Herman v. Herman

661 So. 2d 1260, 1995 Fla. App. LEXIS 11320, 1995 WL 621772

Opinion

PER CURIAM.

Alan Herman appeals, and Marilyn Herman cross-appeals, the final order of the trial court on remand from this court’s decision in Herman v. Herman, 624 So.2d 342 (Fla. 3d DCA 1993). After careful consideration of the parties’ contentions, we conclude that the trial court order is consistent with the mandate of this court’s prior decision, and that the trial court’s awards are within the bounds of permissible discretion. •

After the trial court made its awards on remand, the former husband filed a petition in bankruptcy. The trial court had awarded the former wife one-half of the proceeds of a government pension the former husband was receiving. The pension was a marital asset. The trial court was called on to determine whether the former wife’s share of the pension payments was subject to the bankruptcy stay. The trial court entered an order determining that under the facts of this case, the former wife’s share of the former husband’s pension should be viewed as being in the nature of support and maintenance, as well as equitable distribution. Consequently the trial court ruled that the former wife’s share of the former husband’s retirement payments were not subject to the bankruptcy stay, although other provisions of the trial court decree were stayed.

The former husband contends that the trial court ruling on the bankruptcy issue was contrary to Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986). We disagree. Diffen-derfer is aimed at avoiding the double-counting of assets when a trial court makes equitable distribution and support awards. See id. at 267-68; Waldman v. Waldman, 520 So.2d 87, 90 (Fla. 3d DCA), rev. denied, 531 So.2d 169 (Fla.1988). There was no Diffenderfer error when the trial court made its award in this case. The trial court’s subsequent order relative to the bankruptcy stay did not involve any Diffenderfer issue, and we find no legal error in the trial court’s determination. See generally 3 Family Law and Practice § 37.01[2][b], at 37-20 (Arnold H. Rutkin, ed., 1995) (“[T]he goals of equitable distribution and spousal maintenance are frequently similar if not identical.”).

Affirmed.