Toby Palmer v. Suzanne Marie Palmer

FIFTH DISTRICT C OURT OF A PPEAL
S TATE OF FLORIDA
_____________________________
Case No. 5D2025-0118
LT Case No. 2010-DR-001847
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TOBY P ALMER,
Appellant,
v.
S UZANNE M ARIE P ALMER,
Appellee.
_____________________________
On appeal from the Circuit Court for Seminole County.
Mark Edward Herr, Judge.
Michael M. Brownlee and Allison Morat, of The Brownlee Law
Firm, P.A., Orlando, for Appellant.
Annabelle S. Catania, Winter Garden, for Appellee.
April 10, 2026
P ER C URIAM.
A FFIRMED.
WALLIS and K ILBANE, JJ., concur.
LAMBERT , J., concurs with opinion.

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_____________________________
Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

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Case No. 5D2025-0118
LT Case No. 2010-DR-001847
LAMBERT , J., concurring.
The parties to this appeal are former spouses. 	Their long-
term marriage was dissolved in 2010 by a final judgment that
incorporated the parties’ Marital Settlement Agreement (“MSA”).
At the time, Former Husband was employed as a firefighter with
the City of Lake Mary, Florida, with which he had a “pension
plan.”
The 	parties’ 	MSA 	acknowledged 	that 	Former 	Husband’s
pension plan was a marital asset, and they specifically agreed that
“[Former Wife] has a vested interest in the plan.” 	The MSA
provided that Former Husband would maintain Former Wife “as
the beneficiary of 	this plan” and further provided that 	“once
monthly 	distributions 	of 	[Former 	Husband’s] 	pension 	plan
commence, [Former Wife] shall receive forty percent (40%) of said
payments and [Former Husband] shall receive sixty percent (60%)
of said payments.” 	The parties also agreed that if a qualified
domestic relations order (“QDRO”), or its functional equivalent,
“was necessary to transfer ownership of any profit sharing, 401K,
pension, retirement, or similar plans,” they would cooperate with
each other to obtain the QDRO or its functional equivalent as may
be reasonably required by the plan administrator.
In 2022, Former Husband retired from the Lake Mary Fire
Department. 	The subsequent dispute between the parties that
became the primary subject of both the litigation below and this
appeal was whether Former Wife’s interest in the pension plan
was limited to that which had accrued from the time of the parties’
marriage in 1988 until they divorced in 2010 or, as Former Wife
argued, whether the MSA provided that her interest and payment
would be based on what had accumulated or accrued in the plan
up until Former Husband retired in 2022.
The trial court ruled in favor of Former Wife. 	It found that
the parties had negotiated a property settlement that was more
generous than that which a court may have been able to do, but
that the parties were free to do so. 	See Dills v. Perez, 330 So. 3d

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989, 990 & n.2 (Fla. 5th DCA 2021) (providing that unless the
terms of a marital settlement agreement violate public policy or
are not in the best interests of the minor children, the parties are
free to enter into contractual agreements that include provisions
that no court could impose). 	The trial court ordered that Former
Wife was to “receive 40% of the pension benefits that Former
Husband receives each month, less taxes, if any.”
Former Husband’s primary argument here for reversal was
that the trial court erred in its interpretation of the MSA. 	The
majority has affirmed, without discussion, on this issue, with
which I concur.
I write to address the second issue raised by Former Husband
in this appeal. 	Former Husband contends that the trial court
reversibly erred when it directed that an Income Deduction Order
(“IDO”) 	be 	entered 	so 	that 	Former 	Wife 	receives 	the 	above-
described 	monthly 	payment 	“directly 	from 	the 	Pension 	Plan
Administrator.”
Former Husband argues that under section 185.25, Florida
Statutes, municipality pensions such 	as his 	are 	exempt 	from
execution, attachment, or any legal process whatsoever; therefore,
an IDO cannot be used by a trial court as a mechanism to equitably
distribute this asset.
Though Former Husband cites to section 185.25, an almost
identical statute involving municipal firefighters’ pension funds
provides:
For any municipality, special fire control district, chapter
plan, local law municipality, local law special fire control
district, 	or 	local 	law 	plan 	under 	this 	chapter, 	the
pensions, annuities, or other benefits accrued or accruing
to any person under any chapter plan or local law plan
under the provisions of this chapter and the accumulated
contributions and the cash securities in the funds created
under this chapter are hereby exempted from any state,
county, or municipal tax and shall not be subject to
execution 	or 	attachment 	or 	to 	any 	legal 	process
whatsoever, and shall be unassignable.

