LexyCorpus case page
CourtListener opinion 8595772
Date unknown · US
- Extracted case name
- pending
- Extracted reporter citation
- pending
- Docket / number
- pending
Machine-draft headnote
Machine-draft public headnote: CourtListener opinion 8595772 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to pension / defined benefit issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.
Retrieval annotation
Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.
Category: pension / defined benefit issues
Evidence quotes
QDRO“. Case No. 502014DR0007319. Robert S. Winess of Robert S. Winess, P.A., Boca Raton, for appellant. Tracy Cardarelli (n/k/a Tracy Forgeron), Boynton Beach, pro se. GROSS, J. The question presented in this case is whether the former wife is entitled to a qualified domestic relations order ("QDRO") providing for an increase in her distributions from the former husband's Florida Retirement System ("FRS") pension based upon her proportionate share of any cost-of-living adjustment ("COLA") received by the former husband. We hold that the former wife's right to a COLA was a vested statutory right that accrued during the marriage, so the QDRO prop”
retirement benefits“hereto as Exhibit "B". The Equitable Distribution Schedule is incorporated herein by reference and the parties are directed to comply with the division and distribution of the assets and liabilities provided therein. *** 10. With regard to the parties retirement plans (including, but not limited to, the Husband's Florida State Retirement Plan/Pension), with regard to the Qualified Domestic Relations Orders (QDRO's) or similar orders required to effectuate the equal division and distribution of those, the parties shall attempt to agree upon a QDRO expert to prepare all such QDRO's or similar orders . . . The Court”
pension“Beach, pro se. GROSS, J. The question presented in this case is whether the former wife is entitled to a qualified domestic relations order ("QDRO") providing for an increase in her distributions from the former husband's Florida Retirement System ("FRS") pension based upon her proportionate share of any cost-of-living adjustment ("COLA") received by the former husband. We hold that the former wife's right to a COLA was a vested statutory right that accrued during the marriage, so the QDRO properly included COLAs. Therefore, we affirm. The parties married in 1999, and the former husband filed for dissolution of ma”
alternate payee“r a cost-of-living adjustment to the former wife on her proportionate share of any COLA received by the former husband: 9. Cost of Living Adjustment: The Plan Administrator shall increase the amount payable each month to the Alternate Payee based upon the Alternate Payee's proportionate share of any cost of living adjustments (COLA) received by the Participant. . . . The former husband preserved his objection to Paragraph 9 in the trial court. 2 The former husband now appeals the Amended QDRO, arguing that the final judgment of dissolution did not mention the existence of a COLA as a marital asset subject to distribu”
Source and provenance
- Source type
- courtlistener_qdro_opinion_full_text
- Permissions posture
- public
- Generated status
- machine draft public v0
- Review status
- gold label pending
- Jurisdiction metadata
- US
- Deterministic extraction
- pending
- Generated at
- May 14, 2026
Related public corpus pages
Deterministic links based on shared title/citation terms and QDRO / retirement / family-law retrieval scores.
Clean opinion text
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANDREW CARDARELLI,
Appellant,
v.
TRACY CARDARELLI n/k/a TRACY FORGERON,
Appellee.
No. 4D21-1328
[November 23, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Renatha Francis, Judge; L.T. Case No. 502014DR0007319.
Robert S. Winess of Robert S. Winess, P.A., Boca Raton, for appellant.
Tracy Cardarelli (n/k/a Tracy Forgeron), Boynton Beach, pro se.
GROSS, J.
The question presented in this case is whether the former wife is
entitled to a qualified domestic relations order ("QDRO") providing for an
increase in her distributions from the former husband's Florida
Retirement System ("FRS") pension based upon her proportionate share of
any cost-of-living adjustment ("COLA") received by the former husband.
We hold that the former wife's right to a COLA was a vested statutory right
that accrued during the marriage, so the QDRO properly included COLAs.
Therefore, we affirm.
The parties married in 1999, and the former husband filed for
dissolution of marriage in 2014. In 2015, the trial court entered a final
judgment of dissolution that contained these provisions pertaining to the
equitable distribution of the former husband's pension with the Florida
Retirement System:
8. The Court has considered all of the factors and
requirements of Section 61.075, Fla. Stat., and in
accordance therewith the Court hereby equitably
(equally) distributes the marital estate to the parties
which equal division is reflected in the Equitable
Distribution Schedule attached hereto as Exhibit "B".
The Equitable Distribution Schedule is incorporated herein by
reference and the parties are directed to comply with the
division and distribution of the assets and liabilities provided
therein.
