In the Matter of the Marriage of Denise Lynn Thrailkill, Appellee, and Roy Douglas Thrailkill, Appellant.
BY THE COURT
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.
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.
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.
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.
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.
from Graham District Court; Glenn R. Braun, judge.
Heather R. Fletcher, of Johnson Fletcher, LLC, of Hays, for
D. Powell, of Glassman Bird Powell, LLP, of Hays, for
Atcheson, P.J., Malone and Leben, JJ.
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.
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.
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
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
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
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.
and Procedural Background
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.
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.
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.
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.
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.
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.
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.
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
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."
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).
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
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 . ...