Kinds of Military Retirement
Upon retirement from the Military a service member is entitled to receive one of three types of retirement pensions: 1) non-disability retired pay, 2) disability pay, or 3) reserve pay. The type of retirement depends on the service member’s status at retirement. The amount of non-disability pay is determined by the service member’s grade and years of service prior to retirement.
What is the Uniformed Services Former Spouses Protection Act?
The Uniformed Services Former Spouses Protection Act (USFSPA) provides that military retired or retainer pay is subject to equitable distribution either as property solely of the service member or as property of the service member and the service member’s spouse in accordance with the law of the jurisdiction. Essentially, it allows the state courts to equitably distribute military retirement pay as property or an award in accordance with state law. The act was enacted because the Supreme Court in McCarty v. McCarty, 453 U.S. 210 (1981) said that the Supremacy Clause of the U.S. Constitution precluded the state courts from dividing or distributing military non-disability retired pay in a dissolution action.
What retirement pay is eligible for allocation under USFPA?
Under USFPA, disposable retirement pay is subject to allocation by the courts. Disposable retirement pay is calculated prior to deduction of federal, state and local income tax and is essentially the gross amount the service member is receiving.
What about disability retirement pay?
Disability retirement pay is not subject to division or apportionment to the spouse under the USFSPA. The U.S. Supreme Court in Mansell v. Mansell, 490 U.S. 581 (1989) held that veteran’s disability pay was not divisible by state courts. The First DCA in Florida held that USFSPA only empowers state courts to divide disposable retired pay. McMahon v. McMahon, 567 So. 2d 976 (Fla. 1st DCA 1990). In McMahon the court reversed a separation agreement that allowed the wife to receive retirement pension derived from the husband’s disability and remanded for a determination of what portion of his retirement was not compensation for the disability. The Florida Supreme Court went on further to say that a property settlement agreement for division of military disability benefits is unenforceable (division of non-disability military retirement pay is still enforceable. Abernethy v. Fishkin, 699 So. 2d 235 (Fla. 1997).
Calculation of Military Retirement pay in a Divorce action
The court is supposed to determine the former spouse’s interest in a service member’s military retirement based on the value of benefits at the time of the dissolution. If a service member was married for 10 years and at the time of the divorce had been in the military for 14 years, the court needs to take the base pay of the service member with 14 years experience and determine the marital portion (which comes out to 10/14 or 71.4% of the base pay). The former spouse is then entitled to 50% of that amount. At the time the service member retires the spouse would be entitled to cost of living raises but is not entitled to pre-retirement increases.
APPLICABLE CASE LAW
Giovanini v. Giovanini, 894 So. 2d 275 (Fla. 1st DCA 2004).
The circuit court awarded the former wife an interest in the former husband’s military retirement pension to be calculated at the time the former husband began receiving the benefit. When the enforcement order came out it used the military pay scale from the time of retirement to determine the value of the former wife’s award. The appellate court reversed saying that the military pay scale from the time of the dissolution should have been used because that was the value of the benefits former husband was entitled to at the time of the dissolution so that is what former wife’s share should have been calculated on.
Lawrence v. Lawrence, 904 So. 2d 445 (Fla. 3d DCA 2005).
The circuit court gave the former wife a portion of the former husband’s military retirement pay without expressly excluding contingent, future post-dissolution increases. The appellate court reversed because the overbroad language of the trial court had the potential to allow the former wife to receive accretions of retired pay post dissolution.
Youngblood v. Youngblood, 959 So. 2d 416 (Fla. 1st DCA 2007).
The circuit court held former husband in contempt for failing to pay to former wife a share of his concurrent disability pay pursuant to the final judgment of dissolution of marriage. The appellate court reversed, finding that the trial court's conclusion appeared to be based on the mistaken belief that concurrent disability pay increased the former husband's gross retirement pay when it merely restored retirement pay that the former husband previously was required to waive in order to receive Veterans' Administration (VA) disability benefits. As a result its ruling resulted in the former wife receiving more than one-half of the former husband's military retirement pay, which was clearly inconsistent with the final judgment. The court also found that requiring the former husband to make a payment not required by the final judgment would result in an injustice.
While the former husband eventually would be allowed to receive the full amount of both his military retirement pay and VA disability benefits, providing him with significantly more income than the former wife, the instant court could not read the final judgment of dissolution as permitting the former wife to receive half of all the former husband's income related to his military service.
THOMAS J. GIOVANINI, Appellant, v. DONNA L. GIOVANINI, Appellee.
CASE NO. 1D03-5417
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
894 So. 2d 275; 2004 Fla. App. LEXIS 20239; 30 Fla. L. Weekly D 131
December 30, 2004, Opinion Filed
SUBSEQUENT HISTORY: [**1] Released for
Publication March 8, 2005.
PRIOR HISTORY: An appeal from an order from the
Circuit Court for Okaloosa County. Jere Tolton, Judge.
DISPOSITION: AFFIRMED in part, REVERSED in
part, and REMANDED.
COUNSEL: David W. Palmer, II, Fort Walton Beach,
Attorney for Appellant.
Tony Simpson, Shalimar, Attorney for Appellee.
JUDGES: BOOTH, BENTON and LEWIS, JJ.,
CONCUR.
OPINION
[*275] PER CURIAM.
We have before us an appeal from a final order,
which enforced the final judgment of dissolution of
marriage entered in 1988. Former Husband raises several
issues on appeal; however, we only rule on one issue. The
trial court's reservation of jurisdiction to consider
awarding arrearages, interest and attorney's fees is not
properly before this court. Gannon v. Amir, 873 So. 2d
532, 533 (Fla. 4th DCA 2004).
The final judgment awarded Former Wife an interest
in Former Husband's military retirement pension to be
calculated at the time Former Husband began receiving
the benefit. The enforcement order used the 2001 military
pay scale to determine the value of Former Wife's award.
However, the trial court should have used the 1988
military pay scale because [**2] that would determine
the value of the benefits Former Husband would have
been entitled to at the time of dissolution. Trant v. Trant,
545 So. 2d 428, 429 (Fla. 2d DCA 1989). We therefore,
reverse the portion [*276] of the trial court's order
calculating the value of Former Wife's award and remand
for the trial court to calculate the value of the award with
the proper pay scale.
