JANICE R. CUNNINGHAM, APPELLANT,
v.
JIMMIE LEE CUNNINGHAM, APPELLEE
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The wife appealed a final judgment of dissolution of marriage, challenging the incorporation of a separation agreement and the trial court's failure to address division of the husband's military pension accrued during the marriage. The appellate court affirmed the incorporation of the separation agreement but reversed and remanded regarding the military pension, holding that the trial court erred by failing to equitably distribute this marital asset.
The trial court properly incorporated the separation agreement because competent substantial evidence supported its finding of no material change in circumstances. However, the trial court erred by failing to equitably distribute the marital asset consisting of the portion of the husband's military pension that accrued during the marriage, despite this issue being expressly raised in the wife's counter-petition and presented at the final hearing.
[1] A trial court's finding of no material change in circumstances since the execution of a separation agreement is supported by competent substantial evidence if the record…
[2] An appellate court will not consider an issue raised for the first time on appeal.
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Join FLexlaw to unlock all legal intelligence“Clearly, that portion of the husband's future military pension which accrued during the marriage is a marital asset.”
Establishes the legal principle that military pension accrued during marriage is a marital asset subject to equitable distribution.
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Join FLexlaw to unlock all legal intelligenceThe parties executed a separation agreement that provided it could be introduced as evidence of what the parties deemed reasonable, with either party …
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PER CURIAM.
In this appeal from a final judgment of dissolution of marriage, appellant (the wife) argues that the trial court erred by incorporating a separation agreement executed by the parties into the final judgment; and by failing to address the parties’ respective rights to that portion of the husband’s future military pension which had accrued during the marriage. We affirm in part, and reverse in part.
The separation agreement provides that it may be introduced in a subsequent divorce proceeding, “as evidence of what the parties deemed reasonable on the date of [its] execution.” It provides, further, that, if introduced in evidence, either party may offer additional evidence to establish that circumstances had changed since its execution. The wife argues that the agreement should not have been incorporated into the final judgment, because the evidence establishes that circumstances had changed since its execution. However, the trial court found that there had been no material change in circumstances since the execution of the agreement. Our review of the record satisfies us that there is competent substantial evidence to support that finding.
The wife also argues that the separation agreement is unreasonable and unfair, and that it was procured by duress. This issue was not raised in the trial court. Therefore, we decline to consider it, for the first time, on appeal. See, e.g., Dober v. Worrell, 401 So. 2d 1322 (Fla.1981). Clearly, that portion of the husband’s future military pension which accrued during the marriage is a marital asset. E.g., Pastore v. Pastore, 497 So. 2d 635 (Fla.1986); Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986). The separation agreement does not specifically address that asset. However, it does provide that “[p]roperty not specifically identified herein shall be divided upon agreement of the parties.” Obviously, the parties were unable to agree upon division of that asset.
In her counter-petition for dissolution of marriage, the wife expressly requested equitable distribution of that portion of the husband’s future military pension which had accrued during the marriage. The matter was squarely presented to the trial court during the final hearing. Nevertheless, the trial court did not address the issue in its final judgment. This was error. On remand, the trial court shall equitably distribute that portion of the husband’s future military pension which accrued during the marriage.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
ZEHMER, C.J., and ALLEN and WEBSTER, JJ., concur.
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Citator
Cited By
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Willman v. Willman, 944 So. 2d 1151 (Fla. 1st DCA 2006)…date of the filing of the petition for dissolution of marriage.’ ” (quoting Caruso v. Caruso, 814 So. 2d 498, 502 (Fla. 4th DCA 2002))). The portion of a military pension that accrues during marriage is a marital asset. See Cunningham v. Cunningham, 623 So. 2d 1243, 1244 (Fla. 1st DCA 1993). In the present case, the trial judge used November 1, 2002, as the date on which the husband’s pension plan ceased being a marital asset. This was error. As the parties did not have a separation agreement, the husband’s…
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White v. White, 710 So. 2d 208 (Fla. 1st DCA 1998)…ds accrued during the marriage in retirement [and] pension ... plans and programs are marital assets subject to equitable distribution.” § 61.076(1), Fla. Stat. (1995); Anciaux v. Anciaux, 666 So. 2d 577 (Fla. 2d DCA 1996); Cunningham v. Cunningham, 623 So. 2d 1243, 1244 (Fla. 1st DCA 1993) (“Clearly, that portion of the husband’s future military pension which accrued during the marriage is a marital asset.”). On appeal, the former husband contends that involuntary separation pay is analogous to retirement pay…
Authorities Cited
- Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986)
- Chirogianis v. Anderson, 401 So. 2d 1322 (Fla. 1981)
- Pastore v. Pastore, 497 So. 2d 635 (Fla. 1986)