In re Marriage of Gerleman

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NOT DESIGNATED FOR PUBLICATION

No. 114,855

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of the Marriage of
ROBERT M. GERLEMAN,
Appellant,

and

JEANNETTE M. GERLEMAN,
Appellee.


MEMORANDUM OPINION

Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed January 6, 2017.
Affirmed in part, reversed in part, and remanded with directions.

Robert M. Gerleman, pro se appellant.

Curtis G. Barnhill, of Curtis G. Barnhill, P.A., of Lawrence, for appellee.

Before SCHROEDER, P.J., BUSER, J., and WALKER, S.J.

Per Curiam: Robert M. Gerleman appeals the district court's decision to issue a
qualified domestic relations order (QDRO) to the Defense Finance and Accounting
Services (DFAS) for 50% of his military pension for the benefit of his former wife,
Jeannette M. Gerleman. We find the record is insufficient to support the QDRO as
drafted and remand the matter to the district court to specifically determine, based on the
document attached to the decree of divorce, what it found to be the equitable division of
appellant's military pension. The record is sufficiently clear the division was to be
effective on the date of Robert's retirement and any payments not made starting with its
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accrual on September 1, 2014, must be paid by Robert to Jeannette pursuant to the decree
of divorce. Affirmed in part, reversed in part, and remanded with directions.

FACTS

Robert filed a petition for divorce from Jeannette, to whom he had been married
for 20 years. The district court entered a decree of divorce with an attached summary of
division of property dated May 23, 2013. Jeannette immediately appealed the decree of
divorce and the summary of division of property, and Robert cross-appealed. The parties
settled the issues of that appeal and it was dismissed. See In re Marriage of Gerleman,
No. 110,461, 2015 WL 1513967 (Kan. App. 2015) (unpublished opinion). Now Robert
appeals the district court's recent issuance of a QDRO dividing his military pension.

Although the details had not been completely finalized, on May 9, 2013, the
parties appeared in district court and testified regarding an agreement they reached during
mediation. At a May 23, 2013, motion for contempt hearing, the district court asked why
the motion was not moot in light of the settlement agreement and was informed the
parties did not believe the case had settled. The district court pointed out the parties had
laid out a fairly extensive agreement on the record. The parties argued about how and
when to value Robert's military pension and whether Robert had to secure his military
pension with survivor benefits or life insurance. After discussing these issues, the district
court ordered Robert's counsel to draft the divorce decree. Jeannette's counsel offered to
draft the decree because it was already prepared, but the district court told her Robert's
counsel would draft the decree, and she would have an opportunity to object.

The district court filed the decree of divorce with an attached summary of division
of property on July 24, 2013. The district court found the parties had entered into a
written summary of division of property and the terms of the summary of division of
property were valid, just, and equitable. It incorporated the summary of division of
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property into the divorce decree by reference and made its factual findings part of the
judgment.

The summary of division of property approved by the district court divided all of
the parties' assets including Robert's military pension, which specifically provided:

Item Husband Wife
US Military Pension
5/9/13 (handwritten)
Divided at husband's
retirement based on
military formula = # years
of marital service/total
months of military service
TBD
Divided at husband's
retirement based on
military formula = # years
of marital service/total
months of military service
TBD

In addition to incorporating the summary of division of property, the divorce
decree also stated:

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Marital
Separation and Property Settlement Agreement executed by and between the parties is
hereby approved and confirmed by the Court and incorporated in this Decree of Divorce
as though fully set forth herein; the division of property, payment of debts, child support,
maintenance are awarded, entered and allowed as set forth in the Agreement."

However, the marital separation and property settlement agreement was neither
executed by the parties nor included with the divorce decree.

Robert retired from the military in September 2014. On January 12, 2015,
Jeannette filed a proposed order pursuant to Kansas Supreme Court Rule 170 (2015 Kan.
Ct. R. Annot. 264) dividing Robert's military pension pay. Robert objected raising
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numerous issues. Jeannette filed another proposed order pursuant to Kansas Supreme
Court Rule 170. Robert objected again.

On October 15, 2015, a different district court judge than the one who presided
over the divorce heard arguments regarding how Robert's military pension should be
divided by the QDRO pursuant to the decree of divorce. Robert argued there was never
an agreement dividing his military pension. He argued the summary of division of
property should be struck because, on appeal, Jeannette argued the decree was deficient
since there was no signed settlement agreement and she had abandoned her appeal.
Jeannette argued the summary of division of property was included in the divorce decree,
and Robert acknowledged the district court awarded Jeannette a portion of his military
pension in the supplemental property agreement the parties signed before jointly
dismissing their appeals. The district court determined the marital assets were ordered
divided according to the summary of division of property because otherwise the divorce
decree did not address property division at all.

