JOE E. FONDREN, APPELLANT,
v.
ANNA JANE FONDREN, APPELLEE
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HALL, Judge.
Joe Fondren challenges the final judgment of dissolution of his marriage to Anna Fondren. We only find merit in his contention that the trial court erred in awarding Anna half of his military retirement pension. No part of such a pension that is received due to a disability can be considered as marital property subject to equitable distribution. McMahan v. McMahan, 567 So. 2d 976 (Fla. 1st DCA 1990); Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989).
We remand with directions to the trial court to determine what part of Joe’s pension is attributable to his disability and to modify the award of his pension to Anna accordingly. We remind the trial court that any determination of an award of Joe’s pension is limited to that part of the pension which he earned while the parties were married.
Affirmed in part, reversed in part, and remanded.
SCHOONOVER, A.C.J., and PATTERSON, J., concur.
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Citator
Cited By
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Hoyt D. Allen v. Allen, 650 So. 2d 1019 (Fla. 2d DCA 1994)…Supreme Court held that section 1408 does not grant state courts the power to treat, as property divisible upon divorce, military retirement pay that has been waived to receive veteran’s disability. This court followed Mansell in Fondren v. Fondren, 605 So. 2d 571 (Fla. 2d DCA 1992). The appellant’s argument is based on these decisions, which he says forbid using his disability retirement to measure his ability to pay alimony and as a source for the payment of alimony. The appellee argues otherwise, but she h…
Authorities Cited
- Mansell v. Mansell, 490 U.S. 581 (U.S. 1989)
- McMAHAN v. Myrtes McMAHAN, 567 So. 2d 976 (Fla. 1st DCA 1990)