT UNTIL
THE PERSON ACTUALLY RETIRES.
SO ON THE AMOUNT THAT GOES
INTO THE DROP, THAT PORTION
WHICH WOULD HAVE BEEN PAID TO
THE SPOUSE ON THE ACTUAL DATE
OF RETIREMENT, WOULD ACCRUE
INTEREST ON THE -- THAT AMOUNT.
I DON'T KNOW ABOUT COST OF
LIVING ACCRUALS BUT IT SEEMS
TO ME TO BE KIND OF A
DIFFERENT SITUATION.
>> EVEN WITH THE COST OF
LIVING ACRUELS, IT WOULD BE
UNFAIR FOR THE PARTICIPANT
SPOUSE TO RECEIVE COST OF
LIVING PERCENTAGE INCREASES ON
MONEYS THAT WERE ALLOCATED TO
THE SPOUSE AS HER -- HIS OR
HER SEPARATE PROPERTY IN THE
DISSOLUTION OF THE FINAL
JUDGMENT SO TO THE EXTENT THAT
THAT DROP ACCOUNT IS GROWING,
EITHER THROUGH INTEREST OR
THROUGH COST OF LIVING
ADJUSTMENTS, ALL -- THE
NONPARTICIPANT SPOUSE SHREVE
IS THE COLAS AND INTEREST ON
HER SHARE AND NOT ASKING FOR
ANY MONEY THAT WOULD HAVE
ACCRUED ON THE PARTICIPANT
SPOUSE'S SHARE AND TO THE
EXTENT WE AC -- ACCEPT THE
STIPULATED FORMULA IN THIS
CASE WE KNOW EXACTLY HOW MUCH
THE NONPARTICIPANT SPOUSE
SHOULD BE ENTITLED TO.
>> MAYBE MY -- MY CONCERN AND
MAYBE YOU CAN ADDRESS THIS,
MAYBE THE PROBLEM IS THAT THE
ISSUE IS WHEN IS THE
RETIREMENT DATE?
BECAUSE YOU CAN ACCRUE --
START TO GET INTO DROP, FIVE
YEARS BEFORE YOUR ACTUALLY
RETIREMENT DATE, OR YOU COULD
DECIDE NOT BEING DROPPED TO
WORK BEYOND YOUR RETIREMENT
DATE.
IS UNDER THESE -- UNDER THE
OPINIONS AND THE WAY IT IS
ACTUALLY HAPPENING IN THE REAL
WORD, IF, SAY, TAKE THE LATTER
SITUATION, SOMEONE DECIDES NOT
TO GO INTO DROP AND THEN THEY
DECIDE STEAD OF -- INSTEAD OF
RETIRING AT AGE 62 OR 65
THEY'LL WORK TO AGE 70.
DOES THE SPOUSE GET THE MONEY
STARTING ON WEDNESDAY -- ON
WHEN THE ANTICIPATED
RETIREMENT WAS AT THE TIME OF
THE -- DISSOLUTION OF MARRIAGE
OR WHAT ACTUALLY HAPPENS IN
THE REAL LIFE SCENARIO.
>> WELL, I THINK THE WAY THE
REGULATIONS READ, AND I'M NOT
SURE IF IT IS THE PULO CASE OR
THE CASE FROM THE 4th DISTRICT
WHICH TALKS ABOUT THE
REGULATIONS FOR DROP, WHICH,
WHEN DROP IS ELECTED, THAT IS
ACTUALLY THE RETIREMENT DATE.
THE EMPLOYEE IS CONSIDERED A
RETIREE FOR MANY PURPOSES
INCLUDING RECEIVING THESE
PENSION BENEFIT PAYMENTS.
>> BUT, IS THE -- SOME DATES
IT MAY BE AFTER RETIREMENT.
BUT YOU CAN ACTUALLY START A
DROP BEFORE -- BEFORE YOU WERE
INTENDING TO RETIRE.
