The Court of Appeals previously ruled in this case (Priest v. Priest, No. 2014-CA-000148-MR) holding Wife’s share of Husband’s military retirement “should be calculated based upon the DFSA, Section IV(c) as outlined in Poe v. Poe. 711 S.W.2d 849, 850 (Ky. App. 1986). The family court divided the military retirement benefit utilizing the hypothetical award formula set out in DFSA IV(c) pursuant to Poe. Wife again appealed arguing the family court incorrectly applied the DFSA formula.

The Court of Appeals only finds one error in the family court’s calculation, the cost of living adjustment, and reverses the family court “on this one calculation” and remands “for a correction to the court’s final award.” Interestingly, the Court of Appeals implores the Supreme Court to revisit the law as to military retirement stating “Given the final result of the current law upon the division of the marital assets of a retired veteran’s ex-spouse, we do not find the current application of Poe to be consistent with divorce law in Kentucky and implore the Kentucky Supreme Court to review the holding in Poe.”

Digested by Elizabeth M. Howell

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Father and Mother had  joint custody of child, who was living in Kentucky with Father during the school year. Mother resided in Montana. Father was given notice he was being returned to active service in the National Guard Air Force in September 2014. In December, Mother filed a motion for temporary primary residential custody citing Father’s deployment as a substantial change in circumstances. Father filed a motion to stay the proceedings under the Servicemembers Civil Relief Act (hereinafter “SCRA”). The Trial Court denied Father’s SCRA motion, and held a hearing in January 2015. The Trial Court ordered the child reside with Mother as the temporary residential custodian, until Father returned from deployment. The Appellate Court notes that in making this decision the Trial Court failed to utilize the best interest of the child standard, as required. Active duty deployment is the base for a substantial change in circumstance, but does not eliminate the need to use the best interest standard.

The Appellate Court grants a writ of prohibition holding Father made a showing the Trial Court acted erroneously, there is no adequate remedy by appeal, and great injustice and irreparable injury have resulted. The Appellate Court held that while the SCRA’s predecessor allowed court’s to use discretion in granting a stay, the ACRA language mandates a stay. The father complied with the requirements of the SCRA, therefore the Trial Court erred in failing to grant a stay. As the child was relocated during the school year without consideration of his best interest, the Appellate Court also held that a later appeal would not be adequate and the injury was irreparable. Thus, the Appellate Court grants Father a writ of prohibition ordering the Trial Court to return the child to Kentucky, from Mother’s residence in Montana  as soon as  practical.

Judge Maze dissents comparing the SCRA to its predecessor which allowed Trial Court’s to use discretion in the decision to grant a stay. Judge Maze also points out that now that the child has already been moved to Montana moving him back to Kentucky simply aggravates the injury that has already occurred.

Digested by Elizabeth Howell

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No. 2009-CA-000685-MR and No. 2009-CA-000720-MR

Published:  Opinion Affirming in Part, Reversing in Part and Remanding

County:  Shelby

This opinion addresses the combined appeal and cross-appeal from Shelby Family Court orders modifying the division of Richard’s military retired pay between Richard and his former spouse, Kathy.

Kathy Joan Copas v. Richard Dale Copas

No. 2009-CA-000685-MR and No. 2009-CA-000720-MR

Published:  Opinion Affirming in Part, Reversing in Part and Remanding

County:  Shelby

This opinion addresses the combined appeal and cross-appeal from Shelby Family Court orders modifying the division of Richard’s military retired pay between Richard and his former spouse, Kathy.

There are three issues.  First, did the family court abuse its discretion in utilizing CR 60.02(f) to reopen the order dividing the parties’ marital property?  Second, did the family court abuse its discretion in modifying the language in a previous order concerning division of Richard’s military retired pay?  Third, did the family court abuse its discretion by granting Kathy’s CR 59.05 motion by adding language to the order which designated Richard’s disability benefits as marital property and then dividing it between the parties?  As to the first two questions, the Court of Appeals found no abuse of discretion, but found that the family court did abuse its discretion as to the last issue.

On June 18, 1997, the family court entered a limited decree dissolving the parties’ twenty-five year marriage, reserving judgment on property issues, which were referred to the Shelby County Domestic Relations Commissioner.  The DRC submitted Findings of Fact, Conclusions of Law and Recommendations on May 21, 1998.

