NORMAN E. FREEMAN, APPELLANT/CROSS-APPELLEE,
v.
SANDRA J. FREEMAN, APPELLEE/CROSS-APPELLANT
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A disability pension is not a marital asset subject to equitable distribution, but it can be considered when determining alimony.
[1] A trial court has broad authority upon dissolution of marriage to fashion an equitable distribution of assets based on the needs and abilities of the partners and their r…
[2] Lump sum alimony can be awarded either for support, requiring a showing of need and ability to pay, or as an equitable division of marital property, requiring justificati…
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Join FLexlaw to unlock all legal intelligenceNorman Freeman appealed a judgment of dissolution of marriage where the court awarded his wife, Sandra, a one-third interest in his disability pension…
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FRANK D. UPCHURCH, Jr., Judge.
Norman Freeman appeals from a judgment of dissolution of marriage contending that the court erred in finding that his disability pension was a marital asset subject to equitable distribution and in awarding his wife Sandra a one-third interest in it. The court made the award as lump sum alimony for Sandra’s contributions to the sixteen-year marriage.
It is well established that in this state, a trial judge possesses broad authority upon the dissolution of a marriage to fashion an equitable distribution of the parties’ assets based upon the needs and abilities of the partners and a consideration of the role played by each during the course of the marriage. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Hartley v. Hartley, 399 So. 2d 1126 (Fla. 4th DCA 1981). The remedies available to the trial court to accomplish this include lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, a special equity and an award of exclusive possession of property. Canakaris.
There are two types of lump sum alimony. The first type relates to support and requires a showing of need and ability to pay. The second type relates to making an equitable division of marital property and requires showing of a justification for such lump sum payment and a financial ability on the part of the paying spouse. Tronconi v. Tronconi, 466 So. 2d 203 (Fla.1985); Canakaris v. Canakaris, 382 So. 2d at 1201; Lynch v. Lynch, 437 So. 2d 234 (Fla. 5th DCA 1983). Such “justification” may include a wife’s “special contributions” to the marriage. Canakaris. In this case, it is this second type we are concerned with and the precise question presented is whether the disability pension 1 is a marital asset subject to equitable distribution or division upon dissolution.
No Florida cases have been cited or found directly on point. It is clear, however, that a retirement pension is properly considered on the question of alimony, i.e., as a source of payment by one spouse for the care and maintenance of the other. See Diffenderfer v. Diffenderfer, 456 So. 2d 1214 (Fla. 1st DCA 1984); Mills v. Mills, 417 So. 2d 298 (Fla. 1st DCA 1982); Bradley v. Bradley, 385 So. 2d 101 (Fla. 5th DCA 1980).
Both the Second District in Clarke v. Clarke, 443 So. 2d 486 (Fla. 2d DCA 1984) and the Fourth District in Hurtado v. Hurtado, 407 So. 2d 627 (Fla. 4th DCA 1981), have held that a retirement pension may be a marital asset. While justification may exist for equitable division of a retirement pension,2 just as such justification would exist if equivalent moneys were placed in an ordinary savings account, does this reasoning necessarily follow in the case of a disability pension? We think not.
A disability pension, like a retirement pension, may be considered in determining support for a spouse or minor child. See, e.g., Williamson v. Williamson, 367 So. 2d 1016 (Fla.1979); Baker v. Baker, 419 So. 2d 735 (Fla. 1st DCA 1982); Campbell v. Campbell, 409 So. 2d 236 (Fla. 1st DCA 1982); Hartley v. Hartley, 399 So. 2d 1126 (Fla. 4th DCA 1981); Alford v. Alford, 364 So. 2d 1255 (Fla. 2d DCA 1978). However, we conclude that it is not a marital asset for purposes of equitable distribution. Our conclusion derives not from any analogy between such pension and an educational degree,3 but rather from the nature of a disability pension. Such a pension is designed to compensate an employee for lost earnings and injuries (including pain and suffering) sustained on the job. See In re Marriage of Jones, 13 Cal.3d 457, 119 Cal.Rptr. 108, 531 P. 2d 420 (1975). As such, it is personal to the employee and distinguishable from a retirement pension.
