No. _________
================================================================
In The
Supreme Court of the United States
-----------------------------------------------------------------THOMAS J. CANEDY,
Petitioner,
v.
JENNETH M. CANEDY,
Respondent.
-----------------------------------------------------------------On Petition For Writ Of Certiorari
To The Kentucky Court Of Appeals
-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI
-----------------------------------------------------------------AARON J. SILLETTO, ESQ.
Counsel of Record
GOLDBERG SIMPSON, LLC
9301 Dayflower Street
Prospect, Kentucky 40059
[email protected]
(502) 589-4440
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTIONS PRESENTED
1. Under 10 U.S.C. § 1408 and Mansell v.
Mansell, 490 U.S. 581 (1989), state courts may treat a
veteran’s “disposable retired pay” as divisible marital
property in a divorce action, excepting any retirement
benefits waived by the retiree in order to receive VA
disability benefits. May a state court order a totally
disabled veteran who is not eligible for retirement
pay, consistently with 10 U.S.C. § 1408 and Mansell,
to pay a portion of his VA disability benefits as
maintenance to his former spouse?
2. Under 38 U.S.C. § 5301, a veteran’s VA disability benefits are exempt from assignment, attachment, levy, seizure, and taxation, and under 42
U.S.C. § 659, VA disability benefits are exempt from
“any . . . legal process brought . . . by an individual
obligee, to enforce the legal obligation of the individual to provide child support or alimony.” May a state
court order a completely disabled veteran to pay a
portion of his VA disability benefits as maintenance to
his former spouse consistently with these statutes?
ii
PARTIES TO THE PROCEEDING
The names of all parties to the proceeding in the
court below are contained in the caption of this case.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................
i
PARTIES TO THE PROCEEDING .....................
ii
TABLE OF CONTENTS ......................................
iii
TABLE OF AUTHORITIES .................................
iv
PETITION FOR A WRIT OF CERTIORARI .......
1
OPINIONS AND ORDERS BELOW ....................
1
JURISDICTIONAL STATEMENT ......................
1
STATUTES INVOLVED ......................................
2
STATEMENT OF THE CASE ..............................
2
REASONS FOR GRANTING THE WRIT ...........
6
I.
II.
The Kentucky court’s interpretation of 10
U.S.C. § 1408 conflicts with the interpretation afforded by other states’ high
courts .........................................................
6
The interpretation and harmonization of
10 U.S.C. § 1408, 38 U.S.C. § 5301, and
42 U.S.C. § 659 presents an important issue of federal law, which should be settled by this Court....................................... 11
CONCLUSION..................................................... 16
APPENDIX
Opinion, Kentucky Court of Appeals, February
25, 2013 ............................................................ App. 1
Order, Hardin Circuit Court, October 9, 2009.... App. 9
iv
TABLE OF CONTENTS – Continued
Page
Order Denying Review, Supreme Court of
Kentucky, February 13, 2013 ........................ App. 24
Statutes .............................................................. App. 25
v
TABLE OF AUTHORITIES
Page
CASES
Barbour v. Barbour, 642 S.W.2d 904 (Ky. App.
1982) ..........................................................................5
Ex Parte Billeck, 777 So.2d 105 (Ala. 2000) ........ 10, 11
Hagen v. Hagen, 282 S.W.3d 899 (Tex. 2009) ............10
Mallard v. Burkart, 95 So.3d 1264 (Miss. 2012) .......10
Mansell v. Mansell, 490 U.S. 581 (1989) ....... 6, 8, 9, 11
McCarty v. McCarty, 453 U.S. 210 (1981) ...........6, 7, 8
Porter v. Aetna Cas. & Sur. Co., 370 U.S. 159
(1962) .................................................................15, 16
Rose v. Rose, 481 U.S. 619 (1987)............. 13, 14, 15, 16
Youngbluth v. Youngbluth, 6 A.3d 677 (Vt.
2010) ........................................................................10
CONSTITUTIONAL PROVISION
U.S. Const., Art. I, § 8...................................................7
STATUTES
10 U.S.C. § 1408 ................................................. passim
28 U.S.C. § 1257(a) .......................................................1
38 U.S.C. § 5301 ................................................. passim
42 U.S.C. § 659 ................................................... passim
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Thomas J. Canedy respectfully petitions for a writ of certiorari to review the judgment of
the Kentucky Court of Appeals.
------------------------------------------------------------------
OPINIONS AND ORDERS BELOW
The opinion of the Kentucky Court of Appeals
(App. 1-8) is unreported, but is available electronically at 2012 WL 2603630. The findings of fact,
conclusions of law, decree of dissolution, and order
entered by the Hardin Family Court (App. 9-23) is
unreported. The order of the Supreme Court of Kentucky denying discretionary review of the decision
of the Court of Appeals (App. 24) is unreported.
------------------------------------------------------------------
JURISDICTIONAL STATEMENT
The Kentucky Court of Appeals rendered the decision below on July 6, 2012. The Supreme Court of
Kentucky denied discretionary review on February
13, 2013. On April 25, 2013, Justice Kagan granted
an extension of time to and including June 28, 2013,
in which to file a petition for a writ of certiorari. This
Court has jurisdiction under 28 U.S.C. § 1257(a).
------------------------------------------------------------------
2
STATUTES INVOLVED
The relevant portions of 10 U.S.C. § 1408 (App.
25-27), 38 U.S.C. § 5301 (App. 27-28), and 42 U.S.C.
§ 659 (App. 29-32) are reproduced in an appendix
hereto.
------------------------------------------------------------------
STATEMENT OF THE CASE
This case originated as a divorce case in the
Family Court division of the Hardin Circuit Court in
Kentucky. Respondent Jenneth M. Canedy filed a petition for dissolution of marriage seeking, inter alia,
spousal support and an equitable division of the parties’ marital property. In his response to the petition,
Petitioner Thomas J. Canedy “vehemently denie[d]”
that his financial resources and needs are such that
he should be able to provide support and maintenance to Jenneth.
During the course of the proceedings, Thomas
stated in an affidavit filed with the Family Court that
he “is on total disability and receives benefits from
that total disability from the [Department of Veterans
Affairs], and receives [S]ocial [S]ecurity payments.”
In his pretrial disclosures filed pursuant to the Family Court’s local rules, Thomas stated that he received
$2,669.00 monthly in disability benefits from the Department of Veterans Affairs and $1,515.00 monthly
in Social Security benefits, for a total monthly income of $4,184.00. Thomas had no income from any
other source. At a pretrial hearing on the issue of
3
temporary maintenance, Jenneth was asked by
Thomas’s attorney, “You agree that [Thomas], he can’t
work anywhere, can he?” In response, Jenneth admitted, “No, he can’t work.” (VR 8-21-08 01:58:23.)
A final hearing was held before the Family Court
on July 16, 2009. At that hearing, when asked about
the possibility of having to pay maintenance to
Jenneth, Thomas testified, “This is federal disability
pay we’re talking about. . . . And that’s my disability,
it’s not for me and wife.” (VR 7-16-09 15:15:56.) There
was no other discussion or argument at the final
hearing regarding the allocation of Thomas’s VA disability benefits to pay maintenance to Jenneth.
The Family Court entered its findings of fact,
conclusions of law, decree of dissolution, and order on
October 9, 2009. It found that Thomas “opposes any
payment of spousal support” to Jenneth. (App. 11.)
Further, it found that “Thomas is receiving 100% VA
disability and is not receiving any retirement pay.