THE DATE GIVEN FOR WHATEVER
REASON THIS INCENTIVE TO SAY
WE WANT THEM OUT OF THE SYSTEM
QUICKER THAN THEY MIGHT HAVE
BEEN OTHERWISE.
>> THE TERMS THAT HAVE BEEN
USED IN THE CASE IS THE
RETIREMENT DATE THIS IS DATE
THE DROP IS ELECTED AND
CONTRIBUTIONS BEGIN TO GO INTO
THE DROP ACCOUNT AND THERE IS
AN EMPLOYEE TERMINATION DATE
WHICH IS UP TO FIVE YEARS
LATER.
SO DURING THAT LAST FIVE YEARS
OF EMPLOYMENT, THE EMPLOYEE IS
RETIRED FOR PURPOSES OF THE
RETIREMENT PLAN AND PENSION
PLAN, STILL ACTING AS AN
EMPLOYEE --
>> WHAT IT DOES, WHAT DROP
DOES IS FIX THE AMOUNT OF THE
RETIREMENT AS OF THE DATE THAT
YOU GO INTO THE DROP PROGRAM.
THEN, YOU DON'T DRAW THE MONEY
OUT UNTIL THE END, WHEN YOU
ACTUALLY RETIRE.
AND DURING THAT PERIOD OF TIME,
THERE IS AN ACCUMULATION ON
THE DROP ACCOUNT.
AND BECAUSE, RATHER THAN YOU
GETTING YOUR MONEY THAT GOES
INTO THE ACCOUNT, THAT IS WHAT
THE DROP IS NOW.
NOW I THINK BOYETTE WAS
CENTERED AROUND THE IDEA THAT
YOU COULD FIX AS OF THE DATE
OF THE PETITION WHAT THE
ACTUAL AMOUNT OF THE
RETIREMENT BENEFIT WAS GOING
TO BE.
AND VALUE IT, AS OF THAT DATE.
>> THAT'S CORRECT AND THE
COURT SAID IN BOYETTE THAT IN
VALUING A PLAN AND IF THIS WAS
YOUR MARRIAGE YOU SHOULD NOT
INCLUDE IN THE NONPORP PANT
SPOUSE'S SHARE ANY POST
MARRIAGE ENHANCEMENTS OR
CONTRIBUTION AND THAT IS NOT
WHAT WE ARE ASKING FOR IN THIS
CASE, ALL WE ARE ASKING FOR IN
THIS CASE IS TO THE EXTENT
SEPARATE PROPERTY WAS AWARDED
TO MISS NIX IN THIS CASE AND
TO THE EXTENT, HER FORMER
HUSBAND MAKES AN ELECTION TO
ENTER INTO A DROP ACCOUNT AND
DEFER, NOT ONLY HIS SHARE OF
THE PENSION BENEFITS BUT HERS
INTO A DROP PLAN, SHE SHOULD
BE ENTITLED TO ANY OF THOSE
ENHANCEAL THAT COME FROM
SIMPLY THE ACCRUALS AND
INTEREST AND COLAs
ATTRIBUTABLE ONLY TO HER
SHARE.
>> YOU AGREE HER SHARE IS
SIMPLY WHAT IT WOULD HAVE BEEN
AS OF THE DATE OF THE
PETITION.
>> I AGREE THAT --
>> I AGREE HER SHARE IS AS
STATED IN THE FORMULA IN THE
FINAL JUDGMENT.
I DO NOT AGREE THAT WE HAVE TO
MOVE TO PARAGRAPH 4 IN THE
ORDER OF FINDINGS TO PICK UP A
VALUATION DATE WHICH WAS
CLEARLY USED BY THE TRIAL
COURT --
>> LET ME BACK UP.
DO YOU AGREE THAT THIS
RETIREMENT WAGS VESTED AND
MATURED?
>> I DO AGREE WITH THAT.
>> AND COULD THE DOLLAR --
MONTHLY PAYMENT AMOUNT HAVE
BEEN DETERMINED IF THE
ATTORNEYS SPENT THE TIME AN
EFFORT TO TRY TO DETERMINE
WHAT THE PAYMENT AMOUNT WAS.
