DAVID ROSADO, APPELLANT,
v.
IBET NORMA ROSADO, APPELLEE
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David Rosado appealed a final dissolution of marriage order challenging the alimony and attorney's fees awards. The court reversed both awards, holding that the trial court improperly sourced permanent periodic alimony from the former husband's disability benefits, which is prohibited under federal law.
The court held that the alimony award must be reversed because using disability benefits as the source of alimony is prohibited under federal law (Mansell v. Mansell). The attorney's fees award was also reversed because the parties were in similar financial circumstances and the award was not warranted. On remand, the trial court may award alimony from the husband's employment income or treat the pension as income rather than as a marital asset.
[1] Federal law preempts state court orders from dividing veterans' disability benefits.
[2] A court may not award a former spouse more than 50% of a military member's retirement pay.
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“Although we conclude that there was no abuse of discretion in the amount of the alimony award, $343 per month, the court erred in using the former husband's disability benefits as the source of the alimony. This arrangement is forbidden under Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989).”
Establishes the core holding that disability benefits cannot be the source of alimony awards due to federal law preemption.
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Join FLexlaw to unlock all legal intelligenceThe parties were married in 1978 and have two grown children. The former wife earns $1,240 net monthly while the former husband has a net income of $2…
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THOMPSON, J.
David Rosado, the former husband, appeals a final order of dissolution of marriage. We reverse the awards of alimony and attorney’s fees, and remand for reconsideration of the alimony award.
The parties were married in 1978 and have two grown children. Their incomes and assets are modest. The former wife earns $1,240 net monthly, while the former husband has a net income of $2,497, including $1,810 from employment and $687 in disability payments. The major marital asset was the former husband’s military pension of $688 per month, which the court distributed equally. We find no abuse of discretion in the distribution of marital assets.
The final judgment provides: “As permanent periodic alimony, the Wife shall receive one-half ... of the Husband’s Military Disability Benefits, to-wit: the sum of $343.00 per month.” Although we conclude that there was no abuse of discretion in the amount of the alimony award, $343 per month, the court erred in using the former husband’s disability benefits as the source of the alimony. This arrangement is forbidden under Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). See also Abernethy v. Fishkin, 699 So. 2d 235, 239 (Fla.1997) (holding that the division of veterans’ disability benefits, whether through court order or settlement agreement, is preempted by federal law). The alimony award must therefore be reversed.
We do not agree with the suggestion that to correct the error in awarding the wife half of the disability benefits that the trial court on remand should simply award the former wife the entirety of the retirement benefits. First, the pension benefit was equally divided as a marital asset, so the former husband’s share may not be used as a source of alimony. See Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986) (holding that an injustice would result if the trial court were to consider the same asset in calculating both property distribution and support obligations). Second, under Mansell, a court may not award a former spouse more than 50% of the military member’s retirement pay. 490 U.S. at 589, 109 S.Ct. 2028. The court could, however, instead of treating the retirement pension as a marital asset, consider it income to the former husband and thus a source of alimony payments. See Bujarski v. Bujarski, 530 So. 2d 953 (Fla. 5th DCA 1988).
On remand, the court should make findings regarding the husband’s claim that the former wife is underemployed. After making that determination, if the court deems the wife entitled to an alimony award, it may make an award from the husband’s employment income, or, it may treat the pension as a source of income instead of as a marital asset.
Finally, we must reverse the award of attorney’s fees to the former wife. The parties are in similar financial circumstances, except that the former husband was awarded a greater proportion of the marital liabilities, so the award was not warranted. See e.g. Schiller v. Schiller, 625 So. 2d 856 (Fla. 5th DCA 1993).
REVERSED and REMANDED.
COBB, W., Senior Judge, ROUSE, R., Associate Judge, concur.
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Mohamed S. Rashid v. Shanta Rashid, 35 So. 3d 992 (Fla. 5th DCA 2010)…2 (Fla. 5th DCA 1983). Hence, it is an abuse of discretion to award attorney’s fees if the dissolution decree leaves both parties in equal financial positions. Lovell; Matajek v. Skowronska, 927 So. 2d 981, 988 (Fla. 5th DCA 2006); Rosado v. Rosado, 855 So. 2d 1199, 1201 (Fla. 5th DCA 2003); Schiller v. Schiller, 625 So. 2d 856, 862 (Fla. 5th DCA 1993). Here, the trial court did more than place Wife in an equal position to Husband; instead, the trial court inequitably distributed assets and placed Wife in a su…
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Previewing 3 of 4 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)
- Mansell v. Mansell, 490 U.S. 581 (U.S. 1989)
- Bujarski v. Marcel J. Bujarski, 530 So. 2d 953 (Fla. 5th DCA 1988)
- Schiller v. Schiller, 625 So. 2d 856 (Fla. 5th DCA 1993)
- State v. Hampton, 699 So. 2d 235 (Fla. 1997)
- Abernethy v. Fishkin, 699 So. 2d 235 (Fla. 1997)