TIMBERLAKE (MARK) VS. FRENCH (CYNTHIA) AND TIMBERLAKE (MARK) VS. FRENCH (CYNTHIA)
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RENDERED: DECEMBER 4, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
OPINION OF APRIL 10, 2009, WITHDRAWN
BY ORDER ENTERED JUNE 19, 2009
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001502-MR
AND
NO. 2007-CA-001523-MR
MARK TIMBERLAKE
v.
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM HARDIN FAMILY COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 00-CI-00251
CYNTHIA FRENCH
APPELLEE/CROSS-APPELLANT
AND
NO. 2007-CA-001745-MR
MARK TIMBERLAKE
v.
APPELLANT
APPEAL FROM HARDIN FAMILY COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 00-CI-00251
CYNTHIA FRENCH
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: STUMBO AND TAYLOR, JUDGES; GRAVES,1 SENIOR JUDGE.
GRAVES, SENIOR JUDGE: Mark Timberlake brings Appeal No. 2007-CA001502-MR from a February 5, 2007, Findings of Fact, Conclusions of Law, and
Order of the Hardin Circuit Court, Family Court Division (family court) ordering
Mark to pay Cynthia French her portion of military retirement benefits Mark
waived in order to receive military disability benefits. Cynthia brings CrossAppeal No. 2007-CA-001723-MR from the same order. Mark also brings Appeal
No. 2007-CA-001745-MR from an August 14, 2007, order awarding Cynthia
attorney’s fees and a judgment for unpaid cost of living increases to Mark’s
military retirement benefits. We affirm Appeal No. 2007-CA-001502-MR, CrossAppeal No. 2007-CA-001523-MR, and Appeal No. 2007-CA-001745-MR.
Mark and Cynthia were divorced by decree of dissolution entered
May 12, 2000. The decree incorporated a separation agreement signed by the
parties on February 17, 2000. Relevant to this appeal, the separation agreement
divided Mark’s military retirement benefits pursuant to the formula first
established in Poe v. Poe, 711 S.W.2d 849 (Ky. App. 1986). The separation
agreement specifically provided that Cynthia would receive a percentage of onehalf of the “disposable retired pay available” to Mark.
1
Senior Judge John W. Graves 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.
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In November 2003, Mark retired from the United States Army and
began receiving retirement benefits. In December 2003, Cynthia began receiving
her portion of Mark’s retirement benefits pursuant to the terms of the separation
agreement. Her monthly benefit totaled $596.55. Subsequently, the military
determined Mark was 70 percent disabled. Because retirement benefits are taxed
as income and disability benefits are not, Mark elected to waive 70 percent of his
retirement benefits and thereafter received disability benefits in lieu thereof. As a
result of Mark’s waiver, the monthly benefit to Cynthia from Mark’s retirement
dramatically decreased from $596.55 to $136.27. Mark received the difference as
disability benefits.
On September 21, 2004, Cynthia filed a motion claiming that Mark
violated the terms of the separation agreement by waiving a portion of his military
retirement benefits and electing instead to receive disability benefits. In response,
Mark claimed that Cynthia was not entitled to any of his disability benefits. On
February 5, 2007, the family court rendered its Findings of Fact, Conclusions of
Law and Order. The family court found that the language of the separation
agreement mandated that Cynthia receive a percentage (based upon the number of
years the parties were married) of one-half of the disposable retired pay “available”
to Mark. As such, the court concluded that Cynthia was entitled to receive an
amount equal to a percentage of one-half of the disposable retired pay “available”
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to Mark as if he had not elected to receive disability pay. Thus, the circuit court
determined that Cynthia was entitled to receive $527.10 per month.2
Both parties filed postjudgment motions to vacate the court’s
February 5, 2007, order. The family court denied the motions. On July 26, 2007,
Cynthia filed a motion for attorney’s fees. The court awarded Cynthia partial
attorney’s fees. These appeals follow.
APPEAL NO. 2007-CA-001502-MR
AND CROSS-APPEAL NO. 2007-CA-001523-MR
Mark contends that the circuit court erred by determining that Cynthia
was entitled to a portion of one-half of the retired military pay available to Mark as
if he had not elected to waive those benefits and receive disability pay. Mark
argues that Cynthia is only entitled to a portion of one-half of the retired military
pay he actually receives and is not entitled to any of his disability pay. He points
out that military disability pay may not be divided as marital property by the court.
We agree with Mark that military disability pay or benefits are not
subject to division as marital property by a court. See Davis v. Davis, 777 S.W.2d
230 (Ky. 1989). However, Cynthia’s entitlement to Mark’s military retirement
benefits is founded in the parties’ separation agreement that was incorporated into
the decree of dissolution. While a court is certainly prohibited from dividing
military disability benefits as marital property, there has never been a published
opinion in this Commonwealth prohibiting the parties’ from reaching an agreement
2
We note that the Hardin Circuit Court, Family Court Division ultimately awarded Cynthia
French $527.10 per month despite Cynthia’s assertion that she was entitled to receive a greater
amount.
-4-
regarding division of military disability benefits. And, we are unwilling to prohibit
same herein.3
As Cynthia’s entitlement to Mark’s military retirement is based upon
the parties’ separation agreement, our review necessarily revolves around the terms
of such agreement. To begin, a separation or settlement agreement incorporated
into a decree of dissolution or order of the court is “enforceable by all remedies
available for enforcement of a judgment, including contempt, and are enforceable
as contract terms.” KRS 403.180; Bailey v. Bailey, 231 S.W.3d 793 (Ky. App.