Federal law prohibits the division of disability pay;
however, Jenneth asserts that Thomas will be eligible for Concurrent Retirement and Disability Pay
(CRDP) . . . Retired pay is a [marital] asset subject to
division by the Court.” (App. 11.) The Family Court
ordered Thomas to “take affirmative action to ensure
that if he is eligible that he sign any and all documents necessary to begin the CRDP process” (App.
12), and then found that, in the event Thomas was
eligible for CRDP benefits, “Jenneth would be entitled
to $595.00 per month of the CRDP payments” (App.
13; see id. at 19-20).
4
Noting that “[t]he issue of spousal maintenance
is greatly contested by Thomas” (App. 18), the Family
Court awarded “some maintenance” to Jenneth (App.
19). It ordered that, “in the event that Jenneth does
not receive any of Thomas[’s] CRDP benefits because
they are not available to Thomas, then her spousal
maintenance shall be $850.00 per month.” (App. 19;
see id. at 23.)
On April 21, 2011, Thomas filed a motion to alter,
amend, or vacate the Family Court’s judgment, and
argued that the Family Court was not justified in
awarding any maintenance to Jenneth because
Thomas was a recipient of VA disability benefits, and
because equity did not require that Jenneth receive
maintenance. In his affidavit in support of the motion, Thomas stated that he was informed in December 2010 that he was not eligible for CRDP benefits.
As an alternative to vacating its order requiring he
pay spousal maintenance, Thomas also asked the
Family Court to reduce his support obligation “due to
[his] disabilities and medical conditions.” The Family
Court ordered on June 6, 2011, “that all pending motions pertaining [to maintenance issues] shall be held
in abeyance until the Court of Appeals renders an
opinion.”
Both parties timely appealed the Family Court’s
judgment to the Kentucky Court of Appeals. In his
brief before the Court of Appeals, Thomas asserted
that in awarding maintenance, the Family Court
failed to consider that, inter alia, “Thomas was totally
disabled and on a fixed income” and “Thomas’s VA
5
disability income was not divisible for maintenance
payments.” (See App. 5.) In her cross-appeal, Jenneth
sought an increase in spousal maintenance over the
$850.00 per month awarded by the Family Court.
(See App. 1.)
The Kentucky Court of Appeals rendered its opinion on July 6, 2012. Citing Barbour v. Barbour, 642
S.W.2d 904, 906 (Ky. App. 1982), as authority, the
Court of Appeals held that “it was permissible to
award maintenance even though Thomas receives VA
disability income.” (App. 6.) Further, the Court of
Appeals opined:
In light of the evidence presented to the
court, we find no error in the court’s decision
to award Jenneth maintenance because she
lacked sufficient property and employment to
support her reasonable needs in accordance
with the standard of living she enjoyed during the 45-year marriage. There was no
abuse of discretion in the $850.00 award of
maintenance.
(App. 6.) The Court of Appeals affirmed the judgment
of the Hardin Family Court as to both Thomas’s direct appeal and Jenneth’s cross-appeal. (App. 8.)
On August 10, 2012, Thomas timely filed a motion for discretionary review in the Supreme Court of
Kentucky. Thomas’s motion argued generally that it
was an abuse of discretion for the Family Court to
award Jenneth any maintenance at all. As relevant
here, Thomas’s motion also specifically asked the
6
state Supreme Court to accept discretionary review
“to clear up conflicting case law on the division of
military benefits in a divorce.” Contrasting “retirement benefits,” which are “divisible as a matter of
law,” and “VA disability benefits,” which “are not
divisible,” Thomas argued that the Family Court and
the Court of Appeals erred by requiring him to pay
maintenance to Jenneth out of the income he receives
from the Department of Veterans Affairs. In support
of his argument, Thomas specifically relied upon this
Court’s holding in Mansell v. Mansell, 490 U.S. 581
(1989); 10 U.S.C. § 1408; and 38 U.S.C. § 5301 (formerly codified at 38 U.S.C. § 3101). Accordingly,
Thomas moved the Supreme Court of Kentucky “to
accept discretionary review of this case as it is his
contention that he was erroneously ordered to pay
maintenance from nondivisible [sic] VA disability
benefits.” In a one-sentence order, the Supreme Court
of Kentucky denied Thomas’s motion for discretionary
review on February 13, 2013, without further comment. (App. 24.)
------------------------------------------------------------------
REASONS FOR GRANTING THE WRIT
I.
The Kentucky court’s interpretation of 10
U.S.C. § 1408 conflicts with the interpretation afforded by other states’ high courts.
In McCarty v. McCarty, 453 U.S. 210 (1981), this
Court determined that a former spouse of a retired
member of the Armed Forces was not entitled in a
dissolution of marriage proceeding to a division of the
7
veteran’s non-disability retirement pay under state
community property laws. The Court concluded that
Congress’s powers “[t]o raise and support Armies,”
“[t]o provide and maintain a Navy,” and “[t]o makes
Rules for the Government and Regulation of the land
and naval Forces,” U.S. Const., Art. I, § 8, cls. 12, 13,
and 14, permitted it to enact a military retirement
system that was designed to provide for a retired
service member, and to meet the personnel needs of
the active military forces. McCarty, 453 U.S. at 23233. Finding that “[t]he community property division
of retired pay has the potential to frustrate each of
these objectives,” the Court held that the military retirement system enacted by Congress did not permit
the states to reduce the amount of retired pay actually received by the veteran. Id. at 233.
Congress responded to what the McCarty majority conceded was the “serious” plight of service members’ former spouses under their decision by enacting
the Uniformed Services Former Spouses Protection Act (USFSPA), 10 U.S.C. § 1408. As it currently
reads, the USFSPA allows states to consider military
retirement pay divisible as between the parties during a divorce action: “Subject to the limitations of this
section, a court may treat disposable retired pay payable to a member for pay periods beginning after
June 25, 1981, either as property solely of the member or as property of the member and his spouse in
accordance with the law of the jurisdiction of such
court.” 10 U.S.C. § 1408(c)(1). However, the statute
defines “disposable retired pay” to exclude amounts of
8
retirement pay that the veteran waives in order for
the retiree to receive veterans’ disability benefits, 10
U.S.C. § 1408(a)(4)(B), or which the service member
receives as a result of a physical disability, 10 U.S.C.
§ 1408(a)(4)(C). Thus, a veteran’s retirement pay can
be allocated under a state’s community property or
property division law in a divorce action, but disability benefits may not be so allocated.
In Mansell v. Mansell, 490 U.S. 581 (1989), this
Court had the opportunity to construe the USFSPA,
in the context of a divorce decree that required the
veteran to pay 50 percent of his “total military retirement pay” to his former spouse, including that
portion of retirement pay waived so he could receive
disability benefits. Mansell, 490 U.S. at 586. The
Court noted that the USFSPA was enacted “[i]n direct
response to McCarty.” Id. at 584. Relying upon subsection (a)(4)(B), the Court held that, “under the Act’s
plain and precise language, state courts have been
granted the authority to treat disposable retired pay
as community property; they have not been granted
the authority to treat total retired pay as community
property.” Id. at 589; see id. at 594-95. Even though
this Court acknowledged that its decision might result in some economic harm to many former military
spouses, it determined that it would not “misread the
statute in order to reach a sympathetic result when
such a reading requires us to do violence to the plain
language of the statute.” Id. at 594. Thus, a state
court may not treat as property divisible upon divorce
9
any military retirement pay waived by the retiree in
order to receive veterans’ disability benefits.
