FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-2546

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DAVID MICHAEL MARTIN, Former 

Husband,

Appellant,

v.

DAWN TURNER MARTIN, Former 

Wife,

Appellee.

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On appeal from the Circuit Court for Okaloosa County.

Michael A. Flowers, Judge.

June 20, 2019

WOLF, J.

The former husband challenges a final judgment of 

dissolution of marriage. He raises four issues regarding the 

distribution of his pension. We find his claim seeking an offset for 

amounts he would have received in social security benefits if he 

had not participated in this particular type of federal pension 

plan does not have merit and affirm without further comment. 

Johnson v. Johnson, 726 So. 2d 393, 394-96 (Fla. 1st DCA 1999).

The husband also claims that a portion of his pension 

attributable to time he worked for the federal civil service prior to 

marriage was nonmarital property. Appellant forfeited any value 

in this service time when he left civil service and cashed out his 
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retirement benefits, and he failed to purchase those years of 

service when he became reemployed with the government. Thus, 

we find no error in this regard. We affirm without discussion the 

court’s award of a lump sum to the former wife for her share of 

appellant’s retirement benefits that she was owed during the 

pendency of dissolution proceedings. 

We find one issue merits discussion - whether the trial court 

erred in finding a portion of appellant’s pension that was 

attributable to a period of military service prior to the parties’ 

marriage was marital because those years of service had no 

retirement value until they were “purchased” with marital funds 

during the marriage to apply towards appellant’s pension. While 

we affirm as to this issue, we address it in this opinion because 

there is no Florida case directly on point. 

FACTS

During an evidentiary hearing the parties presented 

evidence pertaining to the amount and nature of appellant’s 

pension. Prior to the marriage, appellant worked for the military 

for 8 years, 2 months, and 25 days. He then worked for the 

federal civil service for 5 months and 6 days prior to the 

marriage, and he continued to work for the civil service after the 

marriage for just over 4 years. Appellant left that position and 

cashed out all of the retirement benefits that he had accrued with 

the civil service. Shortly thereafter, he returned to civil service 

where he worked for another 24 years, and he retired prior to 

dissolution. 

While married, during his second tenure with civil service, 

appellant used $9,866 of marital funds to “purchase” his years of 

military service so they would count towards his civil service 

pension. Appellant testified that he and the former wife jointly 

agreed to pay the $9,866, which they paid in installments over an 

8-year period prior to his retirement, because it would be better 

for both of them down the road financially. Purchasing those 

years did not increase appellant’s regular monthly contribution 

towards his pension. 

Appellant conceded that he would not have been eligible to 

receive any retirement benefits from the military based on his 8 
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years of service. The former wife’s accounting expert explained 

appellant would have been required to serve in the military for 20 

years to receive military retirement benefits. Thus, the expert 

testified those 8 years of service had “no value” for purposes of 

retirement until appellant purchased them to apply towards his 

civil service retirement. 

Purchasing those years resulted in an increase in appellant’s 

pension of $908 a month for the rest of his life, according to the 

former wife’s expert. 

The trial court found the former wife was entitled to 50% of 

appellant’s pension, reasoning that because marital funds were 

used to purchase the military years of service, they became a 

marital asset.

THE MILITARY SERVICE

“We review de novo a trial court’s legal conclusion that an 

asset is marital or nonmarital.” Landrum v. Landrum, 212 So. 3d 

486, 487 (Fla. 1st DCA 2017), reh’g denied (Mar. 24, 2017).

Appellant argues the trial court erred in finding the portion 

of his pension attributable to his years of premarital military 

service was marital property. He relies on the well-established 

principle that retirement benefits accrued prior to marriage are 

nonmarital. The former wife argues the court reached the correct 

result based on the equally well-established principle that if 

marital funds are used to add value to a nonmarital asset, that 

added value is marital.

There is no Florida case law directly on point. Other 

jurisdictions are split on the issue, but a slight majority have 

found years of premarital employment that are “purchased”

during the marriage using marital funds are a marital asset.

Case Law from Other States

Most jurisdictions, including Pennsylvania, have found that 

when marital funds are used to purchase credit for premarital 

years of employment, the enhanced value to the pension plan is 

marital. These courts primarily relied on the rationale that 
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property acquired during a marriage is marital property. See 

King v. King, 481 A.2d 913, 918 (Pa. 1984) (determining portion 

of marital pension attributable to years of premarital service

purchased during the marriage was marital property due to the 

“presumption that all property acquired during marriage is 

marital property”); Lodrigue v. Lodrigue, 817 So. 2d 466, 470 (La. 

