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Nesbitt v. Nesbitt

Court of Appeals of Arkansas, Division III

October 19, 2016

WILLIAM D. NESBITT APPELLANT
v.
RENEE C. NESBITT APPELLEE

         APPEAL FROM THE STONE COUNTY CIRCUIT COURT [NO. 69DR-13-105] HONORABLE HOLLY MEYER, JUDGE

          Victor D. "Trey" Wright III, for appellant.

          Rice & Adams, by: Brian K. Woodruff, for appellee.

          KENNETH S. HIXSON, JUDGE

         This case is a postdivorce dispute between appellant William Nesbitt and appellee Renee Nesbitt regarding the amount of William's monthly military-retirement benefits he is required to pay Renee pursuant to the parties' property-settlement agreement. In the property-settlement agreement, William agreed to pay Renee 32% of his military-retirement benefits. Not long after the parties divorced, William unilaterally elected to receive Combat Related Special Compensation (CRSC) in lieu of a large portion of his military-retirement benefits, which sharply reduced the monthly payment to Renee that was based on a percentage of his military-retirement benefits. Renee subsequently filed a motion for contempt against William, asserting that he unilaterally and wrongfully converted his retirement pay to disability pay, and asking that William be ordered to pay her a monthly percentage of his retirement pay consistent with the parties' prior property-settlement agreement as if the CRSC election had not been made. Although the trial court did not hold William in contempt, it found that William could not unilaterally diminish Renee's vested interest in his military-retirement pay, and ordered William to pay Renee a percentage of his military-retirement pay based on what he was receiving at the time of the divorce, along with any future increases.

         William now appeals, arguing that the trial court erred in ordering him to make monthly payments to Renee based on the military-retirement pay he was receiving at the time of the divorce instead of the diminished military-retirement pay he was actually receiving. William also argues that the trial court erred in awarding Renee attorney's fees and costs. We find no error and affirm.

         We review equity cases on both factual and legal questions de novo on the record but will not reverse a finding of fact by the trial court unless it is clearly erroneous. Cooper v. Cooper, 2013 Ark.App. 748, 431 S.W.3d 349. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Brave v. Brave, 2014 Ark. 175, 433 S.W.3d 227. As to issues of law, however, we give no deference to the trial court. Hargrove v. Hargrove, 2015 Ark.App. 45, 453 S.W.3d 683.

         The parties were married for almost nineteen years prior to their divorce on June 2, 2014. At the time of the divorce, William was retired after having served twenty-five years in the military, and he was receiving military-retirement pay. The decree of divorce incorporated the parties' property-settlement agreement, and paragraph 14 of that agreement provides:

That as a division of property and not as payment of alimony, the wife shall receive 32% of husband's disposable military retirement pay. That husband served in excess of 20 years military service and exited the military service on or about May 31, 2012. That the parties married July 2, 1995 and have been married for a period of time in excess of 10 years during which time the husband served in excess of 10 years of military service. That wife shall be entitled to [a] 32% portion of husband's disposable military retirement pay effective March 1, 2014, and husband shall be responsible for submitting payment of wife's portion directly to wife until such time as garnishment of wife's portion is implemented. That wife's counsel shall prepare any necessary Order to implement said garnishment.

         On March 2, 2015, Renee filed a contempt motion alleging that, at the time of the parties' divorce in June 2014, she was receiving 32% of William's disposable military-retirement pay per the parties' agreement, which amounted to $1081 per month. She indicated that, due to a cost-of-living allowance, that amount had increased to $1, 099.25 per month in January 2015. However, in February 2015 Renee was informed by the Defense Finance and Accounting Service that her 32% portion of William's monthly military-retirement pay had been reduced from $1, 099.25 to $101.34, and she received that amount. This adjustment was based on William's election to receive CRSC in lieu of military-retirement benefits. In her motion, Renee asked that her monthly military-retirement benefit be calculated as if William had not made the CRSC election.

         In William's testimony, he stated that at the time of the divorce in June 2014 his combat-related injuries had been mischaracterized and that as a result he was not then eligible to receive CRSC. However, in December 2014, he was notified that his two disabilities, a traumatic brain injury and posttraumatic stress syndrome, were then considered to be combat related. Based on that finding, William was informed of his eligibility for CRSC, which he then elected to take. William testified that he made the CRSC election because, unlike military-retirement benefits, those benefits are not taxed. By electing CRSC, William's total monthly benefit amount was not changed because the CRSC benefit was a dollar-for-dollar setoff against his retirement pay. However, by electing CRSC, the portion of William's monthly benefit designated as military-retirement pay was greatly reduced to where 32% of the military-retirement pay was only $101.34, which was the monthly amount then paid to Renee. In sum, because of William's unilateral election to receive CRSC benefits, the monthly amount paid to Renee was reduced from $1, 099.25 to $101.34.

         On August 25, 2015, the trial court entered an order containing the following pertinent findings:

1. That the parties were divorced by "Decree of Divorce" issued by this Court and filed of record on June 2, 2014.
2. That pursuant to Section fourteen (14) of the parties' "Property Settlement and Child Custody Agreement" which was adopted and incorporated into the June 2, 2014 "Decree of Divorce, " as a division of property and not as alimony, Renee is to receive 32% of ...

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