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Priest v. Priest

Court of Appeals of Kentucky

November 9, 2017

BELINDA PRIEST APPELLANT
v.
KURT PRIEST APPELLEE

         APPEAL FROM MEADE CIRCUIT COURT HONORABLE BRUCE T. BUTLER, JUDGE ACTION NO. 06-CI-00095

          BRIEF FOR APPELLANT: Charles M. Meers Vickie Masden Arrowood Louisville, Kentucky.

          BRIEF FOR APPELLEE: Douglas E. Miller Radcliff, Kentucky.

          BEFORE: COMBS, JOHNSON, AND D. LAMBERT, JUDGES.

          OPINION

          JOHNSON, JUDGE.

         Belinda Priest ("Belinda") appeals from the February 26, 2016 Order of the Meade Circuit Court, awarding Belinda a portion of Kurt Priest's ("Kurt") military retirement pay. After reviewing the record in conjunction with the applicable legal authorities, we AFFIRM IN PART, REVERSE IN PART, AND REMAND.

         BACKGROUND

         Kurt and Belinda were married on March 12, 1988. At that time, Kurt was serving in the military reserve. On February 20, 1990, Kurt enlisted in the active military. On December 9, 1998, Belinda and Kurt divorced. At that time the court could not divide Kurt's retirement as he hadn't yet retired from the military. Kurt eventually retired from the military on September 1, 2012. At that time Belinda moved the court for her marital share of Kurt's retirement. The court entered an order on January 2, 2014, establishing Belinda's portion of Kurt's retirement pay. That order was appealed to this Court and an opinion issued on April 24, 2015, which reversed and remanded this matter to the trial court stating:

While the DFSA pamphlet as a whole has not been adopted in Kentucky, the Snodgrass court analyzed DFSA and interpreted that section IV(c) is consistent with the longstanding Poe case and, thus the pamphlet section IV(c) may be properly considered in the division of military pensions in Kentucky. As the Court herein did not make the hypothetical calculations mandated by Poe, or if it did, failed to make specific findings, this matter is remanded for proceedings consistent with this opinion.

Priest v. Priest, No. 2014-CA-000148-MR, 2015 WL 1880624 (Ky. App. Apr. 24, 2015).

         As a result, in accordance with our previous Opinion, the matter was sent back, resulting in the trial court's recalculating the retirement benefits due Belinda based upon the requirements of the Defense Finance and Accounting Service ("DFSA") as outlined in Poe v. Poe, 711 S.W.2d 849, 850 (Ky. App. 1986) and Snodgrass v. Snodgrass, 297 S.W.3d 878, 890-891 (Ky. App. 2009). On February 26, 2016, the court entered an order containing findings of fact and conclusions of law, granting Belinda 6.25% of Kurt's current retirement or $130.16 per month. The order used the DFSA hypothetical retired pay calculation based upon the example set out in the DFSA pages 10-11. On March 7, 2016, Belinda filed a motion for reconsideration. That motion was denied on July 28, 2016. Belinda now appeals the orders of February 26, 2016, and July 28, 2016.

         STANDARD OF REVIEW

         When reviewing a case on appeal in which a prior appellate court has ruled, we apply the law-of-the-case doctrine. If an appellate court has passed on a legal question and remanded the case to the court below for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case. Ragland v. DiGiuro, 352 S.W.3d 908, 913 (Ky. App. 2010) (quoting Inman v. Inman, 648 S.W.2d 847, 849 (Ky. 1982)).

         The issue of the division of marital assets is reviewed under an abuse of discretion standard. Herron v. Herron, 573 S.W.2d 342, 344 (Ky. 1978). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound ...


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