FRANKLIN DELOACH, APPELLANT,
v.
RUTHIE MAE DELOACH, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In this dissolution of marriage appeal, the former husband challenges an award giving the former wife one-half of his military retirement earned during the marriage. The appellate court agrees the award was improper due to insufficient evidentiary support and misapplication of law regarding military pension benefits.
Military pension benefits accrued during marriage are properly subject to equitable distribution or as a source for alimony payments. However, the trial court's award lacks sufficient evidentiary support because critical unresolved issues regarding vesting status, present value, and benefit maturity were not addressed. The trial court erroneously relied on Diffenderfer to establish an automatic entitlement rather than treating the pension as marital property subject to discretionary equitable distribution.
[1] In dissolution proceedings, a chancellor has the inherent right to adjudicate the equitable interests of the parties in property acquired during the marriage.
[2] A trial court may consider the equitable distribution of a military pension even if not specifically pleaded, provided the issue is raised and considered without objectio…
Previewing 2 of 5 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“Military pension benefits should generally be considered as assets subject to equitable distribution or otherwise available as a source for payment of alimony to the extent that the benefits accrued during the marriage.”
Establishes that military pensions are marital property subject to equitable distribution
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe parties were involved in a dissolution of marriage proceeding in which the trial court awarded the former wife one-half of the husband's military …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Chancery Proceedings cases and more on FLexlaw
THOMPSON, Judge.
The former husband appeals an order of child custody and distribution of marital assets entered after a final judgment of dissolution of marriage which, inter alia, awards the former wife one-half of the husband’s military retirement earned during the course of the marriage. The husband argues that the award was improper. We agree, and reverse and remand for reconsideration.
In his first point on appeal the husband asserts that the wife’s failure to specifically seek an equitable distribution of the husband’s pension precludes the court from considering this issue. We disagree. Military pension benefits should generally be considered as assets subject to equitable distribution or otherwise available as a source for payment of alimony to the extent that the benefits accrued during the marriage. Mollnow v. Mollnow, 530 So. 2d 399 (Fla. 1st DCA 1988); Zipperer v. Zipperer, 508 So. 2d 551 (Fla. 1st DCA 1987). All dissolution proceedings are in chancery. § 61.011, Fla.Stat. A chancellor has the inherent right in such proceedings to adjudicate the equitable interests of the parties in property acquired during the marriage. Burns v. Burns, 174 So. 2d 432 (Fla. 2d DCA 1965). Furthermore, the issue of the husband’s pension rights was raised and considered without objection, so it was appropriate to treat it as if it had been raised in the pleadings. Robinson v. Robinson, 340 So. 2d 935 (Fla. 4th DCA 1976).
Notwithstanding our conclusion that the husband’s military pension was properly at issue below, we agree with his contention that the paucity of evidence adduced on this issue cannot support the court’s award. The pension evidence adduced was minimal compared to the extensive evidence presented on other issues. Left unresolved were the important issues of whether the pension was vested or mature, when it would become vested, its present value, or when the husband would be entitled to begin to receive his benefits thereunder. These issues could easily have been resolved by proper questioning of the husband or by the court taking judicial notice of the federal statutes governing the husband’s pension rights. At least one decision has held that non-vested retirement benefits should not be considered as part of the marital estate. Summers v. Summers, 491 So. 2d 1270 (Fla. 2d DCA 1986). On remand the trial court must address and resolve the issues discussed herein.
In the course of questioning the husband about his military pension, the trial judge advised the husband that under Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986), the wife would be “entitled” to a portion of the husband’s pension for the period of time that husband and wife were married. Diffenderfer does not establish any such entitlement, but rather holds that a spouse’s retirement benefits must be considered as marital property, and may be either subjected to division in making equitable distribution of the marital assets, or treated as a source of payment of alimony, but not both. Bujarski v. Bujarski, 530 So. 2d 953 (Fla. 5th DCA) review denied 537 So. 2d 568 (Fla.1988); Waldman v. Waldman, 520 So. 2d 87 (Fla. 3d DCA) review denied 531 So. 2d 169 (Fla.1988).
The portion of the order of child custody and distribution of marital assets relating to the issues concerning .the equitable distribution of the marital property is reversed, and the cause remanded for further consideration consistent with this opinion.
SMITH and MINER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
DeLOACH v. Ruthie Mae DeLOACH, 590 So. 2d 956 (Fla. 1st DCA 1991)…al, this court reversed, stating that although the husband’s pension was marital property which could be equitably distributed or treated as a source of alimony, there was insufficient evidence to support the trial court’s award. DeLoach v. DeLoach, 552 So. 2d 324 (Fla. 1st DCA 1989) (hereafter DeLoach I). We remanded to the trial court to determine “whether the pension was vested or mature, when it [*958] would become vested, its present value, or when the husband would be entitled to begin to receive his be…
-
Babooram Sugrim v. Sumattee Sugrim, 649 So. 2d 936 (Fla. 5th DCA 1995)…y business precludes such an award to her. In a dissolution action, as in other civil litigation, an issue is properly before the court where raised by the pleadings or where raised and considered by the court without objection. DeLoach v. DeLoach, 552 So. 2d 324 (Fla. 1st DCA 1989), appeal after remand, 590 So. 2d 956 (Fla. 1st DCA 1991). A prayer for equitable distribution of marital property has been broadly interpreted to include, for instance, an award of lump sum alimony for the purpose of equitable di…
-
Nelson v. Nelson, 588 So. 2d 1049 (Fla. 2d DCA 1991)…ld that where pension benefits are vested they are to be considered a marital asset subject to equitable distribution or as a source of payment of permanent alimony. In Lovelady v. Lovelady, 576 So. 2d 946 (Fla. 2d DCA 1991), and Deloach v. Deloach, 552 So. 2d 324 (Fla. 1st DCA 1989), the holding of Diffenderfer was found to require courts to consider such benefits a marital asset even though the pension evidence adduced was minimal. Here, the husband testified that the pension plan was vested, but no other d…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986)
- Waldman v. Waldman, 520 So. 2d 87 (Fla. 3d DCA 1988)
- State Farm Mut. Auto. Ins. v. Fanny Napoli and Edward Napoli, 340 So. 2d 935 (Fla. 4th DCA 1976)
- Bujarski v. Marcel J. Bujarski, 530 So. 2d 953 (Fla. 5th DCA 1988)
- Zipperer v. Zipperer, 508 So. 2d 551 (Fla. 1st DCA 1987)
- Burns v. Smith Burns, 174 So. 2d 432 (Fla. 2d DCA 1965)
- Margeson v. G. Pierce Wood Mem'l Hosp. & the Adm'r, 491 So. 2d 1270 (Fla. 2d DCA 1986)
- Summers v. Summers, 491 So. 2d 1270 (Fla. 2d DCA 1986)
- Mollnow v. Mollnow, 530 So. 2d 399 (Fla. 1st DCA 1988)