>> I AGREE, NOT ONLY THE
MONTHLY PAYMENT BUT THE
DENOMINATOR AND TO SOME EXTENT
MAY HAVE ACQUIRED ADDITIONAL
TESTIMONY WHICH MAY HAVE BEEN
THE REASON IN THIS CASE THERE
IS A SHORTHAND STIPULATED
FORMULA.
>> AND I AGREE, I MEAN, THAT
IS -- OFTEN HAPPENS BECAUSE
THINGS GET HECTIC AND DON'T
TAKE THE TIME, BECAUSE THEY
WORRY ABOUT IT UNTIL I LATER
TIME AND YOU AGREE THAT
DENOMINATOR COULD HAVE BEEN
DETERMINED AT THE TIME OF THE
FINAL JUDGMENT.
>> AND MONTHLY PAYMENT AND NOT
ONLY COULD THE DENOMINATOR
BEEN DETERMINED IT WOULD HAVE
BEEN EASILY DETERMINABLE
BECAUSE THE HUSBAND'S LENGTH
OF SERVICE AT THAT POINT WAS
EQUAL TO THE --
>> EQUAL TO THE LENGTH OF THE
MARRIAGE.
>> I BELIEVE IN THIS CASE THE
HUSBAND MAY HAVE STARTED
SOMETIME BEFORE, WHICH WOULD
HAVE GIVEN HIM SOME DISCOUNT
FOR THOSE -- YOU KNOW,
PRE-MARITAL CONTRIBUTIONS TO
THE PLAN.
>> WHICH WOULD HAVE BEEN 99
OVER 100.
>> I'M NOT EVEN SURE THAT THE
RECORD IS CLEAR ON THIS POINT
BUT CERTAINLY THE HUSBAND WAS
THERE, TESTIFYING IN COURT,
HIS WIFE WAS THERE.
>> AND LET ME ASK YOU A
QUESTION.
DIDN'T YOU AGREE THAT NUMBER
COULD HAVE BEEN DETERMINED AND
-- THEN AND CAN BE DETERMINED
NOW.
>> I DO AGREE WITH THAT BUT I
ALSO ASSERT TO THE COURT THAT
THE REASON IT WASN'T
DETERMINED IS BECAUSE AND THE
REASON THE MONTHLY PAYMENT WAS
NOT DETERMINED IS BECAUSE
THOSE WERE UNKNOWN VALUES AS
READ BY THE LOWER COURT HERE,
AND IS --
>> ARGUING EQUITY AND FAIRNESS
ABOUT THE COLA AND INTEREST,
WHAT IS YOUR EQUITABLE
FAIRNESS ARGUMENT THAT YOUR
CLIENT SHOULD BENEFIT IN THE
ADDITIONAL PAYMENTS THAT
MR. NIX WILL BE GIVING BECAUSE
OF HIS ADDITIONAL EMPLOYMENT?
>> YOUR HONOR, I DON'T BELIEVE
IT IS CLEAR FROM THE RECORD
THAT MISNIX IS GOING TO
BENEFIT FROM THOSE FUTURE
PAYMENT AND THIS IS WHY.
YOU HAVE AND IN -- POTENTIALLY
INCREASING PAYMENTS AS MR. NIX
MAKES HIGHER AND HIGHER
SALARIES AND THE MONTHLY
PAYMENT AMOUNT GOES UP BUT YOU
HAVE -- WE ALL CAN SEE WE HAVE
A DECREASING FRACTION BECAUSE
THE DENOMINATOR OF THE
FRACTION IS GROWING AS
MR. NIX'S TIME AND SERVICE
GROWS.
SO, YOU HAVE A DECREASING
PERCENTAGE OF AN INCREASING
AMOUNT.
I WOULD STATE NONE OF US HERE
ARE CAPABLE OF DECIDING
WHETHER MISNIX BY USING THE
SHORTHAND FORMULA AS
STIPULATED BY THE PARTIES, I
ASSERTED THERE IS NO WAY WE
CAN TELL THAT SHE IS GOING TO
RECEIVE POST-MARITAL
CONTRIBUTIONS.
