         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-3984
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CATHERINE EBERHART, Former
Wife,

    Appellant,

    v.

DENNIS EBERHART, Former
Husband,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Lance M. Day, Judge.

                       February 23, 2018


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 court’s 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 wife’s
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
Eberhart’s 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 parenthetical’s 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.


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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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Jason K. Hutchinson of Hutchinson Law, Jacksonville, for
Appellant.

Michael M. Giel of Giel Family Law, P.A., Jacksonville, for
Appellee.




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