Like most state courts to encounter this issue
post-Mansell, the Kentucky Court of Appeals held
below that, even though a veteran’s VA disability benefits may not be divided as part of a property settlement in a divorce case (thus recognizing the effect of
10 U.S.C. § 1408 without mentioning the statute),
such benefits still may be used as a basis for calculating an amount of maintenance or alimony to be paid
to the former spouse. In effect, rather than treating
Thomas’s VA disability benefits as they would treat
pension, 401(k), or IRA accounts, which are divisible
at the time of the divorce, the Kentucky Court of Appeals and the Hardin Family Court treated Thomas’s
disability benefits as they would any other income he
would receive if he was still able to work, which
would be divisible as it is received.
This interpretation of the statute is an endaround the USFSPA’s grant of authority to treat only
“disposable retired pay,” not disability pay, as divisible marital property. It also ignores the specific exclusion of veterans’ disability benefits from the definition
of “disposable retired pay” in 10 U.S.C. § 1408(a)(4).
It also conflicts with the holding of Mansell that state
courts have not been granted the authority to treat
total retired pay as property divisible in a divorce.
Even though the position taken by the Kentucky
Court of Appeals on this issue is consistent with the
majority view taken by the state courts, that position
10
is not unanimous. The state courts’ interpretation of
10 U.S.C. § 1408 in this case conflicts with the interpretation of the same statute by several state supreme courts. See Ex Parte Billeck, 777 So.2d 105
(Ala. 2000) (§ 1408 bars consideration of VA disability
benefits as income for purposes of awarding alimony);
Mallard v. Burkart, 95 So.3d 1264 (Miss. 2012) (state
courts are precluded from allocating military disability benefits to a former spouse as maintenance);
Hagen v. Hagen, 282 S.W.3d 899 (Tex. 2009) (VA disability benefits are not subject to alimony payment
calculations based upon a percentage of the veteran’s
income); Youngbluth v. Youngbluth, 6 A.3d 677 (Vt.
2010) (same). The Supreme Court of Alabama’s opinion in Billeck is perhaps the sharpest criticism of the
majority view:
Like Alabama, other state courts have found
that, although § 1408 and the Mansell decision prohibit direct payments of alimony from
veteran’s disability benefits received in lieu
of retirement pay, those veteran’s disability
benefits may be considered in determining an
award of alimony.
The Mansell decision and § 1408 clearly
manifest the intent of the federal law that a
retiree’s veteran’s disability benefits be protected from division or assignment. Alabama
courts and other state courts have circumvented the mandates of the Mansell decision
and § 1408 by allowing trial courts to consider veteran’s disability benefits in awarding alimony. The state courts have reasoned
11
that, as long as the trial court does not order
the husband directly to pay his veteran’s disability benefits to the wife, the trial court
does not violate § 1408. This reasoning is
flawed. When a trial court makes an alimony
award based upon its consideration of the
amount of veteran’s disability benefits, the
trial court essentially is awarding the wife a
portion of those veteran’s disability benefits;
and in doing so the trial court is violating
federal law. Mansell, supra, and § 1408.
Billeck, 777 So. 2d at 108-09 (emphasis in original;
some case citations omitted).
Thomas agrees with the Supreme Court of Alabama’s opinion in Billeck. The Kentucky Court of
Appeals, like the courts in most other states, has
done indirectly what Congress in 10 U.S.C. § 1408
and this Court in Mansell would not permit it to do
directly. This Court should grant the petition for a
writ of certiorari to resolve this split of authority
among the state courts’ interpretation of this statute.
II.
The interpretation and harmonization of
10 U.S.C. § 1408, 38 U.S.C. § 5301, and 42
U.S.C. § 659 presents an important issue of
federal law, which should be settled by this
Court.
The USFSPA is not the only federal statute
bearing upon the issues presented in this case. Two
other statutes – 38 U.S.C. § 5301 and 42 U.S.C. § 659
– also apply. The first statute applies specifically to
12
benefits administered by the Secretary of Veterans
Affairs:
Payments of benefits due or to become due
under any law administered by the Secretary
shall not be assignable except to the extent
specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be
exempt from the claim of creditors, and shall
not be liable to attachment, levy, or seizure by
or under any legal or equitable process whatever, either before or after receipt by the beneficiary.
38 U.S.C. § 5301(a)(1) (emphasis added). The second
statute applies more broadly, to benefits received
from a host of governmental sources:
Notwithstanding any other provision of law
(including . . . section 5301 of Title 38), effective January 1, 1975, moneys (the entitlement to which is based upon remuneration
for employment) due from, or payable by, the
United States . . . (including any agency, subdivision, or instrumentality thereof) to any
individual, including members of the Armed
Forces of the United States, shall be subject,
in like manner and to the same extent as if
the United States . . . were a private person,
to withholding in accordance with State law
. . . and to any other legal process brought,
. . . by an individual obligee, to enforce the
13
legal obligation of the individual to provide
. . . alimony.
42 U.S.C. § 659(a). To the extent possible, these
statutes also should be harmonized with 10 U.S.C.
§ 1408.
This Court had occasion, in Rose v. Rose, 481 U.S.
619 (1987), to address the application of both of these
statutes. The income of the appellant in that case was
composed entirely of VA disability benefits and Social
Security benefits. Rose, 481 U.S. at 622. A state trial
court had found the appellant in contempt for failing
to pay child support as ordered by that court. Id. at
623. This Court was asked to decide “whether a state
court has jurisdiction to hold a disabled veteran in
contempt for failing to pay child support, where the
veteran’s only means of satisfying this obligation is
to utilize benefits received from the [Department of
Veterans Affairs] . . . as compensation for a serviceconnected disability.” Id. at 621-22.
In answering that question in the affirmative,
the Court noted that the appellant “concedes that a
state court may consider disability benefits as part of
the veteran’s income in setting the amount of child
support to be paid.” Id. at 626 (emphasis in original).
Thus, the very question that is at the heart of this
case was conceded by the appellant and not at issue
in Rose. This factual distinction renders much of the
analysis in Rose to be inapplicable.
Section 5301(a)(1) of Title 38 declares that VA
disability benefits are not assignable, are exempt
14
from any claims of creditors, and are not liable to attachment, levy, or seizure under “any legal or equitable process whatever, either before or after receipt by
the beneficiary.” The Hardin Family Court’s award of
maintenance to Jenneth is a seizure of Thomas’s VA
disability benefits after his receipt of them. Also,
unlike in Rose, this case does not deal with a child
support order, but an award of maintenance of a
former spouse. This is an important distinction because the Court in Rose found statements in relevant
House and Senate committee reports to be persuasive, leading the Court to conclude that “veterans’
disability benefits compensate for impaired earning
capacity, . . . and are intended to ‘provide reasonable
and adequate compensation for disabled veterans and
their families.’ ” Id. at 630 (emphasis in original).
However, a former spouse is no longer a member of
the veteran’s family. Thus, the strong moral necessity
of ensuring that a retiree continues to support his
family members is not present here, as it was in Rose.
The Rose decision also addressed the application
of 42 U.S.C. § 659(a) to the child support order. The
appellant argued that his VA disability benefits were
not “based upon remuneration for employment,” because the statute as written at the time excluded
from such benefits “any payments by the Veterans’
Administration as compensation for service-connected
disability.” Rose, 481 U.S. at 634. This Court disagreed. Id. at 635.
The statute has been amended since the Court
decided Rose. As amended in 1997, 42 U.S.C. § 659
15
now excludes from the definition of “moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States”
any “periodic benefits under title 38, United States
Code,” with one exception. 42 U.S.C. § 659(h)(1)(B)(iii).
That exception is for VA disability benefits, “if the
former member [of the Armed Forces] has waived a
portion of the retired or retainer pay in order to receive such compensation.” 42 U.S.C. § 659(h)(1)(A)(ii)(V).
