Opinion
No. 1D21-2647
08-17-2022
Craig MARTIN, Former Husband, Appellant, v. Maribel MARTIN, Former Wife, Appellee.
Steven J. Gilpatrick of Law Office of Steven J. Gilpatrick, Shalimar, for Appellant. Tonya Holman, Shalimar, for Appellee.
Steven J. Gilpatrick of Law Office of Steven J. Gilpatrick, Shalimar, for Appellant.
Tonya Holman, Shalimar, for Appellee.
Roberts, J.
In this post-dissolution case, the former husband appeals an order requiring him to pay the former wife $255 per month as a portion of his "military retirement" referenced in the final judgment of dissolution. The former husband argues he receives military disability, not military retirement; therefore, the trial court erred in ordering the monthly payment. We agree and reverse.
The final judgment of dissolution incorporated the parties’ marital settlement agreement (MSA), which provides in relevant part:
The wife shall receive as part of Equitable Distribution a portion of the Husband's Military Retirement in the event the Husband retires from the military. The wife shall receive $255.82 per month which is .39 (93 months/240 months) of her portion ($655.95) of his retirement earned during the marriage, beginning upon the first month that the Husband is entitled to receive his military retirement pay.
Five years after the marriage was dissolved, the former wife filed a motion for contempt and civil enforcement asserting the former husband had retired two years earlier and had willfully failed to pay her portion of his military retirement. The former husband disputed this claim, arguing he was medically retired after sixteen years and nine months of service and had not reached twenty years of service to qualify for military retirement benefits. He argued the benefits he received were non-taxable disability benefits that were not subject to equitable distribution. After a hearing on the former wife's motion, the trial court found military retirement was a property distribution and not modifiable by the court. The court did not find the former husband in contempt, but ordered him to pay the former wife $255 per month pursuant to the final judgment.
We review the trial court's decision based upon its interpretation of the final judgement and MSA de novo . Quillen v. Quillen , 247 So. 3d 40, 46–47 (Fla. 1st DCA 2018).
A military pension is an asset subject to equitable distribution. §§ 61.075(6)(a)1.e. & 61.076, Fla. Stat. A service member who is disabled as a result of military service is eligible to "retire" before twenty years of service under certain circumstances. 10 U.S.C.A. § 1201. Military disability payments are exempted from the definition of "disposable retired pay" subject to equitable distribution. 10 U.S.C.A. § 1408.
The former husband argues he never reached retirement eligibility and any payments he receives from the military are disability payments not subject to distribution. We agree. In Howell v. Howell , ––– U.S. ––––, 137 S.Ct. 1400, 1404, 197 L.Ed.2d 781 (2017), the United States Supreme Court reversed a lower court order that ordered the former husband to indemnify the former wife after he waived a share of his retirement benefits to receive non-taxable disability benefits. The Court held federal law preempted States from treating waived military retirement in the form of disability benefits as divisible community property. Id. at 1405. The Court stated an attempt to reimburse or indemnify the former wife to restore the amount previously awarded as community property was also preempted by federal law. Id. at 1406.
Here, the former husband did not reach twenty years of service to qualify for military retirement benefits. His non-taxable disability benefits are not divisible property, and under Howell , the trial court could not order him to indemnify the former wife from other assets. The trial court erred in enforcing a provision that contemplated an award "in the event the Husband retires from the military" with twenty years of service, which never occurred. The order on appeal is REVERSED .
Rowe, C.J., and Kelsey, J., concur.