Robert objected to the formula used to calculate Jeannette's portion of his pension
because it differed from the formula in the divorce decree. The district court found the
formula was the same. Robert also objected to being ordered to personally pay if DFAS
was prohibited from paying by law or regulation. The district court found the language
was consistent to the decree because it simply affirmed Robert was not relieved of his
obligation under the decree if DFAS did not pay.

Following the hearing, the district court ordered Robert's military pension be
divided pursuant to the divorce decree. Paragraph 8 of the order dividing military pension
stated:

"The Former Spouse is awarded a percentage of the member's disposable military
retired pay, to be computed by multiplying 50% times a fraction, the numerator of which
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is 226 months of marriage during the Service Member's creditable service, divided by the
Service Member's total number of months of creditable service."

In addition, Paragraph 9 stated:

"The above amount shall be paid directly to the Former Spouse by the
Designated Agent. To the extent the Designated Agent is prohibited by law or regulation
from paying the entire amount required by this order to the Former Spouse, the Service
Member shall personally pay any shortfall to the Former Spouse."

Robert appeals.

ANALYSIS

The divorce decree with the attached summary of division of property lacks clarity.

The interpretation and legal effect of written instruments, including divorce
decrees, are matters of law, and an appellate court exercises unlimited review. Einsel v.
Einsel, 304 Kan. 567, 579, 374 P.3d 612 (2016). The question of whether a written
instrument is ambiguous is a question of law subject to de novo review. Waste
Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 964, 298 P.3d 250 (2013).

A written instrument will not be found to be ambiguous unless two or more
meanings can reasonably be construed from the contract. The court will not strain to find
an ambiguity where, in common sense, there is none. Iron Mound v. Nueterra Healthcare
Management, 298 Kan. 412, 418, 420, 313 P.3d 808 (2013). Where ambiguity or
uncertainty is involved in a written instrument, the parties' intentions are ascertained by
considering the language used, the circumstances existing when the instrument was
made, the objective of the written instrument, and other circumstances tending to clarify
the real intention of the party or parties. Byers v. Snyder, 44 Kan. App. 2d 380, 386, 237
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P.3d 1258 (2010). "'"In placing a construction on a written instrument, reasonable rather
than unreasonable interpretations are favored by the law. Results which vitiate the
purpose or reduce the terms of the contract to an absurdity should be avoided."' [Citations
omitted.]" Einsel, 304 Kan. at 581.

Robert argues the divorce decree is ambiguous because it purports to divide
marital property pursuant to two different instruments. Paragraph 9 of the divorce decree
states:

"Simultaneously with the entry of this Decree of Divorce, the parties entered into
a written Summary of Division of Property and Permanent Parenting Plan which shall be
filed herein. This Agreement provides for: the joint legal custody of the parties' minor
children, parenting time, child support, maintenance, the division of personal assets of the
parties, the payment of debts and obligations of the parties, the costs associated with
mediation and the guardian ad litem, and the disposition of all other rights involved in the
marriage."

Paragraph 11 states: "The terms and conditions of the Summary of Division of
Property are valid, just and equitable and the Agreement should be confirmed by the
Court and adopted and incorporated by reference in its entirety into this Decree of
Divorce."

The divorce decree incorporated these findings as part of its judgment. The
divorce decree also states:

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Marital
Separation and Property Settlement Agreement executed by and between the parties is
hereby approved and confirmed by the Court and incorporated in this Decree of Divorce
as though fully set forth herein; the division of property, payment of debts, child support,
maintenance are awarded, entered and allowed as set forth in the Agreement."
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The record clearly reflects no marital separation and property settlement
agreement was ever executed by the parties, and the reference to it in the decree of
divorce was an error. The record does reflect the district court approved the summary of
division of property as its order distributing the assets of this marriage. The decree of
divorce was appealed by both parties, the issues involving the property division as
contained in the divorce decree were settled pending the appeal, and that portion of the
appeal was dismissed by our court pursuant to an order dated February 21, 2014. Thus,
we are left with a final divorce decree that must be interpreted and applied for the benefit
of both parties as the law of the case.

As previously described above, the summary of division of property incorporated
into the decree of divorce said Robert's military pension would be "[d]ivided at husband's
retirement." Robert contends the term divided does not mean a 50/50 split, and Jeannette
claims it is a 50/50 split based on the accrued interest at the time the divorce was granted.
Thus, the real issue is how the word divided is to be applied to the summary of division
of property.

Our reading of the summary of division of property is that once the months of total
service by Robert was determined—a fact unknown at the time the divorce decree was
entered—the formula could be applied to the pension account, however the court
intended it to be assigned. The parties agree Jeannette and Robert were married for 226
months of his total military career. The record reflects Robert's total military service was
242 months.

The correct division of Robert's military pension, as approved in the summary of
division of property, is a factual question that is unclear and requires this court to remand
for the district court to determine how the summary of division of property assigned
Robert's military pension between Robert and Jeannette when Robert retired.