Thomas was not eligible for regular retired pay because he did not serve 20 years or more in the Armed
Forces; therefore, he could not waive any retired pay
and the exception is inapplicable to him. This Court
has yet to construe 42 U.S.C. § 659 since it was
amended to expressly exclude the VA disability benefits Thomas receives.
Finally, the Rose decision also appears to conflict
with the Court’s earlier decision in Porter v. Aetna
Cas. & Sur. Co., 370 U.S. 159 (1962). In Porter, the
Court held that VA disability compensation does not
lose its status as exempt from any legal or equitable
process (under the statute now codified at 38 U.S.C.
§ 5301) when those benefits were deposited in a savings
and loan account. Id. at 162. Importantly, the Court
held that this statute “should be liberally construed
. . . to protect funds granted by the Congress for the
maintenance and support of the beneficiaries thereof.” Id. As a result, even after being received by the
disabled veteran and deposited into his account,
“deposits such as are involved here should remain
inviolate.” Id. This case, which involves an award of
16
spousal maintenance, is more akin to Porter, which
involved a debt owed to a judgment creditor, than it is
to Rose, which involved a child support order. This
Court should grant certiorari to revisit its analysis of
38 U.S.C. § 5301(a)(1) and 42 U.S.C. § 659(a), and to
reconcile the holdings of Rose and Porter.
------------------------------------------------------------------
CONCLUSION
For the foregoing reasons, the petition for a writ
of certiorari should be granted.
Respectfully submitted,
AARON J. SILLETTO, ESQ.
Counsel of Record
GOLDBERG SIMPSON, LLC
9301 Dayflower Street
Prospect, Kentucky 40059
[email protected]
(502) 589-4440
App. 1
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002118-MR
AND
NO. 2009-CA-002301-MR
Date Feb. 25, 2013
THOMAS J. CANEDY
v.
APPELLANT/CROSSAPPELLEE
APPEAL AND CROSS-APPEAL
FROM HARDIN CIRCUIT COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 08-CI-00909
JENNETH M. CANEDY
APPELLEE/CROSSAPPELLANT
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, KELLER AND STUMBO, JUDGES.
DIXON, JUDGE: In this dissolution of marriage
action, Thomas J. Canedy appeals the final judgment
of the Hardin Circuit Court, contending the court
erred in its valuation of the marital home and by
awarding maintenance to Jenneth M. Canedy. In her
cross-appeal, Jenneth asserts she was entitled to
more monthly maintenance than the court awarded.
After careful review, we affirm.
Thomas and Jenneth were married on April 25,
1964, and they were divorced on October 7, 2009. At
the time of the divorce, Jenneth was 64 and Thomas
App. 2
was 67. The parties had five children together, and
they also reared two children fathered by Thomas
outside the marriage. Thomas served in the military
during the marriage, and Jenneth was primarily a
homemaker.
At the time of the hearing, Thomas received
income of $4,184.00 per month from social security
and VA disability benefits. Jenneth received $585.00
per month in social security. The court heard testimony from the parties regarding property acquired
during the marriage, including the marital home that
Thomas sought to retain. Jenneth testified that
Thomas told her the home had a value of $160,000;
however, Thomas asserted the home was worth
$143,000. Although neither party tendered expert
evidence at the hearing to support their valuations,
Jenneth testified without objection that the court
should determine a value based on the figures submitted by the parties. The court also heard testimony
regarding Jenneth’s request for maintenance, with
both parties asserting they experienced many personal difficulties during their 45-year marriage.
Thomas vehemently opposed an award of maintenance, while Jenneth contended she was entitled to
maintenance in order to meet her reasonable needs
for daily living.
The trial court held a final hearing on July 16,
2009, to resolve issues regarding property, assets,
debts, and maintenance. After hearing the testimony
and receiving evidence, the court rendered findings of
fact, conclusions of law, and a decree dissolving the
App. 3
parties’ marriage. The court found that the home had
a value of $152,000, and Thomas would retain the
home and pay Jenneth for half of the equity. The
court also awarded Jenneth permanent monthly
maintenance of $850.00. This appeal and cross-appeal
followed.
Thomas raises several arguments regarding the
sufficiency of the evidence on the issue of maintenance. In her cross-appeal, Jenneth contends the
evidence warranted a more substantial maintenance
award in her favor.
An award of maintenance is governed by Kentucky Revised Statutes (KRS) 403.200, which states
in relevant part:
(1) [T]he court may grant a maintenance
order for either spouse only if it finds that
the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property apportioned
to him, to provide for his reasonable
needs; and
(b) Is unable to support himself
through appropriate employment. . . .
(2) The maintenance order shall be in such
amounts and for such periods of time as the
court deems just, and after considering all
relevant factors including:
(a) The financial resources of the
party seeking maintenance . . . ;
App. 4
(b) The time necessary to acquire
sufficient education or training to
enable the party seeking maintenance to find appropriate employment;
(c) The standard of living established during the marriage;
(d)
The duration of the marriage;
(e) The age, and the physical and
emotional condition of the spouse
seeking maintenance; and
(f) The ability of the spouse from
whom maintenance is sought to
meet his needs while meeting those
of the spouse seeking maintenance.
The amount and duration of a maintenance
award is within the sound discretion of the trial
court. Gentry v. Gentry, 798 S.W.2d 928, 937 (Ky.
1990). On appellate review, this Court will not disturb the lower court’s decision unless its findings
were clearly erroneous or it committed an abuse of
discretion. Perrine v. Christine, 833 S.W.2d 825, 826
(Ky. 1992).
Thomas contends the court erred in its application of the statutory factors. Thomas asserts the court
failed to consider: (1) Jenneth received half of the
equity in the marital residence; (2) Jenneth was
voluntarily unemployed; (3) Thomas was totally
disabled and on a fixed income; (4) Jenneth’s misconduct during the marriage warranted a denial of
App. 5
maintenance; and (5) Thomas’s VA disability income
was not divisible for maintenance payments.
In Russell v. Russell, 878 S.W.2d 24 (Ky. App.
1994), this Court explained:
It is appropriate to award maintenance when
a party is not able to support themselves in
accord with the same standard of living
which they enjoyed during marriage and the
property awarded to them is not sufficient to
provide for their reasonable needs. Furthermore, where a former spouse is not able to
produce enough income to meet their reasonable needs, it is appropriate to award
maintenance.
Id. at 26 (internal citations omitted).
The evidence indicated the parties’ primary
marital asset was the residence. The home was
encumbered by a mortgage, and the parties presented
conflicting testimony as to the balance of the note.
Although Thomas asserts the court failed to consider
Jenneth’s share, of the equity, we note that Thomas
neglected to produce accurate evidence to assist the
court. Based on the testimony presented, the court
was cognizant that Jenneth was entitled to equity
between $24,000 and $49,000. Jenneth was also
awarded an automobile, a portion of the cash value of
a life insurance policy, and a portion of the cash value
of the parties’ cemetery plots. The court also allocated
Jenneth a small portion of credit card debt. Jenneth
tendered a monthly budget to the court of $2000.00,
while Thomas estimated his monthly budget at
App. 6
$3717.00. It was undisputed that Jenneth was renting an apartment and solely relied on her social
security income. The evidence clearly showed a
disparity between the parties’ incomes of approximately $3600.00. The court specifically noted that,
although Jenneth was capable of working, she was at
a disadvantage for finding employment due to her
marketable skills and her age. The court further
stated that it considered the relevant statutory
factors, including Thomas’s ability to pay, the standard of living enjoyed by the parties during the
marriage, and the allegations of Jenneth’s marital
misconduct. Furthermore, it was permissible to
award maintenance even though Thomas receives VA
disability income. Barbour v. Barbour, 642 S.W.2d
904, 906 (Ky. App. 1982).