AFFIRMED in part, REVERSED in part, and
REMANDED.
BOOTH, BENTON and LEWIS, JJ., CONCUR.
Page 1
TIMOTHY SCOTT LAWRENCE, Appellant, vs. ANITA LAWRENCE, Appellee.
CASE NO. 3D04-1468
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
904 So. 2d 445; 2005 Fla. App. LEXIS 4355; 30 Fla. L. Weekly D 871
March 30, 2005, Opinion Filed
SUBSEQUENT HISTORY: Released for Publication
July 6, 2005.
PRIOR HISTORY: [**1] An Appeal from the
Circuit Court for Miami-Dade County, Amy Steele
Donner, Judge. LOWER TRIBUNAL NO. 03-4677.
DISPOSITION: Reversed and remanded.
LexisNexis(R) Headnotes
Family Law > Marital Termination & Spousal Support
> Dissolution & Divorce > Property Distribution >
Characterization > Separate Property
[HN1] Florida law considers assets acquired after the
dissolution to be non-marital and not subject to
distribution. Fla. Stat. ch. 61.075(5)(a) (2003). The
valuation of a vested retirement plan is not to include any
contributions made after the original judgment of
dissolution.
COUNSEL: Gilbert C. Betz, for appellant.
Raul G. Ordonez, Jr., for appellee.
JUDGES: Before COPE, WELLS and SHEPHERD, JJ.
OPINION BY: SHEPHERD
OPINION
[*446] SHEPHERD, J.
This is an appeal of a final order of the circuit court
defining and distributing to the Former Wife an aliquot
portion of the Former Husband's military retired pay
without expressly excluding contingent, future
post-dissolution increases. We find overbroad the
language used by the lower court in its order because of
its potential to allow the Former Wife to receive
accretions of retired pay post dissolution and because it is
contrary to the agreement of the parties. Accordingly, we
reverse and remand.
The Final Judgment of Dissolution of the Lawrence
marriage was issued in November 2003, with the court
reserving jurisdiction to enter further orders concerning
the transfer of interests in retirement benefits as
previously agreed to by the parties. According to the
marital settlement agreement, the former [**2] spouses
agreed that each "shall [] be entitled to 50% of the value
of their respective retirement accounts as calculated from
the date of marriage (October 3, 1992) through the date
of separation [March 15, 2003]."
Believing that it was effecting the parties' intention,
the lower court adopted the following language in its
order:
The Respondent/Wife, Former Spouse is
awarded a percentage of the member's
disposable military retired pay, to be
computed by multiplying 50% times a
fraction, the numerator of which is 125.5
Page 1
months of marriage during the member's
creditable military service, divided by the
member's total number of months of
creditable military service.
The Former Husband urged the court that its operative
language would result in an award to the Former Wife of
non-marital increases in the Former Husband's retired pay
resulting from promotions, time in service increases, and
pay increases mandated from time to time by Congress,
and all other increases accruing post-dissolution. Toward
that end, the Former Husband submitted that the court
add to its order the following language: "For the purpose
of this computation the member's military retired pay is
defined [**3] as the military retired pay the member
would have received had the member retired on March
15, 2003, with a retired pay base of $ 5,258.50 with 14
years of creditable service." The lower court declined to
accept the Former Husband's proposed language, which
would have limited the Former Wife to sharing in the
benefits accrued only during the term of the marriage.
This appeal by the Former Husband follows.
[HN1] Florida law considers assets acquired after the
dissolution to be non-marital and not subject to
distribution. Section 61.075(5)(a), Fla. Stat. (2003). 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. Boyett,
703 So. 2d at 451. Because the law is unequivocal in this
area, and because the parties to this dissolution had
already expressed their desire to equally share their
respective pensions based upon the actual time of the
marriage, i.e. 10 years, we find that the lower court's
adopted language was inherently ambiguous as to
whether future accretions of military retired pay would
subsequently make their way into the calculation [**4]
of the final award. Boyett, 683 So. 2d at 1141 (not
permissible for former wife "to benefit from the former
husband's labor after the divorce").
We hold that the lower court's order neither fully
accomplished the parties' stated intention, nor complied
with Florida [*447] law, and conclude that the language
requested to be inserted in the order by the Former
Husband would more readily have served these purposes.
Accordingly, we reverse the decision below and remand
this case for inclusion of the Former Husband's proposed
language in the order appealed. We further direct that in
correcting the order below, the trial court insure that it
"reserves jurisdiction to supervise the payments of [such]
pension benefits" to the extent necessary in the future.
DeLoach, 590 So. 2d at 963.
Reversed and remanded with directions.
Page 2
904 So. 2d 445, *446; 2005 Fla. App. LEXIS 4355, **2;
30 Fla. L. Weekly D 871
DAVID RAY YOUNGBLOOD, Former Husband, Appellant, v. MARCELLA ANN
YOUNGBLOOD, Former Wife, Appellee.
CASE NO. 1D06-4946
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
959 So. 2d 416; 2007 Fla. App. LEXIS 9571; 32 Fla. L. Weekly D 1542
June 21, 2007, Opinion Filed
SUBSEQUENT HISTORY: Released for Publication
July 9, 2007.
PRIOR HISTORY: [**1]
An appeal from the circuit court for Okaloosa County.
Jack R. Heflin, Judge.
Youngblood v. Youngblood, 905 So. 2d 895, 2005 Fla.
App. LEXIS 7683 (Fla. Dist. Ct. App. 1st Dist., 2005)
DISPOSITION: REVERSED.
LexisNexis(R) Headnotes
Military & Veterans Law > Veterans > Benefits >
Disability Benefits
[HN1] Effective January 1, 2004, federal legislation
provides for the phased restoration of retirement pay
currently deducted from certain military retirees' accounts
due to their receipt of Veterans' Administration (VA)
disability benefits. 10 U.S.C.S. § 1414. This restoration of
retirement pay has been referred to as "concurrent
disability pay."
COUNSEL: Joseph D. Lorenz of Poche & Lorenz, LLP,
Shalimar, for Appellant.
Janis L. Burke, Fort Walton Beach, for Appellee.
JUDGES: WEBSTER, J. ALLEN, J., CONCURS;
BENTON, J., DISSENTS WITH WRITTEN OPINION.
OPINION BY: WEBSTER
OPINION
[*417] WEBSTER, J.