>> WHAT YOU ARE SAYING AS I
UNDERSTAND IT, WHEN WE LOOK AT
THE FORMULA, THE 27 YEARS AND
SEVEN MONTHS, AT THE TIME OF
THE MARRIAGE, LET'S JUST
ASSUME FOR THE SAKE OF
ARGUMENT THAT MR. NIX HAD
WORKED FOR 29 YEARS.
AS A SHERIFF SO THAT
DENOMINATOR WOULD BE 27.7 OVER
29.
>> CORRECT.
>> BUT, NOW, THAT HE IS -- HAS
WORKED AN ADDITIONAL NINE
YEARS, SAY, THAT DENOMINATOR
IS NOW 30-SOMETHING.
AND SO, THE FRACTION OF 27.7
OVER THE 30, BECOMES SMALLER
IN MRS. NIX'S FAVOR AND SO WE
DON'T KNOW THAT SHE IS GETTING
MORE BECAUSE OF THE MONTHLY
PAYMENT WHEN SHE MIGHT BE
GETTING LESS BECAUSE OF THE
LARGER DENOMINATOR.
>> CORRECT.
>> IS THAT BASICALLY WHAT YOU
ARE SAYING.
>> AND THAT IS THE
GIVE-AND-TAKE I BELIEVE IN THE
STIPULATION.
I -- I MEAN, IT IS NOT JUST
THAT MRS. NIX HAD THE ABILITY
TO RECEIVE SOME PERCENTAGE OF
IN A KREEKZ -- INCREASING
PAYMENT AMOUNT SHE TOOK THE
RISK THAT SHE IS GETTING A
LOWER PERCENTAGE WHICH IS
COMPLETELY IN THE CONTROL OF
HER HUSBAND.
HAD MR. NIX ELECTED TO HE
COULD HAVE RETIRED --
>> SEEMS TO ME EVERYTHING YOU
ARE SAYING MAKES ME REALIZE
THAT I DON'T SEE HOW WE TAKE
THIS CASE AN DECIDE IT.
BECAUSE PULO, THE BIG CASE AND
THERE IS A STRONG DISSENT
THERE, IT WAS A SPECIFIC
AMOUNT THAT WAS DETERMINED, SO
IS THIS DISTINGUISHABLE FROM
-- EVEN IF YOU AGREE WITH PULO,
YOU COULD WIN EVEN IF WE
DISAGREED WITH.
>> IT IS HARD TOR FOR ME TO
DISAGREE WITH THAT, JUSTICE
PARIENTE.
>> THAT IS EXACTLY OUR
ALLEGATION, THE CASE IS BASED
ON A STIPULATION.
>> IT IS, AND, YOU KNOW, THERE
HAS BEEN ARGUMENT, SEVERAL
YEARS LAPSE BETWEEN THE QUADRO
AND THE FINAL JUDGMENT THAT
THAT SHOULD MAKE A DIFFERENCE
AND WE DON'T BELIEVE THAT
MAKES A DIFFERENCE HERE.
IN FACT THE FORM -- FORMULA AS
REFLECTED IN THE FINAL
JUDGMENT IS WHAT IS REFLECTED
IN THE AMENDED QUADRO.
AND --
>> AND DO YOU AGREE, AGAIN,
ONE OF THE BIG ISSUES SEEMS TO
BE HOW DO YOU LOOK AT DROP AND
THE SON AND HUSBAND IN THIS
CASE WAS -- DIDN'T GO INTO
DROP -- DOESN'T QUALIFY FOR
DROP AND WOULD BE PURELY
ADVISORY ON THAT ISSUE.