Richard earned the right to military retired pay based on thirty years of service and the DRC found that 21 years and 9 months of service accumulated during the marriage and was marital property to be divided equally between the parties.  Both parties filed exceptions, which the family court overruled on September 28, 1999.  Thereafter, the court conducted a hearing on supplemental exceptions.  On November 6, 2000, the court entered an order resolving all outstanding issues including a provision that Kathy receive 50% of Richard’s pension.

Kathy submitted Form 2293 to the Defense Financial & Accounting Service (DFAS), an “Application for Former Spousal Payment of Retired Pay” requesting 50% of Richard’s disposable retired pay per month.  Kathy’s completion of the form as she did disregarded the distinction between marital and nonmarital portions of Richard’s military retired pay.  As a result, she received 50% of the retired pay Richard earned while not married to Kathy, a benefit to which she was not entitled.

At retirement, Richard was entitled to $4400.00 per month, so based on the form Kathy submitted, they each began to receive $2200.00.  Richard sought military disability benefits and the VA determined he was 40% disabled and entitled to receive $568.00 per month.  Federal regulations require offset of military retired benefits by disability benefits so Richard’s non-disability military retired pay was reduced from $4400.00 to $3832.00, divided equally between Kathy and Richard.

In July, 1970 Richard filed a motion requesting family court to direct that Kathy only receive 50% of the portion of his disposable military retired pay attributable to the marriage, and on November 17, 2008 the family court so ordered.  On November 26, 2008 Kathy filed a motion pursuant to CR 59.05 to alter, amend, or vacate the November 17, 2008 order on the grounds that the family court improperly modified the 1999 Property Order with respect to division of Richard’s military retired pay.  She also filed a motion requesting a new trial under CR 59.01 and a motion for additional findings under CR 52.02.  Her CR 59 motion asked the family court to amend its November 17, 2008 order to require DFAS to take Richard’s disability income into account when dividing his military retired pay.

An abuse of discretion standard of review is applied to a family court’s rulings on CR 59.05 and CR 60.02 motions.  The test for abuse of discretion is whether the judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

Although the family court did not specify under which rule it was modifying the 1999 Property Order, the Court of Appeals treated Richard’s motion and the family court’s corresponding order as brought pursuant to CR 60.02.  Because information provided to DFAS was incomplete, DFAS paid Kathy a greater proportion of Richard’s military retired pay than that to which she was entitled.  The Court of Appeals found that DFAS’s misinterpretation of the 1999 Property Order was a sufficient basis for granting CR 60.02(f) relief to allow the family court to adjust the order’s language to meet DFAS ‘s specific requirements.  The Court of Appeals also found no abuse of discretion when the family court modified the language of the 1999 Property Order pursuant to CR 60.02(f).

The Court of Appeals next considered the family court’s granting Kathy’s CR 59.05 motion and adding language directing DFAS to take into account Richard’s disability pay when dividing his military retired pay.  Because a retiree’s disposable retired pay is lower when he receives disability payments, the retiree’s former spouse’s portion of the retiree’s retired pay is also reduced.  The Court of Appeals acknowledged the potential inequities which may result when a retiree elects to receive disability payments, but noted that both federal and state law prohibits treatment of a retiree’s disability payments as marital property.  The family court’s order erroneously converted Richard’s disability benefits from nonmarital property into marital property in violation of federal law.  Further, the Court of Appeals stated that while a CR 59.05 motion may be used to challenge a CR 60.02(f) order, it may not be used to collaterally attack the original judgment.