The former husband seeks review of the trial court's
order holding him in contempt for failing to pay to the
former wife a share of his concurrent disability pay
pursuant to the final judgment of dissolution of marriage.
Because we agree with the former husband that he was
not required to make such a payment pursuant to the final
judgment, we reverse the order holding him in contempt
and directing him to pay the former wife a share of his
concurrent disability pay.
In 2000, the trial court entered a final judgment
dissolving the parties' 43-year marriage. At the time, the
former husband, who was retired from the military and
disabled, was receiving both military retirement pay and
Veterans' Administration (VA) disability benefits.
However, as a condition of receiving VA disability
benefits, the former husband was required to waive a
corresponding amount of his military retirement pay (VA
waiver). See [**2] Mansell v. Mansell, 490 U.S. 581,
583-84, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989).
Because the former husband was receiving $ 2,366.00
each month in VA disability benefits, he waived $
2,366.00 of his gross military retirement pay, resulting in
net military retirement pay of $ 100.51. The final
Page 1
judgment provided that "[t]he parties have agreed that the
Wife shall be due one-half (1/2) of the Husband's military
retirement pay as a vested property right, and one-half
(1/2) of his VA waiver as permanent periodic alimony."
By giving the former wife one-half of the former
husband's VA waiver as alimony, the final judgment
assured that the former wife would receive her full share
of the former husband's military retirement as if no VA
waiver had been taken. See Longanecker v. Longanecker,
782 So. 2d 406 (Fla. 2d DCA 2001). Thus, under the final
judgment, the former wife received $ 50.25 each month
in retirement pay and $ 1,183.00 (one-half of the VA
waiver) in monthly alimony for a total monthly payment
to the former wife of $ 1,233.25, which was equivalent to
one-half of the former husband's military retirement pay
if no VA waiver had been taken.
[HN1] Effective January 1, 2004, federal legislation
provided for the phased restoration [**3] of retirement
pay currently deducted from certain military retirees'
accounts due to their receipt of VA disability benefits. 10
U.S.C. § 1414. [*418] This restoration of retirement pay
has been referred to as "concurrent disability pay."
Beginning in February 2004, the former husband received
$ 750.00 each month in concurrent disability pay. This
resulted in a $ 750.00 decrease in the VA waiver (from $
2,366.00 to $ 1,616.00) and a corresponding $ 750.00
increase in the former husband's net retirement pay (from
$ 100.51 to $ 850.51). It also resulted in a reduction in
the former wife's monthly alimony (from $ 1,183.00 to $
808.00) and an increase in the monthly amount she
received from the former husband's military retirement
(from $ 50.25 to $ 425.25) for a total monthly payment of
$ 1,233.25. In short, the former wife continued to receive
her full share of the former husband's military retirement
pay as if no VA waiver had been taken.
In March and June 2004, the former wife filed
motions for contempt and enforcement which claimed,
among other things, that the former husband was not
paying her a share of his concurrent disability pay. In
July 2004, the trial court entered an order concluding
[**4] that under the final judgment of dissolution, the
former wife was entitled to receive one-half of the former
husband's concurrent disability pay in addition to
one-half of his military retirement pay and one-half of his
VA waiver. The trial court reserved ruling on the amount
of the arrearage in concurrent disability pay and the
former wife's motion for contempt. The former husband
filed an appeal which this court designated as an appeal
from an appealable, non-final order. In May 2005, this
court affirmed without opinion. Youngblood v.
Youngblood, 905 So. 2d 895 (Fla. 1st DCA 2005) (table).
In June 2006, the trial court entered a final order holding
the former husband in contempt and directing him to pay
an arrearage in concurrent disability pay. This appeal
follows.
The former husband claims that the trial court erred
in holding him in contempt upon concluding that the
former wife was entitled to one-half of his concurrent
disability pay ($ 375.00 per month) in addition to the
monthly payment of $ 1,233.25. The trial court's
conclusion appears to be based on the mistaken belief
that concurrent disability pay increased the former
husband's gross retirement pay when, in reality, it [**5]
merely restored retirement pay that the former husband
previously was required to waive in order to receive VA
disability benefits. The trial court's ruling results in the
former wife receiving more than one-half of the former
husband's military retirement pay which is clearly
inconsistent with the final judgment. Although the former
husband filed a non-final appeal challenging this ruling
and this court affirmed without opinion, we must
reconsider and correct this erroneous ruling, which has
become the law of the case, because failure to do so
would result in a manifest injustice. See Fla. Dep't of
Transp. v. Juliano, 801 So. 2d 101, 106 (Fla. 2001);
Logue v. Logue, 766 So. 2d 313, 315 (Fla. 4th DCA
2000). Requiring the former husband to make a payment
not required by the final judgment would result in a
manifest injustice, particularly where the former husband
was held in contempt for failing to make the payment.
We acknowledge that the concurrent disability pay
legislation contemplates that the former husband
eventually will be allowed to receive the full amount of
both his military retirement pay and VA disability
benefits which will provide him with significantly more
income than [**6] the former wife. However, we cannot
read the final judgment of dissolution as permitting the
former wife to receive half of all the former husband's
income related to his military service. Since this is merely
an action to enforce the final judgment, there is [*419]
no jurisdiction to consider whether modification of the
final judgment is warranted in light of the subsequent
concurrent disability pay legislation. Based on the clear
language of the final judgment, we reverse the trial
court's final order holding the former husband in
contempt and directing him to pay an arrearage in
Page 2
959 So. 2d 416, *417; 2007 Fla. App. LEXIS 9571, **2;
32 Fla. L. Weekly D 1542
concurrent disability pay.
REVERSED.
ALLEN, J., CONCURS; BENTON, J., DISSENTS
WITH WRITTEN OPINION.
DISSENT BY: BENTON
DISSENT
BENTON, J., dissenting.
The order under review is far from a manifest
injustice, and it faithfully implements our first ruling on
the exact same question earlier in this very case.
Originally, the trial court worded the parties' divorce
decree-in light of the intricacies of federal law then
obtaining-to require Mr. Youngblood to split his
retirement income with Mrs. Youngblood, who had been
his wife for more than four decades. Later, in
post-judgment proceedings she instituted to give full
effect to the divorce [**7] decree-in light of an
intervening change in federal law-the trial court required
him to pay her half of his "concurrent disability pay" in
addition to half of his "military retirement pay." On
interlocutory appeal, we affirmed.
