Bujarski v. Bujarski, 86-1958

• Decision Date: 28 July 1988
• Docket Number: No. 86-1958,86-1958
• Citation: 13 Fla. L. Weekly 1786,530 So.2d 953
• Parties: 13 Fla. L. Weekly 1786 Rosalie B. BUJARSKI, Appellant, v. Marcel J. BUJARSKI, Appellee.
• Court: Florida District Court of Appeals

Page 953

530 So.2d 953

13 Fla. L. Weekly 1786

Rosalie B. BUJARSKI, Appellant, v. Marcel J. BUJARSKI, Appellee.

No. 86-1958.

District Court of Appeal of Florida Fifth District.

July 28, 1988.

Rehearing Denied Sept. 13, 1988.

William H. Morrison, P.A., Altamonte Springs, for appellant.

Franklin T. Walden of Massey, Alper & Walden, P.A., Altamonte Springs, for appellee.

COWART, Judge.

This case involves consideration of pension benefits in a dissolution of marriage case. A majority of the judges of this district court of appeal ordered this case to be determined en banc pursuant to Rule of Appellate Procedure 9.331(a) because the case was considered of exceptional importance and an en banc hearing was necessary to maintain uniformity in the court's decisions.

At the time of dissolution, the husband was retired, going to college and receiving $31,000 annual military pension benefit income. The wife, with a master's degree, earned $43,100 annually with pension benefits to vest in four years. The trial court awarded the wife permanent periodic alimony of $200 per month. The wife appeals, arguing that under Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986), the trial court erred in considering the husband's military income as a source of payment of permanent periodic alimony rather than awarding the wife one-half of the husband's retirement pension as an equitable distribution of the marital assets. ¹ In Diffenderfer the Florida Supreme Court only rejected the First District's holding that a pension could not be considered marital property subject to equitable distribution but the supreme court affirmed the district court's holding that such benefits could be considered as a source of payment of permanent periodic alimony. Under Diffenderfer, the trial judge may, in his discretion, treat a pension benefit as a marital asset and make an equitable distribution of it or consider it as a source of payment of permanent periodic alimony, but not both. Here the trial court considered the husband's military pension as a source of payment of permanent periodic alimony. Applying the "reasonableness" standard of review enunciated in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), to the facts in this case, we find the trial court's treatment of the retirement benefits within its range of discretion and affirm. See Bogard v. Bogard, 490 So.2d 43 (Fla.1986).

AFFIRMED.

DAUKSCH, ORFINGER, COBB and DANIEL, JJ., concur.

SHARP, C.J., dissents with opinion.

SHARP, Chief Judge, dissenting.

This dissolution judgment should be reversed and remanded to the trial court with directions to make an equitable distribution of the parties' marital assets to the wife. The trial court erred either by not considering the vested military pension as a marital asset, as is now required by Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986), or if it did consider the pension as a marital asset (as is contended by the majority) it grossly shortchanged the wife by not allocating to her any portion of that marital asset, or making any other compensating award to her of other assets, a la Tronconi v. Tronconi, 466 So.2d 203 (Fla.1985). See Tripp v. Tripp, 510 So.2d 1109 (Fla. 4th DCA 1987). With this decision, it appears to me that this court is taking a major step backwards from the developing law of equitable distribution in Florida. See Dwyer v. Dwyer, 513 So.2d 1325 (Fla. 2d DCA 1987); Tripp; Zipperer v. Zipperer, 508 So.2d 551 (Fla. 1st DCA 1987); Grant v. Grant, 506 So.2d 1152 (Fla. 1st DCA 1987); McCarthy v. McCarthy, 523 So.2d 1252 (Fla. 3rd DCA 1988).

The facts in this case present the classic situation for equitable distribution of a military pension as a marital asset. The parties married in 1957. The parties raised a family of three children, and during the twenty-nine years of their marriage, the husband completely earned all the rights to a military pension upon his retirement from the United States Coast Guard. The husband had retired shortly before this dissolution proceeding began.

At the time of the trial, the husband's vested pension paid him $2,618.00 monthly, for a total of $31,416.00 per year. He also received in excess of $300.00 per month, V.A. benefits towards his education, and other fringe benefits from the military, such as shopping privileges at the commissary and PX, and Champus. At the time of trial, the husband was only six months away from obtaining a college degree in computer science. The evidence suggested he could expect to obtain a job paying from $17,000 to $30,000.00, for an entry level position. The trial judge found both his health and earning potential to be "excellent."

The trial judge also found that during the marriage the wife was a good mother and dutiful military spouse. She moved some ten times across the country, raised the children alone while the husband was on frequent extended sea duty, held offices in various service wives' clubs, and did her best to support the husband's military career. He retired as a commander, having begun as an enlisted man.

After the children were in school, the wife slowly began to acquire a higher education, shifting courses and schools, due to the parties' military transfers. She obtained a Masters Degree in psychology and for the last six years of the marriage was employed by AT & T. Her first year's salary was $17,000.00; she was earning $43,000.00 per year at the time of the dissolution.

However, the wife has no vested pension rights from AT & T, and her continued employment was not assured. The trial court found she has significant chronic health problems: high blood pressure, diabetes, and a degenerative disk in her spine. If she works for AT & T another four years, she will be entitled to some vested pension amounts, but as the trial judge noted, she would have to work many more years "in order to have any significant income."

At the time of the dissolution proceeding, the parties' primary marital assets were their marital home, and the military pension. The evidence also showed that the husband abruptly walked out on the wife for another, much younger woman, leaving the wife with the full financial responsibility for the marital residence. In sum, if fault is a factor to justify inequitable distribution of marital assets, see Wood v. Wood, 490 So.2d 248 (Fla. 3rd DCA 1986); Tuller v. Tuller, 469 So.2d 212 (Fla. 5th DCA 1985), there was no basis for shortchanging the wife in this case. In fact, the trial court expressly found:

The wife made a substantial contribution to the marriage and to the husband's 28 year military career which occurred during the 29 year marriage. Consequently she should share in the fruits of the military retirement which the husband will enjoy for the remainder of his natural life.

Despite these undisputed facts and findings, the trial court made a grossly unfair award of marital assets. It split the proceeds received by the parties from the sale of the marital...