Abernethy v. Fishkin, No. 93-661

• Court: Court of Appeal of Florida (US)
• Writing for the Court: DIAMANTIS
• Citation: 638 So.2d 160
• Parties: 19 Fla. L. Weekly D1273 Richard L. ABERNETHY, Appellant/Cross-Appellee, v. Monica R. FISHKIN a/k/a Monica R. Abernethy, Appellee/Cross-Appellant.
• Decision Date: 10 June 1994
• Docket Number: No. 93-661

Page 160

638 So.2d 160 19 Fla. L. Weekly D1273 Richard L. ABERNETHY, Appellant/Cross-Appellee,
v.
Monica R. FISHKIN a/k/a Monica R. Abernethy, Appellee/Cross-Appellant. No. 93-661. District Court of Appeal of Florida,
Fifth District. June 10, 1994.

Page 161

Daniel D. Mazar of Mead and Mazar, Winter Park, for appellant/cross-appellee.

Judith E. Atkin, Melbourne, for appellee/cross-appellant.

DIAMANTIS, Judge.

Richard L. Abernethy (the husband) appeals the trial court's order enforcing the parties' final judgment of dissolution and awarding attorney's fees to Monica R. Fishkin (the wife). The wife cross-appeals the trial court's order because it fails to award all of her attorney's fees. We affirm the trial court's order to the extent that it enforces the parties' final judgment of dissolution but reverse the award of attorney's fees and remand this cause for further proceedings consistent with this opinion.

In January 1992, the trial court entered a final judgment dissolving the parties' 16-year marriage and incorporating the provisions of their property settlement agreement. At the time of dissolution, the husband was a member of the United States Air Force. The agreement provided that the wife would receive twenty-five percent (25%) of the husband's military retirement pay pursuant to the Uniformed Services Former Spouses Protection Act (hereinafter the "USFSPA"). ¹ Relative to this provision, the husband agreed not to merge his retired or retainer pay with any other pension and, further, not to pursue any course of action that would defeat the wife's right to receive a portion of the husband's full net disposable retired or retainer pay. The husband also agreed to self-implement the provisions of the parties' property settlement agreement either by making direct payments to the wife or by taking other action as required to effectuate the intent and spirit of the parties' agreement if, for any reason, the military became unable to implement the trial court's final judgment with regard to the husband's military retirement.

In March 1992, faced with the government's planned reduction in force, the husband chose voluntary separation from the United States Air Force. According to his affidavit, the husband's voluntary separation options included the Special Separation Bonus (SSB) (a lump-sum payment) ² and the Voluntary Separation Incentive Program (VSI) (an annuity). ³ The husband selected the VSI option and was honorably discharged from the Air Force. Pursuant to the provisions of the VSI program, the husband will receive annual payments for 32 years (twice the number of years of service). ⁴

The wife thereafter filed enforcement proceedings in the circuit court in which she contended that, by voluntarily separating from the Air Force under the VSI program, the husband had pursued a course of action that defeated her right to receive a portion of the husband's military retirement pay and, thereby, had violated the provisions of the parties' property settlement agreement and the final judgment of dissolution. The trial court granted the wife's request for enforcement by ordering the husband to pay to the wife 25% of every VSI payment immediately upon its receipt.

In attacking the trial court's order of enforcement, the husband's principal contention ⁵ is that, under the doctrine of federal

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preemption, the trial court lacked authority to order him to pay 25% of his VSI payments to the wife regardless of the provisions contained in the parties' property settlement agreement and the final judgment. In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court held that federal law precluded state courts from distributing military retirement benefits in marital dissolution proceedings because such distribution frustrated the objectives of the federal military retirement scheme. Congress responded to the McCarty decision by enacting the USFSPA, which allows state courts to treat a service member's disposable retired or retainer pay as property subject to equitable distribution. ⁶ The husband argues that, under the reasoning of McCarty, federal law precludes state courts from distributing VSI benefits in dissolution proceedings because such distribution frustrates Congress's intent in enacting the VSI program. The husband further argues that the USFSPA does not authorize state courts to distribute VSI because VSI does not constitute retired or retainer pay.

We reject these arguments based upon the reasoning set forth by the court in In re Marriage of Crawford, No. 2 CA-CV 93-0203, 1994 WL 155101 (Ariz.Ct.App. Apr. 29, 1994). In that case, a 1989 dissolution decree awarded the wife 32.5% of the husband's military retirement benefits. In 1992, the husband voluntarily separated from the Air Force under the SSB option, and the wife filed an enforcement petition seeking 32.5% of the husband's lump-sum SSB payment. In discussing Congress's intent in enacting the SSB and VSI programs, the Arizona court stated:

We find more relevant a 1990 House Report predating the enactment of the SSB program which in relation to the congressionally mandated "force drawdown" recommended "a comprehensive package of transition benefits to assist separating personnel and their families," H.R.Rep. No. 665, 101st Cong., 2d Sess. (1990) (emphasis added), suggesting that equitable division of SSB benefits is not inconsistent with congressional intent. 5

1994 WL 155101, at * 1, * 3. The court affirmed the trial court's order awarding the wife a portion of the husband's SSB payment.

The purpose of the VSI program is to "offer a voluntary separation incentive in the form of an annuity to active duty personnel who elect to voluntarily separate in order to avoid the possibility of facing selection for involuntary separation or denial of reenlistment." H.R.Conf.Rep. No. 311, 102d Cong. 1st Sess. (1991). As with military retirement, VSI...