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Robert's Responsibility to Pay Jeannette Since September 1, 2014

Clearly, the summary of division of property, as incorporated in the decree of
divorce, orders the assignment of a portion of Robert's pension to Jeannette when he
started receiving his pension. We are now more than 2 years past the date Robert retired
and started receiving payments. Jeannette has received no pension payments from DFAS
because no QDRO has been submitted. The district court addressed this issue with
paragraph 9 in the QDRO, which states:

"Pay Directly to Former Spouse. The above amount shall be paid directly to the
Former Spouse by the Designated Agent. To the extent the Designated Agent is
prohibited by law or regulation from paying the entire amount required by this order to
the Former Spouse, the Service Member shall personally pay any shortfall to the Former
Spouse."

Robert argues this language does not appear in the decree or the summary of
division of property. He is correct. As such, he argues:

"Indeed, there was no justification for the modification because there was
unambiguously no mention of indemnification in the Summary of Division of Property.
But if this Court were to interpret the decree to enforce the 'Summary of Division of
Property,' it must be interpreted, as stated above, by determining the intent of the parties.
In re Marriage of Wessling, [12 Kan. App. 2d 428, 429,] 747 P.2d 187[ (1987)]. Any
enforcement of that decree must be based in the language itself as the expressed intent of
the parties. Id. And there is no evidence in the record showing that the intent of the
parties was to make Petitioner personally liable to pay retirement funds not paid by
DFAS."

However, the district court's division of property in a divorce proceeding is a
judgment. Bank IV Wichita v. Plein, 250 Kan. 701, 706, 830 P.2d 29 (1992). The district
court awarded Jeannette a portion of Robert's military pension when it incorporated the
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summary of division of property into the divorce decree. In essence, Robert is asking this
court to find there is a distinction between ordering a division of property and ordering
him to pay the divided property. There is no such distinction. As the district court noted
during the October 15, 2015, hearing, "all this language affirms is that if the designated
agent doesn't pay, it won't relieve Mr. Gerleman of his obligation under the decree." See
In re Marriage of Gurganus, 34 Kan. App. 2d 713, 719, 124 P.3d 92 (2005) (Statute
governing payment of military pension does not prevent a party from agreeing to pay an
ex-spouse a portion of his or her military pension in a separation agreement. Instead, the
retiree must make the payment directly to the ex-spouse, rather than having the
government withhold the money and make the payments, if the parties were not married
for more than 10 years.).

The inclusion of Paragraph 9 in the QDRO dividing Robert's military pension was
not an impermissible modification of the divorce decree. Additionally, we note that at
oral argument, Robert agreed that whatever percentage of his pension account was due
Jeannette and not paid to her by DFAS he would be responsible to pay to her because he
has been receiving 100% of the military pension since his retirement on September 1,
2014.

The district court erroneously determined the order dividing Robert's military pension
was required by law.

Robert argues the district court erred as a matter of law when it determined a
separate order was required by DFAS in order to enforce the decree. However, Robert
does not argue the district court cannot divide military pension through a separate QDRO.
An issue not briefed by the appellant is deemed waived or abandoned. Superior Boiler
Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). We acknowledge it is a
common practice for a QDRO to be prepared for submission to the third party
administrator directing how the pension funds should be distributed as a result of the
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divorce and division of the marital assets. Generally, a QDRO contains language not in
the divorce decree and contains the various terms the third party administrator may
require.

The district court did not act contrary to the law of the case when it issued the order
dividing military pension.

Robert also argues the district court acted contrary to the law of the case when it
issued the order dividing military pension. He asserts:

"Thus, the law of the case as of February 21, 2014, is that the parties had settled
all issues related to the divorce and subsequent property settlement matters such that the
Decree would stand as it was written. The district court had no authority to act contrary to
that decision and exceeded its jurisdiction in issuing the Order Dividing Military
Retirement pay."

When neither party appealed the February 21, 2014, order from this court
dismissing "all issues related to the divorce and subsequent property settlement matters,"
the divorce decree became the law of the case, and, as a result, both parties are prevented
from relitigating issues related to the divorce and property settlement matters. See City of
Neodesha v. BP Corporation, 50 Kan. App. 2d 731, 737, 334 P.3d 830 (2014), rev.
denied 302 Kan. 1008 (2015) ("The law-of-the-case doctrine prevents relitigation of the
same issues within successive stages of the same lawsuit."). However, as discussed
above, the divorce decree dividing Robert's military pay was not specific. It appears to us
it was a 50/50 split based on the accumulated value at the time of the divorce, but the
record is unclear. Therefore, we remand for the district court to clarify how it intended to
divide Robert's military pension and to issue an appropriate QDRO for DFAS to apply to
Robert's military pension account. The district court must also determine what Robert
owes Jeannette for her respective share of the military pension since DFAS began making
payments to Robert effective September 1, 2014 (his retirement date).
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Robert briefed many other issues for this court to address that we deem
unnecessary to answer with our resolution of the issues herein and our order for remand.

Affirmed in part, reversed in part, and remanded with directions.