Decenso v. Lucas

District Court of Appeal of Florida

Decenso v. Lucas

578 So. 2d 470, 1991 Fla. App. LEXIS 3790, 1991 WL 60002

CourtDistrict Court of Appeal of Florida

DecidedApril 23, 1991

DocketNo. 90-1764

StatusPublished

This text of 578 So. 2d 470 (Decenso v. Lucas) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Decenso v. Lucas, 578 So. 2d 470, 1991 Fla. App. LEXIS 3790, 1991 WL 60002 (Fla. Ct. App. 1991).

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Opinion

PER CURIAM.

Appellant, the husband, challenges a final judgment of dissolution. We affirm in part and reverse in part.

The trial court awarded to the wife, as permanent alimony, an interest in the husband’s military retirement equal to sixteen percent of the husband’s gross retirement pay. Federal law provides that “disposable” retired pay may be considered to be the property of the member of the retirement system and his spouse. Disposable pay is the total monthly retired pay minus certain approved deductions. 10 U.S.C. § 1408(a)(4). While we approve the award of a percentage of the husband’s retirement as permanent alimony, the trial court erred in utilizing the “gross” pay as the basis for the percentage. The wife argues that the improper use of gross pay is not a basis for reversal under 10 U.S.C. § 1408(e)(5). That section states that an order providing for payment of an amount of “disposable” retired pay which exceeds the amount authorized by law shall not be considered irregular solely for that reason, and the order shall be considered fully satisfied by payment of the maximum amount. Because this section takes as its starting point an award of disposable pay, the use of gross pay in this case requires correction. We affirm as to all other issues. Accordingly, we reverse the award of permanent alimony and remand for entry of an award based upon disposable retirement pay.

REVERSED and REMANDED.

SMITH and WIGGINTON, JJ„ and WENTWORTH, Senior Judge, concur.

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PER CURIAM.

Appellant, the husband, challenges a final judgment of dissolution. We affirm in part and reverse in part.

The trial court awarded to the wife, as permanent alimony, an interest in the husband’s military retirement equal to sixteen percent of the husband’s gross retirement pay. Federal law provides that “disposable” retired pay may be considered to be the property of the member of the retirement system and his spouse. Disposable pay is the total monthly retired pay minus certain approved deductions. 10 U.S.C. § 1408(a)(4). While we approve the award of a percentage of the husband’s retirement as permanent alimony, the trial court erred in utilizing the “gross” pay as the basis for the percentage. The wife argues that the improper use of gross pay is not a basis for reversal under 10 U.S.C. § 1408(e)(5). That section states that an order providing for payment of an amount of “disposable” retired pay which exceeds the amount authorized by law shall not be considered irregular solely for that reason, and the order shall be considered fully satisfied by payment of the maximum amount. Because this section takes as its starting point an award of disposable pay, the use of gross pay in this case requires correction. We affirm as to all other issues. Accordingly, we reverse the award of permanent alimony and remand for entry of an award based upon disposable retirement pay.

REVERSED and REMANDED.

SMITH and WIGGINTON, JJ„ and WENTWORTH, Senior Judge, concur.

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578 So. 2d 470, 1991 Fla. App. LEXIS 3790, 1991 WL 60002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/decenso-v-lucas-fladistctapp-1991.

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