PIPER (JAMES A.) III VS. PIPER (JONI C.) OPINION FROM PREVIOUS
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RENDERED: MARCH 18, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002189-MR
JAMES A. PIPER, III
v.
APPELLANT
APPEAL FROM FAYETTE FAMILY COURT
HONORABLE JO ANN WISE, JUDGE
ACTION NO. 05-CI-04002
JONI C. PIPER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; ACREE AND COMBS, JUDGES.
COMBS, JUDGE:
James A. Piper, III, pro se, appeals from a post-
dissolution order of the Fayette Family Court entered on October 26, 2009. He
contends that the family court erred by determining that the division of his
retirement benefits was meant to commence on July 13, 2007, the date of entry of
the family court’s original decree of dissolution, custody, and property distribution.
After our review, we affirm.
This divorce action was initiated by Joni C. Piper in September 2005. It
went to trial on May 9, 2007. The only contested issues related to the
classification, valuation, and distribution of the parties’ property. After
considering the evidence, the family court determined that Joni was entitled to
receive 44% of James’s gross monthly pension. The court’s order dissolving the
parties’ marriage, awarding them joint custody of the children, and distributing
their property was entered on July 13, 2007. By that time, James’s pension was in
pay status.
James filed a timely motion to alter, amend, or vacate the order of the family
court. He argued that the court’s division of the parties’ pension benefits did not
accurately reflect the marital and non-marital contributions that were the basis of
their acquisition. Based upon James’s argument, the family court recalculated the
division of his pension.
The family court issued amended findings of fact, conclusions of law, and
decree of dissolution, which were entered on December 29, 2007. In its amended
order, the family court assigned 33% of James’s pension benefits to him as his
non-marital property. The remaining 67% of James’s pension benefits was
determined to be marital property and was distributed evenly between the parties.
On January 8, 2008, James filed another motion to alter, amend, or vacate
the family court’s amended findings of fact, conclusions of law, and decree of
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dissolution.1 James again contended that the court had erred in its division of his
monthly pension benefits. He now argued that his pension was exempt from
division under the provisions of Kentucky Revised Statute[s] (KRS) 61.690(1). In
the alternative, James proposed that the court determine the net present value of his
pension benefits and adjust the division of the parties’ other assets to reflect an
apportionment of that value to Joni.
On February 25, 2008, the family court entered an order correcting a
computational error in an equalizing payment (not directly related to the value of
the divided pension benefit) to be made by Joni to James. The remaining portion
of James’s motion to alter, amend, or vacate was denied. On March 24, 2008,
James filed a notice of appeal.
On August 7, 2009, this court rendered its opinion affirming the amended
decree of dissolution, custody, and property distribution, which was entered by the
Fayette Family Court on December 29, 2007. The court noted some difficulty in
sorting through James’s pro se brief. In a concurring opinion, one of the panel’s
judges commented specifically on James’s “vexatious tactics and irascible attitude”
toward the family court. Our opinion became final on September 21, 2009.
On October 6, 2009, Joni filed a motion to enforce the family court’s
judgment. In her motion, Joni noted that James had refused to disburse her share
of the marital component of his monthly pension that had accrued since July 13,
2007. James responded and argued that Joni was entitled to a portion of his
1
The Kentucky Rules of Civil Procedure (CR) do not allow for a second motion to alter, amend,
or vacate. CR 59.05.
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monthly retirement benefits to be payable only as of entry of the court’s order of
February 25, 2008.
On October 26, 2009, the family court determined that Joni was entitled to a
portion of James’s retirement benefits as of July 13, 2007. James was ordered to
pay to Joni the sum of $26,163.78 representing the accumulated
arrearage/delinquency. He was also ordered to remit the sum of $993.94 on the
fifteenth day of each month beginning on October 15, 2009. This appeal followed.
Since the portion of the family court’s final decree dissolving the marriage
could not be appealed, the parties’ marriage was finally dissolved as of July 13,
2007. See KRS 22A.020(3). The family court’s division of James’s retirement
benefits was based in part on Joni’s contribution toward acquisition of the marital
portion of that asset. Joni’s contribution toward the acquisition of James’s pension
began on the date of the parties’ marriage and ended on July 13, 2007. KRS
403.190. Consequently, Joni was entitled to her share of the pension benefit
beginning July 13, 2007. The family court did not err by ordering James to pay to
Joni a sum representing the accumulation of Joni’s monthly share of the asset
effective July 13, 2007.
The order of the Fayette Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James A. Piper, III, pro se
Lexington, Kentucky
Kathy W. Stein
Lexington, Kentucky
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