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In re Marriage of Thrailkill

Court of Appeals of Kansas

September 27, 2019

In the Matter of the Marriage of Denise Lynn Thrailkill, Appellee, and Roy Douglas Thrailkill, Appellant.

         SYLLABUS BY THE COURT

         1. A military retiree can provide an annuity for a spouse, payable in the event of the service member's death, under what Congress has named the Survivor Benefit Plan. In some cases, upon a divorce, the divorce court can order that the retiree elect the spousal annuity. If such an order is entered and the retiree does not file paperwork to make that election, the spouse can file the paperwork and the service member is deemed to have made the election. To have a deemed election, the spouse must file the required paperwork within one year of the court order, but that time period doesn't begin to run until the time to appeal has run or, if an appeal is filed, the appeal has concluded.

         2. Under the Kansas Child Support Guidelines, income from all sources is included when child support is calculated. The district court in this case properly included the military retired pay set aside to each party in the party's income for child-support purposes.

         3. The Kansas Child Support Guidelines provide for modification of the support amount if, among other things, a change in income would result in a 10% change in the child-support amount. The district court in this case did not abuse its discretion by not calculating different worksheets to show anticipated changes contingent on future events that had not been shown to constitute a material change under the guidelines.

         4. The district court did not abuse its discretion in the establishment of maintenance by failing to account for a likely reduction in part of one party's income when the court separately recognized that likely adjustment when it decided how to allocate a debt of the parties.

         5. On request, the district court must set a valuation date to be used for all assets and debts at trial. But the court may also consider things that happen before or after the valuation date. Here, the district court could treat a student loan taken out for the benefit of the parties' son as marital debt when both parties had agreed to take out the loan and the loan was taken out before the parties' financial issues were resolved at trial.

          Appeal from Graham District Court; Glenn R. Braun, judge.

          Heather R. Fletcher, of Johnson Fletcher, LLC, of Hays, for appellant.

          Todd D. Powell, of Glassman Bird Powell, LLP, of Hays, for appellee.

          Before Atcheson, P.J., Malone and Leben, JJ.

          Leben, J.

         Doug Thrailkill appeals three aspects of the district court's ruling in his divorce case. We'll start with an overview of the arguments and our resolution of them.

         First, Doug argues that the district court had no authority to enter orders related to the survivor-benefit plan associated with the pay he receives as a retired military officer. Doug notes that the district court granted a divorce between the parties many months before the court addressed financial issues. That's a process we call a bifurcated divorce, in which the court first grants the parties a divorce and holds the resolution of financial issues for later. Doug argues that federal law provides that no one-including the state court handling his divorce case-can make orders related to the survivor-benefit plan after a bifurcated divorce has been granted without mention of the annuity. But he cites no authority in support of that proposition.

         We are convinced that no such limit existed here on the district court's authority. First, we find nothing in the applicable federal statutes that limits the authority of a state divorce court to make such orders. Second, while there are time deadlines after the state court makes its order for the former spouse to notify the appropriate military officials of the court's order, those time limits are triggered by a final court order. A bifurcated divorce decree isn't a final judgment under Kansas law, and federal law provides that an order isn't final until appeals have concluded. So no time limit on the district court's ability to order former-spouse coverage could have expired.

         Second, Doug complains that the court both divided his military retirement pay and also included retirement pay in the parties' income for calculating maintenance and child support. But it's appropriate to consider all of the parties' income for those purposes. The court first divided the retirement pay, and it then allocated the portion of the pay it had awarded to Doug's former wife, Denise, as income to her when the court made its maintenance and child-support calculations. We find no error in the trial court's approach.

         Third, Doug argues that the court shouldn't have ordered that he pay off part of a student loan taken out to benefit one of their children. Doug argues that the child had already turned 18 and that the loan proceeds were disbursed after the bifurcated divorce decree had been filed. But the district court heard evidence that Doug had at first agreed to take out the loan, and the district court has broad authority in a divorce action to divide the parties' assets and debts equitably. We once again find no error in the trial court's decision.

         Doug also tried to raise one other issue on appeal-a challenge to the district court's order on a motion Denise made to enforce the court's orders. But we don't have jurisdiction to consider the appeal of that order. It was entered after final judgment and after Doug had filed his notice of appeal; as a result, Doug's notice of appeal didn't mention it. We have jurisdiction only over rulings identified in the notice of appeal, so we lack jurisdiction in this appeal over a postjudgment dispute.

