STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 03-667
FREDY RIVERA-SANTOS
VERSUS
ADA ELBA MELENDEZ RIVERA-SANTOS
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT, PARISH OF VERNON, NO. 53,122 HONORABLE JOHN C. FORD, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Sylvia R. Cooks, John D. Saunders, and Jimmie C. Peters, Judges.
AFFIRMED AS AMENDED.
Tony C. Tillman Post Office Drawer 648 Leesville, LA 71446 (318) 239-7983 Counsel for Plaintiff/Appellant: Fredy Rivera-Santos
Scott Westerchil 101 South First Street Leesville, LA 71446 (337) 239-9076 Counsel for Defendant/Appellee: Ada Elba Melendez Rivera-Santos PETERS, J.
The issue before us concerns the determination of a divorced wife’s interest in
her former husband’s retirement benefits, insofar as they are attributable to his
employment during the existence of the community. The former husband, Fredy
Rivera-Santos, appeals the trial court’s determination that the benefits should be
partitioned according to the formula set forth in Sims v. Sims, 358 So.2d 919
(La.1978). For the following reasons, we affirm the trial court’s judgment awarding
Ms. Rivera-Santos a portion of Mr. Rivera-Santos’ retirement benefits, but amend the
judgment to partition the said benefits according to the supreme court’s instructions
found in Hare v. Hodgins, 586 So.2d 118 (La.1991).
DISCUSSION OF THE RECORD
Fredy Rivera-Santos and Ada Elba Rivera-Santos were married on June 3,
1981. Mr. Rivera-Santos began serving in the United States Army on June 28, 1981,
and, with the exception of the period of time between July 27, 1987, and January 28,
1988, he remained on active duty through August 16, 2002, the date of trial on the
issues now before this court. On March 24, 1993, Mr. Rivera-Santos filed a petition
for divorce, and the parties were divorced by judicial decree on July 27, 1993. Thus,
he acquired military retirement benefits during the existence of the community of
acquets and gains, as well as after the community dissolved.
On March 17, 2001, Ms. Rivera-Santos filed a rule to show cause, seeking
recognition of her interest in her former husband’s military retirement benefits. In
response, Mr. Rivera-Santos filed a rule to show cause, requesting that the trial court
limit his former wife’s interest in the retirement benefits based on his rank at the time
of the divorce as opposed to his rank when he ultimately retires. By a judgment
rendered August 16, 2002, and signed February 14, 2003, the trial court granted judgment in favor of Ms. Rivera-Santos. The February 14, 2003 judgment reads in
pertinent part as follows:
IT IS FURTHER ORDERED, ADJUDGED and DECREED that ADA ELBA MELENDEZ RIVERA-SANTOS, NOW MELENDEZ, has an interest in the military retirement benefits accruing to FREDY RIVERA-SANTOS as a result of his service in the United States Armed Forces, when and if they vest, as her sole and separate property, equal to the following formula: One half, multiplied by a percentage in which the numerator is 140 (months of service during marriage) and the denominator is the total months of service creditable for retirement at the time of retirement, multiplied by the military retired pay payable to a member retiring at the rank of W-2 who would have retired with twenty years service in June 2001, together with all increases that did or would have occurred, other than increases attributable to elevation in rank or services rendered after said date, plus a like percentage of all cost of living adjustment increases that accrue to said military retirement benefits hereafter. For the purpose of interpreting this Court’s intention in making the division set forth in this Order, “military retirement” means disposable retired pay as defined in 10 U.S.C. § 1408. All sums payable to ADA ELBA MELENDEZ RIVERA-SANTOS, NOW MELENDEZ as a portion of military retirement shall be payable from FREDY RIVERA-SANTOS’ disposable retired or retainer pay to the extent that it is so restricted by law.
In his sole assignment of error, Mr. Rivera-Santos contends that the trial court erred
in its calculation of the amount of his retirement benefits due his former wife.
OPINION
The trial court applied the formula enunciated by the supreme court in Sims v.