The Shelby Family Court did not abuse its discretion in reopening and modifying the 1999 Property Order pursuant to CR 60.02(f) but it did abuse its discretion by requiring DFAS to consider Richard’s disability payments in dividing his military retired pay.  Accordingly this matter was affirmed in part, reversed in part, and remanded for additional proceedings consistent with this opinion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

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Snodgrass v. Snodgrass, __ S.W.3d __ (Ky. App. 2009)

 In divorce proceedings, the parties agreed on all issues, except for the division of husband’s military retirement.  Husband served in the military for approximately 4 years prior to the parties’ approximate 14 year marriage.  A hearing was held before a Domestic Relations Commissioner on the division of retirement benefits; however, there is no proof in the record that husband actually received notice of it, waived his right to participate in it, waived his right to have the hearing recorded, or waived any other right or protection on account of his military service.  Husband was deployed overseas during the proceedings and unrepresented by counsel.  The trial court adopted the DRC’s recommendations and awarded the wife 46% of husband’s retirement.  No further activity took place on this matter for over six years.  Eight months prior to husband’s retirement, the wife submitted a form to DFAS requesting 46% of husband’s disposable retired pay, with no distinction between marital and nonmarital portions.  This translated to wife receiving 82% of the marital portion of the benefit and husband receiving 18%.  It was not until his retirement that husband realized something was wrong.  He hired counsel and filed a motion for relief pursuant to CR 60.02(f).  Due to several procedural and substantive delays, husband’s motion was not heard for another year and a half.  The trial court denied his motion, except it did prohibit the wife from receiving any portion of the benefit attributable to husband’s post-divorce increases in rank and pay.  Husband appealed.

    There are three factors that must be met in order to obtain relief under CR 60.02(f):  1) none of the provisions of CR 60.02 (a)-(e) apply, 2) whether the moving party had a fair opportunity to present his claim at the trial on the merits, and 3) whether the granting of relief would be inequitable to other parties.  COA found all three factors weighed in husband’s favor: 1) No evidence supports the applicability of CR 60.02 (a)-(e), 2) Husband lacked the opportunity to be present at the hearing, and 3) Granting relief would not be inequitable to wife because the court had already held that she is only entitled to a share of the marital portion of the retirement benefit and husband did not seek more than that.

    The decree that originally awarded wife 46% of the retirement benefits contained no distinction between marital and nonmarital property.  Therefore, the decree conflicted with the court’s order denying CR 60.02 (f) relief, which states that wife is only entitled to a share of the marital portion of the benefits, and must be corrected.  The decree is also problematic since it did not explicitly first assign each spouse their nonmarital property before dividing the marital property.  As a result, it is unclear what the decree intended the outcome to be for the division of military retirement benefits.  The COA came up with four different possibilities, and narrowed it down to two using logic and the law: 1) the trial court intended to award wife 46% of the marital portion and 0% of the nonmarital portion, or 2) the trial court intended to award wife 46% of the benefit earned up to the point of divorce, but not what husband earned after the divorce.  The COA remanded for the trial court to determine how the decree should be corrected and/or clarified.  The COA referred the trial court to DFAS’s pamphlet entitled Uniformed Services Former Spouses’ Protection Act, Dividing Military Retired Pay for guidance and recommended language.  When dealing with the division of military retired pay of an as-yet-ineligible service member, COA found the language in section IV.c. of the pamphlet regarding “hypothetical awards” to be consistent with Kentucky law. 

Next, COA noted that although husband chose to proceed unrepresented by counsel, he was still protected by the Soldiers’ and Sailors’ Civil Relief Act of 1940.  Thus, even when a service member does not ask for a stay in the proceedings, the Act requires that the trial court determine that the military service of the party would not have a material, adverse effect upon his rights before going forward.                    

Finally, COA did not find error in the fact that husband had not appealed the decree or that he waited years to file a CR 60.02 motion.  The decree on its face seemed to accomplish what husband wanted and he only realized the error shortly before he retired.  Husband promptly acted upon finding the error. 

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

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Mark Sullivan advises us, “You can now read, review, download all the materials in the most recent Legal Assistance Course given at The Army JAG School in Charlottesville by going to Legal Assistance.” Click TJAGLCS Publications, then Legal Assistance and select May ’06 course book.
“Good materials on custody jurisdiction, military family care plans, current regulations on nonsupport of the various branches of service, Servicemembers Civil Relief Act (SCRA), child support guidelines [by Laura Morgan ** !!], divorce jurisdiction and the military client, survivor benefits, UIFSA the Uniformed Services Former Spouses’ Protection Act, and divorce taxation. All FREE and open to the public!”
Mark is the author of a newly released book on Military Divorce, available through the ABA.

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