FROM MEADE CIRCUIT COURT HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 03-CI-00441
FOR APPELLANT: Mark Hyatt Gaston Louisville, Kentucky
FOR APPELLEE: Charles C. Mattingly, III Hardinsburg, Kentucky
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
Tager appeals from post-decree orders of the Meade Circuit
Court equally dividing the marital portion of his retirement
plan and entering a Qualified Domestic Relations Order (QDRO)
directing the plan administrator to divide the benefits based
upon the value as of the date of the dissolution decree. He
argues that the marital portion of the plan should be valued
based upon the much later order providing for an equal
division of the marital portion of his retirement plan.
Although the facts of this case are unusual, William fails to
show that he is unfairly prejudiced by the trial court's
use of the dissolution date to value his retirement plan.
Hence, we affirm.
relevant facts of this matter are not in dispute. William and
Charlene Tager were married in 1982 and separated in December
2002. On December 11, 2003, William filed a petition for
dissolution of the marriage. On May 6, 2004, the trial court
entered a limited decree of dissolution. The court previously
referred the disputed issues relating to child support and
custody, maintenance, and division of marital property to the
Domestic Relations Commissioner (DRC).
13, 2004, the DRC issued his report. In pertinent part, the
DRC noted that William was serving as a member of the United
States Army and had qualified for military retirement
benefits. The DRC further noted that "[t]he parties
stipulated that the retirement is partially marital in
nature, having been married twenty of William's
twenty-three [years'] length of service." At the
time of the DRC's report, William was still serving in
the Army and had not yet begun to draw retirement benefits.
Neither party filed exceptions to this portion of the
DRC's report, and the trial court adopted the report by
order entered on November 20, 2006. However, that order did
not provide for any division of William's retirement
record reflects that the parties continued to litigate other
matters through February 26, 2008. No other matters appear in
the record until February 2017, when Charlene moved to
restore the case to the court's active docket to address
the division of William's military retirement. The court
granted that motion on March 23, 2017. On November 29, 2017,
the trial court found that William's retirement was
subject to division and referred the matter to the DRC for
the purpose of drafting a QDRO.
those proceedings, the trial court entered the QDRO on July
18, 2018. The QDRO provided that Charlene's interest in
the retirement plan "shall be one half of 20 years of
marriage over 23 years of service or ½ of 20/23 of,
benefits, payments and/or all other assets in the
Participant's account balance or inuring to him under the
Plan as of the Valuation Date." The QDRO further
provided for a valuation date as of November 29, 2017.
Charlene filed a motion to alter, amend or vacate pursuant to
59.05, arguing that the retirement plan should be valued as
of the date of dissolution, May 6, 2004, rather than November
29, 2017. In response, William argued that Charlene was
estopped from claiming the earlier valuation date due to her
long delay in seeking a formal division of the retirement
plan. On October 11, 2018, the trial court granted
Charlene's motion and entered an amended QDRO providing
for a valuation date of May 6, 2004. The amended QDRO was
entered and sent to the Plan Administrator on November 9,
appeal, William concedes that his retirement benefits were
subject to division as marital property to the extent that
they were earned during the marriage. Holman v.
Holman, 84 S.W.3d 903, 907 (Ky. 2002). He does not
object to the trial court's equal division of the marital
portion of his retirement plan. He also concedes that, as a
general rule, a divisible retirement plan must be valued as
of the date of the decree of dissolution. Perry v.
Perry, 143 S.W.3d 632, 633 (Ky. App. 2004) (citing
Foster v. Foster, 589 S.W.2d 223, 225 (Ky. App.
he argues that Charlene was not entitled to receive any
portion of his military retirement until the trial court
entered a formal order dividing the plan. The DRC's
report did not provide for any particular division of the
plan, nor did the trial court's order of November 20,
2006, provide for any division of the plan. Consequently,
William maintains that his military retirement can only be
valued as of November 29, 2017, since that was the first date
Charlene had any right to claim a portion of his benefits.
disagree. The current case presents an unusual situation
because the trial court did not enter an order formally
dividing William's military retirement for more than
eleven years after it adopted the DRC's report. Neither
party brought the oversight to the trial court's
attention in a timely manner. However, the parties clearly
stipulated that the marital portion of the retirement plan
was subject to division as of the date of the decree. Since
William had not yet retired at the time the court adopted the
DRC's report, the trial court could ...