Heldmyer v. Heldmyer

• Decision Date: 16 July 1987
• Docket Number: No. 86-368,86-368
• Parties: 12 Fla. L. Weekly 1741 Harry F. HELDMYER, Appellant, v. Nancy HELDMYER, Appellee.
• Court: Florida District Court of Appeals

Page 1310

509 So.2d 1310

12 Fla. L. Weekly 1741

Harry F. HELDMYER, Appellant, v. Nancy HELDMYER, Appellee.

No. 86-368.

District Court of Appeal of Florida,

Fifth District.

July 16, 1987.

Jack A. Kirschenbaum, of Wolfe, Kirschenbaum & Mosley, P.A., Cocoa Beach, for appellant.

Carol Waxman, of Stanley Wolfman, P.A., Merritt Island, for appellee.

UPCHURCH, Chief Judge.

The husband appeals a final judgment of dissolution of marriage raising several issues for our consideration.

First, the husband contends that the trial court erred in awarding the wife $178.00 per week as permanent periodic alimony. The husband, a military officer, retired with the rank of Lieutenant Colonel. The marriage spanned thirty-one years and produced four children, now adults. During the twenty years the husband was in the service, the family moved at least ten times. The husband has a master's degree in hospital administration and presently is employed as a data processing manager for the Orlando Police Department. His military pension of $22,128 and his bi-weekly police department salary of $995.00 amounts to a total income of about $47,000 annually. The wife, who is in her fifties, attended junior college and has an associate degree. She worked primarily as a homemaker during the marriage. She is presently employed, earning $16,900 per year. The husband admitted that the family's standard of living in 1984 required $60,000 gross. Considering the wife's needs, age, employment potential and the husband's ability to pay, the award of permanent alimony was not an abuse of the court's discretion. Walter v. Walter, 464 So.2d 538 (Fla.1985); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Second, the husband claims that the trial court erred in determining the amount of a special equity he was awarded in the marital home. The evidence was uncontradicted that the husband received $54,000 worth of stock as the beneficiary of a family trust. The disposition was set up in a ready asset account at Merrill Lynch and a money market account at Barnett Bank. Over the years, the stocks were sold and profits were reinvested so that at the present time, none of the original stock exists. The husband used the profit from the stocks for various family expenses and the ready asset fund and the money market fund now contain some $37,000. The husband testified that he withdrew approximately $32,000 from the fund, deposited it in the parties' joint account and wrote a check for the down payment on their home. While the wife thought the profit on homes the parties had previously owned had also gone into the husband's investment accounts, she conceded that she had no specific knowledge of that fact. Therefore, the amount of the special equity awarded by the court was inadequate and this portion of the judgment must be reversed and remanded for determination of the special equity in accordance with Landay v. Landay, 429 So.2d 1197 (Fla.1983). ¹

Third, the husband contends that the trial court erred in ordering him to pay the mortgage, taxes, and insurance on the home but to receive a credit for paying the wife's share only if he does not occupy the house. Generally, a spouse who pays the mortgage on jointly owned property is entitled to credit against the other spouse's one-half of the proceeds upon sale of the property. Wood v. Friedman, 388 So.2d 1355 (Fla. 5th DCA 1980). However, payment of the mortgage, taxes and insurance for the marital home without receiving a credit may be considered as a form of alimony. Pastore v. Pastore, 497 So.2d 635 (Fla.1986). On remand, the trial court should clarify the nature and purpose of this award.

Fourth, the husband claims that the court erred in awarding the wife one-half of the Merrill Lynch ready assets account and the Barnett Bank money market fund. The husband testified that no salary or marital funds went into these investment accounts. The wife testified that she actually did not know that any profits from the sale of the parties' homes went into these accounts. Since the wife failed to establish that any marital funds went into the accounts and the accounts were from a source unconnected with the marriage, the husband is entitled to retain sole ownership of the investment accounts. Ball v. Ball, 335 So.2d 5 (Fla.1976).

Finally, the husband claims that the trial court erred in ordering him to maintain the wife as a beneficiary under the provisions of his Survivor Benefit Plan. The Survivor Benefit Plan provides an annuity payable upon death of a person entitled to retirement pay from the armed services. See 10 U.S.C. §§ 1447-1455. However, the eligible person must elect to provide an annuity to a former spouse and a court cannot order the person to so elect. 10 U.S.C. § 1450(f)(4); Matter of Marriage of Morton, 11 Kan.App.2d 473, 726 P.2d 297 (1986); Barros v. Barros, 34 Wash.App. 266, 660 P.2d 770 (1983). Nor can a court order the eligible person to maintain a former spouse as the beneficiary. Keen v. Keen, 145 Mich.App. 824, 378 N.W.2d 612 (1985); Powers v. Powers, 465 So.2d 1036 (Miss.1985); Brown v. Brown, 279 S.C. 116, 302 S.E.2d 860 (1983); In re Marriage of Williams, 39 Wash.App. 224, 692 P.2d 885 (1984). Thus, the husband cannot be ordered to maintain the wife as the beneficiary under his Survivor Benefit Plan.

In sum, the trial court must revisit the awards in this case. The wife is entitled to permanent periodic alimony and the husband is entitled to a special equity in the marital home considering the full amount of the down payment. The husband is also entitled to the investment accounts in his name. The trial court cannot order the husband to maintain the wife under the Survivor Benefit Plan. However, because the financial positions of the parties will be changed by the opinion, on remand the trial judge may reexamine their total financial "package." ²

REVERSED and REMANDED for further proceedings.

DAUKSCH, J., concurs.

COWART, J., concurs in part; dissents in part with opinion.

COWART, Judge, concurring in part; dissenting in part.

I concur in the majority opinion as to the first four holdings but cannot agree with the holding that the trial court could not order the husband to maintain the ex-wife as beneficiary of survivorship benefits which were created when the husband retired from the military and made that distribution election of his federal retirement benefits. There...