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Weininger v. Weininger

Florida Court of Appeals, Third District

October 10, 2019

Janet Ray Weininger, Appellant,
v.
Michael Joe Weininger, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 09-2379, Rosa C. Figarola, Judge.

          ADR Miami LLC and Juan Ramirez, Jr.; Zumpano Patricios & Winker, P.A. and Leon N. Patricios and Heather K. Stoessel, for appellant.

          Gilbert C. Betz, P.A. and Gilbert C. Betz, for appellee.

          Before EMAS, C.J., and FERNANDEZ and HENDON [1], JJ.

          PER CURIAM.

         The former wife appeals the trial court's final judgment of dissolution of marriage. Specifically, the former wife challenges the trial court's refusal to award permanent alimony and the court's distribution of marital assets. For the reasons articulated below, we reverse for equitable distribution of the USAA Subscriber account and affirm in all other respects.

         BACKGROUND

         The parties, Janet Ray Weininger ("Janet") and Michael J. Weininger ("Michael"), were married in February 1977. They had two children - Peter and Christina. Both children were adults when the parties filed for divorce on January 28, 2009.

         Throughout the marriage, Michael was the family's primary breadwinner. Michael was a pilot in the Air Force when the parties met. When he retired from active duty, he continued to fly for the Reserves, and began flying as a pilot for Delta Airlines. He later retired from the Reserves and worked only for Delta. Janet worked sporadically and/or part-time.[2] Following the birth of their first child, the parties agreed that Janet would be the homemaker because Michael's career required significant travel.

         The family lived comfortably on Michael's income. They sent their children to private schools, and they paid for the children's college education.[3]

         The couple acquired several properties over the course of their marriage. They purchased the family home in Palmetto Bay, two rental properties in Tampa, and land in Alabama. The properties were purchased and maintained with funds from the couple's joint accounts. The rental income, along with Michael's salary and bonuses, were deposited in joint accounts.

         Michael acquired several retirement accounts and insurance policies throughout his career with the Air Force, the Reserves, and Delta Airlines. Michael began receiving military retirement benefits in December of 2012, at the age of 60. His military retirement benefits were not shared with Janet. Michael also acquired the following during the marriage: a Charles Schwab investment account; a Delta Pilots Savings Plan and a Delta Pilots Defined Contribution Plan ("Delta Retirement"); and a USAA Subscriber's Account.

         Janet also acquired her own funds during the marriage. She maintained an individual IRA, and also received approximately $9 million from a lawsuit stemming from the capture and death of her father during the Bay of Pigs invasion. Janet established the Wings of Valor trust ("the Trust") with the lawsuit proceeds and deposited approximately $8 million therein - naming her children, their spouses, her grandchildren and herself as beneficiaries. In 2012, the Trust had a gross declared value of $9, 488, 494.00. The record reflects that Janet maintained approximately $1 million from the award and used the funds to set up the Trust.

         Janet testified that she is only permitted to use Trust distributions for educational or medical expenses. Thus, any funds disbursed for purposes unrelated to the same would require Janet to reimburse the Trust. Here, Janet testified that she requested, and received, Trust funds to cover ordinary living expenses.

         Following allegations of infidelity, the parties separated and Janet filed for divorce. By that time, Michael had already moved out of the marital home and into an apartment in Texas with his mistress. While the parties were separated, Michael continued to pay the mortgage, taxes and insurance on the properties, with the exception of the Alabama lot. Janet covered the maintenance and repair expenses, and she received the rental income generated ...


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