Roberto J. Felx v. Melissa Rivera

• Court: Court of Appeals of Kentucky
• Decided: December 21, 2022
• Docket: 2020 CA 000872
• Status: Unknown

Opinion

RENDERED: DECEMBER 22, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-0872-MR

ROBERTO J. FELIX APPELLANT

APPEAL FROM BELL CIRCUIT COURT v. HONORABLE ROBERT COSTANZO, JUDGE ACTION NO. 18-CI-00238

MELISSA RIVERA APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Roberto Felix appeals from the Bell Circuit Court’s

orders regarding the distribution of a portion of his military retirement pay and

failure to make the reduction of his child support payments retroactive. He also

argues that the circuit court erred by not allowing him to appear telephonically at a

hearing given that he resided in Puerto Rico.

We reverse the orders which denied Felix’s motion to participate

telephonically in the court’s initial hearings, awarded a faulty amount of Felix’s retirement pay to be distributed and, thus, awarded an erroneous amount of child

support and remand with instructions to make both awards retroactive.

Felix and Melissa Rivera were married on May 16, 1995, in Puerto

Rico. They had two children, one of whom was still a minor during the events on

appeal. Twelve years later, the parties were domiciled in New Mexico where

Rivera filed for divorce in 2007. The parties entered into a Stipulated Marital

Settlement Agreement which was filed on April 29, 2008. The agreement created

a full settlement of all property, visitation, child support obligations, and retirement

benefit issues and was incorporated into a final decree by the court in New Mexico

on September 25, 2008.

In relevant part, as part of the property division, Felix was to pay

Rivera a portion of his future military retirement pay. The pertinent part of that

portion of the settlement agreement is:

The former spouse [Rivera] is awarded a percentage of the member’s disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is 160 months of marriage during the member’s creditable military service – 240 months. The former spouse is awarded 33.3 percent of the member’s military retired pay. Should respondent serve beyond 240 months Defense Finance and Accounting Systems (DFAS), will adjust this percentage downward accordingly by military law, and this Order shall in no way be construed or interpreted to conflict with military law and DFAS regulations.

-2- The DFAS referenced in the agreement is the federal agency which processes

court-ordered garnishments for military retirees who are themselves being paid by

the Defense Finance and Accounting Service.

Following the graduation of their oldest child from high school in

2015, the New Mexico court modified Felix’s original child support obligation and

Felix was ordered to pay $871.00 per month to Rivera for support of the remaining

minor child. Rivera later moved to Bell County, Kentucky.

On June 8, 2018, Felix retired from active duty, after 282 months

(23.5 years) of service. Upon retirement, Felix’s income dropped, and he began

receiving $2,735.43 per month in gross retirement pay. Other than Felix testifying

by affidavit that he spoke to Rivera in May 2018 and told her to send DFAS “the

appropriate paperwork,” there is no record of either party making any attempts

prior to Felix’s retirement to have DFAS either calculate or process the required

post-retirement payments to Rivera in accord with their agreement.

In July 2018, Rivera filed a verified petition for registration and

enforcement of a foreign child custody order and marital settlement in Bell Circuit

Court. Felix was residing in Puerto Rico where the parties had married.

On August 6, 2018, Rivera supplemented her filing with a motion for

registration and enforcement seeking enforcement of both a prior child support

-3- award of $871.00 per month and “33.3 percent of [Felix’s] monthly military retired

pay.”

Without conducting a hearing, on August 27, 2018, the circuit court

entered an order, tendered by Rivera, which stated that Felix was to pay child

support in the amount of $871.00 per month as provided in an August 24, 2015

order entered in New Mexico, and “awarded 33.3 percent of Respondent’s monthly

military retired pay” to Rivera. In 2019, Rivera filed her first motion to hold Felix

in contempt for failing to abide by the circuit court’s order.

Felix, pro se, filed a response opposing Rivera’s motion citing that he

was now, after retirement, making much less money and attached a retiree account

statement showing his retirement pay as $2,735.43 (gross pay) and $2,557.17

(taxable income) and asserted that Rivera had not yet completed the paperwork

necessary for her to obtain her portion of his retirement.

Felix also filed a pro se motion for telephonic hearing. The circuit

court denied Felix’s motion to appear telephonically.

The circuit court conducted a hearing on October 14, 2019. Felix was

not present and not allowed to participate telephonically. The circuit court took

proof from Rivera. Upon inquiry by the circuit court, Rivera’s counsel advised

that her application to DFAS for payment from Felix’s retirement was “in the

process” and “pending.”

-4- On December 18, 2019, the circuit court entered its findings of fact,

conclusions of law, and order which found Rivera in contempt for failing to pay

the full award of child support and held that “[Rivera] was and is awarded $910.89

Per month from [Felix’s] retired military pay for the months beginning in July,

2018 through October, 2019.”

