Copas v. Copas
2012 Ky. App. LEXIS 24
Ky. Ct. App.2012Background
- This appeal and cross-appeal come from Shelby Family Court orders redividing Richard Copas’s military retired pay with Kathy Copas.
- The court previously found portions of Richard’s military retired pay were marital property and ordered a 50/50 split for the portion accrued during marriage.
- Kathy submitted DoD Form 2293 indicating a claim to 50% of disposable retired pay, affecting DFAS calculations.
- Richard later retired and disability benefits were offset from gross retired pay, creating dispute over “disposable” pay.
- In 2008 the family court modified the order via CR 60.02(f) to reflect DFAS standards, and Kathy challenged this as a modification of the 1999 Property Order.
- In 2009 the court granted Kathy’s CR 59.05 motion in part (disability language) and denied in part, prompting Richard’s cross-appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CR 60.02(f) allowed reopening of the 1999 Property Order | Kathy: CR 60.02(f) is proper relief for DFAS misinterpretation. | Copas: CR 60.02(f) supports reopening due to extraordinary equities. | Yes, CR 60.02(f) relief warranted. |
| Whether the 2008 modification properly reflected the marital share | Kathy: modification corrects DFAS calculation to reflect marital portion. | Copas: modification clarifies language to align with DFAS requirements. | Yes, the modification was proper and consistent with law. |
| Whether the CR 59.05 language requiring DFAS to consider disability was proper | Kathy sought disability consideration to adjust distributable pay. | Copas: disability payments are nonmarital and not to be divided. | No; the disability-language intrusion was improper and vacated. |
Key Cases Cited
- Snodgrass v. Snodgrass, 297 S.W.3d 878 (Ky.App.2009) (CR 60.02(f) appropriate where DFAS misinterprets order; facilitates correct division of retired pay)
- Mansell v. Mansell, 490 U.S. 581 (U.S.1989) (disability benefits are nonmarital; disposable pay limits division under USFSPA)
- Davis v. Davis, 717 S.W.2d 230 (Ky.1989) (disability benefits are nonmarital and not subject to division)
- Poe v. Poe, 711 S.W.2d 849 (Ky.App.1986) (military retirement pay is marital property to extent accrued during marriage)
- Foster v. Foster, 589 S.W.2d 223 (Ky.App.1979) (nonmarital share not divisible; only marital portion included)
- Akers v. Stephenson, 469 S.W.2d 704 (Ky.1970) (court may enforce judgments and correct language to effect enforcement)