Brown v. Brown

456 S.W.3d 823, 2015 Ky. App. LEXIS 3, 2015 WL 222178
CourtCourt of Appeals of Kentucky
DecidedJanuary 16, 2015
DocketNO. 2013-CA-001515-MR
StatusPublished
Cited by3 cases

This text of 456 S.W.3d 823 (Brown v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Brown, 456 S.W.3d 823, 2015 Ky. App. LEXIS 3, 2015 WL 222178 (Ky. Ct. App. 2015).

Opinion

[825]*825 OPINION

JONES, JUDGE:

This matter is on appeal from an order of the Franklin Circuit Court awarding Appellee Lisa G. Brown (now Robinson), a pro-rata share of Appellant Richard F. Brown’s gross monthly annuity under the Civil Service Retirement System. On appeal, Richard argues that the circuit court erred as a matter of law because its award to Lisa included cost-of-living adjustments (“COLAs”) that Richard’s civil retirement account received after the parties divorced. For the reasons more fully explained below, we AFFIRM.

I. Factual and Procedural Background

Richard and Lisa were married on June 22, 1984, and divorced by final decree of the Franklin Circuit Court entered on October 18, 2002. The dissolution decree reserved decision on certain financial issues, which remained pending between the parties, including issues related to the division of Richard’s civil and military retirement accounts. On July 2, 2004, the circuit court entered an order directing that “the marital portion” of Richard’s retirement accounts was to be divided equally between the parties. The circuit court further ordered that qualified domestic relations orders (“QDROs”) were to be entered consistent with the court’s order dividing the retirement accounts.

Richard’s military retirement account has been successfully divided. The only disputed issue concerns how to appropriately divide the civil retirement account with respect to the COLAs Richard received after the parties’ divorce. On June 19, 2013, Lisa filed a motion with the circuit court requesting a QDRO order be entered granting her an equal division of Richard’s civil retirement account earned during the marriage, including the COLAs Richard received after the parties’ divorce. Richard responded that entry of a QDRO directing payment of half of the portion of the retirement account earned during the marriage to Lisa was appropriate and consistent with the circuit court’s July 2004 order. Richard maintained, however, that Lisa was not entitled to any portion of the COLAs that he received after the parties divorced.

On August 7, 2013, the circuit court sustained Lisa’s motion. The circuit court determined that Lisa was entitled to the portion of the COLAs, which corresponded to her share of the marital portion of the account. The circuit court concluded: “[bjecause the court ordered a percentage share of [Richard’s] retirement, the court finds that [Lisa] is entitled to include.cost of living allowances when calculating her portion of the retirement account.” The circuit court rejected Richard’s argument that this was tantamount to awarding Lisa benefits earned after the parties’ divorce. The circuit court concluded that Lisa’s “entitlement to this benefit was earned at the time the parties agreed to a percentage division.” On August 26, 2013, the circuit court entered a subsequent order, which is consistent with its prior order regarding the COLA adjustments; this order directs the United States Office of Personnel Management to pay Lisa’s share of the retirement benefits directly to her.

This appeal followed.

II. Standard of Review

The question before us is whether inclusion of the COLAs is consistent with the court’s 2004 order, which awarded Lisa fifty-percent of the marital portion of Richard’s civil service retirement account. Questions relating to the construction, operation, and effect of a dissolution order [826]*826are governed by the rules and provisions applicable to the construction of other contracts. Richey v. Richey, 389 S.W.2d 914 (Ky.1965). The interpretation of a contract is a matter of law to be reviewed de novo. Cinelli v. Ward, 997 S.W.2d 474 (Ky.App.1998).

III. Analysis

Under Kentucky’s statutory scheme for the distribution of property at dissolution, the trial court must first categorize each item of property as either marital or nonmarital under the framework embodied in KRS 403.190. Kentucky permits division as marital property of both vested and nonvested retirement accounts accumulated during the marriage. Holman v. Holman, 84 S.W.3d 903, 907 (Ky.2002). “Pension and profit sharing plans are valued as of the date of the dissolution decree.” Clark v. Clark, 782 S.W.2d 56, 62 (Ky.1990). However, “[i]t is the pension, not the benefits, which is the marital asset which is [valued and] divided by the' court.” Brosick v. Brosick, 974 S.W.2d 498, 503 -04 (Ky.App.1998). Courts generally use one of three methods to value the marital portion of the pension: the net present value method, the deferred distribution method, and the reserve jurisdiction method. Armstrong v. Armstrong, 34 S.W.3d 83, 85 (Ky.App.2000).

The circuit court valued Richard’s pension at the time of the dissolution decree and determined that Lisa was entitled to fifty-percenit of the marital portion of the pension. It is clear to us that the circuit court used the deferred distribution method when it initially valued the marital portion of Richard’s retirement in 2004. Under that method, “the court predetermines the percentage of the pension income that the non-employee spouse will be eligible to receive once the pension is vested and matured.” Id.

Citing Foster v. Foster, 589 S.W.2d 223, 225 (Ky.App.1979), and its progeny, Richard argues including the COLAs would violate the long-established rule that the non-employee spouse shall not be permitted to “share in any pension benefits earned after divorce and before retirement.” See also Armstrong v. Armstrong, 34 S.W.3d 83 (Ky.App.2000). In other words, Richard maintains that inclusion of the COLAs is inappropriate because it would provide Lisa with benefits that did not exist in 2004 when the circuit court valued and divided Richard’s pension.

There are no published Kentucky opinions directly on-point to guide us on this issue. Thus, we have examined the federal statutes and interpretative case law to gain an understanding of the nature and operation of the federal retirement COLAs. Our examination convinces us that the circuit court correctly determined that Lisa’s portion of the marital retirement should include the COLAs. The COLAs are not “earnings” attributable to Richard’s post-decree efforts, and therefore, their inclusion does not violate our case law or statutes. Moreover, we believe that inclusion of the COLAs is most consistent with the 2004 order awarding Lisa fifty-percent of the marital value of Richard’s pension.

Most civilian federal employees fall under the Civil Service Retirement Act, 5 U.S.C. § 8331 et seq.

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456 S.W.3d 823, 2015 Ky. App. LEXIS 3, 2015 WL 222178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-brown-kyctapp-2015.