MCMAHON (TERRI LAVONNE) VS. DOUTHITT (JOHN PAUL)
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RENDERED: NOVEMBER 5, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002126-MR
TERRI LAVONNE MCMAHON
v.
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE M. BRENT HALL, JUDGE
ACTION NO. 99-CI-000984
JOHN PAUL DOUTHITT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE AND WINE, JUDGES; SHAKE,1 SENIOR JUDGE.
MOORE, JUDGE: Terri McMahon appeals from an order of the Hardin Family
Court calculating the amount of military retirement benefits to which she is entitled
from her former husband, John Paul Douthitt. For the reasons so stated, we affirm.
When the parties divorced in 1999, John had been an active member
of the United States Army for sixteen years during the parties’ marriage.
1
Senior Judge Ann Shake sitting as Special Judge by assignment of the Chief Justice pursuant to
Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.
Accordingly, a portion of his military retirement pay was marital property. But
because John was not yet retired, the parties could not calculate his retired pay.
They agreed that Terri would receive 40% of the marital portion of John’s
retirement and that when he retired, they would calculate the percentage of John’s
actual retirement income to which Terri was entitled. This would be done by
formulating a hypothetical retired pay as if John had reached retirement age at the
time of the parties’ divorce in 1999 and by determining what percentage of John’s
retired pay was earned during the marriage.
John retired on August 31, 2003, but Terri contends she was not aware
of this until five years later. Upon learning of John’s retirement, Terri filed a
motion on February 6, 2008, in the Hardin Family Court to secure the portion of
John’s retirement to which she was entitled, as well as the amounts John was in
arrears.
The family court held hearings on the matter and subsequently entered
three different orders regarding the amount of John’s retirement to which Terri was
entitled. Each order reached a different result, and each order was conclusory,
failing to explain how the family court reached its decision.
The only order from which Terri appealed was entered October 17,
2008. Before this Court, she challenges the percentage of John’s retirement she
was awarded and the amount of arrearage she was awarded. Terri also argues that
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the family court erred in failing to award her prejudgment interest and attorneys’
fees.
The law is clear that pension plans should be valued on the date of the
divorce decree. Poe v. Poe, 711 S.W.2d 849 (Ky. App. 1986); see also Armstrong
v. Armstrong, 34 S.W.3d 83, 86 (Ky. App. 2000) (citing Clark v. Clark, 782
S.W.2d 56, 62 (Ky. App. 1990)). Terri is not entitled to share in any of John’s
nonmarital portion of his retirement benefits. See Foster v. Foster, 589 S.W.2d
223, 225 (Ky. App. 1979)). This is why a hypothetical retired pay, figured as if
John had retired in 1999, is necessary in order to compute the amount of John’s
actual retired pay to which Terri is entitled.
Both parties have relied on the Uniformed Services Former Spouses’
Protection Act, Dividing Military Retired Pay (DFAS) pamphlet2 to assist them in
determining Terri’s portion of John’s retirement. The family court determined that
the Poe percentage was 25.183407 percent.3 However, the family court’s order is
silent regarding its rationale or factors used to determine this figure.4 It provided
2
This pamphlet is attached to Terri’s brief filed with the family court on June 20, 2008, and was
relied upon by Terri before the family court and in her brief before this Court. Specifically, in
her brief before the family court, Terri “[u]tiliz[ed] the hypothetical example C(3) of the attached
flyer from DFAS. . . .” And, in her appellate brief at page 7, Terri again used hypothetical C of
the DFAS, which is attached to her brief at Appendix K. We point this out to highlight one of
several inconsistencies in Terri’s family court brief, her appellate brief and then her reply brief
before this Court. Notwithstanding her statements in her family court brief and on page 7 of her
appellate brief, on page 4 of her reply brief before this Court, Terri writes that “[a] hypothetical
award to Appellant based upon the hypothetical analysis (C) on page 7-9 of the DFAS pamphlet
is inappropriate in this case.”
3
The family court actually included two different percentages: 25.18407% and 25.183407%.
We believe this is a typographical error. Nonetheless, the difference between the two
percentages is de minimus.
4
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no explanation of how it reached its decision. And, the parties greatly debate what
figures are the appropriate ones to use.
Pursuant to Kentucky Civil Rule (CR) 52.04:
A final judgment shall not be reversed or remanded
because of the failure of the trial court to make a finding
of fact on an issue essential to the judgment unless such
failure is brought to the attention of the trial court by a
written request for a finding on that issue or by a motion
pursuant to Rule 52.02.
