GREGORY L. PELTS APPELLANT
SHELLY A. PELTS APPELLEE
FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43DR-13-649]
HONORABLE WILL FELAND, JUDGE
D. Watson, Attorney at Law, PLLC, by: Brent D. Watson, for
Law Firm, P.L.L.C., by: Scott A. Scholl, for appellee.
A. WOMACK, Associate Justice
Gregory Pelts appeals the decree of the Lonoke County Circuit
Court in his divorce from appellee Shelly Pelts. Gregory
argues that the circuit court erred by awarding Shelly a
marital portion of whichever military retirement benefit he
ends up receiving instead of simply awarding the equivalent
of a marital share of the reserve retirement in which he
already had a vested interest at the time of his divorce.
Gregory also asserts error in the circuit court's
decision to require him to select a survivor benefit when he
retires. Our court of appeals affirmed the decision of the
circuit court. 2016 Ark.App. 75, 482 S.W.3d 345. Appellant
petitioned this court for review, which was granted. When we
grant a petition for review, we treat the appeal as if it had
been originally filed in this court. Fowler v.
State, 2010 Ark. 431, 371 S.W.3d 677. Our jurisdiction
is pursuant to Arkansas Supreme Court Rule 1-2(e) (2016). For
the reasons outlined below, we agree that the circuit court
erred on both determinations. We reverse and remand for the
circuit court to enter a decree consistent with this opinion.
and Shelly Pelts married in 1990 and divorced in 2014.
Gregory has spent his career in the military, including
substantial time in both reserve and active-duty roles. At
the time of the divorce, he had already accumulated enough
service years to be vested in the reserve retirement program,
which will begin paying out when he turns 60 years old. If he
serves four more years on active duty beyond the time of the
divorce, he will become eligible for the active-duty
retirement program, which will begin paying immediately from
that point. Gregory will be 49 years old at that time. In
addition to any differences in benefit levels, obtaining
active-duty retirement would result in over a decade of
additional retirement payments.
divorce decree, the circuit court granted Shelly a marital
portion of Gregory's military retirement. The decree
applies to his current expectation of reserve retirement, but
also grants the same share of any active-duty retirement he
will receive if he ultimately completes the requisite years
to move up his retirement date. It also orders Gregory to pay
for a survivor-benefit option for Shelly from whatever
retirement payments he ends up receiving.
review divorce cases de novo; we review the division of
property in a divorce for clear error. See Skokos v.
Skokos, 344 Ark. 420, 425, 40 S.W.3d 768, 771-72 (2001).
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. Id.
(citing Huffman v. Fisher, 343 Ark. 737, 38 S.W.3d
expectation of retirement payments is an interest unlike
traditional categories of property. Nevertheless, we have
held that courts may divide such interests in divorce decrees
if they are vested. See, e.g., Day v. Day,
281 Ark. 261, 663 S.W.2d 719 (1984). Whether a retirement
interest is vested hinges on several factors, including
whether the benefit "cannot be diminished by the
[employer] and is not dependent upon . . . continued
employment." Id. at 264, 663 S.W.2d at 720. We
have also asked whether the interest was "fully
distributive upon the date of the . . . divorce."
See Hackett v. Hackett, 278 Ark. 82, 84, 643 S.W.2d
560, 562 (1982).
this analysis to military retirement programs, we have
concluded that "[i]f a divorcing spouse has achieved an
entitlement to military retirement pay, that entitlement is
an asset which may be divided between the parties to the
divorce." Christopher v. Christopher, 316 Ark.
215, 216, 871 S.W.2d 398, 399 (1994). Further, when an
interest in military retirement pay has vested, the spouse is
entitled to any enhancements of that interest at the time the
benefits are paid, even when those enhancements occur after
the time of divorce. Askins v. Askins, 288 Ark. 333');">288 Ark. 333,
337, 704 S.W.2d 632, 634 (1986).
question presented in this case is whether any property
interest Gregory has in active duty retirement payments was
vested and therefore subject to division at the time of the
divorce. Answering this question depends on whether the
reserve retirement statutory scheme-in which the parties
agree Gregory has a vested interest-is distinct from the
active duty retirement scheme. If the schemes are distinct,
and Gregory was vested only in the reserve program at the
time of the divorce, then the circuit court erred as a matter
of law in dividing the unvested interest in active-duty
retirement pay. If the schemes are ...