Provencio v. Leding

2011 Ark. App. 53, 381 S.W.3d 82, 2011 Ark. App. LEXIS 74
CourtCourt of Appeals of Arkansas
DecidedJanuary 26, 2011
DocketNo. CA 10-312
StatusPublished
Cited by2 cases

This text of 2011 Ark. App. 53 (Provencio v. Leding) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Provencio v. Leding, 2011 Ark. App. 53, 381 S.W.3d 82, 2011 Ark. App. LEXIS 74 (Ark. Ct. App. 2011).

Opinion

ROBERT J. GLADWIN, Judge.

hThe issue presented is whether the Pulaski County Circuit Court erred in finding that appellee is entitled to $962.06 per month as her share of appellant’s military retirement pursuant to the parties’ property-settlement agreement and a subsequent agreed order. We affirm the trial court’s order.

Appellant Victor Provencio and appellee Yoshi Leding were married in 1971 and divorced in 1992. They entered into a property-settlement agreement as a result of their divorce wherein appellee was awarded all of appellant’s military retirement and disability pay. However, pursuant to the agreed order the parties signed in March 2007, appellee is no longer entitled to appellant’s disability benefits, and the property-settlement’s provisions pertaining to disability benefits were voided. The agreed order provides that appellee should |2receive all of appellant’s “current military retirement pay, one-half of which is now $3401 per month, and he shall pay an additional $200 per month toward the arrearage.” The order proclaimed that appellant owed an arrearage of $78,128.46.

The parties’ dispute arose when appellee filed a motion for contempt on November 13, 2008, because she was no longer receiving appellant’s military-retirement benefits. She claimed that appellant had restructured his military retirement so that he was no longer was drawing retirement pay, but was receiving only disability benefits, and in turn, appellee was no longer receiving appellant’s retirement benefits. Appellant responded, admitting that he was receiving “100% VA disability” and claiming that res judicata and collateral estoppel applied. He asserted that the trial court had already found in the agreed order that the military-disability benefits were not reachable by appellee and that he could not be ordered to pay her additional sums to compensate for the loss of the retirement, citing the Uniformed Services Former Spouses Protection Act (USFS-PA), 10 U.S.C. § 1408 (2000 and Supp. I).

The trial court found in appellee’s favor, reasoning as follows:

8. The record is not clear if the payments ceased because the military increased the [appellant’s] disability rating or because it approved him for Combat Related Special Compensation (CRSC) benefits.
9. [Appellant] contends that both Veterans Administration disability benefits and CRSC benefits are specifically identified as; “benefits other then retirement pay”, and that the Uniformed Services Former Spouses Protection Act |s(USFSPA), while allowing state courts to divide military retirement as marital property, does not allow the trial court to divide disability payments. [Appellant] agreed that an increase in either Veterans Administration disability or CRSC benefits would result in a corresponding reduction of his retirement benefits. Under either application, it is undisputed that the [appellant’s] military retirement benefits were terminated due to his increased disability rating and the resulting increase in disability compensation was substituted for his previous retirement benefits. There was testimony that the [appellant] had at some point applied for the CRSC benefits and upon receiving these benefits, it was understood that there would be a termination in his corresponding retirement benefits. The [appellee] argues the [appellant’s] former attorney clearly stated on the record that, “to get V A disability you have to apply for it.” In other words, the [appellant], by his affirmative and voluntary action of applying for his disability benefits, knowingly impacted his future military retirement benefits.

The trial court then performed an analysis of Surratt v. Surratt, 85 Ark.App. 267, 148 S.W.3d 761 (2004), where this court held that, generally, when a property-settlement agreement in a divorce proceeding divides military-retirement benefits, the non-military spouse has a vested interest in his or her portion of those benefits as of the date of the court’s decree and that the vested interest cannot thereafter be unilaterally diminished by an act of the military spouse.

The trial court found that the instant case was factually similar to Surratt, and stated as follows:

12. Here, there is a definite stated amount at the time that the retirement benefits to the [appellant] were terminated. These benefits were terminated by the [appellant’s] voluntary and intentional waiver of retirement benefits in order to receive increased disability payments. The retirement benefit as of August 1, 2007, was $962.06 per month.
13. In Surratt, the Property Settlement Agreement did not provide the ex-wife with an exact amount, but the trial court determined that sum by applying the computation language contained in their Property Settlement Agreement to the facts. This Court will apply the same procedure to the facts of this case. The |4$962.06 amount mentioned above was the total monthly payment being received by the [ap-pellee] from the [appellant] and the DOD for the [appellant’s] military retirement pay when the [appellant’s] military retirement pay benefit was terminated.
14. $962.06 is the amount that the [appellant] shall continue to pay to the [appellee] each month pursuant to parties’ agreement set forth in their Divorce Decree and the 2007 Agreed Order....

The trial court further determined that the property-settlement agreement and the agreed order required specific payments, and this contractual agreement created a vested right in appellee. Because appellee’s right to.the specific payments was vested, the trial court reasoned that appellant could not be allowed to subvert that right by intentionally substituting disability payments for military-retirement benefits. From this order, appellant filed a timely notice of appeal, and this appeal followed.

The standard of review in equity cases is de novo. Surratt, supra. We review both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sift the evidence to determine what the finding of the trial court should have been and render a decree upon the record made in the trial court. Id. The trial court’s findings of fact will not be reversed unless they are clearly erroneous. Id.

Appellant attacks the trial court’s decision in two arguments. First, he contends that the agreed order bars appellee’s claim. He asserts that in May and December 2006, the parties went before the trial court arguing the issue of whether appellant was in contempt for reducing his military retirement by accepting greater disability payments, thereby reducing appellee’s monthly benefits. Res judicata bars subsequent litigation of questions of law which |swere not litigated, but could have been determined in the original litigation. American Standard, Inc. v. Miller Eng’g, Inc., 299 Ark. 347, 772 S.W.2d 344 (1989).

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Cite This Page — Counsel Stack

Bluebook (online)
2011 Ark. App. 53, 381 S.W.3d 82, 2011 Ark. App. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/provencio-v-leding-arkctapp-2011.