THOMAS G. HIGGINS, APPELLANT,
v.
ANNE E. HIGGINS, APPELLEE
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In this divorce modification case, the Florida District Court of Appeal affirmed a reduction in alimony from $1,000 to $800 monthly, holding that military pensions can be considered as assets in determining alimony obligations despite the U.S. Supreme Court's McCarty decision prohibiting their distribution as community property.
Military pensions may be considered as assets in determining alimony obligations despite McCarty, because McCarty prohibited only their distribution as community property and did not prohibit their use to provide support. The reduction in alimony to $800 monthly was not an abuse of discretion under the Canakaris standard, as Anne's testimony regarding her needs supported the award and Thomas possessed considerable earning potential.
[1] A state divorce court may consider a military pension as an asset for purposes of alimony, notwithstanding the U.S. …
[2] The primary purpose of permanent periodic alimony is to provide for the needs and necessities of life of a former spouse as established by the marriage.
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Join FLexlaw to unlock all legal intelligence“The court did not hold that a pension was an asset which could not be drawn on to provide support for the ex-spouse and children.”
Establishes the critical distinction between McCarty's prohibition on community property division and the permissibility of using military pensions for support obligations.
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Join FLexlaw to unlock all legal intelligenceThomas and Anne were divorced in 1976 after a 20-year marriage. The original judgment awarded Anne $1,000 monthly alimony, the marital home in New Jer…
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PER CURIAM.
In 1976, Thomas, a Navy captain, and Anne were divorced following a 20 year marriage. The judgment awarded her $1,000 monthly alimony, possession of a home in New Jersey, custody and child support. It divided responsibility for the bills. After a history of noncompliance resulted in a garnishment of his pension, Thomas petitioned for a reduction in alimony, alleging that Anne was better able to support herself and that he was less able to support himself. The day before the hearing below Thomas deeded his share of the marital home to Anne in satisfaction of over $43,-000 in alimony arrearages. The trial court found a substantial change in circumstances and made a new alimony award of $800 monthly. We affirm.
Two issues which are raised on appeal require discussion. First the propriety of considering a military pension as an asset for purposes of alimony after McCarty v. McCarty, -U.S. -, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), and second the correctness of the award under the standard of need and ability as expressed in Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980).
In the well publicized McCarty case the U.S. Supreme Court held that a military pension was not community property subject to distribution by a state divorce court. The court did not hold that a pension was an asset which could not be drawn on to provide support for the ex-spouse and children. Indeed, as noted in McCarty, Congress has provided for the garnishment of military wages and pensions for just such support, 42 U.S.C. §§ 659, 662. It is clear that the needs of national defense, as seen by Congress, do not require state courts to avoid all use of military pensions in support cases. The McCarty ruling does not prohibit a state divorce court from considering military pensions in support proceedings.
The primary purpose of permanent periodic alimony is “to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties.” Canakaris, 382 So. 2d at 1201. Permanent periodic alimony is used to provide support within the meaning of McCarty, so there is no violation of McCarty when a Florida court awards permanent periodic alimony after consideration of a military pension as an asset of and property of the retiring spouse. Accord, In re Marriage of Jones, 309 N.W. 2d 457 (Iowa 1981).
The factors to be considered in an award of alimony are fully expressed in Canakaris. Anne’s testimony as to her needs supports a finding that an award of permanent periodic alimony is not an abuse of discretion. Additionally, Thomas has considerable earning potential. No abuse of discretion was present in the award of $800 monthly permanent periodic alimony.
No abuse of discretion is present in the remaining points on appeal and cross-appeal and they do not require discussion. The judgment is AFFIRMED. Anne Higgins’ petition for appellate attorney’s fees is GRANTED and the cause REMANDED for determination of the appropriate amount.
ERVIN, BOOTH and THOMPSON, JJ„ concur.
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Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986)…fits in calculating permanent periodic or rehabilitative alimony, we have no desire to disapprove those Florida decisions in which the court has done just that. See, e.g., Marshall v. Marshall, 445 So. 2d 706 (Fla. 4th DCA 1984); Higgins v. Higgins, 408 So. 2d 731 (Fla. 1st DCA), review denied, 417 So. 2d 329 (Fla.1982); Bradley v. Bradley, 385 So. 2d 101 (Fla. 5th DCA), review denied, 392 So. 2d 1392 (Fla.1980). Lest our observations here be misunderstood, [*269] we once again reiterate our warning in Walter…
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O'Neal v. O'Neal, 410 So. 2d 1369 (Fla. 5th DCA 1982)…ing, the court reiterated the above explanation, and further stated that “there was no legally sufficient change in the circumstances of the parties on which to base an order to modify the Final Judgment.” (emphasis added) . See Higgins v. Higgins, 408 So. 2d 731 (Fla. 1st DCA 1981); Cowan v. Cowan, 389 So. 2d 1187 (Fla. 5th DCA 1980); Bradley v. Bradley, 385 So. 2d 101 (Fla. 5th DCA 1980).…
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Hartzell v. Laurlene G. Hartzell, 434 So. 2d 353 (Fla. 4th DCA 1983)…an award of alimony based upon need for support and ability to pay. Mills v. Mills, 417 So. 2d 298 (Fla. 1st DCA 1982); Cullen v. Cullen, 413 So. 2d 1196 (Fla. 1st DCA 1982); O'Neal v. O'Neal, 410 So. 2d 1369 (Fla. 5th DCA 1982); Higgins v. Higgins, 408 So. 2d 731 (Fla. 1st DCA), pet. for rev. denied, 417 So. 2d 329 (Fla.1982); Bradley v. Bradley, 385 So. 2d 101 (Fla. 5th DCA 1980). However, on June 26, 1981, the Supreme Court decided that an entitlement to military retirement benefits is insulated from atta…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- McCARTY v. McCARTY, 453 U.S. 210 (U.S. 1981)