Viera v. Viera, 96-1597

• Decision Date: 05 September 1997
• Docket Number: No. 96-1597,96-1597
• Citation: Viera v. Viera, 698 So.2d 1308 (Fla. App. 1997)
• Parties: 22 Fla. L. Weekly D2117 Ruben VIERA, Sr., Appellant, v. Julie VIERA, Appellee.
• Court: Florida District Court of Appeals

Page 1308

698 So.2d 1308

22 Fla. L. Weekly D2117

Ruben VIERA, Sr., Appellant, v. Julie VIERA, Appellee.

No. 96-1597.

District Court of Appeal of Florida Fifth District.

Sept. 5, 1997.

Alicia L. Latimore, Orlando, for Appellant.

Robert J. Wheelock of Robert J. Wheelock, P.A., Orlando, for Appellee.

THOMPSON, Judge.

Ruben Viera, Sr., ("the former husband") appeals a final judgment of dissolution which dissolved his marriage to Julie Viera ("the former wife") and which distributed assets and liabilities. The former husband argues that the distribution of marital assets was inequitable because the property was not distributed pursuant to the parties' separation agreement. We cannot determine whether the distribution was equitable because the trial court did not make specific written findings identifying the parties' assets and liabilities as marital or nonmarital and failed to value marital assets. Further, the final judgment, which was prepared by the former wife's attorney, did not accurately set forth the oral pronouncements of the court. Therefore, we reverse the final judgment except the portions dissolving the marriage and reimbursing the former wife $2,400. ¹

The parties to this dissolution are a military family. The former husband enlisted in the Army on 28 March 1968, and retired on 1 October 1995. The parties were married on 5 October 1970, and separated in 1992. Contemplating a dissolution of marriage, the parties prepared a separation agreement which purported to settle and distribute their marital assets and liabilities. The agreement determined, among other things, the right to and the amount of alimony for the former wife.

In a contested dissolution action, Florida law requires the identification of marital and nonmarital assets and liabilities and the allocation of assets and liabilities to each party. See § 61.075(3), Fla. Stat. (1995). This requirement is not necessary where there is an agreement executed by the parties, as long as the agreement is followed. However, the final judgment must reflect that the property was distributed as agreed. See Lavelle v. Lavelle, 634 So.2d 1111 (Fla. 2d DCA 1994) (requiring trial court to establish values for and distribute household furnishings even where parties agreed to distribution in signed settlement filed with the trial court because the appellate court could not determine if distribution was consistent with the agreement.) Where, as here, the appellate court cannot make that determination, the case must be reversed for written findings. Vaccaro v. Vaccaro, 677 So.2d 918 (Fla. 5th DCA 1996); Adams v. Adams, 677 So.2d 6 (Fla. 5th DCA 1996).

We also note that the final judgment does not comport with the settlement agreement or the pronouncements of the trial court. First, the final judgment required the former husband to pay the former wife $1,343 in monthly alimony, and awarded the former wife one-half of the former husband's retirement pay as equitable distribution of marital property. This is inconsistent with the terms of the separation agreement which provides:

In the event the Husband is retired from the Army at the time of such divorce, or in the event the Husband retires from the Army subsequent to such divorce, the payments to the Wife by reason of division of husband's Army retired pay, as set forth in paragraph 3., below, shall act as a credit towards the Husband's monthly obligation hereunder. (Emphasis added.)

It is clear the parties intended that the alimony would be paid in part by the former wife's 50% share of the former husband's retirement pay. The final judgment incorrectly grants the former wife one-half of the retirement pay in addition to permanent periodic alimony.

Generally, a trial court may treat retirement benefits either as a source of alimony or as marital property subject to equitable distribution. Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986). Here, however, the court ratified the agreement which unambiguously expresses the parties' intent to treat the retirement pay as a source of alimony. In addition, in the agreement, the parties released "all claims and demands of every kind, name or nature against the other party hereto, including all liability ... on account of support, maintenance, spousal support, dower, courtesy [sic], or other allowances ... incident to the marriage relation;...." Therefore, the trial court was constrained to treat the former husband's retirement pay as a source of alimony. See Woolley v. Woolley, 637 So.2d 74 (Fla. 5th DCA 1994) (holding pursuant to property settlement agreement incorporated into final judgment of dissolution, wife entitled to...