In light of the evidence presented to the court, we
find no error in the court’s decision to award Jenneth
maintenance because she lacked sufficient property
and employment to support her reasonable needs in
accordance with the standard of living she enjoyed
during the 45-year marriage. There was no abuse of
discretion in the $850.00 award of maintenance.
As to Jenneth’s cross-appeal, we are not persuaded that the court failed to award her enough maintenance to meet her needs. Under KRS 403.200:
[T]he trial court has dual responsibilities:
one, to make relevant findings of fact; and
two, to exercise its discretion in making a determination on maintenance in light of those
facts. In order to reverse the trial court’s
App. 7
decision, a reviewing court must find either
that the findings of fact are clearly erroneous
or that the trial court has abused its discretion.
Perrine, supra at 826. For the reasons set out previously in this opinion, we cannot say the trial court’s
findings were either clearly erroneous or an abuse of
discretion with regard to its determination of
maintenance.
Next, Thomas argues the court’s valuation of the
marital residence was erroneous because it was not
supported by the evidence. Thomas concedes this
argument was not preserved for appellate review.
The court stated in its findings:
Since there was no expert testimony regarding the value of the marital residence the
Court is inclined to believe that a value between what each party has stated would be
more accurate. Therefore the Court will hold
that the fair market value of the marital residence is $152,000.00.
A trial court has wide latitude in dividing and
valuing marital assets. Armstrong v. Armstrong, 34
S.W.3d 83, 87 (Ky. App. 2000). Furthermore, “[t]he
property may very well have been divided or valued
differently; however, how it actually was divided and
valued was within the sound discretion of the trial
court.” Cochran v. Cochran, 746 S.W.2d 568, 570 (Ky.
App. 1988).
App. 8
Although Thomas opines that the court’s valuation was not supported by the evidence, he clearly
failed to present expert testimony on this issue. We
are not inclined to find palpable error because the
parties essentially agreed that the court should fix a
value based solely on their testimony. In light of the
evidence before the trial court, we are satisfied the
court utilized its discretion to consider the evidence
and select a mid-range value based on its view of the
credibility of the witnesses. See Calloway v. Calloway,
832 S.W.2d 890, 893 (Ky. App. 1992) (assigned value
was properly within range of estimates presented at
trial).
For the reasons stated herein, we affirm the
judgment of the Hardin Circuit Court on direct appeal and cross-appeal.
ALL CONCUR.
BRIEFS FOR APPELLANT/ BRIEFS FOR APPELLEE/
CROSS-APPELLEE:
CROSS-APPELLANT:
Traci H. Boyd
Lexington, Kentucky
Carol B. Meinhart
Radcliff, Kentucky
App. 9
COMMONWEALTH OF KENTUCKY
HARDIN CIRCUIT COURT
FAMILY COURT-DIVISION I
CASE NO. 08-CI-00909
JENNETH M. CANEDY
VS.
PETITIONER
FINDINGS OF FACT,
CONCLUSTIONS [sic] OF LAW,
DECREE OF DISSOLUTION
AND ORDER
THOMAS J. CANEDY, SR.
RESPONDENT
**********************************************
This matter having come before the Court on
July 16, 2009 for a final hearing with the parties
being present along with their respective counsel, the
Hon. Carol Meinhart for the Petitioner and the Hon.
BarryBirdwhistell for the Respondent, and the Court
having heard the testimony of the parties and reviewed the evidence submitted and having heard the
arguments of counsel does hereby render it’s Decree
of Dissolution. As a preliminary matter, the Court
finds that it has jurisdiction over the parties and over
the subject matter in this action. KRS Chapter 403 et
seq., and KRS 23A.100.
Jenneth has been a resident of the Commonwealth of Kentucky for at least one hundred and
eighty (180) days immediately preceding the filing of
the Petition herein. The parties have been separated
for more than sixty (60) days.
App. 10
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
The parties were married on April 25, 1964.
There are no minor children remaining for the Court
to consider any issues of custody, visitation or child
support. The children of the parties are all over the
age of 18 and it would appear most are doing quite
well in their chosen professions and each party is
obviously proud of their children’s achievements, and
rightfully so they should be. However, beside the
children that were born of the marriage the Respondent fathered 3 children, while married, but not by
the Petitioner. Two of these children lived with the
parties when they were fairly young and were in
essence raised by both the Petitioner and the Respondent. Despite their long term marriage the
Respondent states that the marriage was not a happy
one, in many respects. Thomas asserts that Jenneth
was either bi-sexual or lesbian which caused a strain
on their marriage relationship early on and which
resulted in his “going astray” to look for female
companionship outside the marriage bed. However,
Jenneth, to some degree, denies that she is lesbian
but admits to a sexual encounter with another woman which was also participated in by Thomas and of
which he initiated. Jenneth asserts that she was
sexually molested as a young child by both men and
women and as a result of this perhaps she did have
sexual identification issues. Jenneth points out that
she never received counseling for this abuse and that
she trusted this information to Thomas, which she
App. 11
feels, has betrayed her trust and confidence by using
this information to gain advantages over her
throughout their marriage and during this divorce
proceeding.
Jenneth is seeking spousal support and Thomas
opposes any payment of spousal support since he
believes that Jenneth does not want to take care of
him since he has become completely disabled. Thomas feels a certain sense of frustration and abandonment because Jenneth was the party filing for the
divorce.
CONCURRENT RETIREMENT
AND DISBABLITY [sic] PAY (CRDP)
Throughout their married life, Thomas has been
in the military and has now retired having retired
1979, he entered the military on November 1966,
therefore Thomas had 158 months of military service.
Thomas had been in the military prior to the parties
marriage, quit but later re-enlisted. Currently Thomas is receiving 100% VA disability and is not receiving
any retirement pay. Federal law prohibits the division
of disability pay; however, Jenneth asserts that
Thomas will be eligible for Concurrent Retirement
and Disability Pay (CRDP) which permits over the
course of a few years for the military recipient to
receive both retired pay and disability pay. Retired
pay is a martial [sic] asset subject to division by the
Court. KRS 403.190; Poe v. Poe 711 S.W.2d 849
(Ky.App. 1986) and Davis v. Davis 777 S.W.2d 230
(Ky.1989) Jenneth’s counsel submitted a [sic] order
App. 12
seeking the Court to sign to allow Jenneth to receive
her portion of retired pay, if and when, it is received
by Thomas; however, under current Federal law
enacted in 2004 this is a [sic] phase occurs over a 9
year period. The qualify the [sic] military retiree with
20 years or more of service and a 50% or higher VA
disability rating will no longer have retired pay
reduced by their VA disability benefits. However, it is
not clear to the Court if Thomas will qualify since his
years of service was not consecutive. There was a
brief period when he was not serving in the military
but later re-enlisted. The CRDP payment rate is
determined by the retiree’s current VA disability
compensation waiver, minus the CRDP table rate,
multiplied by the current CRDP “phase out” percentage. For 2009 the current restoration rate is 84.88%
and will increase to 100% by 2014. This process
appears to be automatically done for those eligible;
however, Thomas should take affirmative action to
ensure that if he is eligible that he sign any and all
documents necessary to begin the CRDP process to
be implemented. 10 U.S.C. Section 1414. In the
event that Thomas is eligible to receive CRDP according to the income information provided by
Thomas his CRDP amount for 2009 would be
$2,378.85 per month. Every year the CRDP amount
would increase because of the percentages under the
table would increase; however, a retiree would not
receive an amount that would exceed the sum of the
retiree’s actual military retirement pay and VA disability compensation added together. Therefore the
Court will apply the Poe, infra., formula to the CRDP
payments in the event Thomas is eligible for said
App. 13
payments. Therefore using said formula the Court
concludes that for the year 2009 Jenneth would be
entitled to $595.00 per month of the CRDP payments;
however, this amount would increase each and every
year according to the table rate for any future years.
