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Catherine EBERHART, Former Wife, Appellant, v. Dennis EBERHART, Former Husband, Appellee.

District Court of Appeal of Florida, First District2018-02-23No. No. 1D16–3984
238 So. 3d 428

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Opinion

majority opinion

Per Curiam.

This case requires us to interpret imprecise language in a consent final judgment. Our review is de novo. See Toussaint v. Toussaint , 107 So.3d 474, 477 (Fla. 1st DCA 2013). Because the trial courts interpretation was wrong, we reverse.

Catherine Eberhart served in the United States Navy for nearly twenty-one years. She had already served about ten years when she married Dennis Eberhart in 1993. She retired in 2004, and she divorced eight years later. Through their consent divorce judgment, the parties agreed that Catherine Eberhart would pay undifferentiated support, and Dennis Eberhart would waive (temporarily, at least) any entitlement to a share of his wifes Navy pension.

The judgment also had a provision, though, saying if the undifferentiated support ended, the court could award Dennis Eberhart a one-half share of the marital portion of Catherine Eberharts pension. And it parenthetically defined the marital portion to mean the date of marriage to the date of this Final Judgment-the language central to this appeal.

The parties agree that the undifferentiated support ended, and they seem to agree Dennis Eberhart is entitled to a one-half share of the marital portion of the pension. The only dispute is about what to make of the parenthetical definition. In other words, what is the marital portion of which Dennis Eberhart deserves a one-half share?

The marital portion of any retirement plan is the portion accumulated during the marriage. See Horton v. Horton , 62 So.3d 689, 691 (Fla. 2d DCA 2011). The parentheticals language is consistent with this general rule. The marital portion includes all retirement benefits Catherine Eberhart accumulated during the marriage-or, said another way, all retirement benefits Catherine Eberhart accumulated from the date of marriage to the date of [the] Final Judgment. If she stopped accruing benefits when she retired in 2004, then that is when the marital portion was set, even if the marriage lasted years longer.

The parties could have, of course, agreed to other terms. They could have defined marital portion to mean something other than what it usually means. But the language at issue here does not show that the Eberharts did that. The language does not indicate they intended the court to determine the marital portion by looking to anything other than (i) the retirement benefits accumulated while the parties were married and (ii) the retirement benefits accumulated while the parties were not married.

REVERSED .

Kelsey, Winokur, and Winsor, JJ., concur.