FROM THE PULASKI COUNTY CIRCUIT COURT, TWELFTH DIVISION [NO.
60DR-99-1481] HONORABLE ALICE S. GRAY, JUDGE
& Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha
C. Taylor, for appellant.
Ballard & Ballard, P.A., by: Andrew D. Ballard, for
M. GLOVER, JUDGE.
divorce case, appellant Bert Myers appeals from a post-decree
order awarding his former wife, appellee Suzie Ridgley, a
portion of his active-duty military-retirement pay. Suzie
cross-appeals from the circuit court's refusal to order a
survivor-benefit plan for her. She has also filed a motion to
dismiss Bert's appeal. We reverse on direct appeal,
affirm on cross-appeal, and deny the motion to dismiss.
and Suzie were divorced in 1999 after twenty-nine years of
marriage. Throughout the marriage, Bert served in the
National Guard, first as a reservist and then on active duty.
During both types of service, he accumulated either
participation points (for reserve duty) or creditable time
served (for active duty) toward retirement.
time the divorce decree was entered in 1999, Bert was vested
in his reserve-duty retirement program. However, he was not
yet vested in his active-duty retirement program. The decree
therefore divided Bert's reserve retirement as marital
property and awarded a share of that retirement to Suzie.
See Christopher v. Christopher, 316 Ark. 215, 871
S.W.2d 398 (1994) (holding that military retirement is
divisible as marital property if it is vested at the time of
the divorce). The decree did not award Suzie a share of
Bert's active-duty retirement because Bert was not yet
vested in that program. See Burns v. Burns, 312 Ark.
61, 847 S.W.2d 23 (1993); Durham v. Durham, 289 Ark.
3, 708 S.W.2d 618 (1986) (holding that military retirement is
not subject to division if it is not vested at the time of
the entry of the decree, Suzie asked the circuit court to
reconsider the property division, arguing that she was
entitled to a share of Bert's "military retirement,
" whether it took the form of reserve-duty or
active-duty benefits. The court refused to overturn its
decision, and Suzie did not appeal.
five years after the divorce decree was entered, Bert became
vested in his active-duty retirement. However, he continued
his active service and did not plan to retire until October
2012. As his retirement date neared, Suzie filed a motion
seeking a marital share of Bert's "military
retirement, " which she defined to include "active
duty and/or reserve service."
opposed Suzie's motion on the ground that, at the time
the 1999 divorce decree was entered, he was not vested in his
active-duty retirement and, for that reason, the decree did
not award Suzie a share of his active-duty retirement. He
further asserted that it was no longer possible for Suzie to
receive a share of his reserve-duty retirement. In support of
that point, he presented the testimony of Sergeant First
Class Christina Nickell, who testified that Bert was now
vested in both types of military retirement-reserve and
active duty- but that military regulations prohibited him
from drawing both. Sergeant Nickell further explained that
military regulations favored active-duty retirement, and
because Bert had now attained eligibility for active-duty
retirement, his reserve-duty retirement was "nullified,
" and he was no longer eligible to receive it.
See 10 U.S.C. § 12731(a)(4) (1998); Army Reg.
2-1(b)(1) (1987). Instead, he was only eligible to receive
the hearing, the circuit court entered a Supplemental Decree
dated May 15, 2014. Unlike the original 1999 decree, the
Supplemental Decree did not differentiate between Bert's
reserve-duty and active-duty retirement. Instead, it stated
that Suzie had an equitable interest in Bert's
"military retirement, " which included "active
duty and/or reserve component military service." The
court therefore granted Suzie a 33.7% share of Bert's
military-retirement payments, which, at that point, consisted
solely of his active-duty retirement benefits. Bert now
appeals from the court's ruling.
Motion to Dismiss Appeal
we reach the merits of Bert's arguments, we consider
Suzie's motion to dismiss Bert's appeal. Suzie argues
first that Bert's appeal is untimely because he should
have appealed from the original 1999 divorce decree. This
argument is not well taken. The original decree awarded Suzie
a portion of Bert's vested, reserve-duty retirement but
did not award her a portion of his unvested, active-duty
retirement. That ...