NON-MARITAL PROPERTY
The parties agreed that the house located in
Indiana is the Respondent’ non marital real estate
along with an account containing his mother’s money
with Fort Knox Federal Credit Union in the amount
listed on his VDS’ of $58,306.89, therefore those items
shall be restored to the Respondent. Therefore Thomas shall be restored those items as his non-martial
[sic] property. Overstreet v. Overstreet 144 S.W.3d 834
(Ky.App. 2003)
MARITAL RESIDENCE
The marital residence is currently being used by
Thomas and he desires to keep the residence since he
has made it handicapped accessible. Jenneth has no
real desire to keep the house, but she does desire to
have her share of the equity awarded to her. The
parties did not produce any expert testimony regarding the value of their house. However, Thomas’ VDS
contained an appraisal which was done when the
home was refinanced in 2007, which indicated the
house had a value of $143,000.00. However, this
appraisal was not introduced at the hearing, however,
Thomas testified that the fair market value at
App. 14
$143,000 while Jenneth states the fair market value
at $160,000.00. At either value the house has substantial equity. There is some confusion as to the
balance of the loan with Wells Fargo, since one VDS
states a balance of $102,667.36 (Thomas) and the
other VDS states a balance of $52,359.03 (Jenneth)
and the testimony of the parties did not clarify the
balance of the debt against the house whether it be
the original mortgage or a refinance. Since there was
no expert testimony regarding the value of the marital residence the Court is inclined to believe that a
value between what each party has stated would be
more accurate. Therefore the Court will hold that the
fair market value of the marital residence is
$152,000. Therefore, the Court will award to Jenneth
as her share of the marital equity an amount that is
equal to one-half of the [sic] what is owed against the
property (at the date of the hearing) minus the value
set by the Court of $152,000.00. This amount shall be
paid to Jenneth by Thomas in within 60 days after
the entry of this Decree and Thomas shall refinance
the debt within 60 days, take Jenneth’s name off the
mortgages and pay to Jenneth her share of the equity.
In the event Thomas can not refinance then Thomas
shall pay to Jenneth 4 annual equal installments
until said balance is paid in full. Jenneth shall retain
a lien on the real estate for her share of the marital
equity until said amount is paid in full by Thomas.
The martial [sic] residence shall be awarded to
Thomas, who in turn shall be solely responsible for
any outstanding debt(s) on said real estate. Thomas
App. 15
shall attempt to refinance the house within 60 days
from the entry of this Decree to remove Jenneth’s
name from any mortgage obligation on the marital
residence and to pay Jenneth her share of the marital
equity. Jenneth shall execute a quit-claim deed to
Thomas to allow him to refinance within this same
time frame. Jenneth again shall be entitled to a lien
on said real estate until her share of the equity is
paid in full. Bischoff V. Bischoff 987 S.W.798
(Ky.App.1998)
PERSONAL PROPERTY
The Parties have two accounts with Fort Knox
Federal Credit Union that are martial [sic] in nature
with a value of approximately $3,900.00 and one
account with PNC Bank in the amount of $500.00.
The Court shall award each party one-half of those
funds. Thomas shall ensure that Jenneth receives
within 30 days from the entry of this Decree her
share of those funds, if these funds are in his sole
name; Jenneth shall ensure that Thomas receives
one-half of the PNC Bank funds, if they are in her
sole name.
There are two life insurance policies with the
Principal Financial Group, with a loan or cash surrender value of approximately $7,300.00. The Court
shall order that these policies be cashed in and that
the parties share equally any cash surrender value
from these two policies.
App. 16
The parties have several vehicles which are
unencumbered and are valued at approximately
$15,000.00. The Court will award the Ford Escort to
Jenneth, and the 1997 Van and 1996 Ford Explorer to
the Thomas. The 1982 Boat and other undated Boat
shall be sold and the proceeds equally divided between the parties.
The parties also have 9 cemetery lots in North
Hardin Memorail [sic] Gardens. Thomas shall be
allowed to retain 2 lots of his choosing and Jenneth
shall be allowed to retain 2 lots of her choosing,
provided it does not violate the cemetery’s policy of
ownership (some cemeteries require a block of 4 plots
and will not separate them). In the event this division
violates the cemeteries ownership policies then all of
the plots shall be sold and the proceeds divided
equally. If this division does not violate cemetery
restrictions then each party shall be awarded the
above, with Thomas being allowed the first pick of
lots, then Jenneth, then the remainder lots to be sold
and the proceeds divided equally between the parties.
The remaining personal property shall be divided
in the following manner: Thomas shall within 10 days
of the entry of this Decree prepare two list one
marked “A” and the other marked “B”. Thomas will
list the parties marital personal property not otherwise awarded by this Decree on these two lists. The
lists then shall be delivered to his counsel who in
turn shall provide copies of the two lists to Jenneth’s
counsel. Jenneth shall be allowed to pick either list
she wants. The items of personal property on that list
App. 17
will be the items of personal property the Court
awards to her. Thomas shall be awarded the items
contained on the list not selected by Jenneth. Jenneth
shall make her choice of lists within 72 hours of
receiving the lists from her counsel. Counsel for each
party shall file with the Court a “notice of filing”
indicating which list their respective clients have
been awarded. Said notice of filing shall occur within
30 days after the entry of this Decree.
CREDIT CARDS
Jenneth shall pay the following credit cards: Ft.
Knox Credit union visa amount of $255.92 and the
Wells Fargo visa in the amount of $37.28. If these
cards are in the parties joint names, then Jenneth
shall takes the necessary steps to remove Thomas
name from those accounts or if she can not remove
his name, then after the balance is paid in full then
the account shall be closed; Jenneth and Thomas
shall be prohibited from making any future charges
on these accounts. Thomas shall pay the following
credit cards: Walmart card in the approximate
amound [sic] of $2,829.24 and the Ft. Knox Credit
visa with unknown balance If these cards are in the
parties joint names, then Thomas shall takes the
necessary steps to remove Jenneth’s name from those
accounts or if he can not remove her name, then after
the balance is paid in full then the account shall be
closed; Jenneth and Thomas shall be prohibited from
making any future charges on these accounts. Thomas shall pay the unsecured loan with Ft. Knox Federal
App. 18
Credit Union I the approximate amount of $3,715.00;
Thomas shall take the necessary steps to remove
Jenneth’s name from that account.
Jenneth shall be solely responsible for her student loans. Thomas shall be responsible for the other
debts not otherwise specified to and to those debts in
his individual name. Russell v. Russell 878 S.W. 2d 24
(Ky.App.1994)
SPOUSAL MAINTENANCE
The issue of spousal maintenance is greatly
contested by Thomas; he does not believe that
Jenneth is entitled to spousal maintenance despite
their long-term marriage. He believes that he stood
by Jenneth during times she was experiencing many
emotional/psychological issues and she is now abandoning him after he has become totally disabled.
