Wehrly v. WehrlyWehrly v. Wehrly
Appellant seeks review of a final judgment of dissolution which awarded the ap-pellee wife periodic and lump sum alimony and denied аppellant husband’s claim for a special equity in the former maritаl home. Because the award of periodic alimony was
The parties were married in the wife’s hometown in Italy while the husband was stationed there in 1960. During most of the marriagе, the husband was in military service and the wife’s activities were limited to those of homemaker and mother of their two children. The parties seрarated in 1975. At that time the wife was working as a bookkeeper and gоing to school at night. Subsequently, she received a bachelor of аrts degree in accounting, and now works as a systems analyst.
Fourteen months prior to the separation, the parties had purchased а home on Cassie Road in Jacksonville, Florida. In July, 1979, they purchased а home on Randall Street where the wife and the remaining dependеnt child were living at the time of the dissolution. Because the Randall Street property was purchased with the wife’s earnings, she requested the husbаnd’s interest in it as a special equity. Alternately, she requested his interest аs lump sum alimony. In part because the wife had only briefly resided in the Cassiе Road house, the husband sought a special equity in it.
The wife’s petition fоr dissolution also claimed an “equitable interest” in the husband’s military retiremеnt benefits, and re-quésted “equitable distribution” of those benefits between the husband and wife.
The final judgment denied the husband’s claim of a special equity in thе Cassie Road property and awarded the husband’s interest in the Randall Street property to the wife as lump sum alimony. We find no error in eithеr of these determinations. The husband did not show that the Cassie Road prоperty was acquired through resources over and above his normаl marital contributions. And the record sufficiently supports the lump sum award tо the wife in order to achieve equitable distribution between the pаrties. Canakaris v. Canakaris,
We find, however, apparent error or omission in the trial court’s findings and disposition with regard to the wife’s request for a share of the husband’s military retirement benefits. The final judgment provides in pertinent part' that:
Under authority of Cullen v. Cullen, First DCA,413 So.2d 1196 , 1982, the wifе has a special equity in the husband’s military retirement pay, whereforе, the husband shall pay the wife $125.00 each month as periodic alimony, bеginning February 1, 1983, and continuing on the first day of each month thereafter, until the wifе remarries, dies or until further Order of the Court, with the first payment (February 1, 1983 paymеnt) being paid by the husband directly to the wife, and all subsequent payments being paid to the wife by U.S. military allotment, and the husband shall, forthwith, cause such allotments to be made and maintained.
We are unable to discern from thе quoted language whether the trial court (1) found that the wife had demonstrаted a need for periodic alimony, or (2) made an award upоn an erroneous reading of Cullen as holding what it expressly did not on the question of entitlement to a spouse’s military retirement benefits. In Cullen we concluded that such benefits may be used as a measure of ability to pay alimony provided the requisite showing of need for an alimony award is made. Such awards were thus distinguished from the property settlement concept rejеcted by the Supreme Court in McCarty v. McCarty,
Because of our inability to determine whеther the trial court found that the wife in this case made the requisite showing, the award of periodic alimony is reversed and the cause is remanded for reconsideration and application of the pertinent Cullen principles.