Sims, 358 So.2d 919 (La.1978), to reach its decision concerning the division of the
retirement benefits. In Sims, the supreme court established the division formula for
pension or retirement benefits as follows:
Portion of pension attributable to service during marriage x ½ x lump sum or annuity Portion of pension attributable to total service
Generally, the result of this mathematical calculation represents the amount due
2 the former spouse. However, in Hare v. Hodgins, 586 So.2d 118, 123 (La.1991), the
supreme court recognized that the Sims formula is not applicable to all pension or
retirement division situations. In Hare, the supreme court stated:
The general rules for the partition of community property, however, do not address all of the problematic ramifications of classifying, valuating and distributing each spouse’s interest in pension benefits which have been earned by one spouse partly during the marriage and partly before or after. In such cases, the pension benefits are composed of the separate property interest of the employee spouse in addition to the community interest. Furthermore, there is no custom from which rules can be derived for each particular situation. Accordingly, in the present case and others a court is bound to proceed and decide equitably to some extent, making resort to justice, reason and prevailing usages. .... [T]here will be unusual cases in which a substantial part of the increased retirement benefits earned by the employee spouse after divorce will not result from a foundation provided by prior community earnings. Fondi v. Fondi, supra; Gemma v. Gemma, supra. In such cases, the partitioning court should select a more equitable method or modify the community or marital fraction rule to attribute that part of the post-divorce increase to the employee spouse separately. Although the emerging jurisprudential precepts are not yet well defined, some factors may be identified as helpful guidelines in determining when such a modification is required.
Id. at 127-128.
The supreme court in Hare established a three-part test for the partitioning court
to apply in determining whether or not a substantial post-community increase is due
purely to personal merit. “First, the increment must represent a fairly substantial
increase in the employee spouse’s post-community earnings. Second, the increment
must not be due to a non-personal factor, such as cost-of-living raises, etc. Third, the
increment must be attributable to the employee spouse’s meritorious individual efforts
or achievements.” Id. The employee spouse has the burden of proof, and any doubt
should be resolved in favor of the community. Id. Thus, Hare recognized that in the
interest of equality and equity, a trial court has great discretion in dividing
3 community-owned pension benefits. “[If] the trial court agree[s] that the pension was
increased due to the employee spouse’s personal effort or achievement, benefits may
then be reallocated using the highest income the employee spouse would have
received under the normal course of events, including ordinary promotions and cost
increases and gains due to non-personal factors.” Id. at 128.
In its oral reasons for judgment rendered at the conclusion of the evidence
presentation, the trial court recognized the Hare exception and opined that “[the
plaintiff] proved he had some substantial increases in salary post community.” The
trial court also stated that with regard to the second requirement set forth in Hare, Mr.
Rivera-Santos had met that burden as well. Concerning the third requirement, the trial
court concluded that “the increment must be attributable to the employee/spouse’s
meritorious individual efforts or achievement . . . [and in this case] that’s in part what
happened.” In summary, the trial court stated that “you could argue that the move
from NCO to Warrant Officer is not a normal progression of benefits or promotions,
and I would acknowledge that it is not, [and] that it would probably qualify if you take
all of the NCO’s in the Army and look at the percentage that moved from NCO to
Warrant Officer you would have to classify that as an extraordinary move.”
(Emphasis added.)
Despite its conclusion that Mr. Rivera-Santos satisfied all three elements
required in an analysis under Hare, the trial court then concluded that it was “not
convinced that [the Hare exception] applies to the case of military benefits.” In
written reasons for judgment executed on December 6, 2002, the trial court concluded
that “Sims [was] the controlling law in Louisiana [with] respect to the entitlement to
a percentage of the spouse’s retirement” and “[t]hat formula is the number of years of
military service during the marriage divided by the total number of years of military
4 service, divided by two.” Mr. Rivera-Santos asserts on appeal that the trial court
erred in this conclusion. We agree.
We find that the trial court erred as a matter of law when it found that the Hare
exception did not apply in the case of military benefits. After reviewing the law and
jurisprudence dealing with community-owned retirement benefits, we find nothing to
suggest that the Hare exception would not be applicable in a case involving military
benefits. “Where one or more trial court legal errors interdict the fact finding process,
the manifest error standard is no longer applicable, and, if the record is otherwise
complete, the reviewing court should make its own independent de novo review and
assessment of the record.” Campo v. Correa, 01-2707, p. 10 (La. 2002), 828 So.2d
502, 510 (citing Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La. 2/20/95), 650 So.2d
742, 746-47).
In this case, the evidence presented at trial established that in 1993, Mr. Rivera-
Santos held the rank of Staff Sergeant, E-6, and had an annual income of $19,587.60.
In August of 1993, the month after his divorce, he received a base pay of $1,623.00
for that month. By 2001, he held the rank of Warrant Officer, W-2, and had an annual
income of $39,637.40. By June of 2002, two months before the trial on the rules, his
monthly base pay was $3,559.80. Thus, from the time of his divorce until the time of
trial, Mr. Rivera-Santos had received a 119% increase in base pay. Mr. Rivera-Santos
clearly established the first prong of the three-part test of Hare, i.e., that he had a
“fairly substantial increase” in his post-community earnings.
