IN THE SUPREME COURT STATE OF FLORIDA. Petitioner, Case No.: SC LT Case No.: 1D PETITIONER'S AMENDED BRIEF ON JURISDICTION

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1 IN THE SUPREME COURT STATE OF FLORIDA GREGG L. BLANN, Vs. Petitioner, Case No.: SC LT Case No.: 1D ANNETTE BLANN, Respondent, / PETITIONER'S AMENDED BRIEF ON JURISDICTION William S. Graessle Florida Bar No Newnan Street, 4th Floor Jacksonville, Florida (904) (904) (facsimile) Attorney for Petitioner

2 TABLE OF CONTENTS Table of Authorities ii Statement of the Case and Facts Summary of the Argument Argument THE FIRST DISTRICT MISAPPLIED THE RULE OF LAW ANNOUNCED BY THIS COURT IN ABERNETHY V. FISHKIN, 699 So.2d 235 (Fla. 1997), AND ITS DECISION CONFLICTS WITH DECISIONS OF THE SECOND DISTRICT IN PADOT V. PADOT, 891 So.2d 1079 (FLA. 2D DCA 2004), AND LONGANECKER V. LONGANECKER, 782 So.2d 406 (FLA. 2D DCA 2001) Conclusion Certificate of Service Certificate of Font Size Appendix APPENDIX TABLE OF CONTENTS Blann v. Blann, Tab So.2d 135 (Fla. 1 st DCA 2007) i

3 TABLE OF AUTHORITIES CASES Abernethy v. Fishkin, , 3, 4-6, 8, 9, So.2d 235 (Fla. 1997) Blann v. Blann, passim 971 So.2d 135 (Fla. 1 st DCA 2007) Department of Transportation v. Anglin, , So. 2d 896 (Fla. 1986) Longanecker v. Longanecker, , 3, 4, 7, 8, 9, So.2d 406 (Fla. 2d DCA 2001) Mansell v. Mansell, , U.S. 581, 109 S.Ct. 2023, 104 L.Ed. 2d 675 (1989) Padot v. Padot, , 3, 4, 7-8, 9, So.2d 1079 (Fla. 2d DCA 2004) STATUTES 10 USC ii

4 STATEMENT OF THE CASE AND FACTS The issue presented here arose in a post-judgment motion filed by the Respondent/Wife to enforce the consent final judgment she entered into with the Petitioner/Husband to dissolve their marriage; their mediated settlement agreement provided for a mutual waiver of alimony, with the Respondent to receive 42.5% of the Petitioner's military retirement pay upon his retirement. When the Petitioner retired in June 2006, he waived a portion of his retirement pay to receive disability benefits, thereby reducing the amount of retirement pay received by the Respondent. Blann v. Blann, 971 So.2d 135, 136 (Fla. 1 st DCA 2007) (Appendix Tab 1). The Respondent s motion sought to require the Petitioner to pay her the dollar amount of the retirement pay she would have received had the Petitioner not been receiving disability pay. The trial court concluded that there was no authority to award this relief. (Id. at 136) The First District reversed. Although recognizing that neither the mediated settlement agreement nor the consent final judgment contains an indemnification provision or awards a specific dollar amount in retirement benefits, (id. at 137), it nonetheless held that Abernethy v. Fishkin, 699 So.2d 235 (Fla. 1997), allowed a trial court to enforce an indemnification provision and order the payment of the amount reduced by the election to 1

5 take disability pay, and that the lack of an "express indemnification provision" was not dispositive, "if one spouse commits a voluntary act which defeats the intent of the parties," citing, inter alia, Padot v. Padot, 891 So.2d 1079 (Fla. 2d DCA 2004); and Longanecker v. Longanecker, 782 So.2d 406 (Fla. 2d DCA 2001). Because the decision of the First District misapplies the decision of this Court in Abernethy v. Fishkin, and in fact conflicts with that decision and with the decisions of the Second District in Padot and Longanecker, this Court has jurisdiction and should accept review. 2