>> WELL, AND WE EVEN SET THAT
OUT IN OUR BRIEF, TO THE
EXTENT THE FORMER HUSBAND IS
NOT ELIGIBLE FOR A DROP PLAN I
GUESS THE ISSUE IS MOOT AND TO
THE EXTENT HE HAS A FUTURE
ABILITY THEORETICALLY TO BE
ELECTED TO PUBLIC OFFICE AND
MAYBE AT THAT TIME, BECOME
ELIGIBLE AGAIN, I WOULD ARGUE
THE ISSUE ISN'T RIPE YET.
BUT TO THE EXTENT THE COURT IS
GOING TO MAKE A DETERMINATION
ON THAT ISSUE, IT WOULD BE
INCONCEIVABLE THAT A
PARTICIPANT SPOUSE COULD ELECT
A DROP PLAN, DEFER NOT ONLY
HIS BUT HIS WIFE'S SEPARATE
PROPERTY, FROM THE DISSOLUTION
INTO A DROP PLAN, AND THAT NOT
ONLY DOES SHE NOT GET ANY
INTEREST, OR OTHER
ACCUMULATIONS ON IT, SHE JUST
SIMPLY DOESN'T GET IT ALL AND
WOULD BE UNJUST.
>> THE SPOUSE ADVOCATING
THROUGH THE LAWYER REALLY HAS
THREE OPTIONS -- I SEE AS
THREE OPTIONS AT THE TIME OF
THE DISSOLUTION, ACTION
ASSUMING THE HUSBANDS IN
AGREEMENT AND ONE IS TO TRY TO
COME UP WITH A PRESENT VALUE
AND JUST EVEN THOUGH THE
SPOUSE MAY OR MAY NOT HAVE
THAT, THAT DEPENDS IF THERE IS
OTHER MONEY TO PAY OFF THE
SPOUSE AND FIGURE OUT WHAT IS
THAT FUTURE VALUE AND REDUCE
TO -- LUMP SUM, CORRECT?
IT CAN BE DONE.
>> IT CAN BE BUT OFTENTIMES,
IN MY PRACTICE OF FAMILY LAW,
OFTEN YOU NEED AN EXPERT TO DO
THAT AND SIMPLY, DON'T HAVE
THE RESOURCES, THIS FORMULA --
>> THAT IS ONE OF THE OPTIONS
AND WHEN THAT HAPPENS, ALL
FUTURE LITIGATION IS GONE, BUT
IT IS A MORE COMPLICATED
METHOD AND REQUIRES EXPERT
TESTIMONY, CORRECT?
>> IT IS AND I THINK THAT IS
WHY THE FINAL JUDGMENT AND
ORDER OF FINDINGS, LISTS FIRST
THE STIPULATION.
AND THEN, TALK ABOUT VALUATION
AND THEN THERE ARE PAGES IN
THE ORDER OF FINDINGS FOR THAT
VALUATION -- BEFORE THE DATE
IS ACTUALLY APPLIED TO
DETERMINE VALUES OF ASSETS.
>> -- WOULD AGREE -- WOULD YOU
AGREE THAT WE COULD IN FACT --
THE LOWER COURT, NOT US, SET
US SO BACK ON THIS CASE AND
FIGURE OUT A DENOMINATOR AS OF
THE DATE OF THE FILING OF THIS
PETITION, AND COME UP WITH A
MONTHLY PAYMENT BASED ON THAT.
>> I AGREE WITH THAT.
JUSTICE QUINCE, THE ONLY
PROBLEM IS BECAUSE THERE WAS A
STIPULATION IN THIS CASE AND
WE HAVE THE TWO UNKNOWN
VARIABLES, THERE IS ONLY ONE
WAY TO INTERPRET THAT, IF WE
WANTED TO GO BACK AND INSERT
THAT DENOMINATOR WE'D HAVE TO
MAKE THE ASSUMPTION THAT THERE
WAS SOME EARLIER VALUATION
DATE WHICH IS NOT SUPPORTED IN
THE RECORD.
>> THANK YOU, IF THERE ARE NO
OTHER QUESTIONS?
THANK YOU.
>> THANK YOU VERY MUCH.