Concerning the second and third prongs of the three-part test, that this
substantial increase was due to something else, i.e., “a non-personal factor, not cost-
of-living raises, etc.,” Mr. Rivera-Santos introduced evidence that he was not qualified
to become a Warrant Officer prior to his divorce. Additionally, Mr. Rivera-Santos
5 introduced copies of the following documents in an effort to meet his burden of
proving that numerous personal steps and significant additional responsibilities
advanced his career subsequent to the dissolution of the marriage: paperwork
requesting a waiver and consideration to become a Warrant Officer, Army discharge
papers, Warrant Officer commission, Warrant Officer orders, Warrant Officer School
diploma, Airborne and other specialized training certificates, evaluation reports, letters
of recommendation from officers, and numerous awards and commendations for
performance and meritorious service. These documents, together with his testimony,
established that Mr. Rivera-Santos actively sought out the opportunity to become a
Warrant Officer and had to obtain a waiver because initially he did not have the
requirements necessary to apply. After becoming a candidate for Warrant Officer, he
attended special training schools with the full understanding that his “failure to
comply with active duty orders [or pass the school] would result in cancellation of his
appointment.” He earned his Warrant Officer promotion and underwent additional
training not otherwise required. Because of his efforts, he earned awards for his
personal performance and received evaluations which requested that the military
“promote [him] ahead of contemporaries.” More importantly, he earned, and
continues to earn, a significantly higher-paying position, while remaining within the
coverage of the military benefits.
Chief Warrant Officer Earnest Lee Wilson, an active duty soldier stationed at
Fort Polk, Louisiana, testified for Mr. Rivera-Santos to explain the difference between
a Warrant Officer and a non-commissioned officer. Chief Warrant Officer Wilson is
a twenty-nine-year military veteran who had advanced in his military career through
the enlisted and non-commissioned officer ranks and, at the time of trial, had attained
the rank of Warrant Officer, W-4. The trial court recognized him as an expert “in the
6 area of property accounting technicians and the general process in which Warrant
Officers may seek to be promoted and the general duties that Warrant Officers are
called on to perform within their speciality.”
Chief Warrant Officer Wilson testified that Warrant Officers seeking promotion
to the next level are required to submit themselves to a review board comprised of
senior Warrant Officers who review the applicant’s record and make a professional
assessment of his ability to perform at the next level. According to Chief Warrant
Officer Wilson, as an individual progresses through the promotion system, there exist
fewer slots to be filled and the process becomes increasingly more competitive. In his
opinion, personal performance and individual effort and achievement are more
important in the process than is longevity. As such, this testimony corroborated with
other evidence showed that Mr. Rivera-Santos successfully proved the third prong of
the Hare test, that the “increment [was] attributable to the employee spouse’s
meritorious individual efforts or achievements.”
Ms. Rivera-Santos asserts in her brief that the trial court erred in allowing Chief
Warrant Officer Wilson to testify as an expert. She asserts that Chief Warrant Officer
Wilson did not provide the trial court with his educational background; that he never
sat on a promotion board and, as such, never was involved in the decision-making
process; and that he never had been recognized as an expert in the past.
Louisiana Code of Evidence Article 702 provides in part that “a witness
qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.” This court in Abshire v.
Wilkerson, 01-0075, p.4 (La.App. 3 Cir. 5/30/01), 787 So.2d 1158, 1162, recognized
the discretion afforded the trial court in cases involving expert witnesses as follows:
“A trial judge has wide discretion in determining whether to allow a
7 witness to testify as an expert, and his judgment will not be disturbed by an appellate court unless it is clearly erroneous.” Mistich v. Volkswagen of Germany, Inc., 95-0939, p.8 (La.1/29/96); 666 So.2d 1073, 1079. This includes the determination of “how much and what kind of education and/or training adequately qualify an individual as an expert.” Darbonne v. Wal-Mart Stores, Inc., 00-551, p.7 (La.App. 3 Cir. 11/2/00); 747 So.2d 1022, 1027.
Ms. Rivera-Santos presents us with no legal authority to suggest that the trial court
abused its discretion in recognizing Chief Warrant Officer Wilson as an expert “in the
area of property accounting technicians and the general duties the Warrant Officers
are called on to perform within their specialty.” The law is clear that “[a] combination
of specialized training, work experience, and practical application of an expert’s
knowledge can combine to demonstrate that person is an expert; a person may qualify
as an expert based upon experience alone.” State v. Berry, 95-1610, p. 20 (La.App.
