WILLIAM BRAY v. VICKI CALLAHAN (FORMERLY BRAY)
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RENDERED: APRIL 22, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002697-MR
WILLIAM BRAY
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS L. WALLER, JUDGE
ACTION NO. 95-CI-00769
v.
VICKI CALLAHAN (FORMERLY BRAY)
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This appeal involves the selection of a
benefit payment option of a pension plan where a division of the
pension itself is not contested.
The circuit court entered a
QDRO requiring William Bray to elect a benefit payment option
giving his ex-wife, Vicki Callahan (formerly Bray), survivor
benefits.
We believe William is entitled to relief from that
order pursuant to CR 60.02(f).
for further proceedings.
Therefore, we reverse and remand
William Bray began working for Ford Motor Company in
April, 1975.
Callahan.
On December 14, 1979, William married Vicki
A decree of dissolution was entered June 23, 1998.
The decree reserved on the issue of the division of the pension
from Ford.
The Domestic Relations Commissioner’s report of
April 28, 1998, stated in part:
4. The parties agree that a qualified
domestic relations order should be issued
for the division of Respondent’s pension,
but disagree as to the date when the
Petitioner’s share should be computed to.
The Commissioner finds that an equitable
division would be to cut off Petitioner’s
interest as of the date of separation, June
1, 1997. (emphasis added).
On August 3, 1998, the court entered an order which
adopted the Commissioner’s April 28, 1998, report as to the
pension.
This order was made final and appealable.
2002, William retired from Ford.
In October,
On January 24, 2003, Vicki
moved the trial court to enter an attached qualified domestic
relations order “on the grounds that the Order entered by the
Court August 3, 1998, directs that this Qualified Domestic
Relations Order be entered.”
By order entered February 3, 2003, the trial court
entered the tendered order which divided the Ford pension
assigning Vicki fifty percent of the “Marital Portion” of the
pension.
William has no dispute with that division.
The
contested part of the order is in paragraph 10, which provides
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“Upon Participant’s retirement, Participant shall be required to
elect his benefit in the form of a 65 percent joint and survivor
annuity.”
Under the Ford pension plan, William’s monthly benefit
totaled $2,730.00.
After the court entered the February 3,
2003, order adopting the “65 percent joint and survivor
annuity”, his total monthly benefit was reduced by $871.56, to
$1,858.44 per month.
At the same time, upon William’s death,
Vicki will continue to receive $603.03 a month for life.
On October 8, 2003, William moved the trial court,
pursuant to CR 60.02, to set aside and/or amend the QDRO entered
on February 3, 2003.
In the motion, William stated that he was
unrepresented at the time of entry of the February 3, 2003,
order, which divided his pension and included the survivorship
election, drafted by Vicki’s attorney.
William did not dispute
a fifty-fifty division of the marital portion of the pension,
but argued that the inclusion of the survivorship election was
not considered in the prior orders of the court nor the
agreement of the parties.
On October 30, 2003, the trial court entered an order
setting aside the QDRO entered on February 3, 2003.
Subsequently, Vicki moved the court to vacate the October 30,
2003, order, on grounds that the court was without jurisdiction
to vacate or modify an order after the tenth day following its
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entry, and that William alleged no grounds which satisfy CR
60.02.
On November 17, 2003, the trial court entered an order
setting aside its order of October 30, 2003, and reinstating the
QDRO entered on February 3, 2003.
This appeal followed.
On appeal, William does not dispute the division of
the pension, but contends the trial court erred in allowing
Vicki to select the payment option.
Vicki contends that William
failed to timely object to the provision of the QDRO providing
her with survivor’s benefits, or, in the alternative, that the
trial court had the discretion to provide her with the option of
survivor’s benefits.
The final order of the trial court entered August 3,
1998, adopted the Commissioner’s report of April 28, 1998, which
states, “The parties agree that a qualified domestic relations
Order should be issued for the division of [the] pension . . .”
(emphasis added).
And “an equitable division would be to cut
off [Vicki’s] interest as of the date of separation . . .”
(emphasis added).
We conclude that William was entitled to relief under
60.02(f), which allows relief from a final order or judgment due
to “any other reason of an extraordinary nature justifying
relief.”1
While it is true that William had his chance to
1
A catch-all provision encompassing those grounds which justify relief that
are not otherwise set forth in the rule. Alliant Hospitals, Inc. v. Benhan,
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contest the provisions of the QDRO tendered to the court by
Vicki’s attorney, he failed to do so.
His failure to contest
the order was undoubtedly due to his ignorance of its terms and
the fact that he was not represented by counsel.
While William
should not be rewarded for his failure to contest the order in a
timely manner, neither should Vicki receive the benefit of an
order that was not in accordance with the parties’ intent or the
court’s previous orders.
The parties agree that the marital portion of
William’s pension should be divided equally.
Furthermore, the
court ruled that Vicki’s interest would be “cut off” as of the
date of separation.
The parties did not contemplate that Vicki
would receive any survivor’s benefits from William’s pension.
Under the peculiar facts of this case, we conclude that William
should be granted relief.
Vicki should only be awarded an equal
portion of her marital interest in William’s pension.
The prior orders of the Bullitt Circuit Court are
reversed, and this case is hereby remanded for the entry of an
order consistent with this opinion.
ALL CONCUR.
105 S.W.3d 473 (Ky.App. 2003); Commonwealth v. Spaulding, 991 S.W.2d 651 (Ky.
1999).
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BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Mark E. Edison
Shepherdsville, Kentucky
J. Russell Lloyd
Smith & Helman
Louisville, Kentucky
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