Jenneth, on the other hand, states that Thomas did
not give her the emotional support as stated by him,
but instead added to her emotional issues by having
more than one adulterous affair, which produced
children outside of the marriage, who were raised,
largely, by the parties. Indeed these parties have not
had what is generally thought of as a traditional
marriage. Yet despite both parties conduct during the
marriage, which may have emotionally injured each
other, they continued to remain married for many
years. Marital misconduct is a factor to be considered
by the person seeking the spousal support. Chapman
v. Chapman 498 S.W. 2d 134 (Ky. 1973) The Court
App. 19
does not believe that Thomas has produced enough
evidence that Jenneth’s conduct during the marriage
was misconduct of a nature that would diminish her
claim to spousal support. Furthermore, although
Jenneth is still capable of working, it may be difficult
for her to find a job with her current marketable
skills and her age. Russell v. Russell 878 S.W.2d 24
(Ky.App. 1994) Therefore the Court will award
Jenneth some maintenance. The Court having taken
into consideration the marital property awarded to
Jenneth, the standard of living during the marriage,
Jenneth’s expenses, and Thomas’ ability to pay along
with the other statutory factors contained in KRS
403.200, the Court finds that $600 per month permanent maintenance would be appropriate weighing all
of the statutory factors. However, in the event that
Jenneth does not receive any of Thomas CRDP benefits because they are not available to Thomas, then
her spousal maintenance shall be $850.00 per month.
Weldon v. Weldon 957 S.W.2d 283 (Ky.App.1997),
Dotson v. Dotson 864 S.W.2d 900 (Ky.1993)
DECREE AND ORDER
1. IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the marriage of JENNETH
CANDEY [sic] and THOMAS J. CANDEY [sic], SR.,
is hereby dissolved and the parties are restored to the
status of single and unmarried persons.
2. IT IS HEREBY ORDERED that Jenneth Canedy
shall be entitled to any Concurrent Retirement
App. 20
Disability Pay (CRDP) under the percentages under
the formula of Poe v. Poe 711 S.W.2d 849 (Ky.App.
1986). Thomas shall within 30 days after the entry of
this Decree sign any necessary documents which
would allow Jenneth to receive her share of CRDP
benefits. Thomas shall within 10 days after the entry
of the Decree contact appropriate military channels to
determine if he qualifies for CRDP benefits.
3. IT IS HEREBY ORDERED that Thomas shall
be entitled to his non-marital property the real estate
located in Indiana and the account for the benefit of
his mother.
4. IT IS HEREBY ORDERD [sic] that Thomas
shall be awarded the martial [sic] residence and shall
be solely responsible for any debt(s) on said real
estate; Jenneth shall be awarded one-half of the
equity after deducting the debts at the date of the
hearing from the value set by the Court of
$152,000.00; Thomas shall attempt to refinance these
debts within 60 days after the entry of this Decree to
take Jenneth’s name of [sic] the mortgage debt(s) and
to pay Jenneth her share of the equity. In the event
Thomas is unable to refinance, after making reasonable efforts, then Thomas shall pay to Jenneth 4 equal
annual installments until Jenneth’s share of the
equity is paid in full. Jenneth shall sign a quit-claim
deed within 60 days after the entry of this Decree. IT
IS FURTHER ORDERED it is further ordered [sic]
that Jenneth shall retain a lien on the marital residence until her share of the marital equity is paid in
full by Thomas.
App. 21
5. IT IS FURTHER ORDERED that the bank
accounts or savings account listed on the parties’ VDS
(excluding Thomas’ non-marital property) shall be
divided equally.
6. IT IS FURTHER ORDERED that the life
insurance policies shall be liquidated and the cash
surrender values shall be divided equally between the
parties.
7. IT IS HEREBY ORDERED that the Ford
Escort be awarded to Jenneth, and the 1997 Van and
1996 Ford Explorer be awarded to Thomas, each shall
be solely responsible for any debts owed on the vehicles awarded to them, if any. IT IS FURTHER
ORDERED that the 1982 Boat and other undated
Boat shall be sold and the proceeds equally divided
between the parties.
8. IT IS FURTHER ORDERED that Thomas shall
be allowed to retain 2 cemetery lots of his choosing
and Jenneth shall be allowed to retain 2 cemetery
lots of her choosing, provided it does not violate the
cemetery’s policy of ownership, with Jenneth being
allowed to pick first; however, in the event this division violates the cemeteries ownership policies, then
all of the plots shall be sold and the proceeds divided
equally between the parties. IT IS FURTHER
ORDERED that the remainder cemetery lots shall
be sold and the proceeds divided equally between the
parties.
9. IT IS FURTHER ORDERED that the remaining personal property shall be divided in the following
App. 22
manner: Thomas shall within 10 days of the entry of
this Decree prepare two list one marked “A” and the
other marked “B”; Thomas will list the parties marital personal property not otherwise awarded by this
Decree on these two lists; the lists then shall be
delivered to his counsel who in turn shall provide
copies of the two lists to Jenneth’s counsel; Jenneth
shall be allowed to pick either list “A” or “B”; the
items of personal property on that list will be the
items of personal property awarded to Jenneth;
Thomas shall be awarded the items contained on the
list not selected by Jenneth; Jenneth shall make her
choice within 72 hours of receiving the lists from her
counsel; Counsel for each party shall file with the
Court a “notice of filing” indicating which list their
respective clients have been awarded; said notice of
filing shall occur within 30 days after the entry of this
Decree.
10. IT IS FURTHER ORDERED that Jenneth
shall pay the following credit cards: Ft. Knox Credit
union visa amount of $255.92 and the Wells Fargo
visa in the amount of $37.28; if these cards are in the
parties joint names, then Jenneth shall takes the
necessary steps to remove Thomas name from those
accounts or if she can not remove his name, then
after the balance is paid in full then the account shall
be closed; Thomas shall pay the following credit
cards: Walmart card in the approximate amount of
$2,829.24 and the Ft. Knox Credit visa with unknown
balance; if these cards are in the parties joint names,
then Thomas shall takes the necessary steps to
App. 23
remove Jenneth’s name from those accounts or if he
can not remove her name, then after the balance is
paid in full then the account shall be closed; Thomas
shall pay the unsecured loan with Ft. Knox Federal
Credit Union I the approximate amount of $3,715.00;
Thomas shall take the necessary steps to remove
Jenneth’s name from that account. Jenneth shall be
solely responsible for her student loans and any debt
in her individual name. Thomas shall be responsible
for the other debts not otherwise specified to and to
those debts in his individual name.
11. IT IS FURTHER ORDERED that Jenneth
shall be entitled to permanent maintenance in the
amount of $600 per month provided Thomas is entitled to receive CRDP benefits and that Jenneth
receives her percentage share under the formula
contained in Poe v. Poe 711 S.W.2d 849 (Ky.App.
1986); however, in the event that Thomas is not
entitled to receive CRDP benefits then Jenneth shall
receive permanent monthly maintenance in the
amount of $850.00.
This 9th day of October, 2009
This is a final and appealable Decree and Order.
/s/ Pamela Addington
JUDGE PAMELA ADDINGTON
HARDIN CIRCUIT COURT
FAMILY COURT-DIVISION I
App. 24
Supreme Court of Kentucky
2012-SC-000461-D
(2009-CA-002118 & 2009-CA-002301)
THOMAS J. CANEDY
V.
MOVANT
HARDIN FAMILY COURT
2008-CI-00909
JENNETH M. CANEDY
RESPONDENT
ORDER DENYING DISCRETIONARY REVIEW
The motion for review of the decision of the Court
of Appeals is denied.
ENTERED: February 13, 2013.
/s/ John D. Minton, Jr.