***
10. With regard to the parties retirement plans (including, but
not limited to, the Husband's Florida State Retirement
Plan/Pension), with regard to the Qualified Domestic
Relations Orders (QDRO's) or similar orders required to
effectuate the equal division and distribution of those,
the parties shall attempt to agree upon a QDRO expert to
prepare all such QDRO's or similar orders . . . The Court
specifically reserves jurisdiction to enter, address and enforce
any and all QDRO's or similar orders that may be necessary
or appropriate to effectuate the required transfers.
(Emphasis supplied).
The equitable distribution schedule attached to the final judgment as
Exhibit "B" stated that the FRS plan was "[t]o be divided by QDRO."
In a post-dissolution proceeding, the trial court entered an Amended
QDRO that awarded the former wife, as a deduction from each monthly
benefit payment payable to the former husband from the pension plan,
50% of the benefits that accrued from the date the parties were married in
1999 through the date the dissolution petition was filed in 2014.
Paragraph 9 of the Amended QDRO provides for a cost-of-living
adjustment to the former wife on her proportionate share of any COLA
received by the former husband:
9. Cost of Living Adjustment: The Plan Administrator shall
increase the amount payable each month to the Alternate
Payee based upon the Alternate Payee's proportionate share
of any cost of living adjustments (COLA) received by the
Participant. . . .
The former husband preserved his objection to Paragraph 9 in the trial
court.
2
The former husband now appeals the Amended QDRO, arguing that the
final judgment of dissolution did not mention the existence of a COLA as
a marital asset subject to distribution, so the Amended QDRO should not
have included Paragraph 9.
Discussion
Section 61.075, Florida Statutes (2015) provides for equitable
distribution of marital assets and liabilities. Subsection (3) of that statute
requires specific findings identifying marital assets and their value.
In Diffenderfer v. Diffenderfer, 491 So. 2d 265, 270 (Fla. 1986), the
Florida Supreme Court held that "a spouse's entitlement to pension or
retirement benefits must be considered a marital asset for purposes of
equitably distributing marital property."
Following Diffenderfer, the legislature enacted section 61.076, Florida
Statutes, which governs the distribution of retirement plans upon
dissolution of marriage. See Ch. 88-98, Laws of Fla. (1988).
Section 61.076(1), Florida Statutes (2015), provides: "All vested and
nonvested benefits, rights, and funds accrued during the marriage in
retirement, pension, profit-sharing, annuity, deferred compensation, and
insurance plans and programs are marital assets subject to equitable
distribution."
We conclude that the former wife's share of a COLA benefit attributable
to the portion of an FRS pension earned during the marriage falls within
the scope of "[a]ll vested and nonvested benefits, rights, and funds accrued
during the marriage in retirement . . . plans." Id. To the extent that the
years of service occurred during the marriage, an FRS member's
entitlement to a COLA is a benefit or right that "accrued during the
marriage" and is thus a "marital asset" as a matter of law, even if the actual
COLA is paid after the dissolution.
In a related context, both this court and the First District have held
that a spouse who is awarded a portion of the other spouse's FRS pension
at the time of the dissolution judgment is entitled to an equivalent share
in a Deferred Retirement Option Program ("DROP") account, including
interest and COLAs, even when the DROP account is created after the
dissolution became final. See, e.g., Russell v. Russell, 922 So. 2d 1097,
1099 (Fla. 4th DCA 2006); Swanson v. Swanson, 869 So. 2d 735, 738 (Fla.
4th DCA 2004); Arnold v. Arnold, 967 So. 2d 392, 393 (Fla. 1st DCA 2007);
Pullo v. Pullo, 926 So. 2d 448, 451 (Fla. 1st DCA 2006). As the First District
3
has explained, "benefits giving rise to rights in a DROP account could
‘accrue[ ] during the marriage,' within the meaning of the statute, and
therefore constitute marital assets, even though funds were not deposited
in the DROP account until later." Arnold, 967 So. 2d at 393.
Once a dissolution judgment is entered, "marital property rights no
longer exist[] and only individual property rights remain." Ganzel v.
Ganzel, 770 So. 2d 304, 306 (Fla. 4th DCA 2000). Therefore, in Ganzel,
we held that once the judgment of dissolution was entered, the former
wife's share of the former husband's FRS retirement benefits payable each
month into the interest-bearing DROP account was the former wife's
individual property. Id.
Similarly, in Swanson, even though the former husband did not become
a DROP participant until 1998, we held that "45% of the value of the
former Husband's pension benefits as of January 17, 1990 [the date of the
dissolution judgment] belongs to the former Wife" and thus "the interest
and cost of living adjustments which were applied to the former Wife's
share, despite being in the former Husband's DROP account, should also
belong to the former Wife." 869 So. 2d at 736, 738.
