Fondren v. Fondren

605 So. 2d 571, 1992 WL 235304

• Court: District Court of Appeal of Florida
• Decided: September 25, 1992
• Docket: 91-03290
• Status: Published

Opinion

605 So.2d 571 (1992)

Joe E. FONDREN, Appellant,
v.
Anna Jane FONDREN, Appellee.

No. 91-03290.

District Court of Appeal of Florida, Second District.

September 25, 1992.

James R. Clouse, Jr. of Goldberg, Goldstein & Buckley, P.A., Fort Myers, for appellant.

Anna Jane Fondren, pro se.

HALL, Judge.

Joe Fondren challenges the final judgment of dissolution of his marriage to Anna Fondren. We only find merit in his contention that the trial court erred in awarding Anna half of his military retirement pension. No part of such a pension that is received due to a disability can be considered as marital property subject to equitable distribution. McMahan v. McMahan, 567 So.2d 976 (Fla. 1st DCA 1990); Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989).

We remand with directions to the trial court to determine what part of Joe's pension is attributable to his disability and to modify the award of his pension to Anna accordingly. We remind the trial court that any determination of an award of Joe's pension is limited to that part of the pension which he earned while the parties were married.

Affirmed in part, reversed in part, and remanded.

SCHOONOVER, A.C.J., and PATTERSON, J., concur.