2007). Interpretation and construction of an incorporated separation agreement
presents a question of law for the court, and our review proceeds de novo. Richey
v. Richey, 380 S.W.2d 914 (Ky. 1965); Frear v. PTA Indus., Inc., 103 S.W.3d 99
(Ky. 2003).
The relevant portions of the separation agreement read as follows:
14. The parties hereby agree that they were
married in 1983; [Mark] has been employed by the
United States Army since 1983. The parties agree that
[Cynthia] shall receive as part of the property division,
her share of [Mark’s] military retirement benefits per the
Poe formula, which is as follows:
number of years of marriage
percentage of benefits
number of years divorced
= earned during marriage
% earned during x ½ disposable retired pay + % of cost-ofmarriage
available if the military
living
member retired at current increase
rank
proportional
3
KRS 403.180 provides that a separation agreement disposing of and dividing property is
binding and enforceable in this Commonwealth unless the court finds the agreement
unconscionable. Military disability benefits are certainly classified as “property,” and the family
court has previously found the parties’ separation agreement conscionable.
-5-
to interest in
disposable
retired pay
It being specifically provided that once [Mark]
retires [Cynthia] shall be able to take whatever steps
necessary to receive her share of the retirement directly
from the United States Army/retirement center.
With it being provided that in the event [Mark]
decides to take an early retirement and receives a “Buy
Out” or other form of compensation in exchange for his
early retirement then [Mark] shall be under an obligation
to so notify [Cynthia] of same and she will be entitled to
her proportionate share, per the Poe formula, of any
“Buy-Out” amount or by any other name.
With it being further provided, that in the event
[Mark] decides to stay in the military longer [than]
twenty (20) years then he shall so notify [Cynthia] of
same and upon his retirement she shall receive her
benefits per the Poe formula, as stated above.
Under the above provisions of the separation agreement, it is clear that
the parties expressly provided that Cynthia would be entitled to receive a share of
Mark’s military retirement benefits upon his retirement from the United States
Army. The parties specifically provided a formula for computing Cynthia’s share
of Mark’s military retirement benefits. Under the formula, Cynthia’s share was to
be based on “1/2 disposable retired pay available if [Mark] retired at current rank.”
Succinctly stated, Cynthia’s share was to be computed based on the retired pay
“available” to Mark at his retirement. As Mark’s full military retirement pay was
available to him at his retirement, Cynthia’s share of his military retirement must
be computed based upon Mark’s full military retirement pay. As such, Mark’s
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subsequent election to receive military disability benefits is simply of no
consequence and cannot be used to reduce Cynthia’s share of military retirement
benefits per the separation agreement.
Thus, we conclude that the circuit court did not err by determining
that Cynthia was entitled to $527.10 per month as her share of Mark’s military
retirement and by ordering Mark to pay Cynthia the difference between such
amount and the reduced amount she was receiving ($136.27) in military retirement
benefits. Also, the family court correctly concluded that Cynthia is entitled to her
corresponding share of any cost of living increases in Mark’s military retirement
benefits.
Mark also claims that the family court erred by awarding Cynthia
attorney’s fees in the amount of $6,000. Mark claims that Cynthia is financially
able to pay her attorney’s fees independently.
It is well-settled that a court has broad discretion in the award and
amount of attorney’s fees. KRS 403.220 provides that a family court may award
reasonable attorney’s fees upon consideration of a financial disparity between
parties. Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky. 2001). Our Court will not
disturb a family court’s decision concerning attorney’s fees absent an abuse of
discretion. Id. A family court abuses its discretion when it has acted arbitrarily,
unreasonably, or unfairly, or if its decision was unsupported by sound legal
principle. Sexton v. Sexton, 125 S.W.3d 258 (Ky. 2004).
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The record reflects that Cynthia’s income was less than half of Mark’s
income. Thus, it is clear that a disparity in income existed between the parties.
Moreover, Cynthia’s attorney’s fees totaled more than $13,000, and the family
court awarded less than one-half of such amount. Upon the whole, we do not
believe the family court abused its discretion by awarding Cynthia $6,000 in
attorney’s fees.
We view Mark’s remaining contentions as moot or without merit.
CROSS-APPEAL NO. 2007-CA-001523-MR
Cynthia argues that the family court erred by failing to award her
“42.08% of Mark’s retirement, severance, disability, concurrent pay or pay by any
other name.” Cynthia’s Brief at 23. Cynthia claims entitlement to said pay under a
specific provision of the parties’ settlement agreement, which reads:
With it being provided that in the event [Mark] decides
to take an early retirement and receives a “Buy Out”
or other form of compensation in exchange for his
early retirement, then [Mark] shall be under an obligation
to so notify [Cynthia] of the same and she will be entitled
to her proportionate share, per the Poe formula of any
“Buy-Out” amount whether it be denominated as early
retirement pay, severance or by any other name. . . .
(Emphasis added.)
However, we believe Cynthia has erroneously interpreted the above provision of
the settlement agreement. By its plain terms, the above provision of the settlement
agreement is triggered only if Mark elects to receive “early retirement.” As it is
undisputed that Mark did not so elect, the above provision of the settlement
agreement is simply ineffectual and Cynthia’s argument is without merit.
-8-
We view any remaining contentions by Cynthia as moot or without
merit.
Accordingly, we affirm the judgment of the Hardin Circuit Court,
Family Court Division.
ALL CONCUR.
BRIEFS FOR APPELLANT/
CROSS-APPELLEE:
BRIEFS FOR APPELLEE/CROSSAPPELLANT:
Bryan Gowin
Louisville, Kentucky
C. Wesley Durham
Radcliff, Kentucky
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