Opinion

Bailey v. Baron

  • 269 So. 2d 45
  • 1972 Fla. App. LEXIS 5850
Court
District Court of Appeal of Florida
Filed
Nov 14, 1972
Status
Published
Author
Barkdull
On the bench
Barkdull, Hendry, Pearson
Cited by
3 cases
Authority
More cited than 25.2%

The opinion

BARKDULL, Chief Judge

(concurring in part, dissenting in part).

Following a review of the opinions authored by Judge Pearson and Judge Hendry, I concur in so much of Judge Pearson’s opinion which holds that the trial court erred in adjudicating a trust [as relates to the Miami Police Relief and Pension Fund] for the reason that the deceased made no contributions to this fund and there was no res that he could secure during his lifetime. However, as to the Miami City Employees’ Retirement System, this was funded primarily with employee contributions and upon Glenn Baron removing himself from the classified service, he was entitled to receive a return of his contributions. It therefore appears that this was an ascertainable res and I would sustain the trial judge in the distribution of this pension fund to the employee.

I concur with so much of Judge Hendry’s opinion which found the existence of a constructive trust as to this lat *52 ter fund, but I do not agree with his interpretation of § 185.25, Fla.Stat., F.S.A., this statute did not exempt the amount in the fund created by employee contributions from equitable attachment when and if received by the employee. Compare: McIntosh v. Aubrey, 185 U.S. 122 , 22 S.Ct. 561 , 46 L.Ed. 834 ; Voelkel v. Tohulka, 236 Ind. 588 , 141 N.E.2d 344 ; and Boylan v. Joyce, 123 N.J.L. 130 , 8 A.2d 108 , which holds that statutes of this type are not applicable to trusts established by equity.

If Glenn Baron had the right to remove his contributions from the Miami City Employees’ Retirement System the day after he reached the agreement with his divorced wife, then I believe an equity court would have had a right to impress a trust on these funds when they came into his possession, and his demise should not prevent his express trust from being carried out.

Therefore, I would affirm so much of the final judgment here under review which awarded the appellee the monies held in the Miami City Employees’ Retirement System, and would reverse that portion which awarded her the monies in the Miami Police Relief and Pension Fund.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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