LUCINDA TRIPP, APPELLANT,
v.
ODELL TRIPP, APPELLEE
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The court held that the trial court committed reversible error by failing to address the equitable distribution of the husband's vested military pension benefits earned during the marriage.
[1] Vested military pension benefits earned or acquired during the marriage are marital assets.
[2] A trial court's failure to address a party's request for equitable distribution of vested military pension benefits earned during the marriage constitutes reversible erro…
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Join FLexlaw to unlock all legal intelligenceThe wife requested half of the husband's vested military pension in her petition for dissolution of marriage. The final judgment did not address this …
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PER CURIAM.
Appellant seeks our review of a final judgment of dissolution of marriage. She argues that the trial court committed reversible error when it failed equitably to distribute the husband’s vested military pension despite a request by the wife that it do so. Appellee has not filed a brief.
Of course, vested military pension benefits must now be treated as a marital asset [Pastore v. Pastore, 497 So. 2d 635 (Fla.1986); Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986)], at least to the extent earned or acquired during the marriage. Kluessner v. Kluessner, 508 So. 2d 775 (Fla. 1st DCA 1987). In her petition, appellant requested half of the husband’s monthly retirement check. This request was not addressed in the final judgment (although the trial court subsequently indicated that, by failing to address the request, it had intended to deny it).
It is not clear to us whether the trial court treated the military pension benefits as a marital asset. If it did not, the failure to do so would be reversible error to the extent that those benefits were earned or acquired during the marriage. Diffender-fer, supra. If it did, in our opinion, under the totality of the circumstances, appellant has been “shortchanged.” Canakaris v. Canakaris, 382 So. 2d 1197,1204 (Fla.1980). In either event, reversal is necessary.
On remand, the trial court should treat the husband’s pension benefits earned or acquired during the marriage as a marital asset. The trial court should then do equity between the parties, according to the principles expressed in Canakaris. In fashioning an overall plan that is fair to both parties, taking into account the pension benefits, the trial court may wish to revisit the amounts of child support and periodic alimony previously set. It is certainly free to do so. The only requirement is that the overall plan of distribution do equity between the parties.
REVERSED and REMANDED, with directions.
GUNTHER and STONE, JJ., and WEBSTER, PETER D., Associate Judge, concur.
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Bujarski v. Marcel J. Bujarski, 530 So. 2d 953 (Fla. 5th DCA 1988)…ed by the majority) it grossly shortchanged the wife by not allocating to her any portion of that marital asset, or making any other compensating award to her of other assets, á la Tronconi v. Tronconi, 466 So. 2d 203 (Fla.1985). See Tripp v. Tripp, 510 So. 2d 1109 (Fla. 4th DCA 1987). With this decision, it appears to me that this court is taking a major step backwards from the developing law of equitable distribution in Florida. See Dwyer v. Dwyer, 513 So. 2d 1325 (Fla. 2d DCA 1987); Tripp; Zipperer v. Zippe…
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McREYNOLDS v. McREYNOLDS, 546 So. 2d 1153 (Fla. 2d DCA 1989)…set for purposes of equitably distributing marital property. Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986); Hatcher v. Hatcher, 533 So. 2d 917 (Fla. 2d DCA 1988). See also Smith v. Smith, 537 So. 2d 1021 (Fla. 3d DCA 1989); Tripp v. Tripp, 510 So. 2d 1109 (Fla. 4th DCA 1987); Howerton v. Howerton, 491 So. 2d 614 (Fla. 5th DCA 1986). The trial court, accordingly, erred in finding that the husband’s pension was not a marital asset. Once a pension is considered as a marital asset, it may be treated as…
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Rentz v. Rentz, 535 So. 2d 613 (Fla. 2d DCA 1988)…ted as a marital asset, either as a source of support obligations or as property subject to equitable distribution. They should not, however, be considered in calculating both. Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986); Tripp v. Tripp, 510 So. 2d 1109 (Fla. 4th DCA 1987). No Florida court has directly addressed the issue of whether the Act should be applied to modify or eliminate an agreed upon award of lump sum alimony and replace it with a percentage of a spouse’s military retirement pay. In a…
Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986)
- Pastore v. Pastore, 497 So. 2d 635 (Fla. 1986)
- Irby Jerrell Thomas v. State, 508 So. 2d 775 (Fla. 5th DCA 1987)