Hutton v. Hutton, 2002-SC-0462-DG.
| Decision Date | 23 October 2003 |
| Docket Number | No. 2002-SC-0462-DG.,2002-SC-0462-DG. |
| Parties | William HUTTON, Appellant, v. Erika HUTTON, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
The sole issue before the Court in this case is whether remarriage that ends in annulment terminates a former spouse's obligation to pay future maintenance, where the parties' separation agreement does not provide otherwise. We hold that it does and overrule McCord v. McCord, Ky.App., 558 S.W.2d 624 (1977), which holds that the issue is an equitable matter that is left to the discretion of the trial court.
Appellee, Erika Hutton, and Appellant, William Hutton, were married about twenty-one years before their union was dissolved in February, 1991, by the entry of a divorce decree in the Hardin Circuit Court. Pursuant to the decree, Erika was awarded a percentage of William's military retirement pay according to the formula set forth in Poe v. Poe, Ky.App., 711 S.W.2d 849 (1986). Because William had not yet retired at the time the decree was entered, the trial court could not fix the amount of William's retirement pay that Erika was entitled to. Additionally, the trial court awarded Erika maintenance in the amount of $800.00 per month which was to continue until her death, remarriage, or the distribution of military retirement benefits. This last termination event, however, was qualified in the decree.
The decree provided in pertinent part that
[r]eceipt of the military retirement will be a distribution of marital property which would be offset dollar-for-dollar against the maintenance. Since the amount of military retirement is not known, when it is determined, the difference between the $800.00 per month and the military retirement will continue to be a maintenance obligation of the husband to the wife under the terms previously indicated.
The amount of the maintenance award was reduced to $695.00 in a subsequent court order. About a year-and-a-half later, William retired and the amount of Erika's share of his retirement could then be calculated. The trial court entered a supplemental final decree that awarded Erika 41.36% (calculated using the Poe formula) of William's "disposable retired or retainer pay." Applying this percentage yielded an amount of $866.00 as Erika's share of William's retirement benefits. According to the Commissioner's Report, shortly thereafter, "Erika's share of William's retirement benefits began to shrink for the reason that part of William's retirement was converted to disability through the Veterans Administration." See Davis v. Davis, Ky., 777 S.W.2d 230, 232 (1989). (Veterans' disability benefits that are received in lieu of military retirement pay pursuant to an election to waive retirement benefits, are non-marital property.)
Based on the reduction in her share of retirement benefits, Erika made a motion to increase William's maintenance obligation. William opposed the motion on several grounds including the argument that his obligation to pay maintenance was terminated upon Erika's subsequent remarriage. The record is not clear as to when Erika remarried or when the marriage was annulled, but there is no dispute that both the remarriage and annulment occurred sometime before the Trial Commissioner entered his report. While the Commissioner's Report recommended denying Erika's motion, it noted that under McCord, supra, remarriage does not absolutely terminate a former spouse's maintenance obligation when the remarriage of the party receiving maintenance is annulled. See McCord, 558 S.W.2d at 626. Rather, the reason that the report recommended denying the motion was that, before William's retirement pay was reduced, Erika was receiving an amount in excess of the maintenance award of $695.00 a month. The report, however, left the door open for future motions for reinstatement should conditions materially change. Upon review of the report and consideration of the...
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