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Martin v. Martin

Florida Court of Appeals, First District

June 20, 2019

David Michael Martin, Former Husband, Appellant,
v.
Dawn Turner Martin, Former Wife, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Okaloosa County. Michael A. Flowers, Judge.

          Michael T. Webster of Michael T. Webster, P.A., Shalimar, for Appellant.

          Curtis W. Brannon of Curtis W. Brannon, PA, Crestview, for Appellee.

          WOLF, J.

         The former husband challenges a final judgment of dissolution of marriage. He raises four issues regarding the distribution of his pension. We find his claim seeking an offset for amounts he would have received in social security benefits if he had not participated in this particular type of federal pension plan does not have merit and affirm without further comment. Johnson v. Johnson, 726 So.2d 393, 394-96 (Fla. 1st DCA 1999). The husband also claims that a portion of his pension attributable to time he worked for the federal civil service prior to marriage was nonmarital property. Appellant forfeited any value in this service time when he left civil service and cashed out his retirement benefits, and he failed to purchase those years of service when he became reemployed with the government. Thus, we find no error in this regard. We affirm without discussion the court's award of a lump sum to the former wife for her share of appellant's retirement benefits that she was owed during the pendency of dissolution proceedings.

         We find one issue merits discussion - whether the trial court erred in finding a portion of appellant's pension that was attributable to a period of military service prior to the parties' marriage was marital because those years of service had no retirement value until they were "purchased" with marital funds during the marriage to apply towards appellant's pension. While we affirm as to this issue, we address it in this opinion because there is no Florida case directly on point.

         Facts

         During an evidentiary hearing the parties presented evidence pertaining to the amount and nature of appellant's pension. Prior to the marriage, appellant worked for the military for 8 years, 2 months, and 25 days. He then worked for the federal civil service for 5 months and 6 days prior to the marriage, and he continued to work for the civil service after the marriage for just over 4 years. Appellant left that position and cashed out all of the retirement benefits that he had accrued with the civil service. Shortly thereafter, he returned to civil service where he worked for another 24 years, and he retired prior to dissolution.

         While married, during his second tenure with civil service, appellant used $9, 866 of marital funds to "purchase" his years of military service so they would count towards his civil service pension. Appellant testified that he and the former wife jointly agreed to pay the $9, 866, which they paid in installments over an 8-year period prior to his retirement, because it would be better for both of them down the road financially. Purchasing those years did not increase appellant's regular monthly contribution towards his pension.

         Appellant conceded that he would not have been eligible to receive any retirement benefits from the military based on his 8 years of service. The former wife's accounting expert explained appellant would have been required to serve in the military for 20 years to receive military retirement benefits. Thus, the expert testified those 8 years of service had "no value" for purposes of retirement until appellant purchased them to apply towards his civil service retirement.

         Purchasing those years resulted in an increase in appellant's pension of $908 a month for the rest of his life, according to the former wife's expert.

         The trial court found the former wife was entitled to 50% of appellant's pension, reasoning that because marital funds were used to purchase the ...


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