BILLY R. PARKER v. CHARLOTTE M. PARKER
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RENDERED: APRIL 20, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001215-MR
BILLY R. PARKER
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NO. 99-FC-007643
v.
CHARLOTTE M. PARKER
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON, AND TACKETT, JUDGES.
BUCKINGHAM, JUDGE: Billy R. Parker appeals from an order of the
Jefferson Family Court calculating the benefits that his ex-wife,
Charlotte M. Parker, is entitled to receive from his pension plan
with Ford Motor Company.
We reverse and remand.
Billy and Charlotte were married on December 28, 1968, and
were divorced on January 6, 1986.
The divorce decree
incorporated stipulations by the parties entered into the record
on October 7, 1985.
The stipulation pertinent to this case reads
as follows:
The parties acknowledge that they have a
pension program in place at Ford Motor Co.
and when Respondent becomes entitled to
receive pursuant to said pension program,
Petitioner shall receive her interest in this pension plan.
Petitioner’s interest shall be determined by the following
formula:
½ x 17/number of years of service x monthly payment.
Billy was employed by Ford Motor Company during the
seventeen years of the parties’ marriage.
Following the divorce,
Billy remained employed at Ford until he retired on January 1,
2000.
When Billy retired, the parties disagreed as to the amount
of money that Charlotte would receive from the pension program.
Billy argued that Charlotte was not entitled to share in the
increases in his pension since their divorce, while Charlotte
argued that the trial court lacked authority to modify the
parties’ stipulation incorporated into the decree.
Agreeing with
Charlotte, the trial court held that it “cannot change the
parties[’] initial agreement as to the calculation of the
benefit.”
Further, the court ordered that “the benefit shall be
calculated as ordered previously by the Court and agreed to by
the parties which results in the inclusion of the supplement and
increases.”
This appeal followed.
When the trial court entered its order in April 2000,
it did not have the benefit of this court’s opinion in Armstrong
v. Armstrong, Ky. App., 34 S.W.3d 83 (2000), which became final
in December 2000. We faced practically the same issue in that
case.
In Armstrong, the divorce decree contained a provision
that provided “[a] Qualified Domestic Relations Order shall issue
dividing equally the parties[’] interests in Petitioner’s pension
from the date of the marriage to date of dissolution.”
84.
Id. at
In determining the non-employee spouse’s interest in the
pension “from the date of marriage to date of dissolution,” we
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stated that the issue before us was whether the employee’s salary
at the time of the divorce decree or his salary upon which
benefits would ultimately be based should be used in determining
the non-employee’s interest under the formula.
Id. at 87.
We
then cited various cases as precedent and held that the
employee’s salary at the time the decree was issued should be
used to compute the benefits to which the non-employee spouse
would be entitled to receive.
Id.
In Foster v. Foster, Ky. App., 589 S.W.2d 223 (1979),
this court held that a non-employee spouse was not entitled to
share in any pension benefits earned after divorce and before
retirement.
Id. at 225.
Thereafter, in Light v. Light, Ky.
App., 599 S.W.2d 476 (1980), this court held as follows:
The value of a pension and the amount to
be paid must be determined as of the time of
the dissolution. A maintenance theory might
seem to call for more flexibility, but if the
primary purpose is to share an asset or
potential asset, it should be based on the
estimated monthly value at that time. This
will account for current pay, rank, and time
in service. It will not allow for future
promotions and pay increases or decreases.
Id. at 479.
Further, as we stated in the Light case, “[t]he
value of a pension, if any should therefore be marital property
for the portion accrued during coverture.”
Id. at 478.
If we follow the method of calculating a non-employee
spouse’s interest in the Armstrong case, then Billy will prevail
in his appeal.
However, Charlotte argues that the trial court
did not err and that to accept Billy’s argument would result in
the decree being modified years after it was entered.
As we view
the written stipulation entered by the parties in late 1985, it
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is apparent that the parties intended Charlotte to receive her
interest in the pension plan.
That interest was to be computed
by multiplying ½ times the coverture fraction times the monthly
payment.
The stipulation did not specify whether the term
“monthly payment” meant the monthly payment to which Billy would
be entitled upon retirement or the monthly payment to which he
would be entitled at the time of the decree.
We conclude that the intention of the parties was to
award Charlotte her interest in the pension plan, as the
stipulation clearly stated this intent.
In Brosick v. Brosick,
Ky. App., 974 S.W.2d 498 (1998), this court noted that “[i]t is
the pension, not the benefits, which is the marital asset that is
divided by the court.”
Id. at 503.
We conclude that Charlotte’s
interest in the pension plan must be computed in accordance with
the Armstrong case using the monthly payment at the time of the
divorce decree.
The order of the Jefferson Family Court is reversed,
and this case is remanded for further proceedings consistent with
this opinion.
EMBERTON, JUDGE, CONCURS.
TACKETT, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John V. Hanley
Louisville, Kentucky
J. Russell Lloyd
Louisville, Kentucky
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