This was the first time any court or agency had made a calculation of

the monthly amount of Felix’s retirement to which Rivera was entitled. The circuit

court made its computation by simply multiplying $2,735.43 (the sum listed as

“gross pay” on the retiree account statement provided by Felix) by 33.3%.

Felix retained counsel who filed her appearance on December 23,

2019, together with a motion for a new trial or, in the alternative, to alter, amend,

or vacate the prior contempt order. All subsequent pleadings were made through

counsel. Felix’s counsel argued the circuit court erred in its decision regarding the

division of his retirement benefits and that its finding of contempt was

inappropriate.

At the hearing regarding this motion on January 13, 2020, Felix’s

counsel informed the court on the record that the “percentage was wrong”

regarding the retirement benefits since Felix had served for more than 240 months

(he had served for 282 months) prior to his retirement and therefore the court’s

calculation was incorrect.

-5- On February 7, 2020, the circuit court granted Felix’s motion

regarding its prior contempt finding but made no changes in its determination that

Rivera was owed 33.3% of Felix’s retirement pay.

On February 26, 2020, Felix filed a motion to modify his child

support obligation because the previous amount from the New Mexico court was

based on Felix’s income while he was working. Felix also argued that the parties

had previously worked out an agreement after he retired that he would pay $457 in

child support a month and argued that he was entitled to a lower child support

obligation post-retirement than the $871 the circuit court had previously ordered.

By an order entered March 9, 2020, the circuit did reduce Felix’s child

support obligation to $394 per month based upon his post-retirement income, with

this reduction made retroactive to February 26, 2020, when Felix’s counsel filed

his motion to modify his child support obligation.

A June 10, 2020 order, which denied Kentucky Rules of Civil

Procedure (CR) 59.05 relief, finalized the previous orders.1 Felix then appealed.

Felix argues that: (a) the circuit court’s calculations with regard to

Rivera’s portion of his retirement were incorrect and in disregard of both Kentucky

and federal law; (b) because the initial award of child support was incorrect, when

1 Felix previously tried to appeal from the December 18, 2019 order following the February 7, 2020 denial of his CR 59 motion, but that appeal was premature.

-6- it was reduced such reduction should have been retroactive to the initial award in

Kentucky; and (c) the circuit court’s refusal to allow Felix to participate by

telephone when he was acting pro se was arbitrary and an abuse of discretion.

Rivera did not file an appellee brief in this appeal.2

We discuss Felix’s third argument first as it relates to whether the

circuit court’s subsequent rulings are valid. Felix argues that the circuit court

abused its discretion in denying his request to appear telephonically in this matter

when he was acting pro se.

The test for abuse of discretion is whether the trial judge’s decision

was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. 5

Am.Jur.2d Appellate Review § 695 (1995); cf. Kuprion v. Fitzgerald, 888 S.W.2d

679, 684 (Ky. 1994). Applying this test, we conclude that the circuit court abused

its discretion in denying Felix the opportunity to appear telephonically given the

specific circumstances present here.

2 In accord with the CR 76.12(8)(c):

If the appellee’s brief has not been filed within the time allowed, the court may: (i) accept the appellant’s statement of the facts and issues as correct; (ii) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (iii) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.

We have determined to accept appellant’s statement of facts and issues as correct, which is the least serious of the penalties provided by rule. However, in many respects that is no penalty at all in this case where the facts appear to be largely uncontested and the issues revolve around questions of law and not fact.

-7- Felix was a retired veteran residing outside the continental United

States in Puerto Rico. There is no evidence that he had ever been in Kentucky.

His only known income was his retirement. The circuit court needed to be mindful

not only of the logistics of his travel, but of the parties’ financial resources.

Requiring Felix to fly to an airport in either Kentucky or Tennessee, rent a car,

drive to remote Bell County, obtain lodging, and then have to return to Puerto

Rico, all for a short hearing with only limited issues was an abuse of discretion

which was unfortunately compounded by the incorrect orders subsequently issued

by the circuit court.

While it would not be necessary or even prudent to allow all litigants

to avoid appearances in court and this Court generally remains deferential to the

discretion of lower courts in the conduct of their proceedings, this is a rare case in

which the circuit court abused its discretion in prohibiting Felix from participating

through alternative means. Even pre-COVID, when video and telephonic

conferencing was less prevalent, it should not have been difficult for the circuit

court to have allowed Felix to listen, and participate, at least by speaker phone.

Next, we consider Felix’s main argument, that the circuit court erred

in its calculation of how much of his retirement was due Rivera prior to DFAS

divvying up his retirement benefits and acting to distribute Rivera’s portion of

those future monthly payments to her. In considering this issue, we are mindful of

-8- the fact that the circuit court and our Court are both bound by the parties’ original

settlement agreement.

