Kelson v. Kelson, 93-3003
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | DAVIS; ZEHMER; BOOTH; BOOTH |
| Citation | 647 So.2d 959 |
| Parties | 19 Fla. L. Weekly D2586 Michelle M. KELSON, former wife, Appellant, v. Russell M. KELSON, former husband, Appellee. |
| Docket Number | No. 93-3003,93-3003 |
| Decision Date | 07 December 1994 |
Page 959
v.
Russell M. KELSON, former husband, Appellee.
First District.
Rehearing Denied Jan. 26, 1995.
Page 960
Gordon E. Welch of The Center for Family Law, P.A., Pensacola, for appellant.
Kathryn L. Runco of Michael J. Griffith, P.A., Pensacola, for appellee.
DAVIS, Judge.
Michelle Kelson, former wife, appeals an order denying her motion to modify or amend a final judgment of dissolution. Because we conclude that the trial court did not err in denying appellant's motion to modify the final judgment of dissolution which incorporated the parties' marital settlement agreement, we affirm.
The final judgment incorporated a marital settlement agreement between Michelle and Russell Kelson which was drafted by Mrs. Kelson's attorney. One of the terms of the property settlement portion of the marital settlement agreement was a formula for the division of the former husband's anticipated retired pay from the United States Marine Corp. After the entry of the final judgment of dissolution but before the former husband achieved twenty years of service and eligibility for retired pay, Congress enacted, and the former husband elected, the Voluntary Separation Incentive Program (VSI).
Russell Kelson left the Marine Corps after approximately sixteen years of service, receiving an annual VSI payment for a specific term of years rather than retired pay in monthly increments for life. Michelle Kelson argues that this is the functional equivalent of the retired pay she is entitled to share under the parties' agreement and that the failure of the parties to anticipate the possibility of Voluntary Separation Incentive payments in lieu of retirement benefits was a mutual mistake of fact resulting from the fact that the program simply did not exist when the marital settlement agreement was drafted. Russell Kelson responds that Voluntary Separation Incentive payments are distinctly different from retired benefits and that the trial court lacked jurisdiction to modify the property settlement agreed to between the parties. The trial court held that Voluntary Separation Incentive Benefits were not the same thing as retired/retainer pay as defined by federal law and that the court lacked jurisdiction to modify the property settlement agreement to go beyond the agreed upon division of retired/retainer pay. We affirm.
The starting point for any analysis must be the terms of the marital settlement agreement entered into between the parties. Such an agreement, "entered into voluntarily after full disclosure and then ratified by the trial court, is a contract subject to interpretation like any other contract." Petty v. Petty, 548 So.2d 793, 796 (Fla. 1st DCA 1989). This agreement purported to divide Major Kelson's non-vested, non-matured right to military retired pay. Under Florida law, a court in a dissolution proceeding may equitably divide the non-vested, non-matured right of a spouse to military retired pay. DeLoach v. DeLoach, 590 So.2d 956, 959 (Fla. 1st DCA 1992). When the trial court is making an equitable distribution of a non-vested pension plan, it must take into account the effect on the value of those pension rights of the possibility that some event such as death or termination of employment would destroy the pension rights before they mature. Id. at 962. We must presume that this marital settlement agreement, drafted by Mrs. Kelson's attorney, also accounted for the possibility that some event such as death or termination of employment would destroy the pension rights before they could mature. Cf. Abernethy v. Fishkin, 638 So.2d 160, 163 (Fla. 5th DCA 1994) ("husband specifically agreed that he would take no action which would defeat the wife's right to receive 25% of his retirement pay and that, if necessary, he would self-implement the agreement's payment provisions"). The present agreement does not...
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Marriage of Heupel, In re, 95SC754
...but then holding that even if federal pre-emption applied, there was no conflict under the separation agreement) with Kelson v. Kelson, 647 So.2d 959 (Fla.Dist.Ct.App.1994) (holding that VSI benefits are not divisible because they do not comprise retired/retainer pay), rev'd, 675 So.2d 1370......
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Marriage of McElroy, In re, 94CA0957
...payments constitute retirement pay and are marital property subject to distribution.). But see Baer v. Baer, supra; Kelson v. Kelson, 647 So.2d 959 (Fla.Dist.Ct.App.1994) (VSI payments not retirement); McClure v. McClure, 98 Ohio App.3d 27, 647 N.E.2d 832 (1994) (VSI payments more analogous......
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Kelson v. Kelson, 85246
...Kathryn L. Runco of Michael J. Griffith, P.A., Pensacola, for Respondent. KOGAN, Justice. We have for review Kelson v. Kelson, 647 So.2d 959 (Fla. 1st DCA 1994), because of conflict with Abernethy v. Fishkin, 638 So.2d 160 (Fla. 5th DCA 1994), on the issue of whether Voluntary Separation In......
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Marsh v. Wallace, 03-94-00313-CV
...10 U.S.C. § 1175 were not divisible under facts of case where husband forced to "voluntarily" separate from service); Kelson v. Kelson, 647 So.2d 959 (Fla. 1st Dist.Ct.App.1994) (payments received pursuant to 10 U.S.C. § 1175 were not divisible, conflicting with Abernethy v. Fishkin, 638 So......
-
Marriage of Heupel, In re, 95SC754
...but then holding that even if federal pre-emption applied, there was no conflict under the separation agreement) with Kelson v. Kelson, 647 So.2d 959 (Fla.Dist.Ct.App.1994) (holding that VSI benefits are not divisible because they do not comprise retired/retainer pay), rev'd, 675 So.2d 1370......
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Marriage of McElroy, In re, 94CA0957
...payments constitute retirement pay and are marital property subject to distribution.). But see Baer v. Baer, supra; Kelson v. Kelson, 647 So.2d 959 (Fla.Dist.Ct.App.1994) (VSI payments not retirement); McClure v. McClure, 98 Ohio App.3d 27, 647 N.E.2d 832 (1994) (VSI payments more analogous......
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Kelson v. Kelson, 85246
...Kathryn L. Runco of Michael J. Griffith, P.A., Pensacola, for Respondent. KOGAN, Justice. We have for review Kelson v. Kelson, 647 So.2d 959 (Fla. 1st DCA 1994), because of conflict with Abernethy v. Fishkin, 638 So.2d 160 (Fla. 5th DCA 1994), on the issue of whether Voluntary Separation In......
-
Marsh v. Wallace, 03-94-00313-CV
...10 U.S.C. § 1175 were not divisible under facts of case where husband forced to "voluntarily" separate from service); Kelson v. Kelson, 647 So.2d 959 (Fla. 1st Dist.Ct.App.1994) (payments received pursuant to 10 U.S.C. § 1175 were not divisible, conflicting with Abernethy v. Fishkin, 638 So......