>> MAY IT PLEASE THE COURT,
BRIEFLY, ADDRESSING JUSTICE
CANTERO ON THE ISSUE OF THE
STIPULATION, THERE WAS NOT A
STIPULATION IN THIS CASE WITH
RESPECT TO PARAGRAPH FIVE OF
THE AMENDED QUADRO.
THAT IS WHERE THE LANGUAGE
THAT STATES THAT THE VALUATION
WILL BE AT THE TIME OF
RETIREMENT, THAT IS WHERE THAT
ISSUE COMES INTO PLAY AND IT
WAS HOTLY DEBATED AND VACATED
AND THEN THE ORDER WAS
NEVERTHELESS, ENTERED AGAIN BY
THE JUDGE BECAUSE EACH SIDE
SUBMITTED COMPETING ORDERS
WITH REGARD TO THAT.
BUT --
>> STIPULATION WAS -- I'M
SORRY TO INTERRUPT.
THE STIPULATION WE AGREE WAS
TO THE FORMULA ITSELF, A
FORMULA WHICH DOES -- AND I
THINK JUSTICE BELL MIGHT HAVE
BEEN LOOKING AT THIS ALSO, THE
DENOMINATOR ON THAT DOES WORK
TO THE ADVANTAGE OF MR. NIX AS
TIME GOES ON BECAUSE IT SERVES
TO DECREASE, IF YOU WILL, THE
PER-SHARE OF THAT BASED ON HIS
EXTENDED YEARS OF SERVICE\\""$$
POST-SIS SOLUTION AND IF IT
HAD BEEN SALE -- DISSOLUTION
AND IT -- PERHAPS IF COUNSEL
FOR MS. NIX WENT,,,,,,,,,,
DON'T SEE HOW THAT FORMULA
WOULD'VE BEEN STATED THE WAY
IT WAS.
IF YOU INTENDED IT TO BE AT
THE TIME OF THE PETITION,
THE DENOMINATOR WOULD'VE
SAID SO.
IT WOULDN'T HAVE SAID NUMBER
OF YEARS OF EMPLOYMENT.
IT WOULD'VE SAID NUMBER OF
YEARS OF EMPLOYMENT AT THE
TIME THE PETITION WAS FILED.
>> THE THAT WE STIPULATED TO
IS, IS, IS NOT THE SAME
THING AS THE LANGUAGE WE
OBJECTED TO IN THE AMENDED
QUADROW, I MEAN THAT'S THE
WHOLE BASIS OF OUR APPEAL
WITH ALL DUE RESPECT TO DCA.
WE CLEARLY OBJECT WITH THAT.
THE FORMULA IS DELOACH.
WE FOLLOWED THE LAW WITH
RESPECT TO THE FORMULA IN
REVIEWED DISTRIBUTION
SCHEMES.
WHERE THIS WANT AFOUL AND
WHERE OBJECTIONS LED UP TO
THIS COURT WAS WHERE THE
RETIREMENT DATE WAS USED AS
VALUATION OF PAYMENTS.
IT WOULD BE HIS HIGHEST YEAR
OF INCOME.
>> YOU ARE SAYING FOR THE
MONTHLY PAYMENT PRONG?
>> YES, SIR.
>> I DON'T SEE HOW ON THE
ONE HAND YOU CAN SAY THAT
THE LENGTH OF YEARS OF
EMPLOYMENT CAN BE USED FOR
THE DENOMINATOR BUT THEN THE
MONTHLY PAYMENT HAS TO BE
FROZEN AT THE TIME OF THE
PETITION.