Ct. App. 2002), writ denied, 2002-1604 (La. 10/4/02), 826 So. 2d 

1124 (concluding premarital military service purchased during 

the marriage with marital funds was marital because under 

Louisiana law “property acquired with community things is 

considered community property”); Tarver v. Tarver, 916 So. 2d 

1222, 1224 (La. Ct. App. 2005) (same result relying on Lodrigue); 

Matter of Marriage of Mahaffey, 773 P.2d 806, 808 (Or. Ct. App. 

1989) (“Although the purchased four year credit [towards the 

marital pension plan] accrued as a result of his military service 

before the marriage, the credit was acquired during the marriage 

and is a marital asset.”).

Even where it was apparently unnecessary for the husband 

to purchase his premarital military years of service to receive 

credit for them through his civil service pension, a Missouri 

appellate court found those years of credit were marital because 

the husband “would not have been entitled to a civil service 

pension if he had not worked as a civil service employee [during 

the marriage]. The fact that the amount of the pension may be 

increased by virtue of the circumstance of his previous military 

service does not affect the status of the civil service pension as 

marital property.” In re Marriage of Burns, 903 S.W.2d 648, 651 

(Mo. Ct. App. 1995).

New York and California have reached the opposite result. A 

New York appeals court found it was well-established under New 

York law that “[w]hether and to what extent a pension benefit is 

marital or separate property is determined by the time period in 

which the credit for the pension was earned.” Valachovic v. 

Valachovic, 9 A.D.3d 659, 660, (N.Y. App. Div. 2004). Thus, it 

concluded premarital years of employment purchased during the 

marriage were nonmarital property. Id.

California also found the value of such purchased years of 

premarital military service was nonmarital in In re Marriage of
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Green, 302 P.3d 562 (Cal. 2013). The Supreme Court of California 

emphasized that the value added to the pension in that case far 

exceeded the cost of purchasing those years of service. Id. at 568. 

The court also noted the California law permitting the purchase 

of military years of service instructed “that this military service 

is to be credited ‘as it would be credited if the member had been 

in state service during’ that service,” which demonstrated a 

“legislative intent to fully credit persons for their military 

service.” Id. at 567. Thus, it found the trial court did not abuse its 

discretion in awarding the former wife only half of the marital 

funds used to purchase those years of employment, plus interest. 

Id. at 564, 570.

We find California’s rationale is inapplicable in Florida for 

two reasons. First, it ignores the presumption laid out in Florida 

law that assets acquired during the marriage are presumed to be 

marital. Second, it overlooks the fact that, as noted by the 

Missouri appellate court, the cost to purchase the premarital 

employment was not limited to the expense of marital funds. In 

re Marriage of Burns, 903 S.W.2d at 651. The former husband 

would not have had the option to purchase his military years of 

service unless he worked as a civil service employee during the 

marriage. He made this purchase during his second tenure with 

civil service, which occurred entirely during the marriage.

Florida Law

Our analysis of Florida law begins with statutes relating to 

the definition of marital assets and distribution of retirement 

plans. Section 61.075(6), Florida Statutes, defines marital assets

to include assets acquired during marriage:

(a)1. “Marital assets and liabilities” include:

a. Assets acquired and liabilities incurred during the 

marriage . . . .

b. The enhancement in value and appreciation of 

nonmarital assets resulting from . . . the contribution to 

or expenditure thereon of marital funds . . . .
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Importantly, subsection (8) of the same statute states all assets 

acquired during the marriage are presumed to be marital assets:

All assets acquired and liabilities incurred by either 

spouse subsequent to the date of the marriage and not 

specifically established as nonmarital assets or 

liabilities are presumed to be marital assets and 

liabilities. Such presumption is overcome by a showing 

that the assets and liabilities are nonmarital assets and 

liabilities. . . . 

§ 61.075(8), Fla. Stat. 

Portions of chapter 61 deal specifically with the distribution 

of pensions. Section 61.075 states that a pension “accrued during 

the marriage” is marital property. § 61.075(6)(a)1.e., Fla. Stat. 

