DONALD A. OGLESBY, APPELLANT,
v.
PAMELA R. OGLESBY, APPELLEE
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The court held that provisions in a final judgment attempting to prevent bankruptcy, mandate continued employment, or enforce pension division by contempt are improper and unenforceable.
[1] A military pension is an asset subject to equitable distribution in a dissolution of marriage action.
[2] A trial court lacks the authority to order a party not to file bankruptcy or to remain in a specific job.
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WHATLEY, Judge.
Donald A. Oglesby, the Former Husband, appeals the final judgment of dissolution of his marriage to Pamela R. Ogles-by, the Former Wife. He raises several issues, but we find merit only in his argument regarding the provisions of the final judgment concerning his military pension.
The two paragraphs of the final judgment that are problematic read as follows:
11.8 The Husband shall not merge his military pension within other benefits or entitlement including disability through the Department of Veteran’s Affairs, disability retirement pursuant to Chapter 61 of Title 10, United States Code, the seeking of employment that would cause a reduction in said retirement pursuant to the “Dual Compensation Act” or by the Husband filing bankruptcy. In such event, the Husband shall pay to the Wife an amount equal to that portion of the retirement that the Wife would have otherwise received had no such reduction in the retirement occurred. The payment shall continue until the death of either party and shall be enforceable by contempt power of the Court.
11.9 The Husband shall remain an active member of the military until such time as his retirement benefits are fully vested. If the Husband voluntarily discontinues service in the military prior to obtaining full retirement benefits, Husband shall pay directly to the Wife the total sum of retirement benefits she would have otherwise received had Husband remained an active member of the military.
First, a pension is an asset subject to equitable distribution. § 61.075(5)(a)(4), Fla. Stat. (2004). Consequently, the award to the Former Wife of her share of the pension is not enforceable by contempt. See Cone v. Gillson, 861 So. 2d 1210 (Fla. 2d DCA 2003); Kadanec v. Kadanec, 765 So. 2d 884 (Fla. 2d DCA 2000). Paragraph 11.7 also contains an improper reference to enforcing the payment of the Former Wife’s share of the pension by contempt.
Second, a trial court does not have authority to order a party not to file bankruptcy or to remain in a certain job. Although the language of the final judgment at first mandates these requirements, it then seems to acknowledge that the Former Husband is not obligated to abide by them. Nevertheless, because of the court’s lack of authority to impose these requirements, we are troubled by their inclusion in the judgment.
Third, the Former Wife is only entitled to that portion of the Former Husband’s pension that accrued during the marriage. See Lawrence v. Lawrence, 904 So. 2d 445, 446 (Fla. 3d DCA 2005) (“The Florida Supreme Court has held that the valuation of a vested retirement plan is not to include any contributions made after the original judgment of dissolution.”) (citing Boyett v. Boyett, 703 So. 2d 451 (Fla.1997)). We find the phrases “until such time as his retirement benefits are fully vested,” “pri-or to obtaining full retirement benefits,” and “total sum of retirement benefits she would have otherwise received had Husband remained an active member of the military” are subject to varying interpretations and could be read to suggest otherwise.
Accordingly, we affirm the final judgment of dissolution in all respects save those provisions referenced in this opinion. We remand for further proceedings with directions consistent with this opinion.
DAVIS and WALLACE, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lynch v. Lockyer, 180 So. 3d 1120 (Fla. 5th DCA 2015)…643 So. 2d 115 (Fla. 5th DCA 1994)) (finding it was improper to find former husband was in contempt for failing to pay an equitable distribution obligation); see also Russo v. Russo, 129 So. 3d 507, 508 (Fla. 2d DCA 2014) (citing Oglesby v. Oglesby, 921 So. 2d 849, 850 (Fla. 2d DCA 2006)) (holding that contempt is not the proper method to- enforce the payment of a benefit that was equitably distributed in a dissolution judgment); Byrne v. Byrne, 133 So. 3d 1082, 1084 (Fla. 4th DCA 2014) (“The, law is well-set…
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Russo v. Russo, 129 So. 3d 507 (Fla. 2d DCA 2014)…ide this benefit equally. However, from the record and from the magistrate’s report, it appears likely that this benefit is an asset that was equitably distributed. If so, contempt would not be a proper method of enforcement. See Oglesby v. Oglesby, 921 So. 2d 849, 850 (Fla. 2d DCA 2006). In this opinion, we do not attempt to determine the proper method to enforce this distribution of the pension benefit. If and when this benefit becomes available, . should Rosa Russo need to obtain the assistance of the cour…
Authorities Cited
- Eldis Raymell Boyett v. Boyett, 703 So. 2d 451 (Fla. 1997)
- Kadanec v. Kadanec, 765 So. 2d 884 (Fla. 2d DCA 2000)
- Allie Louis Cone, III v. Gillson, 861 So. 2d 1210 (Fla. 2d DCA 2003)
- Lawrence v. Lawrence, 904 So. 2d 445 (Fla. 3d DCA 2005)