Settlement agreements “are a type of contract and therefore are

governed by contract law[.]” Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 105

(Ky. 2003) (citation omitted). Absent an ambiguity in the contract, it will be

“enforced strictly according to its terms[.]” Id. at 106 (citation omitted). In

negotiating the terms of a marital settlement agreement, “the parties may settle

their affairs with a finality beyond the reach of the court’s continuing equitable

jurisdiction elsewhere provided.” Brown v. Brown, 796 S.W.2d 5, 8 (Ky. 1990)

(emphasis added).

Generally, the interpretation of a contract, including determining

whether a contract is ambiguous, is a question of law for the courts and is subject

to de novo review.3 Morganfield Nat’l Bank v. Damien Elder & Sons, 836 S.W.2d

893, 895 (Ky. 1992); First Commonwealth Bank of Prestonsburg v. West, 55

S.W.3d 829, 835 (Ky. App. 2000); Fay E. Sams Money Purchase Pension Plan v.

Jansen, 3 S.W.3d 753, 757 (Ky. App. 1999). “Any contract or agreement must be

3 Neither party has provided any New Mexico authority which would conflict with our Commonwealth’s caselaw regarding the interpretation of contracts and marital settlement agreements. Being aware of no fundamental differences, we apply both Kentucky’s standard of review and our own precedent.

-9- construed as a whole, giving effect to all parts and every word in it if

possible.” City of Louisa v. Newland, 705 S.W.2d 916, 919 (Ky. 1986).

The parties’ arms-length agreement, originally accepted by the New

Mexico court in its decree, should have been recognized as “final” on the issue of

Rivera’s entitlement to a portion of Felix’s military retirement. The initial portion

of the settlement agreement which addresses the percentage of Felix’s retirement

pay which was awarded to Rivera states:

The former spouse [Rivera] is awarded a percentage of the member’s disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is 160 months of marriage during the member’s creditable military service – 240 months.

Therefore, Rivera’s percentage would be calculated as:

Disposable Military retired pay = $X

$X × .5 x 160 months of marriage / 240 months of service

$X × .5 x .666

$X × .333

That very calculation is solved for in the next clause of the agreement

which states: “The former spouse is awarded 33.3 percent of the member’s

military retired pay.” If Felix had retired at exactly 240 months, Rivera’s agreed

-10- upon award would have been one-third of Felix’s “disposable military retired

pay.”4 However, the settlement agreement further provides:

Should respondent serve beyond 240 months Defense Finance and Accounting Systems (DFAS), will adjust this percentage downward accordingly by military law[.]

Therefore, the parties agreed that Rivera was not to be awarded any

portion of Felix’s retirement which was earned or accrued following 240 months of

service. This makes logical sense as the retirement he would earn for additional

service would not be marital. The parties did not provide a method for a court to

determine exactly how Felix’s subsequently earned retirement would be excluded

and instead agreed to defer to DFAS to make such a calculation, so that Rivera

would receive an appropriate distribution of her marital share of Felix’s retirement.

It is well established that a former spouse is not entitled to any portion

of a service member’s non-marital retirement pay, as was discussed in Snodgrass

v. Snodgrass, 297 S.W.3d 878, 887-88 (Ky. App. 2009):

If a service member has not yet become eligible for retirement, any division of the gross retired pay will mean that the percentages of the nonmarital and marital portions will shift over time subsequent to the decree. The nonmarital percentage of the retired pay will necessarily increase and the marital portion decrease. Therefore, absent the service member’s agreement, such

4 The term in the agreement, “disposable military retired pay,” is not defined in the agreement and not necessarily the same amount as Felix’s “gross retirement pay” which was used by the circuit court in its calculation.

-11- a division will necessarily become unjust as a function of mathematics.

...

Lisa is not entitled to share in any of the nonmarital portion of Guy[’s] retired pay. See Foster v. Foster, 589 S.W.2d 223, 225 (Ky. App. 1979) (non-pensioner spouse “not entitled to share in any pension benefits earned after divorce and before retirement[.]”); McGinnis v. McGinnis, 920 S.W.2d 68, 71 (Ky. App. 1995) (“value of a pension, if any, should therefore be marital property for the portion accrued during coverture”), quoting Poe v. Poe, 711 S.W.2d 849, 855 (Ky. App. 1986). Since we presume the lower court followed the law, see Hilen v. Hays, 673 S.W.2d 713, 717 (Ky. 1984), we conclude the decree did not intend to award Lisa 46% of the entirety of Guy’s military retired pay, nonmarital and marital alike.

In Snodgrass, the Court was faced with DFAS misinterpreting a

judgment award and thus calculating a sum that was not in comportment with the

decree. Here it was the circuit court that made a calculation contrary to the decree.

