161 So.3d 425 (Fla.App. 2 Dist. 2014), 2D13-2746, Fritz v. Fritz
|Citation:||161 So.3d 425, 39 Fla.L.Weekly D 715|
|Opinion Judge:||VILLANTI, Judge.|
|Party Name:||JEFFREY FRITZ, Appellant, v. TERRI FRITZ, Appellee|
|Attorney:||Sam R. Assini and Matthew P. Irwin of Men's Rights Law Firm, Cape Coral, for Appellant. Antonio J. Perez-Benitoa, Naples, for Appellee.|
|Judge Panel:||VILLANTI, Judge. SILBERMAN and SLEET, JJ., Concur. SILBERMAN and SLEET, JJ., Concur.|
|Case Date:||April 04, 2014|
|Court:||Florida Court of Appeals, Second District|
Appeal from the Circuit Court for Collier County; Elizabeth V. Krier, Judge.
Jeffrey Fritz (the Husband) seeks review of the Order for Division of Military
Retirement Pay (MPO) entered as part of the dissolution of his marriage to Terri Fritz (the Wife). Because the MPO does not accurately reflect the oral agreement of the parties concerning the distribution of the Husband's military pension and because it incorporates a legally improper coverture fraction, we reverse and remand for further proceedings.
The Husband, who is an active-duty military officer, filed a petition to dissolve his marriage to the Wife in 2011. The Wife filed a counterpetition in which she sought equitable distribution of the marital assets, including the division of " retirement accounts." Late in the afternoon of the day before the dissolution hearing, the parties reached a settlement agreement as to all of the issues between them. Hence, during the time originally scheduled for the dissolution hearing, the parties orally presented the terms of their settlement agreement to the court.
The parties first set out their agreement concerning the parenting plan. Then they moved on to their agreement concerning the equitable distribution of the marital assets and liabilities. As to the Husband's military pension, counsel for the Wife announced that the parties had agreed to equally divide the marital portion and that the Wife's " marital portion of the pension is 48.12 percent." Counsel for the Husband immediately interrupted and stated, " All I can agree to and all I have agreed to is that the pension is going to be divided evenly, the portion that accrued during the marriage." When counsel for the Wife asked whether counsel for the Husband had already determined the coverture fraction necessary to calculate the exact amount of the Wife's share, counsel for the Husband responded, " No. I leave that to the experts."
After further discussion of the equitable distribution scheme, counsel for the Wife returned to the issue of the division of the Husband's pension, reiterated that the parties' intent was to evenly split the marital portion of the Husband's pension, and said " as I said, it's 48 point something percent of the total pension." Counsel for the Husband again interrupted and stated, " I'm not sure if we are in agreement that it's 48 percent. If that's what it is, if you've done the calculations, I'd rather give it to Voit, the expert, to figure out what the marital portion of the pension is." Counsel for the Wife then stated that there was no need to hire an expert because the parties could determine the coverture fraction themselves and that it should be the number of months of marriage over the number of months of the Husband's creditable military service as of the date of filing the petition, which counsel for the Wife asserted should be 211 months over 219 months. Counsel for the Wife asserted that the resulting fraction would then be applied to the Husband's pension payments upon his retirement and then multiplied by fifty percent to establish the Wife's share.
The court seemed to recognize that this explanation of the coverture fraction was incorrect. It explained:
No, no, I understand that, but when you put it in a [MPO], okay, you're going to have to say 50 percent of whatever is accrued between this time...
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