         Factual and Procedural Background

         Doug and Denise married in 1992, and both were in the Air Force. For most of the marriage, Doug was a commissioned officer. Denise separated from active duty and joined the Air Force Reserves after their first child was born. They ultimately had two children and had settled in Kansas by the time they both retired from the military.

         Their retirement benefits differed. Because Doug had remained on active duty and had served more than 20 years, he had an immediate benefit at retirement of military retired pay of $3, 702 per month. Denise had 10 years on active duty and 10 in the reserves, so her retired pay won't start until she reaches age 60.

         Doug retired in October 2012, about three years before Denise filed for divorce in January 2016. When he retired, Doug also received some disability pay based on a 50% disability connected to his military service.

         After his military retirement, Doug initially had private-sector employment, but he quit his job at about the same time Denise filed for divorce, citing mental-health reasons. The Veteran's Administration increased his disability rating in June 2016 to 100%, citing posttraumatic stress disorder. That gave Doug a disability benefit of $3, 400 per month.

         Denise also worked after retiring from the Air Force. She worked between 30 and 40 hours per week as a law-office secretary and also worked as a waitress.

         The parties separated in February 2016, the month after Denise filed for divorce. Within a few months, the parties agreed to bifurcate the case, handling it in two parts. First, in August, the court issued a divorce decree, finding that the parties were incompatible and that "[Denise] is therefore granted a divorce from [Doug] upon the grounds of incompatibility." Second, the decree provided that "[a]ll other issues are reserved for future determination either by agreement" or "by trial." When the parties couldn't reach a settlement agreement, they presented evidence at a trial held in March 2017. The district court considered that evidence and issued a written ruling that May.

         The court equally divided the parties' retirement pay. That gave Denise half, or $1, 851, of Doug's monthly retired pay; Doug will get half of Denise's retired pay once she turns 60 and begins receiving it. Doug was 47 and Denise was 46 at the time of trial.

         The court awarded $300 per month in maintenance to Denise to equalize the parties' incomes for an eight-year period. The court noted that the parties had worked together to further Doug's career and income; Denise switched to the reserves and did most of the childcare while the family established several new homes as they often moved for Doug's new military assignments. The court calculated the $300 payment amount after considering the retirement pay each party would receive under the court's order, Doug's disability payment, and Denise's earnings from her two jobs.

         The court also ordered Doug to pay half of the $11, 000 remaining balance on a loan taken out to help finance their son's education. The court cited Doug's testimony that he had agreed to take out the loan but said that when the time came for Doug to sign the loan documents, "he was either unavailable or refused to do so[, ] which then necessitated [Denise] signing the loan documents."

         The court also considered a dispute over a program that provides a portion of the military retired pay to a service member's spouse or children after a retired service member's death. Under this plan, the service member pays an insurance premium and in return the designated survivor gets a lifetime annuity at 55% of the selected base amount, usually the service member's full retirement pay. This benefit comes through what Congress named the Survivor Benefit Plan. See 10 U.S.C. §§ 1447(1), 1448 (a)(1) (2012). When a service member retires while married, the service member must elect coverage under this plan at the time of retirement. And for a married service member, the base amount is the full amount of the retired pay unless the spouse consents to a lesser amount. See 10 U.S.C. § 1447(6)(A) (2012); 10 U.S.C. § 1448(a)(3)(A)(ii) (2012); Higdon, The Survivor Benefit Plan: Its History, Idiosyncrasies, Coverages, Cost, and Applications, 43 Fam. L. Q. 439, 449-51 (2009).

         Doug retired while married to Denise, and the parties agree that he elected to insure a survivor benefit for Denise. But the benefit chosen wasn't in the maximum amount. Instead, as best we can tell (as the trial exhibits weren't in our record), the parties insured only $771 of Doug's $3, 702 per month in military retired pay. That would give Denise a lifetime annuity of $424 (55% of $771) per month if she outlives Doug.

          Denise asked that the court order an increase in the insured amount, and the court granted that request. Apparently because Doug testified that he didn't know whether the amount could be increased-and the parties' attorneys didn't provide any definitive answer about it-the court ordered that "if possible, [Doug] is ordered to increase the Survivor [B]enefit Plan (SBP) to an amount equal to one half of the benefit . ...


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