Kulscar v. Kulscar, 82558

• Decision Date: 02 May 1995
• Docket Number: No. 82558,No. 3,82558,3
• Citation: 896 P.2d 1206,1995 OK CIV APP 64
• Parties: 1995 OK CIV APP 64 Kenneth Lee KULSCAR, Appellant, v. Cynthia Renee KULSCAR, Appellee. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1206

896 P.2d 1206

1995 OK CIV APP 64

Kenneth Lee KULSCAR, Appellant, v. Cynthia Renee KULSCAR, Appellee.

No. 82558.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma Division No. 3.

May 2, 1995.

Appeal from the District Court of Oklahoma County; David M. Harbour, Judge.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

Kenneth Lee Kulscar, Oklahoma City, pro se.

Richard Morris, Oklahoma City, for appellee.

OPINION

ADAMS, Judge:

Appellant and Appellee were divorced in 1989. As part of the division of property, the trial court awarded Appellee:

[A]n amount of money equal to NINE TWENTIETHS [ 9/20TH] of the gross retirement of the [Appellant] as and for division of property interests acquired by the parties in, to and of the retirement pension of the [Appellant], payable monthly to the [Appellee] by the [Appellant], at such time as the [Appellant] retires from the active military service and becomes eligible and commences to receive such retirement funds from the United States Air Force. (Emphasis in original.)

In October of 1992, Appellant left active military service with the United States Air Force and joined the Air Force Reserve under a special incentive program enacted in 1991 to reduce the size of the United States military. Appellant received a Special Separation Benefit (SSB) lump sum payment equal to 15 per cent of the product of his nineteen years of service and his annualized basic pay. Appellant paid no portion of the lump sum payment to Appellee, and she commenced contempt proceedings.

After appropriate hearing, the trial court found Appellee was entitled to 9/20ths of the SSB payment, found Appellant in indirect contempt, and ultimately sentenced him to 180 days in the Oklahoma County Jail after Appellant failed to purge the contempt by payment of the appropriate amount. In this appeal, Appellant argues the trial court could not properly find him in contempt because the decree covered only retirement benefits, and the SSB payment was not "retirement."

In this equitable proceeding we must affirm the trial court's decision unless the record reveals some error of law or the trial court's decision is clearly against the weight of the evidence. Marshall v. Marshall, 364 P.2d 891 (Okla.1966). In order to determine whether contempt was appropriate in this case we must consider two threshold questions: (1) Was Appellee entitled, under the decree, to part of the SSB payment? and (2) If so, was the decree clear enough to give Appellant notice of the decree's intent? See McCrary v. McCrary, 723 P.2d 268 (Okla.1986). If we answer both of those questions affirmatively, we must also consider whether there was sufficient evidence that Appellant could have complied with the decree but wilfully chose not to do so.

The SSB program was created when Congress enacted 10 U.S.C. § 1174a. Under its provisions, certain active military personnel may voluntarily separate from active military service prior to becoming entitled to retirement and receive an SSB payment calculated based upon the formula in § 1174a. If an individual who has accepted an SSB payment thereafter reenlists in the active reserve and qualifies for retirement, the SSB payment is recouped from the retirement benefits to which that individual is entitled. ¹

So far as our research indicates, only one reported case addresses the treatment of an SSB payment in this context, In re Marriage of Crawford, 180 Ariz. 324, 884 P.2d 210 (App.1994). ² Mr. Crawford voluntarily separated from service after 19 years in the United States Air Force and accepted an SSB payment. Despite a dissolution decree awarding his former wife thirty-two and one-half percent of Mr. Crawford's military retirement benefits, he paid his former wife nothing from the SSB payment and used the payment to purchase a home.

The Crawford Court affirmed a trial court order finding the former wife was entitled to her proportionate share of the SSB payment and imposing a lien on Mr. Crawford's home to secure that debt. Mr. Crawford, like Appellant, argued that the SSB payment was not a retirement benefit but a separation payment. Noting that by accepting the payment Mr. Crawford gave up his right to receive his retirement benefits accrued during the marriage, the court found the SSB payment was either retirement proceeds or a payment in lieu of retirement benefits.

Although Appellant's reenlistment in the reserve may allow him to use his previous active duty...