The reasoning of the DROP line of cases indicates that the right to a
future COLA benefit attributable to the marital portion of an FRS pension
is a right that accrues during the marriage. That reasoning is equally
applicable here. After all, DROP is essentially a "virtual" retirement where
the monthly pension benefit is paid into a DROP account while the
recipient continues to work for the state, so if the non-participant spouse's
share of the DROP benefit includes COLAs, it follows that the non-
participant spouse's share of the ordinary monthly pension benefit should
also include COLAs.
Once a court enters a dissolution judgment equitably distributing an
FRS pension, the non-participating spouse's share of the pension benefit—
including any future COLAs attributable to that share—is the non-
participating spouse's individual property. Here, the former wife received
an undivided individual property right in the former husband's FRS
pension that, under the dissolution judgment, entitles her to a pro-rata
share of any COLAs on the pension payments. See Pullo, 926 So. 2d at
451 (holding that "the former wife received an undivided individual
property right in the former husband's retirement account that, under the
dissolution judgment, entitles her to a pro-rata share of his DROP fund,"
including COLAs).
4
That the former wife's right to a COLA benefit in an FRS pension vested
during the marriage is consistent with the statutes governing the FRS
pension.
The rights of members of the FRS "are declared to be of a contractual
nature, entered into between the member and the state, and such rights
shall be legally enforceable as valid contract rights and shall not be
abridged in any way." § 121.011(3)(d), Fla. Stat. (2015). This statute "vests
all rights and benefits already earned under the present retirement plan
so that the legislature may now only alter retirement benefits
prospectively." Fla. Sheriffs Ass'n v. Dep't of Admin., Div. of Ret., 408 So.
2d 1033, 1037 (Fla. 1981).
Section 121.101, Florida Statutes (2015), governs cost-of-living
adjustments under the FRS. For members whose effective retirement date
is on or after July 1, 2011, the COLA is a benefit calculated based on
service credit earned before July 1, 2011:
(4) For members whose effective retirement date is on or after
July 1, 2011, the benefit of each retiree and annuitant shall
be adjusted annually on July 1 as follows:
(a) For those retirees and annuitants who have never received
a cost-of-living adjustment under this subsection, the amount
of the monthly benefit payable for the 12-month period
commencing on the adjustment date shall be the amount of
the member's initial benefit plus an amount equal to a
percentage of the member's initial benefit. This percentage is
derived by dividing the number of months the member has
received an initial benefit by 12, and multiplying the result by
the factor calculated pursuant to paragraph (c).
***
(c) The department shall calculate a cost-of-living factor for
each retiree and beneficiary retiring on or after July 1, 2011.
This factor shall equal the product of 3 percent multiplied by
the quotient of the sum of the member's service credit earned
for service before July 1, 2011, divided by the sum of the
member's total service credit earned.
§ 121.101(4), Fla. Stat. (2015).
5
The former husband's entitlement to a COLA was a vested benefit under
Chapter 121 that accrued during the marriage. Under section 61.076(1),
the former wife is entitled to equitable distribution of her share of the COLA
benefit.
The Amended QDRO effectively awarded the former wife a proportionate
share of any future COLAs attributable to the service credit earned during
the marriage.
It was not necessary for the final judgment to make specific factual
findings regarding the former wife's entitlement to a COLA in the pension
as a marital asset subject to equitable distribution. It was sufficient that
the final judgment identified the former husband's FRS pension as a
marital asset and ordered an "equal division" of the asset pursuant to a
QDRO. The equal division of the marital portion of the pension included
each party receiving future COLAs attributable to their share of the
pension.
The former husband relies on Storey v. Storey, 192 So. 3d 670 (Fla. 4th
DCA 2016), but that case is distinguishable because the final judgment
there specifically awarded the husband all future pension accumulations.
There, the parties' marital settlement agreement stated: "The
Petitioner/Wife is entitled to 50% of the value of the
Respondent/Husband's pension benefits accumulated through November
1994. All accumulations after November, 1994, belong to the
Respondent/Husband." Id. at 671 (emphasis in original). We held that
this provision unambiguously "excluded any salary and cost of living
increases Former Husband received after November 1994—the date the
complaint for dissolution was filed—from the Former Wife's pension
benefit calculation." Id. at 672–73. By contrast, the final judgment in this
case did not expressly exclude COLAs. 1
Affirmed.
MAY and FORST, JJ., concur.
* * *
1 We also distinguish Blaine v. Blaine, 872 So. 2d 383, 384 (Fla. 4th DCA 2004),
a case not cited by the parties. That case involved a private pension, and the
opinion does not discuss the provisions of the pension relating to the accrual of
the right to any COLAs. This case, in contrast, involves an FRS pension where
the right to COLAs is a vested statutory right that accrued during the marriage.
6
Not final until disposition of timely filed motion for rehearing.
7