In re Marriage of Green, 021220 OKCIL, 117451

Docket Nº:117451
Opinion Judge:JANE P. WISEMAN, CHIEF JUDGE
Party Name:IN RE THE MARRIAGE OF: RICHARD L. GREEN, Plaintiff/Appellant, v. JANICE GREEN, Defendant/Appellee.
Attorney:Christopher L. Kannady, Terry M. McKeever, FOSHEE & YAFFE, Oklahoma City, Oklahoma, for Plaintiff/Appellant Virginia Henson, PHM LAW GROUP, P.C., Norman, Oklahoma, for Defendant/Appellee
Judge Panel:REIF, S.J. (sitting by designation), and THORNBRUGH, P.J., concur.
Case Date:February 12, 2020
Court:Court of Appeals of Oklahoma
 
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2020 OK CIV APP 12

IN RE THE MARRIAGE OF: RICHARD L. GREEN, Plaintiff/Appellant,

v.

JANICE GREEN, Defendant/Appellee.

No. 117451

Court of Appeals of Oklahoma, Division IV

February 12, 2020

Mandate Issued: 03/11/2020

APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY, OKLAHOMA HONORABLE STEPHEN BONNER, TRIAL JUDGE

Christopher L. Kannady, Terry M. McKeever, FOSHEE & YAFFE, Oklahoma City, Oklahoma, for Plaintiff/Appellant

Virginia Henson, PHM LAW GROUP, P.C., Norman, Oklahoma, for Defendant/Appellee

JANE P. WISEMAN, CHIEF JUDGE

¶1 Husband Richard L. Green appeals the trial court's order denying his motion for a military pension division order. After review, we affirm the trial court's decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 On January 29, 1996, Husband and Wife Janice C. Green entered into an agreed divorce decree which, among other things, granted her one-half of Husband's military retirement. An agreed "order dividing military retired pay" was entered the same day stating in relevant part: b. The Court FINDS that the parties have jointly agreed that [Wife] is entitled to her marital interest in the [Husband's] United States Navy Retirement which should be equitably divided. [Husband] served approximately 23 years and 5 months. c. The parties hereto were legally married on the 27th day of July, 1970 and legally divorced on January 29, 1996; accordingly, this was a marriage in excess of 20 years duration wherein [Husband] served 19 years of creditable service while married.

d. The parties agree that the Court approves said agreement whereby [Wife] is awarded one-half of [Husband's] retired pay attributable to [his] military service as her sole and separate property, as hereinafter set forth, and [Husband] hereby is divested of all right, title and interest in and to [Wife's] portion of the military retired pay to be calculated as follows: One-half of [Husband's] retirement pay.

The trial court further found that the order "shall be deemed to be a 'Qualified Domestic Relations Order' pursuant to the Uniformed Services Former Spouses' Act, P.L. 97-252, 10 U.S.C. §1408." Because Husband had retired before the divorce, Wife was entitled to begin receiving monthly distributions immediately. The order also states that the monthly amount would be increased "each time [Husband] receive[d] any adjustment to his retired pay" and that the "share shall be 50% of the increase in [Husband's] payments." The order further says that if "[Wife] does not receive the amount she is entitled to receive under the Order, [Husband] shall pay directly to [Wife] the amount [she] is entitled to receive if [Husband] receives [her] portion."

¶3 The United States Department of Veterans Affairs determined Husband was 100% disabled and awarded him disability pay effective June 1, 2001, more than five years after the divorce. Because a service member at that time had to waive retirement in order to receive disability, Wife stopped receiving her share of Husband's retirement from the military's Defense Finance and Accounting Service (DFAS) and Husband received only disability payments from the VA.

¶4 However, Congress passed legislation effective January 1, 2004, allowing particular classes of eligible retirees to receive both retired and disability pay which is known as Concurrent Retirement and Disability Pay (CRDP), 10 U.S.C.A. § 1414. Thereafter, Husband began receiving his military retirement and VA disability payments. However, when the military retirement payments resumed, Wife did not receive her portion of those benefits pursuant to the divorce decree. In a letter dated September 6, 2013, DFAS notified Husband that it received an application from Wife for payment from his retirement pay. In a letter dated October 25, 2016, DFAS notified Husband that an audit of his CRDP account shows it was "in an overpaid status in the amount of $91, 538.00 for the time period of January 1, 2004 through August 31, 2013." The letter further advised that the "overpayment was caused by an underpayment to [his] former spouse due to time periods that Former Spouse deductions were not made from [his] monthly...

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