Sandra’s reliance on Kruger v. Kruger, 73 N.J. 464, 375 A. 2d 659 (1977) and In Re Marriage of Smith, 84 Ill.App.3d 446, 39 Ill.Dec. 905, 405 N.E. 2d 884 (1980), which hold that a disability pension received by the husband was marital property available for equitable distribution is misplaced. Both cases are predicated on statutes which provided that all property acquired by either spouse during the marriage was “marital property”, with the Illinois statute containing a few specific exceptions.
As previously noted, a disability pension should not be considered a marital asset subject to equitable distribution. However, the pension may be considered in determining an award of alimony.
We reverse and remand for consideration of Sandra’s support needs and Norman’s ability to pay.
REVERSED and REMANDED.
DAUKSCH and SHARP, JJ., concur. . Norman receives the pension for a disability he suffered while employed as a firefighter with the city of Plainfield, New Jersey.
. It should be emphasized that the question of whether a retirement pension is a marital asset is not an issue in this case.
.Such an analogy is flawed. An educational degree is not a marital asset subject to distribution because “its value, which must be measured by future earning capacity, is too speculative to calculate.” Hughes v. Hughes, 438 So. 2d 146, 150 (Fla. 3d DCA 1983). This same reasoning is not applicable to a disability pension.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Weisfeld v. Weisfeld, 545 So. 2d 1341 (Fla. 1989)…eversed both the trial court's denial of the wife's claim to a portion of her disabled husband’s workers’ compensation award and the award of exclusive possession of the marital home to the disabled husband. We find conflict with Freeman v. Freeman, 468 So. 2d 326 (Fla. 5th DCA 1985), and have jurisdiction. Art. V, § 3(b)(3), Fla. Const. For the reasons expressed, we adopt the analytical approach for determining marital interests in workers’ compensation awards, disagree with the district court’s construction…
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Gussie Hanks v. Hanks, 553 So. 2d 340 (Fla. 4th DCA 1989)…t value of the husband’s disability pension from the veteran’s administration. While this income may be viewed as a source for the payment of alimony, a disability pension is not a marital asset subject to equitable distribution. Freeman v. Freeman, 468 So. 2d 326 (Fla. 5th DCA 1985); Baker v. Baker, 419 So. 2d 735 (Fla. 1st DCA 1982). The award of alimony is challenged as inadequate by the wife and as error by the husband since the wife was awarded lump sum alimony. We agree that the award of alimony was in…
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Lochridge v. Lochridge, 526 So. 2d 1010 (Fla. 2d DCA 1988)…property, necessitating some justification for the lump sum payment and the financial ability on the part of the paying spouse. Tronconi v. Tronconi, 466 So. 2d 203 (Fla.1985); Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Freeman v. Freeman, 468 So. 2d 326 (Fla. 5th DCA 1985). The dissolution judgment in this case reflects an award of the first type of lump sum alimony, i.e., for support. However, our review of the record reveals that the wife presently maintains a net worth of slightly in excess of…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Tronconi v. Tronconi, 466 So. 2d 203 (Fla. 1985)
- Williamson v. Veva C. Williamson, 367 So. 2d 1016 (Fla. 1979)
- Hurtado v. Rose-Jean Hurtado, 407 So. 2d 627 (Fla. 4th DCA 1981)
- In re The Marriage of Lynn Earl Lynch v. Lynch, 437 So. 2d 234 (Fla. 5th DCA 1983)
- Diffenderfer v. Diffenderfer, 456 So. 2d 1214 (Fla. 1st DCA 1984)
- Hartley v. Hartley, 399 So. 2d 1126 (Fla. 4th DCA 1981)
- Alford v. Alford, 364 So. 2d 1255 (Fla. 2d DCA 1978)
- Mills v. Mills, 417 So. 2d 298 (Fla. 1st DCA 1982)
- Clarke v. Clarke, 443 So. 2d 486 (Fla. 2d DCA 1984)