6 SUMMARY OF ARGUMENT Conflict jurisdiction exists as the First District applied this Court s decision in Abernethy v. Fishkin, 699 So.2d 235 (Fla. 1997) (Appendix Tab 2) to a case involving materially different facts, resulting in the jurisdictionally requisite express and direct conflict. See, e.g., Department of Transportation v. Anglin, 502 So. 2d 896 (Fla. 1986). Abernethy holds that although federal law precludes state courts from awarding a party s military disability in a dissolution proceeding, the parties can agree that a spouse will receive specified payments from other assets from a former spouse who receives military disability income. The First District below has applied Abernethy despite recognizing there was no such agreement. The district court s decision conflicts with the decisions of the Second District in Padot v. Padot, 891 So.2d 1079 (Fla 2d DCA 2004) (Appendix Tab 3), and Longanecker v. Longanecker, 782 So.2d 406 (Fla. 2d DCA 2001) (Appendix Tab 4), which relied upon and followed Abernethy. Unlike sub judice, Padot involved an agreed upon order which substantively was akin to an indemnification provision such as existed in Abernethy, and Longanecker involved an agreement for a specific sum. Accordingly, this Court should accept jurisdiction of this case to resolve the conflict. 3

7 ARGUMENT THE FIRST DISTRICT MISAPPLIED THE RULES OF LAW ANNOUNCED BY THIS COURT IN ABERNETHY V. FISHKIN, 699 So.2d 235 (Fla. 1997), AND ITS DECISION CONFLICTS WITH DECISIONS OF THE SECOND DISTRICT IN PADOT V. PADOT, 891 So.2d 1079 (FLA. 2D DCA 2004), AND LONGANECKER V. LONGANECKER, 782 So.2d 406 (FLA. 2D DCA 2001). The initial basis for this Court s jurisdiction involves the First District s misapplication of this Court s decision in Abernethy v. Fishkin, 699 So. 2d 235 (Fla. 1997) (Appendix Tab 2). Abernethy involved this Court s determination of the applicability of the United States Supreme Court s decision in Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed. 2d 675 (1989), to Florida state family law cases. 699 So.2d 236. Mansell holds that 10 USC 1408 prohibits military personnel from assigning their disability benefits by settlement agreement, and that state courts are precluded from enforcing any such agreement assigning those benefits. At issue in Abernethy was a provision of a parties settlement agreement, incorporated into their final judgment of dissolution of marriage, which contained the following provision: The Member shall not merge the Member s retired or retainer pay with any other pension, and shall not pursue any course of action that would defeat the former Spouse s right to receive a portion of the full net disposable retired or retainer pay of the Member. The Member shall not take any action by merger of 4

8 the military retirement pension so as to cause a limitation in the amount of the total net monthly retirement or retainer pay in which the Member has a vested interest and, therefore, the Member will not cause a limitation of the Former Spouse s monthly payments as set forth above. The Member shall indemnify the Former Spouse for any breach of this paragraph as follows. Therefore, if the Member becomes employed, which employment causes a merger of the Member s retired or retainer pay, the member will pay to the Former Spouse directly the monthly amount provided for in paragraph 22 [25 percent of the member s net disposable retired or retainer pay] under the same terms and conditions as if those payments were made under paragraph 22. Id. at 237 (emphasis supplied). In upholding the enforceability of this indemnity provision, this Court held that pursuant to Mansell, state courts are prevented from treating as divisible marital property military retirement pay which has been waived to receive veterans disability benefits. (quoting Mansell, 109 S.Ct. at 2032). This Court held that federal law preempts state law on division of a veteran s disability benefits which cannot be the subject of a settlement agreement or a court order in a state dissolution of marriage proceeding (699 So.2d at 239). Critical for the conflict issue presented here, this Court also found that the indemnity provision contained in the parties agreement was enforceable and was not preempted by federal law: [T]he final judgment contained an indemnification provision which merely enforced the parties property settlement 5

9 agreement rather than dividing disability benefits. The indemnification provision clearly indicated the parties intent to maintain level monthly payments pursuant to their property settlement agreement. Id. at 240 (citations omitted, emphasis supplied). In short, this Court held that the parties agreement was enforceable because they had explicitly addressed that Fishkin was to receive a specific amount of monthly payments and that the parties intended that Fishkin would receive level monthly payments. (Id.) The district court below misapplied this Court s holding in Abernethy. As recognized by the First District, there is no indemnity provision contained in these parties Consent Final Judgment and Settlement Agreement. The parties explicitly agreed that the Respondent will receive a stated percentage of the Petitioner s retirement pay (971 So.2d at 137). Unlike Abernethy, it does not specify a dollar amount the Respondent is to receive and there is no other provision which indicates any intention that the Respondent receive level monthly payments. The district court sub judice, however, has applied this Court s decision in Abernethy, which did contain such an explicit provision, to infer that the parties agreement that the Respondent who agreed to a percentage of the retirement pay also meant she was to receive a level periodic payment. 6