Even accepting for present purposes the premise of
the majority opinion that, on general principles, our
original pronouncement of the law was erroneous, the
law of the case ought to be given effect here. Under the
doctrine of the law of the case, the ruling of the highest
appellate court that decides a question is presumptively
binding on the parties in all subsequent stages of the
proceeding, trial and appellate.
Our supreme court has shown great
flexibility in applying the law of the case
doctrine, see Fla. Dep't of Transp. v.
Juliano, 801 So. 2d 101, 106 (Fla.2001)
("Moreover, even as to those issues
actually decided, the law of the case
doctrine is more flexible than res judicata
in that it also provides that an appellate
court has the power to reconsider and
correct an erroneous ruling that has
become the law of the case where a prior
ruling would result in a 'manifest
injustice.'"), and has said:
This is the same suit and
we have not lost
jurisdiction thereof. [**8]
Consequently, we have the
power to correct any error
which the Chancellor or we
may have heretofore made
in the progress of this
litigation. There is no
question of res adjudicata
because this is the same,
not a new and different,
suit. However this Court,
among others, has gone so
far as to hold that it will not
invoke the doctrine of res
adjudicata if to do so would
work injustice. The
propriety of such ruling can
not be questioned when one
reflects upon the fact that
the primary purpose for
which our courts were
created is to administer
justice. In the case of
Wallace v. Luxmoore, 156
Fla. 725, 24 So. 2d 302,
304, we said:
"Stare decisis and res
adjudicata are perfectly
sound doctrines, approved
by this court, but they are
governed by well-settled
principles and when factual
situations arise that to
apply them would defeat
justice we will apply a
different rule. Social and
economic complexes must
compel the extension of
legal formulas and the
approval of new precedents
when shown to be
necessary to administer
justice. In a democracy the
administration of justice is
the primary concern of the
State and when this cannot
be done [*420] effectively
Page 3
959 So. 2d 416, *419; 2007 Fla. App. LEXIS 9571, **6;
32 Fla. L. Weekly D 1542
by adhering to old
precedents they should
[**9] be modified or
discarded. Blind adherence
to them gets us nowhere."
A Court should have less hesitancy in
changing "the law of the case" before
losing jurisdiction than it would have in
refusing to apply the doctrine of res
adjudicata when all the requisites thereof
are present. We may change "the law of
the case" at any time before we lose
jurisdiction of a cause and will never
hesitate to do so if we become convinced,
as we are in this instance, that our original
pronouncement of the law was erroneous
and such ruling resulted in manifest
injustice. In such a situation a court of
justice should never adopt a pertinacious
attitude.
Beverly Beach Props., Inc. v. Nelson,
68 So. 2d 604, 607-08 (Fla.1953).
Bush v. Holmes, 886 So. 2d 340, 369-70 (Fla. 1st DCA
2004) (Benton, J., concurring) (collecting cases). Rulings
that become law of the case bind the parties in appellate
and trial courts alike for the duration of the case, whether
correct on general principles or not, so long as the facts
on which the appellate decision was based remain the
facts of the case. The law of the case governs, unless the
initial appellate ruling is both (a) erroneous on general
principles and (b) would, if undisturbed, [**10] result in
manifest injustice.
At most, the majority opinion identifies a categorical,
procedural or technical error, not the manifest injustice it
hyperbolically proclaims. The thesis is that "concurrent
disability pay" has a discrete legal character requiring
that it be treated differently from "military retirement
pay." However that may be, the order under review
evinces the same purpose that animated the parties'
divorce decree, and is a product of the same rationale and
ongoing effort that produced that decree. The majority
opinion "acknowledge[s] that the concurrent disability
pay legislation contemplates that the former husband
eventually will be allowed to receive the full amount of
both his military retirement pay and VA benefits which
will provide him with significantly more income than the
former wife," ante p. 5, and also-wisely, in my
estimation-seems to leave open the possibility-albeit in a
different proceeding-"to consider whether modification of
the final judgment is warranted in light of the subsequent
concurrent disability pay legislation." Id.
One of the rationales for the doctrine of the law of
the case has been stated thus: "Judicial resources, already
heavily taxed, [**11] are hardly efficiently allocated
when they are used to twice review the same issue."
DeGennaro v. Janie Dean Chevrolet, Inc., 600 So. 2d 44,
45 (Fla. 4th DCA 1992) (Anstead, J., specially
concurring). Appellate review also consumes parties'
resources.
Fortunately for litigants and appeals
courts alike, most litigation does not
involve even a single appeal. Whatever
else it may accomplish, an appeal
consumes additional resources. Reflecting
this reality, an important rule of decision
has been devised for litigation that bubbles
up repeatedly into the appellate courts:
Once actually decided by the highest court
to which the case goes, the law of the case
cannot be revisited, with rare exceptions
not applicable here.
Edgewater Beach Owners Ass'n, Inc. v. Bd. of County
Comm'rs of Walton County, Fla., 694 So. 2d 43, 45 (Fla.
1st DCA 1997) (Benton, J., specially concurring).
Breaching this "important rule of decision" in the present
case can only serve as an inducement to relitigating
questions already decided on appeal in other cases, with
the attendant waste of resources by courts and litigants
alike.
[*421] Earlier in the present case, Mr. Youngblood
bore the expense of prosecuting an appeal and [**12]
Mrs. Youngblood bore the expense of defending that
appeal to get an answer to the precise question on which
the court today somersaults. See Youngblood v.
Youngblood, 905 So. 2d 895 (Fla. 1st DCA 2005) (Ervin,
Padovano and Thomas) (table). See also Barry Hinnant,
Inc. v. Spottswood, 481 So. 2d 80, 83 (Fla. 1st DCA
1986); Exchange Invs., Inc. v. Alachua County, 481 So.
2d 1223, 1227 (Fla. 1st DCA 1985) ("While a PCA has
no precedential value, it becomes the law of the case as to
the same parties and can be used for res judicata
Page 4
959 So. 2d 416, *420; 2007 Fla. App. LEXIS 9571, **8;
32 Fla. L. Weekly D 1542
purposes.") (Ervin, J., concurring in part and dissenting in
part). As law of the case, our first decision should govern.
