Case Facts: Kelly Vs. Kelly
National Legal Research Group, Inc.)
The parties in Kelly were married in 1971, and divorced on November 18, 1992, after a marriage of 21 years. The husband had joined the Army National Guard in 1969, and on February 15, 1983 he joined the Active Guard and Reserve Program, a part of the United States Army. He continued to serve in the army until February 28, 2002, when he retired with a rank of Lieutenant Colonel.
The divorce decree awarded the wife a share of the husband’s military retirement benefits. It found that the husband had performed nine years of military service during the marriage, and that the marital share of his pension was equal to those nine years, divided by his "Total No. yrs. of service" at retirement. The court ordered that the wife receive a portion of the husband’s retirement benefits equal to 50% of the marital share. It also ordered that the share be based upon the retirement benefits received by a major, the husband’s rank at divorce, regardless of any future promotions. Finally, the decree provided:
In the event this paragraph is deemed to not comply with requirements established by the U.S. Army to divide retirement benefits or for any other reason, this court retains jurisdiction to modify these provisions.
Id. at *1.
When the husband retired, the parties sought and the trial court granted clarification of several aspects of the decree. First, the court held that the reservation of jurisdiction provision quoted above did not prevent the order from being final. Second, the court recognized the parties’ stipulation that the husband’s actual years of service during the marriage were 10 and not 9. Third, the court held that the husband had 25 actual years of service during his career, so that the final marital share was 10/25 or 40%.
The wife appealed, arguing that the trial court erred in using 25 as the denominator of the marital share fraction. This discussion will cover not only the issue appealed, but several other points of note in the trial court decision.
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