10 The decision below also conflicts with the decision of the Second District in Longanecker v. Longanecker, 782 So. 2d 406 (Fla. 2d DCA 2001). In Longanecker, the parties final judgment did not contain a specific indemnity provision, but instead provided for a specific amount to be paid to the former wife from the husband s military retirement pension. This amount was reduced by the former husband when he began receiving an amount of disability pay in lieu of a portion of his retirement pay. Relying upon Abernethy, the Second District held that the parties intent was to maintain a specific monthly level of payments, and affirmed the trial court s order requiring the former husband to ensure that the former wife received this specific sum (id. at 408). The Second District s decision in Padot v. Padot, 891 So.2d 1079 (Fla. 2d DCA 2005), also relies upon Abernethy, and also conflicts with the decision of the First District sub judice. The issue raised in Padot which is relevant to the conflict issue turned on a determination that the parties had agreed that the wife would receive a specified percentage of the husband s military retirement (or retainer pay) and had agreed upon the terms of a Supplemental Order which provided: Neither party shall take any action which shall alter or otherwise reduce the interest of the other party in the retainer pay, retired pay, deferred compensation or other military benefit. 7

11 Id. at Thereafter, the former husband waived a portion of his military retirement in favor of disability benefits, thereby reducing the amount paid to the former wife. Because the Supplemental Order had been intended to ensure that a specific amount of benefits would be paid, the Second District affirmed the trial court s enforcement of the agreement and Supplemental Order, implicitly reasoning that substantively the quoted terms of the Supplemental Order were the functional equivalent of an indemnification provision. Id. at The First District below recognized that neither the mediated settlement agreement nor the consent final judgment contains an indemnification provision or awards a specific dollar amount in retirement benefits. However, the First District concluded this was not dispositive, as the retention of jurisdiction, a waiver of alimony, and an award of a percentage of the former husband s military retirement to the former wife constitutes evidence of an intent to have the former wife receive a level periodic payment in return for not pursuing alimony. 971 So.2d 137. The Petitioner submits that the conflict between the decision of the First District below and this Court s decision in Abernethy and the Second District s decisions in Longanecker and Padot is manifest. The district court below held that there not need be an indemnification provision as there was 8

12 in Abernethy, or an agreed upon trial court order which was the functional equivalent as was the case in Padot, or an agreement to pay a specific monthly amount as was the case in Longanecker. In short, the First District has divorced Abernethy, upon which Longanecker and Pardot are based, from its factual moorings, and in the process has misapplied the principles established by this Court. This Court should exercise its discretion and accept review. As noted in Abernethy, 699 So.2d at 239, federal law precludes state courts from awarding military disability benefits in a dissolution proceeding. Abernethy recognized a narrow exception when the parties agree that a specific amount would be paid to one of the parties even if the other party began receiving disability pay. The First District s decision ignores the basis for this exception by holding that even with an unambiguous agreement to the contrary, a trial court may infer an intention by the parties to provide a level payment to a former spouse. This decision substantively thwarts the federal preemption and ignores the factual basis for the exception approved in Abernethy. Because there is conflict and because thousands of retired and disabled military persons are affected by this issue, this Court should accept review of this case to resolve this conflict. 9

13 CONCLUSION The decision of the First District below applies Abernethy v. Fishkin to materially different facts, thereby providing the express and direct conflict necessary to invoke this Court s jurisdiction. Department of Transportation v. Anglin, 502 So.2d 896 (Fla. 1986). Abernethy held that federal law precludes state courts from awarding military disability benefits in a dissolution proceeding. This Court held that when parties agree to allocate a percentage of retirement benefits in lieu of alimony, and negotiate an indemnity provision to ensure payment of a certain amount not to be paid from the disability payments, this may be enforceable. The decisions of the Second District in Longanecker and Pardot apply Abernethy to clearly analogous situations. The First District sub judice ignores the factual basis for these exceptions and holds that regardless of the parties actual agreement and federal preemption, a trial court may award additional payments if one party converts a portion of his or her military retirement to disability pay. Thus, the decision below directly and expressly conflicts with the cited decisions from this Court and the Second District. This Court should accept review to resolve this conflict. 10

14 William S. Graessle Florida Bar No Newnan Street, 4th Floor Jacksonville, Florida (904) (904) (facsimile) Attorney for Petitioner CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been furnished by U.S. mail, postage prepaid, to Michael J. Korn, 800 West Monroe Street, Jacksonville, FL 32202, on this 6 th day of March, Attorney CERTIFICATE OF TYPE FACE I hereby certify that I have complied with Rule 9.210(a), Fla.R.App.P., and the font size of this brief is Times New Roman 14-point. Attorney 11