DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARLENE CUPO,
Appellant,
v.
THOMAS J. CUPO,
Appellee.
No. 4D22-64
[December 21, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Frank D. Ledee, Judge; L.T. Case No. FMCE 18-004143.
David M. Scott of the Law Office of David Scott, P.A., Fort Lauderdale,
for appellant.
Edward J. Jennings and Jenna L. Wulf of Edward J. Jennings, P.A.,
Fort Lauderdale, for appellee.
WARNER, J.
The wife appeals an amended final judgment of dissolution of marriage.
She argues the trial court erred in two respects: first, in failing to equitably
divide the husband’s military pension; and second, in failing to retain
jurisdiction to award alimony in the future. As to the alimony issue,
because the wife failed to provide a transcript of proceedings, we affirm on
the basis of Applegate v. Barnett Bank of Tallahassee,
377 So. 2d 1150,
1152 (Fla. 1979). As to the pension issue, we reverse the failure to
equitably divide the military pension.
The parties were married in 2001. The husband joined the military in
1991 and served through several tours of duty, the last of which ended in
2018. He retired and is eligible to receive a pension at age sixty. The
husband filed a petition for dissolution of marriage in 2018.
After a trial on the petition, the court entered final judgment which
included an equitable division of the parties’ marital assets but failed to
include the military pension. The wife moved for rehearing, pointing out
that the court had not valued the pension. 1 The court then entered an
amended final judgment in which it found insufficient evidence of the
pension’s value and refused to equitably divide it.
The court erred. Section 61.076, Florida Statutes (2018), provides:
(1) All vested and nonvested benefits, rights, and funds
accrued during the marriage in retirement, pension, profit-
sharing, annuity, deferred compensation, and insurance
plans and programs are marital assets subject to equitable
distribution.
(2) If the parties were married for at least 10 years, during
which at least one of the parties who was a member of the
federal uniformed services performed at least 10 years of
creditable service, and if the division of marital property
includes a division of uniformed services retired or retainer
pay, the final judgment shall include . . .
(c) A specification of the amount of retired or retainer pay to
be distributed pursuant to the order, expressed in dollars or
as a percentage of the disposable retired or retainer pay.
Id. (emphasis supplied). The statute makes clear that a military pension
must be included in any equitable division, 2 and the pension may be
valued based upon a percentage of the retired pay. Thus, even if the court
is not presented with the pension’s value in dollars, the court must still
include the pension, expressed as a percentage, in the division of the
marital assets. The court was obligated to divide the pension.
As the wife was not married to the husband for the entirety of the
husband’s military service, she may not be entitled to a full fifty percent of
the military pension, which she claims. Nevertheless, she is entitled to a
portion of the military pension commensurate with the years of marriage
during which the pension accrued.
We thus reverse and remand the final judgment for further proceedings
in accordance with this opinion.
1 By filing the motion for rehearing arguing that the court erred in failing to
include the pension, the wife preserved this issue for appeal.
2Husband has not disputed that he served at least ten years of creditable service
during the marriage, thus bringing his pension within section 61.076’s purview.
2
DAMOORGIAN and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3
