Florida/Georgia Personal Injury & Workers Compensation

...The Court therefore must disagree with Plaintiff's characterization of the funds received from the retirement system as wages — the funds are income distributed on account of Plaintiff's retirement. The Court must also reject Plaintiff's contention that the fund is exempt under Florida Statute 185.25. F.S. 185.25 "Exemption from execution" is an entirely different pension established for police officers and is funded by contributions of foreign casualty insurance companies....

...y the City's recalculation of his pension on the ground that a property distribution order cannot be modified. Accordingly, we remand this matter for recalculation of the distribution of the EORT, considering the actual amount Husband receives. QDRO Section 185.25, Florida Statutes, exempts municipality or local law plans and pensions from "execution or attachment or [from] any legal process whatsoever and shall not be assignable." § 185.25, Fla....

...It is funded solely by the Debtor through voluntary and regular wage deductions. The Debtor argues that, pursuant to 11 U.S.C. § 541(c)(2), the Plan is not property of the estate and that, even if it were, it is exempt under 11 U.S.C. § 522(b) and Florida Statute §§ 185.25 & 222.11....

...ficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law . . ." 11 U.S.C. § 541(c)(2). Hence, the Debtor's interest in his Plan is not property of the estate pursuant to 11 U.S.C. § 541(c)(2). Florida Statute § 185.25 The purpose of Chapter 185 of Florida Statutes ("Municipal Police Officers' Retirement Trust Funds") is to provide a uniform retirement system for the benefit of police officers as hereinafter defined and intends, in implementing the provisions of s....

...uch retirement systems or plans be managed, administered, operated, and funded in such manner as to maximize the protection of police officers' retirement trust funds. Fla.Stat. § 185.01 ("Legislative declaration") (emphasis added). Florida Statute § 185.25 ("Exemption from execution") provides, with emphasis added: The pensions, annuities, or any other benefits accrued or accruing to any person under the provisions of this chapter and the accumulated contributions and the cash securities in t...

...ted from any state, county or municipal tax of the state and shall not be subject to execution or attachment or to any legal process whatsoever and shall be unassignable. The Creditor argues that the Debtor's Plan is not exempt pursuant to Fla.Stat. § 185.25 in light of this Court's holding in In re Harrington, 70 B.R. 301 (Bankr. S.D.Fla.1987) (Cristol, J.). However, the Harrington case has no bearing on the issue of whether the Debtor's Plan is exempt pursuant to Fla.Stat. § 185.25 since the plan at issue in Harrington was not a plan under Chapter 185 of Florida Statutes....

...185 fund was not garnished by Defendant and is not the subject of this preference litigation."). The Debtor's Plan appears to be a "[benefit] *1008 accrued or accruing to [a] person under the provisions of this chapter" within the meaning of Fla.Stat. § 185.25....

...[7] Moreover, the Creditor has not alleged, let alone proven, otherwise. See Fed.R.Bankr.P. 4003(c) ("[T]he objecting party has the burden of proving that the exemptions are not properly claimed."). Hence, the Debtor's interest in his Plan is exempt pursuant to Fla.Stat. § 185.25....

...n plan is overruled since: 1) under 11 U.S.C. § 541(c)(2), the Plan is not property of the estate, and 2) even if the Plan were property of the estate, the Creditor has not met her burden of proving that the Plan is not exempt under Florida Statute § 185.25....

...ct, such as creditors of the participant, it would no longer be a "restriction on the transfer of a beneficial interest of the debtor in a trust" for purposes of 11 U.S.C. § 541(c)(2). [7] Although the Creditor has not argued that even if Fla.Stat. § 185.25 applies, the Debtor's interest in his Plan is not exempt from her claim due to it's alleged support nature (see footnote # 1), the Court feels compelled to discuss this issue....

...§§ 61.1301 and 61.046(4), "which, respectively, mandate the entry of income deduction orders for court-ordered alimony and child support and define the `income' subject to such orders, implicitly repeal" Fla.Stat. § 175.241. Florida Statute § 175.241 is virtually identical to Fla.Stat. § 185.25 except that it applies to firefighters' pension benefits instead of police officers'. Thus, the Alvarez holding is equally applicable to Fla.Stat. § 185.25. However, the Creditor does not argue that her claim exists pursuant to Fla.Stat. §§ 61.1301 and 61.046(4). The Court's decision to hold the Debtor's interest in his Plan exempt pursuant to Fla.Stat. § 185.25 is founded upon sound policy....

...ation. See id. Payment of Pension as Alimony The final judgment directed the Husband to pay a portion of his pension to the Wife as alimony because a municipal pension is not subject to equitable distribution by a qualified domestic relations order. § 185.25; Edwards v....

