ROSEMARY MCCARTHY, APPELLANT,
v.
THOMAS J. MCCARTHY, APPELLEE
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In this Florida dissolution case, the appellate court affirmed most of the trial court's judgment but reversed and remanded regarding the vested pension plan, which the trial court failed to address as a marital asset despite established Florida law requiring its division.
The trial court erred in not addressing the vested pension plan as a marital asset. The appellate court reversed and directed the trial court to either divide the vested pension equally between the parties (which would relieve the husband's permanent alimony obligation) or enter such other order as deemed proper under the circumstances.
[1] A vested pension plan is considered a marital asset.
[2] A trial court errs by failing to address a vested pension plan in a final judgment of dissolution.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The law current in Florida is that a vested pension plan is a marital asset. Pastore v. Pastore, 497 So.2d 635 (Fla.1986); Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986); Barry v. Barry, 511 So.2d 649 (Fla. 4th DCA 1987).”
Establishes the settled Florida law that vested pensions are marital assets subject to division
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Join FLexlaw to unlock all legal intelligenceHusband and wife were married thirty years with five children. The wife suffered from a mental disorder requiring hospitalizations, with the final sep…
The full statement of facts, procedural history, and disposition for this case are member content.
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BARKDULL, Judge.
Respondent/wife appeals a final judgment of dissolution.
Husband and wife were married for thirty years, and had five children. Since early in the marriage, the wife has suffered from a mental disorder which has required several hospitalizations. The last of which occurred after the wife seriously injured husband by attacking him with a knife, and resulted in the separation of the parties. The husband is highly educated, and had worked for twenty-two years at Eastern Airlines where he received an annual income of approximately $50,000. He was scheduled to retire in July, 1987 with a vested pension of $1,299 per month. The wife has only a high school education, and had no significant work experience during the marriage, although at the time of the final hearing she was working full-time at a menial position at Burdines, a department store in Miami.
The trial judge awarded the wife $150 a month as permanent alimony. The only other marital asset was the home of the parties, which was sold during the pendency of the proceeding. The trial judge ordered expenses incurred in preparing the home for sale to be deducted from the proceeds thereof and marital bills that had accumulated, to be paid, and the balance of approximately $65,000 to be divided between the parties. He also made certain rulings in reference to medical responsibilities and attorney fees. He made no specific finding as to the vested pension plan. The law current in Florida is that a vested pension plan is a marital asset. Pastore v. Pastore, 497 So. 2d 635 (Fla.1986); Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986); Barry v. Barry, 511 So. 2d 649 (Fla. 4th DCA 1987).
We find no merit in the points raised by the appellant in this appeal, except as relates to the vested pension. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980); Richards v. Richards, 477 So. 2d 620 (Fla. 5th DCA 1985); Miller v. Miller, 466 So. 2d 356 (Fla. 5th DCA 1985); McMullen v. McMullen, 185 So. 2d 191 (Fla. 2d DCA 1966); Oncay v. Oncay, 183 So. 2d 878 (Fla. 3d DCA 1966); Peteler v. Peteler, 145 So. 2d 291 (Fla. 3d DCA 1962). We hold that the trial court erred in not addressing the vested pension plan, as this record fails to disclose any incapacity in the husband to pursue gainful employment. We therefore direct the trial court to enter an order either dividing the vested pension equally between the parties (which should then relieve the husband of the obligation of permanent alimony) or enter such other order as he may deem to be proper under the circumstances.
Therefore the final judgment here under review is affirmed in part and reversed in part with directions.
Affirmed in part, reversed in part, with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bujarski v. Marcel J. Bujarski, 530 So. 2d 953 (Fla. 5th DCA 1988)…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 asset. The parties married in 1957. The parties raised a family of three children, and during the twenty-nine ye…
Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986)
- Pastore v. Pastore, 497 So. 2d 635 (Fla. 1986)
- McMULLEN v. McMULLEN, 185 So. 2d 191 (Fla. 2d DCA 1966)
- Miller v. Miller, 466 So. 2d 356 (Fla. 5th DCA 1985)
- Peteler v. Peteler, 145 So. 2d 291 (Fla. 3d DCA 1962)
- Richards v. Richards, 477 So. 2d 620 (Fla. 5th DCA 1985)
- Oncay v. Oncay, 183 So. 2d 878 (Fla. 3d DCA 1966)
- Marianne v. Barry, 511 So. 2d 649 (Fla. 4th DCA 1987)