>> BECAUSE IF WE TAKE HIS
HIGHEST YEARS, IF YOU LOOK
AT HOW HIS PENSION AMOUNT
MONTHLY IS GOING TO BE
CALCULATED, IT IS GOING TO
BE HIGHER MONTHLY NOW AS A
RESULT OF HIM HAVING NINE
MORE YEARS OF SERVICE THAN
IT WOULD'VE BEEN AT THAT
TIME AND I UNDERSTAND
COUNCIL'S ARGUMENTS THAT WE
DON'T EVEN KNOW OR AT LEAST
THEY ARE TAKING THE POSITION
THAT THEY DON'T EVEN KNOW
WHETHER OR NOT MS. 96 WOULD
BENEFIT FROM HAVING THE
RETIREMENT VALUE I WOULD
SERIOUSLY DOUBT IF THEY
WOULD ARGUE UP TO THIS COURT
AND OBJECT IF THERE WAS SOME
BENEFIT.
>> HOW ABOUT THIS?
WOULD YOU BE SATISFIED IF
THE DENOMINATOR IS FROZEN AT
WHATEVER NUMBER OF YEARS HE
HAD AT THE TIME OF THE
PETITION, IN ADDITION TO THE
MONTHLY PAYMENT BEING FROZEN
AT THAT TIME.
>> WELL, I THINK AT THAT
TIME, AND JUSTICE QUINCE, TO
THE EXTENT, AND I DON'T KNOW
THE ANSWER TO THE EXACT
NUMBER OF YEARS OF SERVICE
MR. NIX HAD AT THAT TIME.
IT MIGHT'VE BEEN THE
FRACTION OF THE DENOMINATOR.
IT MIGHT WELL HAVE BEEN 1
OVER 1.
277, 277 AT ONE TIME.
1.5 TIMES.
THERE'S OUR ARGUMENT
BAROBECAUSE YOU ARE LOOKING
AT A MONTHLY PAYMENT THAT
WOULD'VE BEEN AT THE TIME OF
RETIREMENT.
>> IN ANSWER TO THE QUESTION,
YES, YOU WOULD'VE BEEN
SATISFIED IF THE DENOMINATOR
IS FROZEN IN ADDITION TO THE
MONTHLY PAYMENT BEING FROZE
SNN.
>> I THINK FREEZE!!ING THE
DENOMINATOR IS INCONSISTENT
WITH DELOACH AND THE LAW WE
NEED TO FOLLOW ON DEFERRED
DISTRIBUTION.
>> IT SEEMS TO ME IF YOU ARE
NOT FREEZING THOSE YOU ARE
PUTTING MRS. NIX AT A REAL
DISADVANTAGE BECAUSE SHE
UNDS UP WITH A SMALLER
PERCENT BLG ON A SMALLER
AMOUNT.
WHAT YOU WANT IS A SMALLER
PERCENTAGE ON, -- IT'S NOT
BEING FAIR TO HER IT SEEMS
TO ME.
IF YOU ARE GOING TO FREEZE
ONE, YOU HAVE GOT TO FREEZE
BOTH OF THOSE AT THE TIME
THAT THE PETITION IS FILED.
>> I, I DON'T KNOW, JUSTICE
QUINCE.
I UNDERSTAND YOUR ARGUMENT,
AND I DON'T MEAN TO BE
COMBATIVE WITH YOU, BUT I
THINK THAT THAT WOULD -- IF
A PRACTITIONER DID THAT IN
THE NINETY-FIRST DISTRICT
RIGHT NOW I BELIEVE YOU
WOULD RUN AFOUL OF DELOACH,
BECAUSE THERE IS, AND
JUSTICE SERVANT POINTS THIS
OUT --
>> BUT I THINK PART OF YOUR
ARGUMENT BOYETT CHANGED
DELOACH ANYWAY.
>> THERE IS A PORTION OF
DELOACH WHICH IS SUBJECT TO
A BOYETT CONSIDERATION, AND
THAT'S WHAT JUSTICE IRVINE
POINTS OUT IN HIS --
>> WITH OUR ASSISTANT, YOU
HAVE YULE UTILIZED YOUR TIME,
WELL OVER.
>> WE ASK THE COURT --
>> ALL RIGHT.
THANK YOU VERY MUCH.
>> THANK YOU.
>> WE THANK YOU FOR THE FINE
ARGUMENTS.
WE'LL TAKE THE CASE UNDER
CONSIDERATION.