SHIRLEY A. ANCIAUX, APPELLANT,
v.
MARCUS A. ANCIAUX, APPELLEE
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In this divorce case, the Second District Court of Appeal reversed the trial court's decision to exclude a military retirement pension from equitable distribution and remanded for reconsideration of permanent alimony and attorney's fees awards. The court held that military pensions are marital assets subject to equitable distribution regardless of the ten-year service requirement, and that the trial court should reconsider alimony in light of the substantial income disparity and inequitable debt division.
A military retirement pension is a marital asset subject to equitable distribution under section 61.076(1) regardless of the requirements in section 61.076(2). The trial court must reconsider its denial of permanent periodic alimony in light of the thirteen-year marriage duration, substantial income disparity, and inequitable debt assignment. A partial award of attorney's fees may constitute an abuse of discretion where there is substantial disparity between the parties' incomes.
[1] A military retirement plan is a marital asset subject to equitable distribution under Florida Statutes section 61.076.
[2] The duration of a marriage and the parties' respective incomes and debts are factors to be considered when determining an award of permanent periodic alimony.
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Join FLexlaw to unlock all legal intelligence“Section 61.076(1), Florida Statutes (1993), clearly provides that the pension plan is a marital asset subject to equitable distribution.”
Establishes the primary holding that military pensions must be included in equitable distribution regardless of the ten-year service requirement
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Join FLexlaw to unlock all legal intelligenceShirley and Marcus Anciaux were married for thirteen years. Marcus had a military retirement plan. The trial court excluded the military pension from …
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RYDER, Judge.
Shirley Anciaux challenges the final judgment’s equitable distribution of the parties’ marital assets, denial of permanent periodic alimony and partial award of attorney’s fees. Because she is correct that the pension plan involved in this litigation is subject to equitable distribution, and as we conclude that the trial court shall reconsider an award of permanent periodic alimony and the partial award of attorney’s fees, we reverse and remand for further proceedings.
The trial judge declared in his order that pursuant to section 61.076, Florida Statutes (1993), the former husband’s military retirement plan was not considered a marital asset because the parties were not married for at least ten years while he was a member of the federal uniformed services. He further declared that the pension sums received may be used for support or alimony payments, but declined to award rehabilitative or permanent periodic alimony to the former wife. However, an award of $2,000.00 in lump sum alimony was provided to her. Section 61.076(1), Florida Statutes (1993), clearly provides that the pension plan is a marital asset subject to equitable distribution. See Johnson v. Johnson, 602 So. 2d 1348 (Fla. 2d DCA 1992). Section 61.076(2), Florida Statutes (1993), requires certain information in the final judgment with respect to an equitable distribution of a military pension, but it has no effect on the wife’s entitlement to equitable distribution.
Given the thirteen-year duration of the marriage and the inequitable division of the debt structure, the trial court should reconsider the denial of an award of permanent periodic alimony to the former wife. See Echols v. Elswick, 638 So. 2d 581 (Fla. 1st DCA 1994); Bailey v. Bailey, 617 So. 2d 815 (Fla. 2d DCA 1993); Gregoire v. Gregoire, 615 So. 2d 694 (Fla. 2d DCA 1992). After deducting the debt attributable to each party’s automobile, the judge assigned almost $2,000.00 more in debt to the wife than the husband, while her income was approximately one-third of his. Moreover, her ability to regain her former income level was an uncertain future event. See Villaverde v. Villa-verde, 547 So. 2d 185 (Fla. 3d DCA 1989); Echols, 638 So. 2d 581.
The former wife also disputes the trial court’s partial award of attorney’s fees. It can be an abuse of discretion to grant a partial attorney’s fee award where there is a substantial disparity between the parties’ incomes. Fabre v. Levine, 618 So. 2d 317 (Fla. 1st DCA), review denied, 629 So. 2d 132 (Fla. 1993). Clearly, this is the case here. Therefore, after the trial court makes an equitable distribution of the pension plan, the court should then reevaluate an award of permanent periodic alimony and the award of attorney’s fees.
Reversed and remanded for further proceedings consistent with this opinion.
THREADGILL, C.J., and WHATLEY, J., concur.
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Lowman v. Lowman, 724 So. 2d 648 (Fla. 2d DCA 1999)…ust reduce the lifestyle of one or both litigants while the fees are being paid. Where there is a substantial disparity between the parties’ incomes, it may be an abuse of discretion to grant' a partial attorneys’ fee award. See Anciaux v. Anciaux, 666 So. 2d 577 (Fla. 2d DCA 1996); Fabre v. Levine, 618 So. 2d 317 (Fla. 1st DCA 1993) (award of fees in domestic relations proceedings is not dependent upon who prevails, but rather on relative resources of parties). In light of Mr. and Mrs. Lowman’s disparity in…
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Marcia L. Arena v. John F. Arena, 103 So. 3d 1044 (Fla. 2d DCA 2013)…e award because neither the record on appeal nor the trial court’s fee order contains sufficient factual findings to support the award. We review an award of attorney’s fees, whether in whole or in part, for abuse of discretion. Anciaux v. Anciaux, 666 So. 2d 577, 578 (Fla. 2d DCA 1996). Decisions regarding an award of attorney’s fees in a dissolution case are governed by section 61.16, Florida Statutes (2009), which requires the trial court to consider “the relative financial resources of the par [*1046] ti…
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Kelley v. Hazen Peter Kelley, 967 So. 2d 924 (Fla. 2d DCA 2006)…e trial court abused its discretion in failing to award the Wife all of the attorneys’ fees the Wife reasonably incurred based upon the substantial financial disparity that remained under the provisions of the final judgment. See Anciaux v. Anciaux, 666 So. 2d 577 (Fla. 2d DCA 1996). On remand, after the court reconsiders and establishes an appropriate amount of permanent periodic alimony, the court must address anew the Wife’s request for a contribution to her attorneys’ fees. However, the propriety of any n…
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
- Gregoire v. Gregoire, 615 So. 2d 694 (Fla. 2d DCA 1992)
- Villaverde v. Villaverde, 547 So. 2d 185 (Fla. 3d DCA 1989)
- Fabre v. Levine, 618 So. 2d 317 (Fla. 1st DCA 1993)
- Echols v. Elswick, 638 So. 2d 581 (Fla. 1st DCA 1994)
- Bailey v. Bailey, 617 So. 2d 815 (Fla. 2d DCA 1993)
- Marie-Anne Nicole Grivet Johnson v. Johnson, 602 So. 2d 1348 (Fla. 2d DCA 1992)