Upon retirement from the Military a service member is entitled to receive one of three types of retirement pensions: 1) non-disability retired pay, 2) disability pay, or 3) reserve pay. The type of retirement depends on the service member’s status at retirement. The amount of non-disability pay is determined by the service member’s grade and years of service prior to retirement.
What is the Uniformed Services Former Spouses Protection Act?
The Uniformed Services Former Spouses Protection Act (USFSPA) provides that military retired or retainer pay is subject to equitable distribution either as property solely of the service member or as property of the service member and the service member’s spouse in accordance with the law of the jurisdiction. Essentially, it allows the state courts to equitably distribute military retirement pay as property or an award in accordance with state law. The act was enacted because the Supreme Court in McCarty v. McCarty, 453 U.S. 210 (1981) said that the Supremacy Clause of the U.S. Constitution precluded the state courts from dividing or distributing military non-disability retired pay in a dissolution action.
What retirement pay is eligible for allocation under USFPA?
Under USFPA, disposable retirement pay is subject to allocation by the courts. Disposable retirement pay is calculated prior to deduction of federal, state and local income tax and is essentially the gross amount the service member is receiving.
What about disability retirement pay?
Disability retirement pay is not subject to division or apportionment to the spouse under the USFSPA. The U.S. Supreme Court in Mansell v. Mansell, 490 U.S. 581 (1989) held that veteran’s disability pay was not divisible by state courts. The First DCA in Florida held that USFSPA only empowers state courts to divide disposable retired pay. McMahon v. McMahon, 567 So. 2d 976 (Fla. 1st DCA 1990). In McMahon the court reversed a separation agreement that allowed the wife to receive retirement pension derived from the husband’s disability and remanded for a determination of what portion of his retirement was not compensation for the disability. The Florida Supreme Court went on further to say that a property settlement agreement for division of military disability benefits is unenforceable (division of non-disability military retirement pay is still enforceable. Abernethy v. Fishkin, 699 So. 2d 235 (Fla. 1997).
Calculation of Military Retirement pay in a Divorce action
The court is supposed to determine the former spouse’s interest in a service member’s military retirement based on the value of benefits at the time of the dissolution. If a service member was married for 10 years and at the time of the divorce had been in the military for 14 years, the court needs to take the base pay of the service member with 14 years experience and determine the marital portion (which comes out to 10/14 or 71.4% of the base pay). The former spouse is then entitled to 50% of that amount. At the time the service member retires the spouse would be entitled to cost of living raises but is not entitled to pre-retirement increases.
APPLICABLE CASE LAW
Giovanini v. Giovanini, 894 So. 2d 275 (Fla. 1st DCA 2004).
The circuit court awarded the former wife an interest in the former husband’s military retirement pension to be calculated at the time the former husband began receiving the benefit. When the enforcement order came out it used the military pay scale from the time of retirement to determine the value of the former wife’s award. The appellate court reversed saying that the military pay scale from the time of the dissolution should have been used because that was the value of the benefits former husband was entitled to at the time of the dissolution so that is what former wife’s share should have been calculated on.
Lawrence v. Lawrence, 904 So. 2d 445 (Fla. 3d DCA 2005).
The circuit court gave the former wife a portion of the former husband’s military retirement pay without expressly excluding contingent, future post-dissolution increases. The appellate court reversed because the overbroad language of the trial court had the potential to allow the former wife to receive accretions of retired pay post dissolution.
Youngblood v. Youngblood, 959 So. 2d 416 (Fla. 1st DCA 2007).
The circuit court held former husband in contempt for failing to pay to former wife a share of his concurrent disability pay pursuant to the final judgment of dissolution of marriage. The appellate court reversed, finding that the trial court's conclusion appeared to be based on the mistaken belief that concurrent disability pay increased the former husband's gross retirement pay when it merely restored retirement pay that the former husband previously was required to waive in order to receive Veterans' Administration (VA) disability benefits. As a result its ruling resulted in the former wife receiving more than one-half of the former husband's military retirement pay, which was clearly inconsistent with the final judgment. The court also found that requiring the former husband to make a payment not required by the final judgment would result in an injustice.
While the former husband eventually would be allowed to receive the full amount of both his military retirement pay and VA disability benefits, providing him with significantly more income than the former wife, the instant court could not read the final judgment of dissolution as permitting the former wife to receive half of all the former husband's income related to his military service.
THOMAS J. GIOVANINI, Appellant, v. DONNA L. GIOVANINI, Appellee.
CASE NO. 1D03-5417
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
894 So. 2d 275; 2004 Fla. App. LEXIS 20239; 30 Fla. L. Weekly D 131
December 30, 2004, Opinion Filed
SUBSEQUENT HISTORY: [**1] Released for
Publication March 8, 2005.
PRIOR HISTORY: An appeal from an order from the
Circuit Court for Okaloosa County. Jere Tolton, Judge.
DISPOSITION: AFFIRMED in part, REVERSED in
part, and REMANDED.
COUNSEL: David W. Palmer, II, Fort Walton Beach,
Attorney for Appellant.
Tony Simpson, Shalimar, Attorney for Appellee.
JUDGES: BOOTH, BENTON and LEWIS, JJ.,
CONCUR.
OPINION
[*275] PER CURIAM.
We have before us an appeal from a final order,
which enforced the final judgment of dissolution of
marriage entered in 1988. Former Husband raises several
issues on appeal; however, we only rule on one issue. The
trial court's reservation of jurisdiction to consider
awarding arrearages, interest and attorney's fees is not
properly before this court. Gannon v. Amir, 873 So. 2d
532, 533 (Fla. 4th DCA 2004).
The final judgment awarded Former Wife an interest
in Former Husband's military retirement pension to be
calculated at the time Former Husband began receiving
the benefit. The enforcement order used the 2001 military
pay scale to determine the value of Former Wife's award.
However, the trial court should have used the 1988
military pay scale because [**2] that would determine
the value of the benefits Former Husband would have
been entitled to at the time of dissolution. Trant v. Trant,
545 So. 2d 428, 429 (Fla. 2d DCA 1989). We therefore,
reverse the portion [*276] of the trial court's order
calculating the value of Former Wife's award and remand
for the trial court to calculate the value of the award with
the proper pay scale.
AFFIRMED in part, REVERSED in part, and
REMANDED.
