REBECCA A. ZIPPERER, APPELLANT,
v.
WILLIAM RAY ZIPPERER, APPELLEE
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Wife appeals a dissolution of marriage judgment that denied her any interest in husband's vested military pension and awarded her $1,000 monthly alimony. The court reverses and remands because the trial court failed to consider the pension as a marital asset under the Supreme Court's revised Diffenderfer standard, which permits pension rights to be treated as either marital property or an alimony source.
A spouse's vested pension rights may be considered as a marital asset in determining either equitable distribution or alimony, but not both. The trial court must reconsider the alimony and property division to determine whether the husband's pension benefits were considered in the calculations. The court cannot affirm the judgment without evidence that the pension was factored into the alimony determination.
[1] A spouse's entitlement to pension or retirement benefits is a marital asset subject to equitable distribution.
[2] Retirement benefits acquired during a marriage are marital property, even if vested or matured.
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Join FLexlaw to unlock all legal intelligence“a spouse's vested pension rights may be considered as a marital asset in determining either equitable distribution, or alimony, but not both”
Establishes the Supreme Court's revised rule that pensions are marital assets usable for either property division or alimony, not both
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Join FLexlaw to unlock all legal intelligenceThe parties dissolved their marriage. The trial court found the wife was not entitled to any interest in the husband's vested military pension and awa…
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THOMPSON, Judge.
The wife appeals a final judgment of dissolution of marriage which denied her any interest in the husband’s vested military pension and awarded her $1,000 a month permanent periodic alimony. The wife contends the trial court erred in failing to award her any interest in her husband’s pension and in awarding her only $1,000 a month permanent periodic alimony. We reverse and remand.
At the time the court found that the wife was not entitled to any interest in the husband’s pension the finding was consistent with this court’s decision in Diffenderfer v. Diffenderfer, 456 So. 2d 1214 (Fla. 1st DCA 1984) which held that a wife was not entitled to an equitable distribution of any portion of her husband’s military retirement pension which was fully vested. After the entry of the final judgment of dissolution the supreme court reversed this court’s Diffenderfer decision and held that a spouse’s vested pension rights may be considered as a marital asset in determining either equitable distribution, or alimony, but not both. It is left to the trial judge’s discretion how pension rights are to be valued and treated in doing equity between the parties. Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986).
We cannot determine from our examination of the record whether the trial judge considered the husband’s pension rights in determining the amount of the wife’s alimony or in the division of the parties’ assets. We therefore reverse the provisions of the judgment pertaining to alimony and the division of property and remand for reconsideration of these matters in light of the supreme court’s opinion in Diffender-fer. We are not directing the trial judge to make any change in the amount of alimony or the division of the property, but are reversing and remanding only to give him the opportunity to consider the husband’s pension benefits as a marital asset for lump sum distribution or as a source of permanent alimony payments.
We find no reversible abuse of discretion in the amount of permanent alimony awarded the wife and if the record reflected that the husband’s vested military pension was taken into consideration as a source of the alimony payments and in setting the amount, the final judgment of dissolution would be affirmed without remand.
REVERSED and REMANDED with further proceedings consistent with this opinion.
SHIVERS and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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COX v. Kimi Lea COX, 659 So. 2d 1051 (Fla. 1995)…ture military retirement benefits should have been treated as a marital asset for purposes of equitable distribution or considered as a source of payment of alimony.4 See Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986); Zipperer v. Zipperer, 508 So. 2d 551 (Fla. 1st DCA 1987). Accordingly, we approve the result reached by the district court of appeal in this case, but disapprove of its reasoning.5 Moreover, we disapprove of other decisions of the district courts of appeal to the extent that they confl…
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Zipperer v. Zipperer, 567 So. 2d 916 (Fla. 1st DCA 1990)…military pension. This court affirmed the alimony provision but remanded the case because the trial court did not indicate whether it considered the former husband’s vested pension when it distributed the marital property. See, Zipperer v. Zipperer, 508 So. 2d 551 (Fla. 1st DCA 1987). Following the distribution of marital property, both parties had approximately $95,000 in assets. Mr. Zipperer, fifty-six years of age, is a former Navy captain and base commander who at the time of the filing of the instant pe…
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Bujarski v. Marcel J. Bujarski, 530 So. 2d 953 (Fla. 5th DCA 1988)…. 4th DCA 1987). With this decision, it appears to me that this court is taking a major step backwards from the developing law of equitable distribution in Florida. See Dwyer v. Dwyer, 513 So. 2d 1325 (Fla. 2d DCA 1987); Tripp; Zipperer v. Zipperer, 508 So. 2d 551 (Fla. 1st DCA 1987); Grant v. Grant, 506 So. 2d 1152 (Fla. 1st DCA 1987); McCarthy v. McCarthy, 523 So. 2d 1252 (Fla. 3rd DCA 1988). The facts in this case present the classic situation for equitable distribution of a military pension as a marital…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986)
- Diffenderfer v. Diffenderfer, 456 So. 2d 1214 (Fla. 1st DCA 1984)