Civil Rule 52.02 affords parties the opportunity to request additional
findings. The reason for requiring specific findings of fact is to provide a
reviewing court with a basis for understanding the lower court’s “view of the
controversy.” Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986).
Here, without the benefit of the videotapes of the hearings or an
explanation of how the family court reached its conclusion, we would be
speculating as to the family court’s precise reasoning for its decision. Under these
circumstances and pursuant to well-established law, it was incumbent upon Terri to
move the family court for findings supporting its conclusions. She failed to do so;
hence, this is fatal to her appeal. See Underwood v. Underwood, 836 S.W.2d 439,
445 (Ky. App. 1992), overruled on other grounds by Neidlinger v. Neidlinger, 52
Both parties cite to video tape recordings of hearings in the family court. However, those
recordings were not made a part of the appellate record and are not before the Court for our
review. It was Terri’s responsibility as appellant to ensure that the record on appeal contained all
of the necessary portions of the trial court record. See Clark v. Commonwealth, 223 S.W.3d 90,
102 (Ky.2007) (citations in footnotes omitted). “We are required to assume that any portion of
the record not supplied to us supports the decision of the trial court.” Id.
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S.W.3d 513, 519 (Ky. 2001); Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982);
Whicker v. Whicker, 711 S.W.2d 857, 860 (Ky. App. 1986).
We pause to note that although the October 17, 2008 order is the only
one appealed, the family court’s first order, dated July 8, 2008, was likewise
conclusive and absent of any explanation supporting the court’s rationale.
Interestingly, both parties moved the court for findings explaining that order. In
particular, Terri asked that the court “[a]lternatively, . . . enter specific Findings of
Fact to demonstrate the Court’s Judgment, which itemizes the amount calculated
each month and year. Otherwise, the Court of Appeals will not be able to decipher
the Court’s Order.” John, in a similar motion, asked the court “[t]o clarify the
Order entered July 8, 2008, pursuant to Civil Rule 52 and Civil Rule 59.05
insomuch as Respondent cannot discern from the Order what the percentage of
future entitlement of the Petitioner would be. Respondent is unable to tell what
calculations the Court relied upon to arrive at the arrearage amount and how that
calculation may affect future entitlement of the Petitioner.” We could not agree
more.
The family court entered a second order on September 23, 2008,
concluding that it had miscalculated the arrearage that John owed. Again, the court
did not set forth any factual findings relative to its calculations. But apparently,
Terri was satisfied with this order and did not move the family court for additional
findings or an explanation of its decision.
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John thereafter filed a motion to alter, amend or vacate the second
order. In that motion, he attached an exhibit setting forth the calculations he
believed were correct pursuant to the DFAS pamphlet. On its face, it appears that
in the family court’s third order, entered on October 17, 2008, the court agreed
with John because the percentage the court used was the same that John advocated.
Nonetheless, the family court’s order was again conclusive and failed to set forth
any factual findings supporting its rationale or the basis of its acceptance of any of
the figures advanced by John. We are left to speculate on this, and Terri did not
move the family court to make additional findings as she had with the court’s order
of July 8, 2008. Thus, we are precluded from further review.
Regarding the arrears, the family court’s ruling is also conclusive.
And, as Terri points out in her brief, “[s]ince the court provided no analysis nor
spreadsheet supporting its decision to reduce the Judgment by more than $5,000
(compare this Order to the September 22, 2008 Order), it is difficult to scrutinize
calculations made by the trial court.” We agree. However, it was incumbent on
Terri to move the family court for additional findings, and her failure to do so is
fatal to this argument.
Terri also argues that the family court erred in denying her request for
prejudgment interest and attorneys’ fees.5 However, the family court did not
include any language in its order regarding either. Accordingly, it was incumbent
upon Terri to timely file a motion under CR 52.02 or 59.05 when the family court
5
John argues that Terri did not request prejudgment interest and attorneys’ fees. But in her brief
before the family court, she clearly asked for both.
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failed to rule on either request. See e.g., Richardson v. Rees, 283 S.W.3d 257, 265
(Ky. App. 2009); Kentucky Farm Bureau Ins. Co. v. Gearhart, 853 S.W.2d 907,
910 (Ky. App. 1993) (citing Whittenberg Engineering & Construction Company v.
Liberty Mutual Insurance Company, 390 S.W.2d 877, 884 (Ky. 1965)). Having
failed to so move, Terri did not preserve this issue and is therefore precluded from
seeking relief from this Court pursuant to CR 52.04. See id.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Douglas E. Miller
Radcliff, Kentucky
Dawn Blair
Elizabethtown, Kentucky
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