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§ 175.241, Fla. Stat.
In Alvarez v. Board of Trustees of City Pension Fund for
Firefighters & Police Officers in the City of Tampa, 580 So. 2d 151
(Fla. 1991), the Florida Supreme Court addressed the interplay
between section 175.241’s exemption of a firefighter’s pension fund
from any legal process whatsoever and the subsequently-enacted
sections 61.1301 and 61.046(4), Florida Statutes (1987), which,
respectively, mandated the entry of income deduction orders for
court-ordered 	alimony 	and 	child 	support 	and 	defined 	what
“income” would be subject to an income deduction order. The court
held that sections 61.1301 and 61.046(4) impliedly repealed section
175.241 such that a firefighter’s pension benefits are not exempt
from income deduction orders for the payment of alimony or child
support. Id. at 154.
Alvarez, however, has no direct applicability here because
the parties did not have any children from their marriage; and
their MSA provided that neither party would receive alimony from
the other. 	Instead, the monthly payment to be made by the IDO
to Former Wife from the pension fund is to facilitate the equitable
distribution of this asset.
Former 	Husband 	argues 	that 	caselaw 	holds 	this 	to 	be
improper. 	See Motil v. Motil, 771 So. 2d 1251, 1251–52 (Fla. 2d
DCA 2000) (holding that an income deduction order under section
61.1301 is limited to those payments involving alimony or child
support and cannot be used to achieve the equitable distribution of
the parties’ marital assets); Colligan v. Colligan, 759 So. 2d 688,
689 (Fla. 3d DCA 2000) (holding “that an income deduction order
could not be entered for the purpose of effectuating the trial court’s
plan for equitable distribution of the parties’ marital assets” (citing
Bd. of Pension Trs. of City Gen. Emps. Pension Plan v. Vizcaino,
635 So. 2d 1012, 1015 (Fla. 1st DCA 1994))). 	He also argues that
it is of no moment or consequence if he agreed to the entry of an
IDO for such purpose. See Palmateer v. Palmateer, 260 So. 3d 476,
477 (Fla. 2d DCA 2018) (holding that the trial court could not effect
the equitable distribution of the husband’s municipal pension plan
through the imposition of an income deduction order in favor of the
wife despite the husband’s agreement to the entry of the order
because it is statutorily foreclosed).

