HOYT D. ALLEN, APPELLANT,
v.
CONNIE S. ALLEN, APPELLEE

Fla. 2d DCA | 1994-12-28
No. 94-01386
THREADGILL and QUINCE, JJ., concur.
650 So. 2d 1019 Florida District Court of Appeal, Second District (1994) Positive Treatment
Cited by 2 cases

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.

Synopsis

A Florida appellate court affirmed a temporary alimony award of $750 per month against a husband whose income consisted principally of military disability retirement pay. The court held that federal law prohibiting division of disability pay as marital property does not prevent a state court from awarding alimony against a spouse receiving such pay or from considering that income when calculating alimony obligations.


Holding

Federal law does not prohibit a state court from awarding alimony against a spouse receiving military disability retirement pay. While section 1408 prevents direct division of disability pay as marital property, it does not preclude an alimony award against the receiving spouse or relieve that spouse from paying alimony obligations once awarded, even if the spouse's income consists primarily of disability pay.


Headnotes

[1] Federal law does not prohibit a state court from awarding temporary alimony based on a spouse's military retirement pay designated as disability.

[2] While federal law may prevent direct payment of alimony from a spouse's military disability retirement pay, it does not relieve the paying spouse of the obligation to pay…

Previewing 2 of 3 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

Key Quotes

“Section 1408 does not preclude an award of alimony against the spouse receiving disability pay and, once awarded, does not relieve the paying spouse from paying such alimony obligations”

Establishes the core holding that federal law prohibits division of disability pay as property but does not prevent alimony awards based on that income

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The husband received military retirement pay consisting principally of disability payments. The trial court awarded the wife temporary alimony of $750…

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.


Opinion of the Court
DANAHY, Acting Chief Judge.

DANAHY, Acting Chief Judge.

The appellant (the husband) challenges an order awarding the appellee (the wife) $750 per month temporary alimony because it was computed by considering the husband’s military retirement pay consisting principally of disability payments. The husband argues that federal law prohibits a state court from awarding alimony to a spouse which is determined by and payable from military retirement pay which has been designated as disability. We stress that this is the only issue raised by the husband on this appeal. For the reasons set forth below, we affirm.

The problem here arises from the provisions of 10 U.S.C. section 1408 (Supp.1988). That section applies to the payment of “disposable retired pay” of a veteran to his or her spouse as part of a division of property, expressed in dollars or as a percentage of disposable retired pay.

Section 1408(a)(4) states that the term “disposable retired pay” means monthly retired pay less any part of the retired pay designated as disability. In Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), the 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 has cited no authority upholding her position.

Research reveals that there is such authority; a decision of the Supreme Court of Arkansas in Murphy v. Murphy, 302 Ark. 157, 787 S.W. 2d 684 (1990), rejected the contention of a husband that the trial court erred in requiring him to pay alimony out of his disability benefits.

The court noted that under 10 U.S.C. section 1408 (Supp.1988) the wife was clearly not entitled to receive direct payments for alimony because the husband had no disposable retirement pay as defined thereunder.

Nevertheless, the court said that this did not preclude the trial court from ordering the husband to pay alimony, and once awarded, the federal law does not relieve the husband from paying such alimony obligations.

We note that the Fourth District Court of Appeal cited Murphy with approval in Day v. Day, 574 So. 2d 324 (Fla. 4th DCA), review denied, 589 So. 2d 290 (Fla.1991).

We believe that the analysis in Murphy is correct. A reading of 10 U.S.C. section 1408(a) (Supp.1988) reveals that Congress was speaking only of direct payments for alimony from a spouse’s disability pay. That section does not preclude an award of alimony against the spouse receiving disability pay and, once awarded, does not relieve the paying spouse from paying such alimony obligations, even though (as in this case) most of the paying spouse’s income consists of military retirement designated as disability.

Affirmed.

THREADGILL and QUINCE, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Naples v. Naples, 967 So. 2d 944 (Fla. 2d DCA 2007)
    …cause it did not expressly assign or divide disability benefits. Id. The USFSPA’s preclusion of assignment or division of disability benefits does not void an alimony award merely because the payor spouse receives such benefits. See Allen v. Allen, 650 So. 2d 1019, 1020 (Fla. 2d DCA 1994) (holding section 1408 exclusion of disability benefits from military retirement pay subject to direct payments to former spouse did not preclude state court from ordering husband to pay alimony or relieve him from paying suc…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw