McMahan v. McMahan, 90-839

• Decision Date: 02 October 1990
• Docket Number: No. 90-839,90-839
• Parties: 15 Fla. L. Weekly D2463 Charles Robert McMAHAN, Appellant, v. Myrtes McMAHAN, Appellee.
• Court: Florida District Court of Appeals

Page 976

567 So.2d 976

15 Fla. L. Weekly D2463

Charles Robert McMAHAN, Appellant, v. Myrtes McMAHAN, Appellee.

No. 90-839.

District Court of Appeal of Florida First District.

Oct. 2, 1990.

Robison R. Harrell and Alice H. Murray, of Robison R. Harrell & Associates, Shalimar, for appellant.

James W. Grimsley, of Smith, Grimsley & Remington, Ft. Walton Beach, for appellee.

ERVIN, Judge.

In this appeal from a final marital dissolution judgment, the former husband raises two issues for review: 1) that the trial court erred in incorporating the parties' separation agreement into the judgment of dissolution for the reasons that the agreement was unfair, unreasonable, and procured through coercion and duress, and 2) that the trial court erred in approving the terms of the separation agreement on the ground that the former wife was awarded a portion of the former husband's military retirement pay which constituted disability benefits. We affirm as to the first point and reverse as to the second. Because of our reversal of the latter issue, we remand the cause to the trial court with directions that it reconsider the entire award for the purpose of doing equity and justice between the parties.

As to the first issue, we conclude that appellant has failed to meet the exceptionally heavy burden imposed upon him as the party seeking to modify an award incorporated in a dissolution judgment fixed by a postnuptial property settlement agreement. See Andrews v. Andrews, 409 So.2d 1135 (Fla. 2d DCA 1982); Johnson v. Johnson, 386 So.2d 14 (Fla. 5th DCA), review denied, 392 So.2d 1375 (Fla.1980). In order to meet this burden, the challenger of the agreement must present sufficient evidence directed to one of two separate grounds relating to the validity of such agreements: first, by showing that it was the result of fraud, deceit, duress, coercion, misrepresentation, or overreaching; second, by demonstrating that it provided for an unfair or unreasonable distribution to the challenging spouse under the particular circumstances. Casto v. Casto, 508 So.2d 330, 333 (Fla.1987). In our judgment appellant has failed to establish the existence of either ground.

As to the former, none of the reasons given, either considered separately or in toto, constitute coercion or duress. See Cronacher v. Cronacher, 508 So.2d 1270 (Fla. 3d DCA 1987), Bailey v. Bailey, 300 So.2d 294 (Fla. 4th DCA 1974), and Byrd v. Byrd, 324 So.2d 659 (Fla. 2d DCA 1975) (all reciting that tremendous emotional strain at the time of signing of separation agreement is not sufficient ground to set aside the agreement); Bockoven v. Bockoven, 444 So.2d 30 (Fla. 5th DCA 1983), and Bubenik v. Bubenik, 392 So.2d 943 (Fla. 3d DCA 1980) (fact that appellants were unrepresented by attorneys at the time the separation agreements were executed was not sufficient ground for setting the documents aside); Casto and Brighton v. Brighton, 517 So.2d 53 (Fla. 4th DCA 1987), review denied, 528 So.2d 1181 (Fla.1988) (the fact that the separation agreement may have been a "bad deal" is not reason to set it aside). We therefore find no foundation in support of that portion of the husband's argument that the agreement was the product of coercion or duress.

We also find lack of support for the former husband's second ground in which he contests the validity of the property settlement agreement, i.e., that the agreement is unfair and unreasonable. The property settlement agreement called for an equal division of the parties' sole source of income and their savings. Although the former husband was required to pay all of the marital debts, the former wife agreed to a decrease in her alimony payment for a period of two years so that the debts could be paid. Moreover, while the parties agreed to split the proceeds from the sale of the marital home, the former husband was awarded the exclusive possession and use of the home so long as he resided therein and paid all appropriate expenses. In addition, the former husband also received the former wife's interest in two parcels of real property. We find nothing unreasonable in the above mutual covenants under the circumstances presented, and therefore conclude that the former husband failed to meet his initial burden of showing that the agreement was unfair and/or unreasonable. ¹

As to the second issue in which the husband assails the trial court's approval of the portion of the agreement allowing the wife to receive part of the husband's retirement pension which was derived from his disabling condition, we reverse in that case law has now convincingly established that no portion of a military pension which is attributable to disability is subject to distribution for the benefit of the other spouse. Prior to the enactment of the Federal Uniformed Services Former Spouses' Protection Act (FUSFSPA), 10 U.S.C. § 1408, the rule was that military retirement pay constituted the separate property of the person receiving such benefit--it was not considered community property subject to division in dissolution proceedings. See McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), superseded by statute as stated in Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). In direct response to the McCarty ruling, Congress enacted FUSFSPA. Section 1408 thereof provides, in pertinent part, as follows:

Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.

10 U.S.C.A. § 1408(c)(1) (West 1983) (emphasis added).

Although in enacting section 1408, Congress did grant the power to state courts to treat military retirement pay as marital property, its grant of authority was expressly limited, as above stated, to "disposable retired or retainer pay." The term "disposable retired or retainer pay" is defined as the total monthly retirement pay less any amount received on account of disability. 10 U.S.C.A. § 1408(a)(4)(B), (E) (West Supp.1990).

In Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), the Supreme Court recently interpreted section 1408 as precluding the distribution of a portion of a veteran's retirement pension derived from his disability benefits, on the ground that such amounts could not be considered "disposable retired or retainer pay." There the parties were married for 23 years, and, prior to their divorce, had entered into an agreement which provided in part that the husband would pay the wife 50 percent of his total military retirement pay, including that portion of retirement pay waived so that he could receive disability benefits. Subsequent to the divorce, the former husband requested the lower court to modify the divorce decree by removing the provision requiring him to share his total retirement pay with the former wife. The lower court...