Provencio v. Leding
381 S.W.3d 82
| Ark. Ct. App. | 2011Background
- Marriage in 1971 and divorce in 1992; parties entered into a property-settlement agreement granting appellee all of appellant’s military retirement and disability pay.
- March 2007 agreed order voided disability benefits and provided appellee with current retirement pay totaling $962.06 monthly, plus a $200 arrearage payment; arrearage amount fixed at $78,128.46.
- Appellee filed a motion for contempt on November 13, 2008 for failure to provide retirement benefits; appellant claimed he received only VA disability benefits and that res judicata/collateral estoppel applied.
- Trial court concluded retirement benefits were terminated by appellant’s voluntary waiver to obtain increased disability, leaving a definite monthly amount payable to appellee.
- Court relied on Surratt v. Surratt to determine that appellee had a vested right to a specific monthly amount, and that appellant could not defeat it by substituting disability benefits for retirement.
- On appeal, the court affirmed, holding that the $962.06 monthly payment was the vested amount and that the trial court’s reasoning was not clearly erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the agreed order bar appellee's claim due to res judicata? | Leding argues the issue was not ruled on below; res judicata does not bar appeal. | Provencio asserts res judicata bars claims arising from the 2007 order. | Res judicata issue was not properly ruled on below; cannot be reviewed. |
| Whether the trial court correctly held appellee had a vested right to a specific monthly amount | Leding asserts a definite amount existed and could not be diminished by disability substitutions. | Provencio argues disability/CRSC are not retirement payments; order allows substitution from other resources. | Yes; the trial court correctly found a vested right to $962.06/month. |
| Whether Mansell or Surratt governs the disposition of disability substitutions | Leding relies on Surratt to preserve the fixed retirement payment despite disability increases. | Provencio contends Mansell limits treatment of retirement pay under USFSPA; issue arises only if court orders it. | Surratt controls; the ordered vested amount is preserved. |
Key Cases Cited
- Surratt v. Surratt, 148 S.W.3d 761 (Ark. App. 2004) (vested right to specified retirement payments cannot be diminished by spouse's disability actions)
- Mansell v. Mansell, 490 U.S. 581 (U.S. 1989) (USFSPA does not permit reducing retirement for disability as if property divisible)
- Francis v. Francis, 31 S.W.3d 841 (Ark. 2000) (appellate review of res judicata applicability in divorce context)
- Simpson Housing Solutions, LLC v. Hernandez, 347 S.W.3d 1 (Ark. 2009) (appellate review standards when no ruling below)
- American Standard, Inc. v. Miller Eng’g, Inc., 772 S.W.2d 344 (Ark. 1989) (res judicata applicable where elements satisfied)