The Florida Sixth District Court of Appeal issued a brief, unanimous ruling affirming a lower court’s final judgment in a dissolution of marriage case involving Kristina Harris and Jermaine Harris. However, the seemingly routine affirmation was immediately complicated by a sharp dissent from Judge Smith, who argued that the trial court committed reversible error by failing to equitably distribute a significant marital asset: the husband’s military retirement pension.
The majority opinion simply stated, “Based upon the arguments made and the evidence presented, we find no error in the trial court’s final judgment. AFFIRMED.” Judges Nardella and Brownlee concurred with this brief affirmation.
Dissent Highlights Failure to Distribute Pension
Judge Smith’s dissenting opinion laid bare the core of the dispute: the trial court apparently overlooked or refused to divide the portion of Mr. Harris’s military pension that accrued during the decade-long marriage. Furthermore, the dissent noted the judgment failed to address the continuation of the Survivor Benefit Plan (SBP), which provides survivor benefits tied to that pension.
The couple married in 2010 while Mr. Harris was serving in the U.S. military. Ms. Harris, originally from Germany, relocated to the U.S. to support his career, sacrificing her own potential pension benefits in her home country. The divorce petition was filed in July 2020. Crucially, Mr. Harris retired shortly after the petition was filed but before the 2023 trial, beginning to receive a $4,400 per month pension.
When the trial court issued its initial judgment, it did not include any distribution of this newly acquired pension. After Ms. Harris filed a motion for reconsideration pointing this out, the court stood firm, claiming a “lack of competent, substantial evidence regarding the value and nature of the military retirement benefits,” citing precedent like *Pierre v. Pierre*.
The Law: Military Pensions as Marital Assets
Judge Smith emphasized that Florida law is clear: the marital portion of a military pension is a marital asset subject to equitable distribution, citing state statutes and the landmark case *Diffenderfer v. Diffenderfer*.
The dissent then walked through the two recognized methods for dividing such assets: immediate offset and deferred distribution.
Immediate offset requires calculating the present value of the marital portion, often needing expert testimony. Given the parties’ financial situation—the husband receiving about $4,000 in disability income monthly, and the wife earning $2,600—the deferred distribution method was noted as the more practical, simpler approach.
Deferred distribution, as outlined in cases like *Trant v. Trant*, involves calculating a percentage based on the years of marriage during military service versus total service years. If the marriage lasted at least ten years of creditable service (which it did), Florida Statutes require the judgment to specify the amount or percentage to be distributed.
Valuation Excuse Rejected
The central point of the dissent was dismantling the trial court’s rationale for refusing distribution: a lack of evidence. Judge Smith argued that while expert testimony might be needed for an immediate offset valuation, it is *not* required for the deferred distribution method, which can often be handled with minimal documentation, especially when the parties were married for ten years or more of service.
The dissent drew parallels to other appellate decisions, notably *Cupo v. Cupo*, where a trial court was reversed for refusing to distribute a military pension based on insufficient evidence of its dollar value. As the *Cupo* court held, the statute mandates inclusion of the pension in the division, even if only expressed as a percentage.
Burden of Proof Shift
A significant portion of the dissent focused on *who* bears the responsibility for proving the non-marital portion of the pension. Ms. Harris argued she should receive 50% of the pension, citing *Jahnke v. Jahnke*.
Judge Smith strongly endorsed the majority view held by the First, Second, Third, and Fourth Districts in Florida: the burden rests on the spouse *owning* the pension (Mr. Harris) to prove what portion, if any, accrued *before* the marriage and thus is non-marital. This approach is favored because the owner spouse has direct access to the necessary records, avoiding costly and time-consuming discovery for the non-owning spouse.
The dissent highlighted that Mr. Harris had already defied court orders, leading to a contempt finding and jail time for failing to produce military records. In this context, placing the burden on Ms. Harris would be particularly unfair. Since Mr. Harris failed to present any evidence detailing his pre-marital service, the logical conclusion, following the *Jahnke* standard, is that 50% of the pension should be awarded to Ms. Harris.
Conclusion and Remand
Judge Smith concluded that the trial court erred by omitting the wife’s share of the military retirement and by failing to address the SBP maintenance issue, which is within the court’s discretion. The dissent recommended reversing the judgment and remanding with instructions for the lower court to calculate the appropriate percentage or dollar amount for the pension share and to rule on the SBP coverage.