Allen v. Allen, 94-01386
| Decision Date | 28 December 1994 |
| Docket Number | No. 94-01386,94-01386 |
| Citation | 650 So.2d 1019 |
| Parties | 20 Fla. L. Weekly D73 Hoyt D. ALLEN, Appellant, v. Connie S. ALLEN, Appellee. |
| Court | Florida District Court of Appeals |
W. Dale Gabbard of Guito & Gabbard, Tampa, for appellant.
James R. Kennedy, Jr., St. Petersburg, for appellee.
The appellant (the husband) challenges an order awarding the appellee (the wife) $750 per month temporary alimony because it was computed by considering the husband's military retirement pay consisting principally of disability payments. The husband argues that federal law prohibits a state court from awarding alimony to a spouse which is determined by and payable from military retirement pay which has been designated as disability. We stress that this is the only issue raised by the husband on this appeal. For the reasons set forth below, we affirm.
The problem here arises from the provisions of 10 U.S.C. section 1408 (Supp.1988). That section applies to the payment of "disposable retired pay" of a veteran to his or her spouse as part of a division of property, expressed in dollars or as a percentage of disposable retired pay. Section 1408(a)(4) states that the term "disposable retired pay" means monthly retired pay less any part of the retired pay designated as disability. In Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), the Supreme Court held that section 1408 does not grant state courts the power to treat, as property divisible upon divorce, military retirement pay that has been waived to receive veteran's disability. This court followed Mansell in Fondren v. Fondren, 605 So.2d 571 (Fla. 2d DCA 1992). The appellant's argument is based on these decisions, which he says forbid using his disability retirement to measure his ability to pay alimony and as a source for the payment of alimony. The appellee argues otherwise, but she has cited no authority upholding her position.
Research reveals that there is such authority; a decision of the Supreme Court of Arkansas in Murphy v. Murphy, 302 Ark. 157, 787 S.W.2d 684 (1990), rejected the contention of a husband that the trial court erred in requiring him to pay alimony out of his disability benefits. The court noted that under 10 U.S.C. section 1408 (Supp.1988) the wife was clearly not entitled to receive direct payments for alimony because the husband had no disposable retirement pay as defined thereunder. Nevertheless...
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