BOOTH, BENTON and LEWIS, JJ., CONCUR.
Page 1
TIMOTHY SCOTT LAWRENCE, Appellant, vs. ANITA LAWRENCE, Appellee.
CASE NO. 3D04-1468
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
904 So. 2d 445; 2005 Fla. App. LEXIS 4355; 30 Fla. L. Weekly D 871
March 30, 2005, Opinion Filed
SUBSEQUENT HISTORY: Released for Publication
July 6, 2005.
PRIOR HISTORY: [**1] An Appeal from the
Circuit Court for Miami-Dade County, Amy Steele
Donner, Judge. LOWER TRIBUNAL NO. 03-4677.
DISPOSITION: Reversed and remanded.
LexisNexis(R) Headnotes
Family Law > Marital Termination & Spousal Support
> Dissolution & Divorce > Property Distribution >
Characterization > Separate Property
[HN1] Florida law considers assets acquired after the
dissolution to be non-marital and not subject to
distribution. Fla. Stat. ch. 61.075(5)(a) (2003). The
valuation of a vested retirement plan is not to include any
contributions made after the original judgment of
dissolution.
COUNSEL: Gilbert C. Betz, for appellant.
Raul G. Ordonez, Jr., for appellee.
JUDGES: Before COPE, WELLS and SHEPHERD, JJ.
OPINION BY: SHEPHERD
OPINION
[*446] SHEPHERD, J.
This is an appeal of a final order of the circuit court
defining and distributing to the Former Wife an aliquot
portion of the Former Husband's military retired pay
without expressly excluding contingent, future
post-dissolution increases. We find overbroad the
language used by the lower court in its order because of
its potential to allow the Former Wife to receive
accretions of retired pay post dissolution and because it is
contrary to the agreement of the parties. Accordingly, we
reverse and remand.
The Final Judgment of Dissolution of the Lawrence
marriage was issued in November 2003, with the court
reserving jurisdiction to enter further orders concerning
the transfer of interests in retirement benefits as
previously agreed to by the parties. According to the
marital settlement agreement, the former [**2] spouses
agreed that each "shall [] be entitled to 50% of the value
of their respective retirement accounts as calculated from
the date of marriage (October 3, 1992) through the date
of separation [March 15, 2003]."
Believing that it was effecting the parties' intention,
the lower court adopted the following language in its
order:
The Respondent/Wife, Former Spouse is
awarded a percentage of the member's
disposable military retired pay, to be
computed by multiplying 50% times a
fraction, the numerator of which is 125.5
Page 1
months of marriage during the member's
creditable military service, divided by the
member's total number of months of
creditable military service.
The Former Husband urged the court that its operative
language would result in an award to the Former Wife of
non-marital increases in the Former Husband's retired pay
resulting from promotions, time in service increases, and
pay increases mandated from time to time by Congress,
and all other increases accruing post-dissolution. Toward
that end, the Former Husband submitted that the court
add to its order the following language: "For the purpose
of this computation the member's military retired pay is
defined [**3] as the military retired pay the member
would have received had the member retired on March
15, 2003, with a retired pay base of $ 5,258.50 with 14
years of creditable service." The lower court declined to
accept the Former Husband's proposed language, which
would have limited the Former Wife to sharing in the
benefits accrued only during the term of the marriage.
This appeal by the Former Husband follows.
[HN1] Florida law considers assets acquired after the
dissolution to be non-marital and not subject to
distribution. Section 61.075(5)(a), Fla. Stat. (2003). 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. Boyett,
703 So. 2d at 451. Because the law is unequivocal in this
area, and because the parties to this dissolution had
already expressed their desire to equally share their
respective pensions based upon the actual time of the
marriage, i.e. 10 years, we find that the lower court's
adopted language was inherently ambiguous as to
whether future accretions of military retired pay would
subsequently make their way into the calculation [**4]
of the final award. Boyett, 683 So. 2d at 1141 (not
permissible for former wife "to benefit from the former
husband's labor after the divorce").
We hold that the lower court's order neither fully
accomplished the parties' stated intention, nor complied
with Florida [*447] law, and conclude that the language
requested to be inserted in the order by the Former
Husband would more readily have served these purposes.
Accordingly, we reverse the decision below and remand
this case for inclusion of the Former Husband's proposed
language in the order appealed. We further direct that in
correcting the order below, the trial court insure that it
"reserves jurisdiction to supervise the payments of [such]
pension benefits" to the extent necessary in the future.
DeLoach, 590 So. 2d at 963.
Reversed and remanded with directions.
Page 2
904 So. 2d 445, *446; 2005 Fla. App. LEXIS 4355, **2;
30 Fla. L. Weekly D 871
DAVID RAY YOUNGBLOOD, Former Husband, Appellant, v. MARCELLA ANN
YOUNGBLOOD, Former Wife, Appellee.
CASE NO. 1D06-4946
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
959 So. 2d 416; 2007 Fla. App. LEXIS 9571; 32 Fla. L. Weekly D 1542
June 21, 2007, Opinion Filed
SUBSEQUENT HISTORY: Released for Publication
July 9, 2007.
PRIOR HISTORY: [**1]
An appeal from the circuit court for Okaloosa County.
Jack R. Heflin, Judge.
Youngblood v. Youngblood, 905 So. 2d 895, 2005 Fla.
App. LEXIS 7683 (Fla. Dist. Ct. App. 1st Dist., 2005)
DISPOSITION: REVERSED.
LexisNexis(R) Headnotes
Military & Veterans Law > Veterans > Benefits >
Disability Benefits
[HN1] Effective January 1, 2004, federal legislation
provides for the phased restoration of retirement pay
currently deducted from certain military retirees' accounts
due to their receipt of Veterans' Administration (VA)
disability benefits. 10 U.S.C.S. § 1414. This restoration of
retirement pay has been referred to as "concurrent
disability pay."
COUNSEL: Joseph D. Lorenz of Poche & Lorenz, LLP,
Shalimar, for Appellant.
Janis L. Burke, Fort Walton Beach, for Appellee.
JUDGES: WEBSTER, J. ALLEN, J., CONCURS;
BENTON, J., DISSENTS WITH WRITTEN OPINION.
OPINION BY: WEBSTER
OPINION
[*417] WEBSTER, J.
