KENNETH WAYNE PASTORE, APPELLANT,
v.
REBECCA JOYCE PASTORE APPELLEE

Fla. 1st DCA | 1985-12-30
No. BG-284
SHIVERS and ZEHMER, JJ., concur.
480 So. 2d 231 Florida District Court of Appeal, First District (1985) Negative Treatment
Cited by 14 cases

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Synopsis

The court reversed the trial court's award of a vested property interest in the husband's future military retirement benefits, finding it should be considered for alimony rather than divisible marital property, and reversed the denial of credit to the husband for mortgage, tax, and insurance payments on the marital home during the wife's exclusive use.


Holding

The court held that military retirement benefits should be considered for alimony, not as a divisible marital asset, and reversed the denial of credit for the husband's payments on the marital home.


Headnotes

[1] A spouse's interest in a retirement plan should not be treated as a marital asset subject to division, but rather as a source of payment for alimony.

[2] A party responsible for mortgage payments, taxes, and insurance on a marital home held as tenants in common must receive credit against the nonpaying party's share of the…

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Facts & Procedural History

The husband appealed a dissolution judgment awarding the wife a vested interest in his military retirement and denying him credit for payments on the …

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Opinion of the Court
MILLS, Judge.

MILLS, Judge.

Kenneth, the husband, appeals from a final judgment of dissolution of marriage. He contends that the trial court erred in awarding Rebecca, the wife, a vested property interest in his future military retirement benefits and in providing that he would receive no credit upon the sale and partition of the marital home for the mortgage payments, taxes and insurance he is required to pay by the final judgment throughout the wife’s exclusive use of the home. The husband also argues that the total obligation placed upon him in the court’s final judgment constitutes an abuse of discretion. We agree and reverse as to these issues.

The wife, in her cross appeal, asserts that the amount of permanent periodic alimony awarded to her is so insignificant as to constitute an abuse of discretion and that the trial court further abused its discretion by failing to require the husband to maintain a policy of insurance on his life in an amount sufficient to satisfactorily discharge his alimony obligation to her. We disagree and affirm as to these issues.

With regard to the husband’s military retirement, the trial court held as follows:

The Husband’s military retirement is an asset of the marriage to which the Wife is entitled to a vested one-half interest. The Wife is awarded and shall receive as a property asset one-half of whatever retirement benefits the Husband may receive, including any increases which may inure because of his service after the dissolution of marriage. As the retirement proceeds fluctuate and vary, the Wife will receive one-half of those variations.

This Court in Diffenderfer v. Diffenderfer, 456 So. 2d 1214 (Fla. 1st DCA 1984), looked at the issue of how a retirement plan should be treated in the distribution of marital assets, and concluded that a spouse’s interest in a retirement plan should not be treated as a part of the marital estate, subject to division by the court, but rather should only be looked to as a source of payment by that spouse in considering the question of alimony.

However, recognizing this as an issue of great public importance the following question was certified to the Florida Supreme Court in that opinion:

How should a trial judge treat a spouse’s entitlement to retirement benefits in fashioning an equitable distribution of property in dissolution proceedings?

This question has not yet been answered. Accordingly, we rely on the holding in Dif-fenderfer to reverse the trial court’s finding on this issue.

It should also be-noted that the wife initially argued in her brief on appeal that the trial court’s treatment of the husband’s military retirement benefits was not properly before this court because, on motion for rehearing by the husband, the trial judge provided him with the option of awaiting the Florida Supreme Court’s ruling on Diffenderfer and subsequent reconsideration at the trial level of his motion for rehearing, or accepting a denial on all issues. At oral argument, however, the wife agreed that when the husband filed his notice of appeal he accepted the offer of the trial judge to proceed with appellate review and, in so doing, abandoned his pending motion for rehearing on the Dif-fenderfer issue.

The provision in the final judgment requiring that the husband pay the monthly house payments, taxes and insurance on the marital home as “unallocated child support and alimony” and that he would receive no credit for any such payments upon the sale of the home must also be reversed. When the parties dissolved their marriage, they each received an undivided one-half interest in the marital home as tenants in common. Section 689.15, Florida Statutes (1988). Therefore, the party who is made responsible for the mortgage payments and other expenses of the home must be allowed credit against the nonpaying party’s one-half share from the proceeds of the sale of the home. Strollo v. Strollo, 365 So. 2d 189 (Fla. 1st DCA 1978).

The monthly obligations imposed on the husband by the trial court in its final order represent an expenditure of 66.7% of his net monthly wages. We find that such a large obligation shortchanges the husband and constitutes an abuse of discretion. Thomas v. Thomas, 418 So. 2d 316 (Fla. 4th DCA 1982) (court found an award of 58% of the husband’s net pay an abuse of discretion). In view of our disposition on this issue, we find the wife’s argument that the award to her of permanent alimony in the amount of $250.00 per month constitutes an abuse of discretion and should be increased is without merit.

This case was heard on 27 December 1984. At that time, a statutory amendment had been enacted by the 1984 Florida Legislature which amended Chapter 61.08, Florida Statutes (1983), to provide, at Section 61.08(3):

To the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.

The foregoing amendment became effective 1 January 1985, four days after this case was brought on for final hearing.

The wife contends that her financial situation militates strongly in favor of requiring the husband to maintain such an insurance policy. We disagree. No authority existed at the time of the final judgment to require the husband to maintain a life insurance policy as security for the payment of the wife’s alimony. Moreover, even assuming that Section 61.08(3) could be applied retroactively to the present case, the statute merely provides a discretionary choice for trial courts. Therefore, we affirm on this issue.

Affirmed in part and reversed in part and remanded for action in accordance with this decision.

SHIVERS and ZEHMER, JJ., concur.


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Citator

Cited By

  • Pastore v. Pastore, 497 So. 2d 635 (Fla. 1986)
    …ADKINS, Judge. In Pastore v. Pastore, 480 So. 2d 231 (Fla. 1st DCA. 1985), the First District found error in the trial court’s treatment of the husband’s retirement pension as a marital asset subject to equitable distribution in a dissolution proceeding. The decision conflicts with our recent holding…
  • Hedwig Anderson v. Anderson, 489 So. 2d 1232 (Fla. 1st DCA 1986)
    …ll continue to each pay half of the mortgage payments and costs which consist of taxes and insurance. Upon the sale of the marital home the husband should receive credit for his half of the mortgage payments, taxes and insurance. Pastore v. Pastore, 480 So. 2d 231, 233 (Fla. 1st DCA 1985). REVERSED and REMANDED. BOOTH, C.J., and WIGGINTON, J., concur.…
  • Kooser v. Kooser, 506 So. 2d 81 (Fla. 1st DCA 1987)
    …affirm the trial court’s denial of the wife’s request that the husband purchase insurance to protect his alimony obligation. Section 61.08(3), Florida Statutes (1985), “merely provides a discretionary choice for the trial court.” Pastore v. Pastore, 480 So. 2d 231 (Fla. 1st DCA 1985), quashed in part and affirmed in part, 497 So. 2d 635 (Fla.1986). Further, it is obvious that the wife’s request for life insurance was to perpetuate the payment of alimony subsequent to the husband’s death. As discussed in Sobel…

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