MARY ALICE MILLER V. BENNETT FOREST MILLER, SR.
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RENDERED: October 23, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001605-MR
MARY ALICE MILLER
V.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELLEN B. EWING, JUDGE
ACTION NO. 89-CI-2589
BENNETT FOREST MILLER, SR.
APPELLEE
OPINION REVERSING AND REMANDING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; GUIDUGLI and SCHRODER, Judges.
GUDGEL, CHIEF JUDGE:
This is an appeal from an order entered by
the Jefferson Circuit Court in a post-dissolution proceeding
involving the division of pension benefits.
Appellant contends
that the court erred in calculating the amount of the past-due
benefits which should be awarded to her.
We agree.
Hence, we
reverse and remand.
The parties married in 1968 and divorced in July 1990,
after appellee retired from his employment with the Naval
Ordnance Station.
The court awarded no maintenance to appellant
but ordered that appellee’s gross monthly retirement benefits
should be allocated between the parties, such that appellant
would received twenty percent of the benefits, or $337.80 per
month, plus twenty percent of any cost of living adjustment
(COLA).
A qualified domestic relations order (QDRO) was entered
to that effect.
As it turned out, appellee’s actual pension benefit
payments were less than anticipated.
Thus, although the federal
Office of Personnel Management (OPM) paid appellant twenty
percent of appellee’s benefits, those payments amounted to only
$274 per month.
After appellee failed to satisfy appellant’s
demand that he reimburse her for the difference between the
actual and anticipated benefit payments, appellant sought to have
appellee held in contempt of court.
On January 2, 1991, the
court resolved the dispute pursuant to an agreement between the
parties, whereby appellee was obligated in pertinent part (1) to
pay appellant accrued arrearages of $1,644.60 plus interest, (2)
to execute the necessary documents to enable appellant to receive
$337.80 per month plus twenty percent of any COLA’s from May 1990
forward, and (3) to reimburse appellant for deficiencies in OPM’s
payments.
effect.
The court entered a supplemental/amended QDRO to this
Subsequently, pursuant to the amended QDRO, OPM
increased appellant’s monthly benefits to $337 in March 1991, and
then to $347 based upon a December 1991 COLA.
Next, appellant filed a motion seeking an award of
past-due benefits on the ground that she had not received all the
benefits to which she was entitled because OPM failed to ever
increase her monthly benefits by an amount equal to twenty
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percent of the December 1990 COLA increase.
The court’s domestic
relations commissioner conducted a hearing on the motion and
recommended that it be denied.
Appellant filed exceptions and on
January 8, 1997, after a hearing, the trial court entered two
orders tendered by appellant’s counsel.
The first order awarded
appellant a common law judgment for past-due benefits, and it
provided for current monthly benefits of $398.45 per month plus
twenty percent of any 1997 COLA increase.
However, on May 21,
1997, the court set aside that order and denied appellant any
award of past-due benefits.
Nevertheless, a second order, which
was a supplemental/amended QDRO entitling appellant to $398.45
per month plus twenty percent of all COLA increases from December
1996 forward, was not changed in any respect.
This appeal
(initially filed pro se) from “the order of 5/21/97" followed.
First, we note that there is no issue before us
regarding the January 1997 supplemental/amended QDRO order.
Not
only was that order drafted and tendered to the court by
appellant’s counsel, but there was neither a motion to amend the
order nor an appeal taken therefrom.
Hence, we will not address
any issues raised by appellant complaining of the fact that, as
of December 1996, appellant’s monthly pension payment was set at
$398.45 plus twenty percent of all COLA increases.
However, we do agree with appellant’s contention that
she was entitled to but did not receive the additional benefits
stemming from the December 1990 COLA, which would have increased
her monthly payments for the six-year period between December
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1990 and the entry of the January 1997 QDRO order.
The January
1991 agreed order provided in pertinent part that:
2.
Respondent shall pay to Petitioner
her portion of the Naval Ordnance retirement
in the amount of $337.80 per month,
commencing with the payment due December 1,
1990, January 1, 1991, and thereafter, by
timely payments direct from Respondent to
Petitioner, upon his receipt of same, until
such time as Petitioner begins receiving such
payments direct from the said retirement
payor. If payor’s remittance for any such
payment from December 1, 1990 is less than
$337.80, Respondent shall be required to
remit any such deficit directly to
Petitioner.
3.
Likewise, Respondent shall execute
any and all documents, forms, applications,
papers and QDRO forms necessary and proper to
allow/direct/require the payor, Naval
Ordnance and the United States Civil Service
Retirement System/United States Office of
Personnel Management retirement
program/Department of the Navy, Naval
Ordnance Station to pay Petitioner the sum of
$337.80 per month, as her share of his
retirement, together with Twenty percent
(20%) of any and all cost of living
increases/adjustments to which the Respondent
may have become entitled from to [sic] May 1,
1990 and subsequently. (Emphasis added.)
Thus, it is clear the parties agreed that, starting in May 1990,
appellant was entitled to receive twenty percent of all COLA’s
paid to appellee.
Despite appellee’s assertion to the contrary,
there is nothing in the January 1991 order to indicate that the
$337.80 monthly payment “included” the December 1990 COLA, and we
cannot look outside the order’s plain meaning to consider whether
the parties may have had a different intent.
It follows,
therefore, that because it is clear from a review of the record
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that appellant has never received the benefits of the December
1990 COLA increase, on remand she is entitled to a recalculation
of her monthly benefits.
That recalculation should incorporate
the benefits of the December 1990 increase for the period between
the pertinent dates listed in the January 1991 agreed order and
those listed in the January 1997 QDRO.
Appellee should then be
ordered to pay appellant the sum of the differences between the
amounts which appellant was entitled to receive, and the amounts
which she actually received.
For the reasons stated, the order appealed from is
reversed and remanded with directions to enter an amended order
consistent with the views expressed in this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Delores Pregliasco
Melanie Straw-Boone
Louisville, KY
Victoria Ann Ogden
Louisville, KY
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