1 Cir. 11/8/96), 684 So.2d 439, 456, writ denied, 97-0278 (La. 10/10/97), 703 So.2d
603. Thus, after reviewing the record, we cannot say that the trial court erred in
allowing the Chief Warrant Officer to testify as an expert.
Ms. Rivera-Santos also argues on appeal that the trial court erred in allowing
her former husband to introduce copies of documents representing milestones in his
military career. Her objections are two-fold. First, she asserts that Mr. Rivera-Santos
offered copies without producing the originals. Second, she asserts that the documents
were hearsay.
Louisiana Code of Evidence Article 1003 provides that a duplicate is admissible
to the same extent as an original unless:
(1) A genuine question is raised as the authenticity of the original; (2) In the circumstances it would be unfair to admit the duplicate in lieu of the original; or (3) The original is a testament offered for probate, a contract on which the claim or defense is based, or is otherwise closely related to a controlling issue.
8 “A duplicate copy . . . is admissible to the same extent as an original unless a genuine
question is raised as to the authenticity of the original.” State v. Carter, 97-2902, p.
30 (La.App. 4 Cir. 5/10/00), 762 So.2d 662, 681, writ denied, 00-1598 (La. 6/15/01),
793 So.2d 1233. We first note that Mr. Rivera-Santos testified he had the originals
in his possession and available for inspection and was offering the copies in lieu of the
originals. Absent a further showing by Ms. Rivera-Santos that Mr. Rivera-Santos
was in bad faith, this assignment of error is without merit. With regard to most of the
copies offered, Ms. Rivera-Santos did not request to see the originals and did not
object to the introduction of the copies. She cannot now complain of Mr. Rivera-
Santos’ failure to produce the originals.
Concerning her second assertion that certain documents were hearsay, the
record reflects that she did timely object to their introduction. In response to the
objection, counsel for Mr. Rivera-Santos asserted that the documents were not being
offered for the truth of the content, but rather to show the nature of the promotion
process he was required to go through after his divorce. The trial court did not err in
admitting the documents for that purpose. La.Code Evid. arts. 801 through 803.
We recognize that the fifth circuit, in Wirstrom v. Wirstrom, 608 So.2d 216
(La.App. 5 Cir. 1992), upheld the trial court’s decision to use the Sims formula to
partition the husband’s Air Force pension, despite his contention that his post-
community efforts accounted for an increase in the pension. However, that case is
distinguishable from the matter now before us in that the former husband in Wirstrom
merely presented his own self-serving testimony that his personal and post-community
efforts were responsible for his substantial pay increase. He offered no evidence of
his prior or current pay, what raises he received, or his anticipated pay at retirement.
Simply stated, the husband in Wirstrom failed to meet his burden of proof under Hare,
9 and nothing in that case indicates that the Hare exception is not intended to apply to
cases involving military retirement benefits.
This court in McCown v. McCown, 93-899, p. 6 (La.App. 3 Cir. 03/02/94),
634.So.2d 1249, 1252 (citing Hare, 586 So.2d 128), addressed the issue of whether
or not personal achievements warrant the deviation from the Sims formulas as follows:
“[If an] employee spouse attains a significantly higher-paying position while remaining within the coverage of the same pension plan, either through earning a post-community degree, or transfer within the company to an unrelated area of service . . . Such increases are not ‘acquired during the existence of the legal regime through the effort, skill, or industry of either spouse’ are not fairly ascribable to the community and should not be considered community property.”
Just as the trial court did, we conclude that Mr. Rivera-Santos’ post-community
increases in compensation have been substantial and that they were not due to a non-
personal factor, but attributable purely to his personal effort and skill. We find that
the trial court erred as a matter of law in concluding that the Hare exception would not
apply in this case involving military retirement benefits. We recognize that few courts
have addressed the Hare exception to Sims. However, in the matter before us, Mr.
Rivera-Santos had established all of the elements necessary to claim his right to the
exception, and it would be an injustice to him to do otherwise. Therefore, we amend
the trial court’s judgment to conform with the evidence presented.
DISPOSITION
For the following reasons, we affirm the trial court’s recognition of Ada Elbe
Melendez Rivera-Santos’ interest in the retirement benefits of her former husband,
Fredy Rivera-Santos. However, we amend the trial court’s judgment to reflect that the
base for calculating the retirement benefit is that of Staff Sergeant, E-6, and not
Warrant Officer. In doing so, we amend that portion of the judgment purporting to
10 establish the formula for calculating the benefit division by deleting the reference to
“the rank of W-2” and replacing it with “the rank of Staff Sergeant, E-6.” We assess
all costs of these proceedings to Ada Elba Melendez Rivera-Santos.