While we know that the circuit court’s calculation was incorrect, we

are still left with determining what actual percentage of Felix’s retirement should

be awarded to Rivera. The answer is found in the parties’ agreement giving

deference to DFAS to make the needed calculations consistent, rather than in

conflict “with military law and DFAS regulations.”

-12- Since this Court had not been informed of DFAS’s computations,5 and

otherwise being without the necessary information to mathematically quantify

Rivera’s share, we too must defer to DFAS’s initial calculations before we could

even attempt to determine if such DFAS generated figures are in comportment

with both the law and the decree as we did in Snodgrass.

This does not mean that the circuit court was without recourse in

ensuring that Rivera received her agreed upon percentage of Felix’s retirement.

The circuit court’s attempt to fashion what it considered to be a fair remedy in this

circumstance may have seemed facially logical but was premature and

unsupported. Had there been a showing that Felix had intentionally thwarted or

delayed Rivera’s attempt to acquire her share of the retirement benefit, or that

Rivera’s financial condition required some interim payment, the circuit court might

have taken temporary measures as necessary to ensure that Rivera would not go

wanting or otherwise be financially damaged. However, in this matter, there is no

such evidence.

Given that Rivera’s award was part of the parties’ property settlement

agreement, and not maintenance, deference should have been given to the DFAS to

first compute Rivera’s monthly award, and then the circuit court could have

5 Given that Rivera’s application to DFAS was “in the process” and was “pending” as far back as October, 2019, we expect that it has at least generated its calculations by the time of this Opinion.

-13- ordered Felix to pay to Rivera a lump sum (or make periodic payments) to

compensate her for the amount of the retirement benefits he previously received

which were due Rivera. Any payments ordered and paid prior to DFAS’s

calculations are subject to revision as Rivera had no right to any amounts in excess

of what was provided for in their settlement agreement.

Felix’s final argument is that the circuit court’s initial calculation of

child support was “manifestly unjust” since it used Felix’s pre-retirement income

in its calculations, and he was entitled to a retroactive adjustment back to August

27, 2018, when the circuit court first ordered him to pay $871 a month in child

support. We agree.

A trial court enjoys “broad discretion in the establishment,

enforcement, and modification of child support.” Bjelland v. Bjelland, 408 S.W.3d

86, 87 (Ky. App. 2013). Accordingly, we review child support matters under an

abuse of discretion standard, and we will only disturb the trial court’s findings of

fact if they are clearly erroneous. Id. An abuse of discretion will only be found

when a trial court’s decision is arbitrary, unreasonable, unfair, or unsupported by

sound legal principles. Bell v. Bell, 423 S.W.3d 219, 222 (Ky. 2014).

The circuit court, in the initial stage of the litigation, determined to

enforce the last order regarding child support found in the record from the New

Mexico court. What was not considered, since Felix was not allowed to participate

-14- telephonically, is that he and Rivera had allegedly already agreed to what Felix

would pay in child support following his retirement. Parties have the power to

orally modify child support, and courts have the power to recognize such

agreements when proven with certainty, they are fair and equitable, and if they

would have been reasonably granted had modification been sought. See Price v.

Price, 912 S.W.2d 44 (Ky. 1995). Had the court inquired as to the parties’ oral

agreement but determined not to enforce it, the initial child support order would

still be erroneous as it utilized Felix’s pre-retirement income figures which were

obviously no longer correct. Felix is correct that he was entitled to have his child

support obligation modified after he retired and his income significantly declined.6

Accordingly, we reverse and remand the Bell Circuit Court’s orders

regarding the child support and retirement benefits awarded to Rivera.

Furthermore, this matter will be stayed pending DFAS’s determination regarding

Rivera’s awarded portion of Felix’s retirement benefits. Once DFAS has made its

determination, if either party objects to DFAS’s computation, then in that event the

circuit court will only attempt to modify DFAS’s award by entering written

findings setting forth both the legal and factual reasons why DFAS’s determination

6 Subsequent changes to Felix’s and Rivera’s incomes once Felix’s retirement is distributed pursuant to the DFAS’s calculations could make further modification of prospective child support appropriate. See Kentucky Revised Statutes (KRS) 403.213(2) (discussing presumptions regarding modification of child support based on changes to income).

-15- was incorrect or not in comportment with the parties’ marital settlement agreement

and the circuit court’s authority to order a modification of DFAS’s award.

Subsequent to DFAS’s determination, and based upon how that determination

affects both parties’ respective incomes, child support shall be calculated and made

retroactive to the date of the filing of Rivera’s initial petition in Bell County.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE FILED.

Jennifer F. Nagle Keith A. Nagle Middlesboro, Kentucky

-16-