In re Marriage of Pierce

• Decision Date: 25 June 1999
• Docket Number: No. 80,115.,80,115.
• Citation: 26 Kan. App.2d 236,982 P.2d 995
• Parties: In the Matter of the Marriage of PRISCILLA A. PIERCE, Appellant, and DOUGLAS A. PIERCE, Appellee.
• Court: Kansas Court of Appeals

26 Kan. App.2d 236

982 P.2d 995

In the Matter of the Marriage of PRISCILLA A. PIERCE, Appellant, and DOUGLAS A. PIERCE, Appellee.

No. 80,115.

Court of Appeals of Kansas.

Opinion filed June 25, 1999.

Ross D. Alexander, of Alexander, Floodman & Casey, Chartered, of Wichita, for the appellant.

N. Trip Shawver, of Wichita, for the appellee.

Before LEWIS, P.J., GREEN and KNUDSON, JJ.

LEWIS, J.:

The parties to this lawsuit, Priscilla and Douglas Pierce, were married twice and divorced twice. This action does not concern their first marriage or their first divorce. It deals with Priscilla and Douglas' second marriage and their second divorce, which was granted in 1993. The parties apparently entered into a property settlement agreement at the time of the divorce. In 1997, Priscilla filed a motion which would have, in effect, modified or amended the original property settlement agreement. The trial judge denied the motion, and Priscilla appeals.

At the time of the divorce, Douglas had retired from the United States Air Force. He was receiving some retirement pay for his years of service. Under the parties' property settlement agreement, Priscilla was awarded, among other things, "eighteen twentieths (18/20ths) of one-half (½) of the military retirement benefits of the Respondent, pursuant to 10 USC 1408. From the amount due the Petitioner the Air Force or Defense Accounting Agency shall deduct the cost of the Survivor Benefit Plan of which the Petitioner is the beneficiary." (Emphasis added.)

The language quoted above is the only reference to Priscilla's having any interest in the retirement pay. The agreement does not specify that she is to receive any certain amount per month, and it does not specify the length of time for which she is to receive the payment. In addition, there is nothing in the agreement which prevents Douglas from converting his retirement pay to disability benefits.

After the divorce decree was entered, Priscilla filed a motion and the trial court responded by entering an order designed to secure to Priscilla her payments from Douglas' retirement benefits until the Qualified Domestic Relations Orders had been accepted by the United States Air Force.

We are unable to determine whether the parties reduced their property settlement agreement to writing. We assume they dictated it into the record and that the trial court included it in its decree of divorce. In any event, the trial court considers the agreement set forth in the decree to be the settlement agreement of the parties. The court, in its journal entry, states:

"IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECKED [sic] that the above findings and agreements hereinabove set forth be and hereby are made valid and binding orders of this Court. That pursuant to K.S.A. 60-1610, this agreement may not be amended or modified except by the written agreement and consent of each party hereto." (Emphasis added.)

The trial court's journal entry and decree of divorce was signed by Priscilla and Douglas, as well as by their respective attorneys. As we pointed out earlier, there was no indication that Priscilla was to receive any guaranteed amount from Douglas' retirement. Indeed, there is nothing in the record to indicate what she was getting. However, her attorney has commented that she was receiving $600 per month. For the purposes of this appeal, we will assume that figure is correct.

At some point, Douglas' retirement pay was converted to or became disability pay. We cannot tell from the record how this occurred. It may have been the result of a request from Douglas or it may have been done by the Veterans Administration (VA) in response to his deteriorating physical condition. In any event, apparently Douglas' physical condition reached a point at which all of the benefits he was receiving were disability benefits.

According to Priscilla's attorney, she was receiving $600 one month and nothing the next. In order to rectify that, Priscilla filed a motion which stated:

"COMES NOW petitioner, Priscilla A. Pierce, and moves the Court to compel respondent to reinstate his military retirement pay so that petitioner can continue to receive her 45% share per the contractual agreement of the parties as set out in the Decree of Divorce herein, or in the alternative, to require respondent to pay to petitioner what she would otherwise receive if respondent had not breached his contractual agreement with petitioner."

The trial court denied the motion, and Priscilla appeals.