...They argued, as they do here, that under Florida and federal law, QDRO's cannot be used to force direct payment to a non-participating spouse of a part of a participating spouse's municipal *232 pension benefit as part of an equitable distribution plan. They point to section 15 of the city's pension plan and section 185.25, Florida Statutes, which apply to this pension plan....

...as they become payable to the individual being paid the pension or other benefit. These limitations shall not apply to accumulated member contributions of an individual who is neither a participant or a vested former participant. (emphasis supplied) Section 185.25 makes the following exempt from tax and execution: For any municipality, chapter plan, local law municipality, or local law plan under this chapter, the pensions, annuities, or any other benefits accrued or accruing to any person under...

...of the state, and shall not be subject to execution or attachment or to any legal process whatsoever and shall be unassignable. (emphasis supplied) The trial court ruled that Langford had waived the anti-alienation provisions of the pension plan and section 185.25, Florida Statutes, by agreeing in the settlement to divide the plan as part of an equitable distribution of his and his wife's marital assets, and by his agreement to entry of an appropriate apportionment order....

...provisions and the pension plan agreed to honor an alternative order. We reluctantly agree with Vizcaino that we are not authorized in the construction of a statute to create exceptions not specifically made. The special act creating the pension and section 185.25 purport to make the benefits wholly "unassignable," even to spouses, unless the award is for *234 alimony or child support....

...has not had an opportunity to address this issue and because it is a recurring problem in resolving family law cases, we certify the following question as one of great public importance: DO THE EXEMPTIONS FROM ALIENATION, ASSIGNMENT AND EXECUTION IN SECTION 185.25, FLORIDA STATUTES, BAR A COURT FROM ORDERING DIRECT PAYMENTS FROM A MUNICIPAL PENSION PLAN TO A FORMER SPOUSE AS PART OF AN EQUITABLE DISTRIBUTION OF MARITAL ASSETS ORDERED BY A DISSOLUTION COURT OR PROVIDED FOR IN A MARITAL SETTLEMENT AGREEMENT? Accordingly, we reverse and remand this cause to the trial court....

...SHARP, W., J., concurring in part and dissenting in part. Having written the foregoing opinion with which I agree, I now depart by way of dissent because I think this case can be distinguished from Vizcaino on the ground that the former husband in this case waived his statutory exemption under section 185.25 and the plan, by entering into a marital settlement agreement in which he expressly agreed the pension was a marital asset and that it should be distributed to the former wife by various means, including the one sought to be implemented by the trial court....

...equitable distribution plan, the Fifth District Court of Appeal reluctantly agreed with Vizcaino, noting that "we are not authorized in the construction of a statue to create exceptions not specifically made. The special act creating the pension and section 185.25 purport to make the benefits wholly `unassignable', even to spouses, unless the award is for alimony or child support....

...Onett, Miami, for respondents. PER CURIAM. Certified question [1] from the Third DCA, reported at 269 So.2d 45 (1972), brings for review the following proposition: Whether or not funds contributed to a pension and retirement fund are exempt, under section 185.25, Florida Statutes, from being reached in an equity proceeding after they have come into the possession of the beneficiary or his personal representative....

...ere obviously the only ones to which the lender could have looked for satisfaction and without which she otherwise would not have advanced the needed monies. We recognize the sanctity of such pension funds and continue to hold strictly to Fla. Stat. § 185.25, F.S.A., which prevents the reaching of such funds by garnishment, attachment or other such legal process....

...It is so ordered. *521 ADKINS, Acting C.J., McCAIN and DEKLE, JJ., and SPECTOR, District Court Judge, concur. BOYD, J., dissents with opinion. BOYD, Justice (dissenting): I respectfully dissent. The majority opinion conflicts with Florida Statutes § 185.25 [1] , F.S.A., which specifically provides that trust funds of municipal police officers are not subject to execution or attachment "or to any legal process whatsoever and shall be unassignable." When the former wife of Glenn L....

...ccept this part of the corroborated proofs. Two of the three district judges affirmed the sufficiency of the evidence to support the judgment. [4] See Williams v. Grogan, 100 So.2d 407 (Fla. 1958); Grapes v. Mitchell, 159 So.2d 465 (Fla. 1963). [1] "185.25 Exemption from execution The pensions, annuities, or any other benefits accrued or accruing to any person under the provisions of this chapter and the accumulated contributions and the cash securities in the funds created under this chapter ar...

but I do not agree with his interpretation of § 185.25, Fla.Stat., F.S.A., this statute did not exempt

garnishment for the debts of one of its participants. Section 185.25, Florida Statutes (1989); Section 13, Town