DeLoach v. DeLoach, 89-383

• Decision Date: 21 November 1989
• Docket Number: No. 89-383,89-383
• Citation: 552 So.2d 324,14 Fla. L. Weekly 2692
• Parties: 14 Fla. L. Weekly 2692 Franklin DeLOACH, Appellant, v. Ruthie Mae DeLOACH, Appellee.
• Court: Florida District Court of Appeals

Page 324

552 So.2d 324

14 Fla. L. Weekly 2692

Franklin DeLOACH, Appellant, v. Ruthie Mae DeLOACH, Appellee.

No. 89-383.

District Court of Appeal of Florida First District.

Nov. 21, 1989.

William H. Grant, III, Orange Park, for appellant.

Terance A. Jones, Orange Park, for appellee.

THOMPSON, Judge.

The former husband appeals an order of child custody and distribution of marital assets entered after a final judgment of dissolution of marriage which, inter alia, awards the former wife one-half of the husband's military retirement earned during the course of the marriage. The husband argues that the award was improper. We agree, and reverse and remand for reconsideration.

In his first point on appeal the husband asserts that the wife's failure to specifically seek an equitable distribution of the husband's pension precludes the court from considering this issue. We disagree. Military pension benefits should generally be considered as assets subject to equitable distribution or otherwise available as a source for payment of alimony to the extent that the benefits accrued during the marriage. Mollnow v. Mollnow, 530 So.2d 399 (Fla. 1st DCA 1988); Zipperer v. Zipperer, 508 So.2d 551 (Fla. 1st DCA 1987). All dissolution proceedings are in chancery. § 61.011, Fla.Stat. A chancellor has the inherent right in such proceedings to adjudicate the equitable interests of the parties in property acquired during the marriage. Burns v. Burns, 174 So.2d 432 (Fla. 2d DCA 1965). Furthermore, the issue of the husband's pension rights was raised and considered without objection, so it was appropriate to treat it as if it had been raised in the pleadings. Robinson v. Robinson, 340 So.2d 935 (Fla. 4th DCA 1976).

Notwithstanding our conclusion that the husband's military pension was properly at issue below, we agree with his contention that the paucity of evidence adduced on this issue cannot support the court's award. The pension evidence adduced was minimal compared to the extensive evidence presented on other issues. Left unresolved were the important issues of whether the pension was vested or mature, when it would become vested, its present value, or when the husband would be entitled to begin to receive his benefits thereunder. These issues could easily have been resolved by proper questioning of the husband or by the court taking judicial notice of the federal statutes governing the husband's pension rights. At least one decision has held that non-vested retirement benefits should not be...