The former husband seeks review of the trial court's
order holding him in contempt for failing to pay to the
former wife a share of his concurrent disability pay
pursuant to the final judgment of dissolution of marriage.
Because we agree with the former husband that he was
not required to make such a payment pursuant to the final
judgment, we reverse the order holding him in contempt
and directing him to pay the former wife a share of his
concurrent disability pay.
In 2000, the trial court entered a final judgment
dissolving the parties' 43-year marriage. At the time, the
former husband, who was retired from the military and
disabled, was receiving both military retirement pay and
Veterans' Administration (VA) disability benefits.
However, as a condition of receiving VA disability
benefits, the former husband was required to waive a
corresponding amount of his military retirement pay (VA
waiver). See [**2] Mansell v. Mansell, 490 U.S. 581,
583-84, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989).
Because the former husband was receiving $ 2,366.00
each month in VA disability benefits, he waived $
2,366.00 of his gross military retirement pay, resulting in
net military retirement pay of $ 100.51. The final
Page 1
judgment provided that "[t]he parties have agreed that the
Wife shall be due one-half (1/2) of the Husband's military
retirement pay as a vested property right, and one-half
(1/2) of his VA waiver as permanent periodic alimony."
By giving the former wife one-half of the former
husband's VA waiver as alimony, the final judgment
assured that the former wife would receive her full share
of the former husband's military retirement as if no VA
waiver had been taken. See Longanecker v. Longanecker,
782 So. 2d 406 (Fla. 2d DCA 2001). Thus, under the final
judgment, the former wife received $ 50.25 each month
in retirement pay and $ 1,183.00 (one-half of the VA
waiver) in monthly alimony for a total monthly payment
to the former wife of $ 1,233.25, which was equivalent to
one-half of the former husband's military retirement pay
if no VA waiver had been taken.
[HN1] Effective January 1, 2004, federal legislation
provided for the phased restoration [**3] of retirement
pay currently deducted from certain military retirees'
accounts due to their receipt of VA disability benefits. 10
U.S.C. § 1414. [*418] This restoration of retirement pay
has been referred to as "concurrent disability pay."
Beginning in February 2004, the former husband received
$ 750.00 each month in concurrent disability pay. This
resulted in a $ 750.00 decrease in the VA waiver (from $
2,366.00 to $ 1,616.00) and a corresponding $ 750.00
increase in the former husband's net retirement pay (from
$ 100.51 to $ 850.51). It also resulted in a reduction in
the former wife's monthly alimony (from $ 1,183.00 to $
808.00) and an increase in the monthly amount she
received from the former husband's military retirement
(from $ 50.25 to $ 425.25) for a total monthly payment of
$ 1,233.25. In short, the former wife continued to receive
her full share of the former husband's military retirement
pay as if no VA waiver had been taken.
In March and June 2004, the former wife filed
motions for contempt and enforcement which claimed,
among other things, that the former husband was not
paying her a share of his concurrent disability pay. In
July 2004, the trial court entered an order concluding
[**4] that under the final judgment of dissolution, the
former wife was entitled to receive one-half of the former
husband's concurrent disability pay in addition to
one-half of his military retirement pay and one-half of his
VA waiver. The trial court reserved ruling on the amount
of the arrearage in concurrent disability pay and the
former wife's motion for contempt. The former husband
filed an appeal which this court designated as an appeal
from an appealable, non-final order. In May 2005, this
court affirmed without opinion. Youngblood v.
Youngblood, 905 So. 2d 895 (Fla. 1st DCA 2005) (table).
In June 2006, the trial court entered a final order holding
the former husband in contempt and directing him to pay
an arrearage in concurrent disability pay. This appeal
follows.
The former husband claims that the trial court erred
in holding him in contempt upon concluding that the
former wife was entitled to one-half of his concurrent
disability pay ($ 375.00 per month) in addition to the
monthly payment of $ 1,233.25. The trial court's
conclusion appears to be based on the mistaken belief
that concurrent disability pay increased the former
husband's gross retirement pay when, in reality, it [**5]
merely restored retirement pay that the former husband
previously was required to waive in order to receive VA
disability benefits. The trial court's ruling results in the
former wife receiving more than one-half of the former
husband's military retirement pay which is clearly
inconsistent with the final judgment. Although the former
husband filed a non-final appeal challenging this ruling
and this court affirmed without opinion, we must
reconsider and correct this erroneous ruling, which has
become the law of the case, because failure to do so
would result in a manifest injustice. See Fla. Dep't of
Transp. v. Juliano, 801 So. 2d 101, 106 (Fla. 2001);
Logue v. Logue, 766 So. 2d 313, 315 (Fla. 4th DCA
2000). Requiring the former husband to make a payment
not required by the final judgment would result in a
manifest injustice, particularly where the former husband
was held in contempt for failing to make the payment.
We acknowledge that the concurrent disability pay
legislation contemplates that the former husband
eventually will be allowed to receive the full amount of
both his military retirement pay and VA disability
benefits which will provide him with significantly more
income than [**6] the former wife. However, we cannot
read the final judgment of dissolution as permitting the
former wife to receive half of all the former husband's
income related to his military service. Since this is merely
an action to enforce the final judgment, there is [*419]
no jurisdiction to consider whether modification of the
final judgment is warranted in light of the subsequent
concurrent disability pay legislation. Based on the clear
language of the final judgment, we reverse the trial
court's final order holding the former husband in
contempt and directing him to pay an arrearage in
Page 2
959 So. 2d 416, *417; 2007 Fla. App. LEXIS 9571, **2;
32 Fla. L. Weekly D 1542
concurrent disability pay.
REVERSED.
ALLEN, J., CONCURS; BENTON, J., DISSENTS
WITH WRITTEN OPINION.
DISSENT BY: BENTON
DISSENT
BENTON, J., dissenting.
The order under review is far from a manifest
injustice, and it faithfully implements our first ruling on
the exact same question earlier in this very case.
Originally, the trial court worded the parties' divorce
decree-in light of the intricacies of federal law then
obtaining-to require Mr. Youngblood to split his
retirement income with Mrs. Youngblood, who had been
his wife for more than four decades. Later, in
post-judgment proceedings she instituted to give full
effect to the divorce [**7] decree-in light of an
intervening change in federal law-the trial court required
him to pay her half of his "concurrent disability pay" in
addition to half of his "military retirement pay." On
interlocutory appeal, we affirmed.
