In re Martin

Decision Date15 March 2013
Docket NumberNo. 106,912.,106,912.
Citation296 P.3d 1140
PartiesIn the Matter of the MARRIAGE OF James J. MARTIN, Appellant, and Tina M. Martin, Appellee.
CourtKansas Court of Appeals


Appeal from Geary District Court; David R. Platt, judge.

N. Trip Shawver, of Wichita, for appellant.

V. Linnea Alt, of Altenhofen & Alt, Chartered, of Junction City, for appellee.




James and Tina Martin were divorced, and a marriage settlement agreement was incorporated in the final divorce decree. Several years later, Tina filed a motion and affidavit under K.S.A. 20–1204a, alleging that James failed to comply with several provisions of the divorce decree. After a hearing, the district court found James in contempt. James filed a timely appeal. We affirm in part, reverse in part, and remand with directions.

Factual and Procedural Background

James and Tina were married on October 28, 1988. Two children were born of the marriage. On December 21, 2004, after about 16 1/2 years of marriage, James filed a petition for divorce in Geary County District Court. James had entered the United States Army in February 1990, and during the divorce proceedings, he was on active duty in Iraq.

On May 9, 2005, the parties executed a settlement agreement. A few days later, on May 20, 2005, the district court granted the divorce, approved the agreement, and incorporated it into the final divorce decree. The settlement agreement disposed of the parties' personal property and marital indebtedness. Relevant to this appeal, James agreed to be “solely responsible” for the couple's Discover card debt totaling $5,423.37. The parties also agreed to designate a 2005 Ford Escape as Tina's property, and James agreed to pay the outstanding indebtedness on this vehicle as spousal maintenance.

Under the settlement agreement, Tina was entitled to receive a standard percentage share of James' disposable military retirement equal to half of the retirement accrued during the marriage. The parties also agreed that James would designate Tina as his beneficiary under the Survivors Benefit Plan (SBP), and Tina would reimburse James for the costs associated with this arrangement.

The settlement agreement established joint legal custody of the two minor children, with Tina serving as the custodial parent. The agreement also defined the parties' obligations and rights regarding the care and custody of the children. Relevant to this appeal, James agreed to provide the children with medical and dental benefits to which they were entitled because of his military service or retirement. James also agreed to pay a 65.5% share and Tina agreed to pay a 34.5% share of their children's necessary medical expenses not covered by insurance.

Almost 6 years after the divorce, on March 18, 2011, Tina filed a motion and affidavit under K.S.A. 20–1204a, alleging that James failed to comply with certain provisions of the divorce decree. In particular, Tina contended that James breached the settlement agreement with regard to the Ford Escape and Discover card indebtedness, distribution of his military retirement benefits, and payment of an outstanding dental bill for their children. On March 24, 2011, the district court ordered James to appear and show cause why he should not be held in contempt.

A show cause hearing was held on June 28, 2011. After hearing James' testimony and reviewing the file and admitted exhibits, the district court found James in contempt for failing to comply with the divorce decree as alleged by Tina. On September 7, 2011, the district court journalized its ruling and reiterated its findings.

James filed a motion to reconsider the district court's judgment relating to the issues of James' military disability retirement benefits and survivor benefit plan premiums. Before the district court could docket the motion to reconsider, however, James filed a timely appeal. Because the judgment was not yet final, our court remanded the case to allow the district court to rule on James' posttrial motion. The district court denied James' motion on all grounds except to correct a mathematical error. We retained jurisdiction over James' appeal.

Standards of Review

James appeals the district court's contempt findings and sanctions. Civil contempt is “the failure to do something ordered by the trial court for the benefit or advantage of another party to the proceeding.” In re Marriage of Brotherton, 30 Kan.App.2d 1298, 1301, 59 P.3d 1025 (2002). In our consideration of this appeal, several legal standards are applicable.

When reviewing a contempt proceeding, an appellate court examines the factual findings underlying the district court's decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings, i.e., whether the alleged conduct is contemptuous, under a de novo standard. See Hodges v. Johnson, 288 Kan. 56, Syl. ¶ 7, 199 P.3d 1251 (2009); In re Marriage of Brotherton, 30 Kan.App.2d at 1301. “Whether a particular act or omission is contemptuous depends upon the nature of the act or omission as well as all surrounding circumstances, including the intent and good faith of the party charged with contempt. [Citation omitted.] In re Marriage of Brotherton, 30 Kan.App.2d at 1302.

“Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined. [Citation omitted.] Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009). “If there is substantial evidence to support the findings, it is of no consequence that there may have been contrary evidence adduced which, if believed, would have supported a different finding. [Citation omitted.] Clark v. Clark, 236 Kan. 703, 704, 696 P.2d 1386 (1985). When reviewing factual findings, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. Frick Farm Properties, 289 Kan. at 709.

Finally, appellate courts review the appropriateness of the sanctions imposed for contempt under an abuse of discretion standard. In re Marriage of Brotherton, 30 Kan.App.2d at 1301. A judicial action constitutes an abuse of discretion,

“if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).

Failure to Pay A Portion of Military Disability Retirement Benefits

James contends the district court erred when it held him in contempt for failing to pay a portion of his military disability retirement benefits to Tina. He asserts that under federal law his benefits are not divisible marital assets subject to the jurisdiction of Kansas courts. Whether jurisdiction exists is a question of law over which our court's scope of review is unlimited. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P .3d 642 (2010).

Before addressing the merits of James' argument, it is necessary to review the federal statutory scheme governing military retirement and the divisibility of such benefits in divorce proceedings.

Under federal law, members of the Armed Forces may retire after serving for a specified period. Mansell v. Mansell, 490 U.S. 581, 583, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). A United States Army officer qualifies for retirement after at least 20 years of service, provided the officer spent at least 10 years in active service as a commissioned officer. 10 U.S.C. § 3911(a) (Supp. V 2011).

The Secretaries of the Military Departments also have authority, under Title 10, U.S.C. Chapter 61, to retire or separate a member of the Armed Forces if the member suffers from a physical disability, which renders the member unfit to perform the duties of their office, grade, rank, or rating. A servicemember may receive a permanent disability retirement—commonly referred to as Chapter 61 retirement—if the Secretary makes the following determinations: (1) Based upon accepted medical principles, the disability is of a permanent and stable nature; (2) The disability is not the result of intentional misconduct or willful neglect by the member; and (3) The member has either a Department of Defense disability rating of 30% or greater or at least 20 years of service. 10 U.S.C. § 1201 (Supp. V 2011).

Servicemembers may select the more favorable of two available options for calculating their monthly disability retirement pay. 10 U.S.C. § 1401 (Supp. V 2011). Specifically, the benefit may be calculated by either multiplying the servicemember's retired pay by 2 1/2% of the years of service creditable to the member, or by multiplying the member's retired pay by the percentage of disability on the date when the member retired. 10 U.S.C. § 1401. The portion of the member's retirement pay which is attributable to his or her disability is tax exempt. As a result, if the servicemember chooses to calculate his or her pay according to length of service, any benefits received above and beyond the amount of pay computed on the basis of the percentage of disability formula is subject to federal income tax. 10 U.S.C. § 1403 (2006); 26 U.S.C. § 104 (2006).

If a service member suffers from a disability with a Department of Defense rating of at least 30%, but the disability has not yet been determined to be of a permanent and stable nature, the Secretary may place the member on the Temporary Disability Retired List (TDRL). 10 U.S.C. § 1202 (2006). While on the TDRL, the servicemember is entitled to receive ...

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