We begin by noting that at the time the motion was filed, the decree of divorce had been a final order for nearly 4 years. The only way to grant the relief which Priscilla sought would have been to modify and change the property settlement agreement. Other possibilities are not properly considered divorce remedies.

The ability of Kansas trial courts to reach military retirement pay has been a troublesome process. In McCarty v. McCarty, 453 U.S. 210, 69 L. Ed.2d 589, 101 S. Ct. 2728 (1981), the United States Supreme Court precluded state courts from distributing any portion of a military nondisability retirement pension to the former spouse of a military retiree. 453 U.S. at 235-36.

In 1982, and in response to McCarty, Congress enacted the federal Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1408. That statute provides: "A court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." 10 U.S.C. § 1408(c)(1) (1994). The trouble in this case, however, can be traced to something Congress failed to do. The statute enacted by Congress specifically excludes from the definition of "disposable retired pay" disability benefits which are deducted from the retired member's pay. 10 U.S.C. § 1408(a)(4)(C) (1994).

The question of the consequences of disability pay not being "disposable retired pay" was answered by the Supreme Court in Mansell v. Mansell, 490 U.S. 581, 104 L. Ed.2d 675, 109 S. Ct. 2023 (1989). It is this decision which the trial court relied upon in denying Priscilla's motion. In Mansell, the husband was receiving both retirement pay and disability pay at the time of the parties' divorce. He agreed to pay his wife 50% of his total retirement pay, which included a portion of his disability payments. After the divorce, he went back to court, asking the court to remove any requirement that he share his disability pay with his wife. The motion was denied by the trial court, and Mansell was appealed to the United States Supreme Court.

The question presented to the Supreme Court was whether state courts, pursuant to 10 U.S.C. § 1408, could treat as divisible property upon divorce military retirement pay waived by the retiree in order to receive veterans' disability benefits. 490 U.S. at 583.

The court reasoned that Congress had enacted 10 U.S.C. § 1408 in direct response to McCarty. The USFSPA controlled the extent military benefits could constitute divisible marital property and defined disposable retired pay to specifically exclude waived amountsto receive veteran's disability payments. The Court's language was precise and limited; it permitted state courts to treat disposable retired pay as divisible marital property; however, state courts were forbidden to treat total retired pay as community property. The Court construed the USFSPA as not granting state courts the power to treat veterans' disability benefits as marital property divisible under state law. Mansell makes it perfectly clear that the state trial courts have no jurisdiction over disability benefits received by a veteran. The trial court in this case cannot order Douglas to change the payments back to retirement benefits, and it cannot order him to pay his disability benefits to Priscilla. We conclude the court may not do indirectly what it cannot do directly.

We are unable to conclude that, in the present context, the trial court has any method of granting relief to Priscilla. Douglas has not violated the terms of the property settlement agreement. There is absolutely nothing in that agreement that forbids Douglas from waiving all of his retirement pay in order to receive his disability benefits. There is no set monthly amount which Priscilla was to receive under the agreement. There is no guarantee by Douglas, by the Air Force, or by anyone else as to the length of time the retirement pay would exist. This very unambiguous agreement simply gives Priscilla 18/20ths of one-half of Douglas' retirement pay. Although it does not say so, we presume that Priscilla would receive this amount so long as retirement pay was paid. It appears that she did so. As of this date, Douglas has no retirement pay, but if he did, Priscilla would receive 18/20ths of one-half of that pay. It should have been perfectly obvious to anyone concerned in 1993 that if Douglas waived all of his retirement pay for a VA disability pension, Priscilla would get 18/20ths of one-half of nothing. Despite this fact, nothing was put in the agreement to protect Priscilla from what appears to have been an absolute right and option which Douglas could exercise with regard to his retirement pay. Again, we do not know whether the retirement pay was waived voluntarily by Douglas or was simply waived by the VA due to his deteriorating physical condition.

The agreement entered into by the parties could not "be amended or modified except by the written agreement and consent of each party hereto." Priscilla asks that we violate that provision of the agreement, but we are not inclined to do so.

If there is relief for Priscilla from the judgment entered by the court, it would be found under K.S.A. 60-260(b):

"On motion and upon such terms as are just, the court may relieve a party or said party's legal representative from

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