Even accepting for present purposes the premise of
the majority opinion that, on general principles, our
original pronouncement of the law was erroneous, the
law of the case ought to be given effect here. Under the
doctrine of the law of the case, the ruling of the highest
appellate court that decides a question is presumptively
binding on the parties in all subsequent stages of the
proceeding, trial and appellate.
Our supreme court has shown great
flexibility in applying the law of the case
doctrine, see Fla. Dep't of Transp. v.
Juliano, 801 So. 2d 101, 106 (Fla.2001)
("Moreover, even as to those issues
actually decided, the law of the case
doctrine is more flexible than res judicata
in that it also provides that an appellate
court has the power to reconsider and
correct an erroneous ruling that has
become the law of the case where a prior
ruling would result in a 'manifest
injustice.'"), and has said:
This is the same suit and
we have not lost
jurisdiction thereof. [**8]
Consequently, we have the
power to correct any error
which the Chancellor or we
may have heretofore made
in the progress of this
litigation. There is no
question of res adjudicata
because this is the same,
not a new and different,
suit. However this Court,
among others, has gone so
far as to hold that it will not
invoke the doctrine of res
adjudicata if to do so would
work injustice. The
propriety of such ruling can
not be questioned when one
reflects upon the fact that
the primary purpose for
which our courts were
created is to administer
justice. In the case of
Wallace v. Luxmoore, 156
Fla. 725, 24 So. 2d 302,
304, we said:
"Stare decisis and res
adjudicata are perfectly
sound doctrines, approved
by this court, but they are
governed by well-settled
principles and when factual
situations arise that to
apply them would defeat
justice we will apply a
different rule. Social and
economic complexes must
compel the extension of
legal formulas and the
approval of new precedents
when shown to be
necessary to administer
justice. In a democracy the
administration of justice is
the primary concern of the
State and when this cannot
be done [*420] effectively
Page 3
959 So. 2d 416, *419; 2007 Fla. App. LEXIS 9571, **6;
32 Fla. L. Weekly D 1542
by adhering to old
precedents they should
[**9] be modified or
discarded. Blind adherence
to them gets us nowhere."
A Court should have less hesitancy in
changing "the law of the case" before
losing jurisdiction than it would have in
refusing to apply the doctrine of res
adjudicata when all the requisites thereof
are present. We may change "the law of
the case" at any time before we lose
jurisdiction of a cause and will never
hesitate to do so if we become convinced,
as we are in this instance, that our original
pronouncement of the law was erroneous
and such ruling resulted in manifest
injustice. In such a situation a court of
justice should never adopt a pertinacious
attitude.
Beverly Beach Props., Inc. v. Nelson,
68 So. 2d 604, 607-08 (Fla.1953).
Bush v. Holmes, 886 So. 2d 340, 369-70 (Fla. 1st DCA
2004) (Benton, J., concurring) (collecting cases). Rulings
that become law of the case bind the parties in appellate
and trial courts alike for the duration of the case, whether
correct on general principles or not, so long as the facts
on which the appellate decision was based remain the
facts of the case. The law of the case governs, unless the
initial appellate ruling is both (a) erroneous on general
principles and (b) would, if undisturbed, [**10] result in
manifest injustice.
At most, the majority opinion identifies a categorical,
procedural or technical error, not the manifest injustice it
hyperbolically proclaims. The thesis is that "concurrent
disability pay" has a discrete legal character requiring
that it be treated differently from "military retirement
pay." However that may be, the order under review
evinces the same purpose that animated the parties'
divorce decree, and is a product of the same rationale and
ongoing effort that produced that decree. The majority
opinion "acknowledge[s] that the concurrent disability
pay legislation contemplates that the former husband
eventually will be allowed to receive the full amount of
both his military retirement pay and VA benefits which
will provide him with significantly more income than the
former wife," ante p. 5, and also-wisely, in my
estimation-seems to leave open the possibility-albeit in a
different proceeding-"to consider whether modification of
the final judgment is warranted in light of the subsequent
concurrent disability pay legislation." Id.
One of the rationales for the doctrine of the law of
the case has been stated thus: "Judicial resources, already
heavily taxed, [**11] are hardly efficiently allocated
when they are used to twice review the same issue."
DeGennaro v. Janie Dean Chevrolet, Inc., 600 So. 2d 44,
45 (Fla. 4th DCA 1992) (Anstead, J., specially
concurring). Appellate review also consumes parties'
resources.
Fortunately for litigants and appeals
courts alike, most litigation does not
involve even a single appeal. Whatever
else it may accomplish, an appeal
consumes additional resources. Reflecting
this reality, an important rule of decision
has been devised for litigation that bubbles
up repeatedly into the appellate courts:
Once actually decided by the highest court
to which the case goes, the law of the case
cannot be revisited, with rare exceptions
not applicable here.
Edgewater Beach Owners Ass'n, Inc. v. Bd. of County
Comm'rs of Walton County, Fla., 694 So. 2d 43, 45 (Fla.
1st DCA 1997) (Benton, J., specially concurring).
Breaching this "important rule of decision" in the present
case can only serve as an inducement to relitigating
questions already decided on appeal in other cases, with
the attendant waste of resources by courts and litigants
alike.
[*421] Earlier in the present case, Mr. Youngblood
bore the expense of prosecuting an appeal and [**12]
Mrs. Youngblood bore the expense of defending that
appeal to get an answer to the precise question on which
the court today somersaults. See Youngblood v.
Youngblood, 905 So. 2d 895 (Fla. 1st DCA 2005) (Ervin,
Padovano and Thomas) (table). See also Barry Hinnant,
Inc. v. Spottswood, 481 So. 2d 80, 83 (Fla. 1st DCA
1986); Exchange Invs., Inc. v. Alachua County, 481 So.
2d 1223, 1227 (Fla. 1st DCA 1985) ("While a PCA has
no precedential value, it becomes the law of the case as to
the same parties and can be used for res judicata
Page 4
959 So. 2d 416, *420; 2007 Fla. App. LEXIS 9571, **8;
32 Fla. L. Weekly D 1542
purposes.") (Ervin, J., concurring in part and dissenting in
part). As law of the case, our first decision should govern.
By Kenny Leigh