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Former Wife responds that Former Husband never raised an
objection below to the entry of an IDO, and our record shows that
Former Wife is correct. During her argument to the trial court at
the conclusion of the dispositive hearing, Former Wife asked the
court to issue an IDO so that her monthly distribution “comes
directly from the plan.” 	Former Husband raised no objection to
this request.
Former Husband also did not move for rehearing after the
order on appeal was rendered. He thus failed to preserve this now-
raised error for appellate review. 	See Williams v. Williams, 152
So. 3d 702, 704 (Fla. 1st DCA 2014) (“[W]here an error by the [trial]
court appears for the first time on the face of a final order, a party
must alert the court of the error via a motion for rehearing or some
other 	appropriate 	motion 	in 	order 	to 	preserve 	it 	for 	appeal.”
(citations omitted)).
Unpreserved 	error 	can 	nevertheless 	be 	reversed 	if 	it
constitutes fundamental error. 	Yau v. IWDWarriors, Corp., 144
So. 3d 557, 560 (Fla. 1st DCA 2014) (holding that an appellate
court 	cannot 	reverse 	an 	“unpreserved 	claim 	of 	error 	absent
fundamental error” (citation omitted)). 	Yet, Former Husband’s
initial brief does not directly argue that fundamental error was
committed, see Wheeler v. State, 87 So. 3d 5, 6 (Fla. 5th DCA 2012)
(“Furthermore, the defendant did not raise a claim of fundamental
error . . . in his initial brief; therefore, this court is not required to
undertake a fundamental 	error analysis.” (citations 	omitted)),
though he does argue that, under the circumstances, the entry of
an IDO was statutorily prohibited.
As articulated by the Florida Supreme Court, fundamental
error is error “which goes to the foundation of the case or goes to
the merits of the cause of action.” 	Sanford v. Rubin, 237 So. 2d
134, 137–38 (Fla. 1970) (holding that it was not fundamental error
to 	allow 	recovery 	of 	attorney’s 	fees 	even 	though 	the
constitutionality of the statutory basis for the fees was doubtful).
The court also reminded that appellate courts “should exercise
[their] discretion under the doctrine of fundamental error very
guardedly.” Id. at 137 (citations omitted).
Accordingly, 	applying 	the 	“very 	guarded” 	admonition 	in
conjunction with the definition of fundamental error from Sanford,

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the decision here by the trial court to issue an IDO does not appear
to go either to the foundation of the case or the merits of the cause
of action. 	In this fundamental error analysis, I also note that the
IDO at issue has not actually been entered by the trial court, nor
is there clear record indication that the Plan Administrator objects
to the IDO. 	Cf. Bd. of Trs. of Orlando Police Pension Plan v.
Langford, 833 So. 2d 230, 231–32 (Fla. 5th DCA 2002) (discussing
a case in which a plan administrator separately petitioned to
dissolve 	the 	trial 	court’s 	order 	entered 	in 	the 	dissolution 	of
marriage litigation that, consistent with the agreement of the
former 	spouses, 	required 	the 	administrator 	to 	make 	ongoing
payments to Former Wife under a QDRO as part of the equitable
distribution of marital assets).
Finally, like our sister courts, I write to urge the Florida
Legislature to consider specifically amending section 61.1301 to
allow the use of an IDO to facilitate the equitable distribution of
assets in dissolution of marriage cases. See Vizcaino, 635 So. 2d at
1015 (“However, we note that, should the legislature conclude that
no valid basis exists for such a distinction [of permitting the use of
IDOs to enforce direct payment from government pension plans of
sums designated as alimony or child support, but not of sums
intended 	to 	achieve 	an 	equitable 	distribution 	of 	the 	parties’
marital assets], the problem can easily be corrected by amendment
of section 61.1301 to include payments ordered to achieve an
equitable 	distribution 	of 	the 	parties’ 	marital 	assets . . . .”);
Palmateer, 260 So. 3d at 478 (urging the legislature to consider
allowing the equitable distribution of a municipal pension plan to
a former spouse through an IDO).
Twenty-four years ago, our court noted numerous decisions
from other states with similar statutes that prohibit the alienation
of municipal pension plan funds where those out-of-state courts
concluded 	that 	such 	statutes 	were 	intended 	to 	protect 	the
municipal employee from creditors, not to preclude an ex-spouse
from the equitable distribution of a martial asset. 	Langford, 833
So. 2d at 234 n.2. We queried why, in the context of the equitable
distribution 	of 	a 	municipality 	pension 	fund 	marital 	asset,
municipal 	pensions 	should 	be 	treated 	differently 	than 	other
pensions. Id. at 235.

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An IDO to enforce the equitable distribution of marital
assets would appear to provide a straightforward remedy that
could minimize continuing interaction between former spouses
and reduce post-judgment enforcement litigation.