WILLIAM D. NESBITT APPELLANT
RENEE C. NESBITT APPELLEE
FROM THE STONE COUNTY CIRCUIT COURT [NO. 69DR-13-105]
HONORABLE HOLLY MEYER, JUDGE
D. "Trey" Wright III, for appellant.
& Adams, by: Brian K. Woodruff, for appellee.
KENNETH S. HIXSON, JUDGE
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.
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.
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.
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
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.
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.
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.
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 ...