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Treloggen v. Treloggen

Court of Appeals of Arkansas, Division IV

December 5, 2018



          Richard E. Worsham, for appellant.

          Dodds, Kidd, Ryan & Rowan, by: Judson C. Kidd and Catherine A. Ryan, for appellee.


         This is a postdivorce dispute. Appellant John Treloggen and appellee Stephanie Treloggen were married in 1991 and were divorced pursuant to a divorce decree entered on July 16, 2012. The divorce decree contained provisions for child support, alimony, and division of the parties' property. Relevant to this appeal, the divorce decree provided that Stephanie was entitled to her marital percentage of John's post-office retirement based on the date of their marriage through the date of the decree. On January 31, 2014, the trial court entered a Court Order Acceptable for Processing under the Civil Service Retirement System (COAP). The COAP provided in pertinent part, "The Former Spouse [Stephanie] is entitled to a 32.28% pro rata share of the Employee's [John's] gross monthly annuity under the CSRS [Civil Service Retirement System]."

         Beginning in November 2014, both parties filed motions to either modify or correct the COAP in different respects. After two hearings, the trial court entered two orders on October 30, 2017. The effect of these orders was to modify the COAP in the manner requested by Stephanie, and to deny the proposed modification requested by John. John now appeals, arguing that the trial court erred in modifying the COAP upon Stephanie's request, while refusing to amend the decree upon his request. John also argues that the trial court erroneously calculated the post-office retirement arrearages he owed to Stephanie. We affirm.

         The COAP was entered into on January 31, 2014. Shortly thereafter, Stephanie began receiving benefits from the COAP in an amount considerably less than she was anticipating under the agreement. The postdivorce proceedings were initiated by Stephanie on November 20, 2014, when she filed a motion for contempt and modification. In that motion, Stephanie complained, inter alia, [1] that while the COAP awarded her 32.28% of John's civil-service retirement, she was receiving only 14.84%, and Stephanie requested that the court order John to bring said amount current. On April 22, 2015, John filed a motion to correct a clerical error. In his motion, John alleged that the COAP contained a clerical error because it awarded Stephanie a percentage of his gross monthly retirement benefits, and the parties had agreed she was entitled to only a percentage of his net monthly retirement benefits. John asked that the COAP be corrected to reflect that Stephanie was to receive a net share rather than a gross share.

         The trial court held a hearing on September 30, 2015. At the hearing, John testified that the parties' agreement was for Stephanie to receive a percentage of his net monthly annuity and that the provision in the COAP that she receive a percentage of his gross monthly annuity was an inadvertent error. John did, however, acknowledge that his gross monthly annuity payment of $7, 425 was being reduced by a plethora of deductions totaling $6, 270, leaving only $1, 155 as his net annuity payments. Many of these deductions are personal deductions and include, but are not limited to, his health-insurance premiums, his life-insurance premiums, family-insurance premiums, and his $2000 mortgage payment. Therefore, the net monthly annuity payment that John contended was available for apportionment under the COAP was substantially less than the gross monthly annuity payment.

         In Stephanie's testimony, she disputed John's claim that they had agreed she would receive a percentage of only his net monthly retirement earnings. Stephanie stated that, after extensive negotiations, the parties specifically agreed that she would instead receive a percentage of the gross monthly benefit.

         At the conclusion of the hearing, the trial court indicated, inter alia, that it would not rewrite the COAP on the issue of gross versus net because the parties had agreed that Stephanie would receive a portion of the gross annuity.[2] However, no order was entered at that time.

         About five months later, on March 4, 2016, Stephanie filed her own motion to correct clerical error. Apparently, Stephanie discovered that the United States Office of Personnel Management (OPM), the federal agency that administers the Post Office retirement payments, had interpreted the COAP language "32.28% pro rata share" to mean that Stephanie was only entitled to 32.28% of 32.28%, thus reducing her actual benefit to 14.84%.[3] In her motion, Stephanie alleged that the language in the COAP that she receive a 32.28% pro rata share of John's gross monthly annuity did not accurately reflect the parties' agreement and was apparently a clerical mistake. Stephanie alleged that she was supposed to receive a 32.28% share of the gross monthly annuity, and that by including the additional quantifying term "pro rata," her monthly share was being reduced twice contrary to the parties' agreement. In effect, Stephanie alleged that, instead of receiving a percentage of the gross monthly benefit, she was receiving a percentage of a percentage. Stephanie asked that the COAP be amended by deleting the words "pro rata" so that it reads, "[t]he Former Spouse is entitled to a 32.28% [pro rata] share of the employee's gross monthly annuity under the CSRS." Stephanie asserted that such an amendment was authorized by Arkansas Rule of Civil Procedure 60 as well as Paragraph 10 of the COAP, which provided, "Continued Jurisdiction: The Court shall retain jurisdiction with respect to this order to the extent required to maintain its status as a COAP and the original intent of the parties as stipulated herein."

         A hearing on Stephanie's motion was held on July 13, 2016. No testimony was taken at that hearing. However, at the previous hearing, both parties had testified concerning the "pro rata" language in the COAP. John had testified that he never agreed that the "pro rata" language should not be in the COAP; that the COAP was drafted by Stephanie's counsel; and that he was asking that the "pro rata" language remain. Stephanie testified that the term "pro rata" should not have been included in the COAP because, instead of receiving 32.28% of John's retirement benefit, she was getting only 14.84% as a result of receiving a percentage of a percentage.

         During the hearing held on July 13, 2016, John's counsel acknowledged that "the 32.28% we agree is the percentage of retirement in terms of their marriage." John's counsel further stated that "there is an assumption that the pro rata is an error" and ...

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