CHIEF JUSTICE
App. 25
10 USC § 1408 – PAYMENT OF RETIRED OR RETAINER PAY IN COMPLIANCE WITH COURT
ORDERS
(a) Definitions. – In this section:
*
*
*
(4) The term “disposable retired pay” means the
total monthly retired pay to which a member is
entitled less amounts which –
(A) are owed by that member to the United States
for previous overpayments of retired pay and for
recoupments required by law resulting from entitlement to retired pay;
(B) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by
a court-martial or as a result of a waiver of retired
pay required by law in order to receive compensation
under title 5 or title 38;
(C) in the case of a member entitled to retired pay
under chapter 61 of this title, are equal to the amount
of retired pay of the member under that chapter
computed using the percentage of the member’s
disability on the date when the member was retired
(or the date on which the member’s name was placed
on the temporary disability retired list); or
(D) are deducted because of an election under chapter 73 of this title to provide an annuity to a spouse or
former spouse to whom payment of a portion of such
App. 26
member’s retired pay is being made pursuant to a
court order under this section.
*
*
*
(c) Authority for Court To Treat Retired Pay
as Property of the Member and Spouse. –
(1) Subject to the limitations of this section, a court
may treat disposable retired pay payable to a member
for pay periods beginning after June 25, 1981, either
as property solely of the member or as property of the
member and his spouse in accordance with the law of
the jurisdiction of such court. A court may not treat
retired pay as property in any proceeding to divide or
partition any amount of retired pay of a member as
the property of the member and the member’s spouse
or former spouse if a final decree of divorce, dissolution, annulment, or legal separation (including a court
ordered, ratified, or approved property settlement
incident to such decree) affecting the member and the
member’s spouse or former spouse
(A)
was issued before June 25, 1981, and
(B) did not treat (or reserve jurisdiction to treat)
any amount of retired pay of the member as property
of the member and the member’s spouse or former
spouse.
(2) Notwithstanding any other provision of law, this
section does not create any right, title, or interest
which can be sold, assigned, transferred, or otherwise
disposed of (including by inheritance) by a spouse or
former spouse. Payments by the Secretary concerned
App. 27
under subsection (d) to a spouse or former spouse
with respect to a division of retired pay as the property of a member and the member’s spouse under this
subsection may not be treated as amounts received as
retired pay for service in the uniformed services.
(3) This section does not authorize any court to
order a member to apply for retirement or retire at a
particular time in order to effectuate any payment
under this section.
(4) A court may not treat the disposable retired pay
of a member in the manner described in paragraph
(1) unless the court has jurisdiction over the member
by reason of
(A) his residence, other than because of military
assignment, in the territorial jurisdiction of the court,
(B) his domicile in the territorial jurisdiction of the
court, or
(C)
his consent to the jurisdiction of the court.
38 USC § 5301 – NONASSIGNABILITY AND EXEMPT STATUS OF BENEFITS
(a)
(1) Payments of benefits due or to become due
under any law administered by the Secretary shall
not be assignable except to the extent specifically
authorized by law, and such payments made to, or
on account of, a beneficiary shall be exempt from
App. 28
taxation, shall be exempt from the claim of creditors,
and shall not be liable to attachment, levy, or seizure
by or under any legal or equitable process whatever,
either before or after receipt by the beneficiary. The
preceding sentence shall not apply to claims of the
United States arising under such laws nor shall the
exemption therein contained as to taxation extend to
any property purchased in part or wholly out of such
payments. The provisions of this section shall not be
construed to prohibit the assignment of insurance
otherwise authorized under chapter 19 of this title, or
of servicemen’s indemnity.
*
*
*
(3)
(A) This paragraph is intended to clarify that, in
any case where a beneficiary entitled to compensation, pension, or dependency and indemnity compensation enters into an agreement with another person
under which agreement such other person acquires
for consideration the right to receive such benefit by
payment of such compensation, pension, or dependency and indemnity compensation, as the case may be,
except as provided in subparagraph (B), and including deposit into a joint account from which such other
person may make withdrawals, or otherwise, such
agreement shall be deemed to be an assignment and
is prohibited.
App. 29
42 USC § 659 – CONSENT BY UNITED STATES TO
INCOME WITHHOLDING, GARNISHMENT, AND
SIMILAR PROCEEDINGS FOR ENFORCEMENT OF
CHILD SUPPORT AND ALIMONY OBLIGATIONS
(a)
Consent to support enforcement
Notwithstanding any other provision of law (including
section 407 of this title and section 5301 of title 38),
effective January 1, 1975, moneys (the entitlement to
which is based upon remuneration for employment)
due from, or payable by, the United States or the
District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual,
including members of the Armed Forces of the United
States, shall be subject, in like manner and to the
same extent as if the United States or the District of
Columbia were a private person, to withholding in
accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 666 of this title and
regulations of the Secretary under such subsections,
and to any other legal process brought, by a State
agency administering a program under a State plan
approved under this part or by an individual obligee,
to enforce the legal obligation of the individual to
provide child support or alimony.
*
*
(h)
Moneys subject to process
(1)
In general
*
Subject to paragraph (2), moneys payable to an
individual which are considered to be based upon
App. 30
remuneration for employment, for purposes of this
section –
(A)
consist of –
(i) compensation payable for personal services of the
individual, whether the compensation is denominated
as wages, salary, commission, bonus, pay, allowances,
or otherwise (including severance pay, sick pay, and
incentive pay);
(ii) periodic benefits (including a periodic benefit as
defined in section 428(h)(3) of this title) or other
payments –
(I) under the insurance system established by subchapter II of this chapter;
(II) under any other system or fund established by
the United States which provides for the payment
of pensions, retirement or retired pay, annuities,
dependents’ or survivors’ benefits, or similar amounts
payable on account of personal services performed by
the individual or any other individual;
(III) as compensation for death under any Federal
program;
(IV) under any Federal program established to
provide “black lung” benefits; or
(V) by the Secretary of Veterans Affairs as compensation for a service-connected disability paid by the
Secretary to a former member of the Armed Forces
who is in receipt of retired or retainer pay if the
App. 31
former member has waived a portion of the retired or
retainer pay in order to receive such compensation;
(iii) worker’s compensation benefits paid or payable
under Federal or State law;
(iv) benefits paid or payable under the Railroad
Retirement System, and
(v) special benefits for certain World War II veterans payable under subchapter VIII of this chapter;
but
(B)
do not include any payment –
(i) by way of reimbursement or otherwise, to defray
expenses incurred by the individual in carrying out
duties associated with the employment of the individual;
(ii) as allowances for members of the uniformed
services payable pursuant to chapter 7 of title 37, as
prescribed by the Secretaries concerned (defined by
section 101(5) of title 37) as necessary for the efficient
performance of duty; or
(iii) of periodic benefits under title 38, except as
provided in subparagraph (A)(ii)(V).
*
(i)
*
*
Definitions
For purposes of this section –
*
*
*
App. 32
(3) Alimony
(A)
In general
The term “alimony”, when used in reference to the
legal obligations of an individual to provide the same,
means periodic payments of funds for the support and
maintenance of the spouse (or former spouse) of the
individual, and (subject to and in accordance with
State law) includes separate maintenance, alimony
pendente lite, maintenance, and spousal support, and
includes attorney’s fees, interest, and court costs when
and to the extent that the same are expressly made
recoverable as such pursuant to a decree, order, or
judgment issued in accordance with applicable State
law by a court of competent jurisdiction.
(B)
Exceptions
Such term does not include –
(i)
any child support; or
(ii) any payment or transfer of property or its value
by an individual to the spouse or a former spouse of
the individual in compliance with any community
property settlement, equitable distribution of property, or other division of property between spouses or
former spouses.