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Myers v. Ridgley

Court of Appeals of Arkansas, Division III

August 30, 2017

BERT LEE MYERS APPELLANT
v.
SUZIE RIDGLEY APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, TWELFTH DIVISION [NO. 60DR-99-1481] HONORABLE ALICE S. GRAY, JUDGE

          Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellant.

          Ballard & Ballard, P.A., by: Andrew D. Ballard, for appellee.

          DAVID M. GLOVER, JUDGE.

         In this 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.

         I. Background

         Bert 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.[1]

         By the 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 divorce).

         Following 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.

         Approximately 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."

         Bert 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 active-duty retirement.

         After 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.

         II. Motion to Dismiss Appeal

         Before 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 ...


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