(defining “marital property” as including “[a]ll vested and 

nonvested benefits, rights, and funds accrued during the 

marriage in retirement, pension, profit-sharing, annuity, deferred 

compensation, and insurance plans and programs”); see also § 

61.076(1), Fla. Stat. (“All vested and nonvested benefits, rights, 

and funds accrued during the marriage in retirement, pension, 

profit-sharing, annuity, deferred compensation, and insurance 

plans and programs are marital assets subject to equitable 

distribution.”).

Based upon these statutes, the years of military service in 

this case were originally nonmarital. Brathwaite v. Brathwaite, 

58 So. 3d 398, 401 (Fla. 1st DCA 2011) (finding the portion of the 

former husband’s retirement attributable to 3 years he spent in 

the Navy prior to marriage was nonmarital). Thus, if nonmarital 

funds were utilized to purchase these years of service, they would 

remain nonmarital. Scott v. Scott, 888 So. 2d 81, 82-83 (Fla. 1st 

DCA 2004) (holding past service years purchased with 

nonmarital assets remain nonmarital).

Neither statutory law nor case law specifically address the 

situation we have in this case where marital funds were used to 

purchase nonvested years of service. It is well-established, 

however, that if an asset is purchased during a marriage, there is 

a presumption that the asset is marital. § 61.075(8) Fla. Stat. In 

construing a statute similar to section 61.075(8), the 
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Pennsylvania Superior Court concluded that years of service 

purchased during the marriage were marital property regardless 

of whether they were served prior to or during the marriage due 

to the statutory “presumption that all property acquired during 

marriage is marital.” King, 481 A.2d at 918. 

Similarly, this court has determined that a party claiming 

that an asset acquired during the marriage is nonmarital bears 

the burden of overcoming the presumption. Smith v. Smith, 971 

So. 2d 191, 193 (Fla. 1st DCA 2007). The mere fact that 

preparations or contractual obligations occurred prior to the 

marriage does not preclude an asset from being considered 

marital where the actual closing on the property occurred during 

the marriage. See Holmes v. Holmes, 613 So. 2d 511, 513 (Fla. 3d

DCA 1993) (concluding that the marital home was a marital 

asset, although the down payment was provided entirely by the 

wife who had title in her name only, where purchase of the 

residence occurred several days after the parties married.). 

The Second, Third, and Fourth Districts have held that

“[t]he burden is on the pensioner ‘to prove whether some portion 

of [the] pension benefits accrued prior to marriage and therefore 

should not be included as a marital asset.’” Julia v. Julia, 263 So. 

3d 795, 798–99 (Fla. 4th DCA 2019) (quoting Childers v. 

Childers, 640 So. 2d 108, 109 (Fla. 4th DCA 1994)). See also 

Jahnke v. Jahnke, 804 So. 2d 513, 517 (Fla. 3d DCA 2001) 

(finding the pension owner was required to prove that some 

portion was paid for using premarital contributions); Reyher v. 

Reyher, 495 So. 2d 797, 800 (Fla. 2d DCA 1986) (“In order to 

exclude any premarital contributions, the ‘owner’ must prove the 

value of the premarital contributions (and appreciation of that 

value, if any).”). 

In this case the asset, prior years of service, was acquired 

totally utilizing marital funds based on the parties’ joint decision 

to make 8 years of installment payments because it would be 

better for the couple financially in the future.*

 * Appellant testified that money was tight during their 

marriage, ultimately resulting in a foreclosure. The former wife 

agreed that because appellant had a superior ability to earn 
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The option to purchase and the decision to purchase the 

prior service arose out of appellant’s second tenure with civil 

service, which occurred entirely during the marriage. The only 

testimony concerning the value of his prior military service was 

that it had zero value for retirement purposes. Thus, appellant 

failed to overcome the presumption that this asset purchased 

with marital funds was marital property. We affirm the trial 

court’s determination.

LEWIS and WETHERELL, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Michael T. Webster of Michael T. Webster, P.A., Shalimar, for 

Appellant.

Curtis W. Brannon of Curtis W. Brannon, PA, Crestview, for 

Appellee.

 

income and retirement benefits, she would stay home with the 

couple’s seriously disabled daughter, who ultimately died. The 

former wife also worked outside of the home, though she was not 

able to accrue retirement benefits. The “marital teamwork” 

involved in the parties’ decision to make 8 years of installment 

payments to purchase those years despite limited finances 

further indicates a desire of the parties that this purchase be 

considered a marital asset.