OPINION
This оpinion addresses the combined appeal and cross-appeal from orders of the Shelby Family Court modifying the division of Appellee/Cross-Appellant Richard Copas’s military retired pay between Richard and his former spouse, Appellant/Cross-Appellee Kathy Copas. There are three issues before us. First, did the family court abuse its discretion in utilizing Kentucky Rules of Civil Procedure (CR) 60.02(f) to reopen the order dividing the parties’ marital property? Second, did the family cоurt abuse its discretion in modifying the language in a previous order concerning the division of Richard’s military retired pay? And third, did the family court abuse its discretion in granting Kathy’s CR 59.05 motion by adding language to the order which, in effect, designated Richard’s disability benefits as marital property and then dividing it between the parties? With regard to the first two questions, we find no abuse of discretion. However, we find the family court did abuse its discretion as to the last issue. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Facts and Procedure
On February 22, 1995, Kathy filed a petition in Shelby Family Court to dissolve her marriage to Richard. On June 18, 1997, the family court entered a limited decree dissolving the twenty-five-year marriage, but reserving judgment on all property issues, including those related to Richard’s military retired pay. The court referred the division of marital property issues, inter alia, to the Shelby County Domestic Relations Commissioner (DRC).
On May 21, 1998, the DRC submitted to the court Findings of Fact, Conclusions of Law, and Recommendations. Richard served a total of thirty (30) years in the military and earned the right to military retired pay based on thirty years of service. The DRC found that Richard “accumulated credit for 21 years and 9 months of service during the marriage toward that pension[
Thereafter, the parties appeared before the family court for a hearing on supplemental exceptions and remaining issues concerning costs and attorney’s fees. On November 6, 2000, the family court entered an order resolving all outstanding issues. In its order, the family court referenced Richard’s military retired pay, stating, in pertinent part, that the parties agreed that Richard “would do all that is necessary to insure [Kathy] would receive full military benefits to which she may appear entitled, including fifty percent (50%) of [Richard’s] pension as ordered [sic] in the [DRC’s] Findings of Fact and Conclusions of Law, and Recommendations adopted by this Court.”
The circuit court record reveals no further activity for almost six years. However, on June 14, 2001, years before Richard retired from the military and therefore prior to his receipt of any military retired pay, Kathy had submitted to the Defense Finance and Accounting Service (DFAS), the agency charged with administering and distributing military retired pay, a Department of Defense (DoD) Form 2293, entitled “Application for Former Spouse Payments from Retired Pay.” Kathy completed the form which, in pertinent part, states:
I request payment of: ... a division of property in the amount of $_, or 50 percent of disposable retired pay per month.
(Emphasis reflects the blank filled in by Kathy).
In April 2007, Richard retired from active military service.
We pause here to emphasize the effect Kathy’s submission of Form 2293 had on the distribution of Richard’s military retired pay. When Richard finally retired, DFAS calculated his military retired pay based on 30 years, or 360 months of military service. When Kathy completed Form 2293, she was claiming “50 percent” of the military retired pay Richard earned over the entire 360 months.
When Richard retired he had earned the right to claim total military retired pay of $4,400.00 per month. Based upon the form Kathy submitted in 2001, DFAS began paying her fifty percent of Richard’s total military retired pay, so that both Kathy and Richard began receiving monthly checks in the amount of $2,200.00. Upon retirement, Richard also sought military disability benefits and the Department of Veteran Affairs (VA) determined Richard was forty percent disabled. As a result, he was eligible to receive disability benefits in the amount of $568.00 per month. In accordance with federal regulations, DFAS offset Richard’s military retired pay by his disability benefits, reducing his total, non-disability-based military retired pay from $4,400.00 to $8,832.00. DFAS continued to pay Kathy fifty percent of Richard’s total disposable military retired pay, or approximately $1,916.00 per month.
On July 17, 2007, Richard filed a motion asking the family court to direct DFAS to only pay Kathy fifty percent of the portion of his disposable military retired pay attributable to the marriage (21 years, 9 months). On July 2, 2008, thе family court held a hearing on Richard’s motion,
The former spouse, Kathy Joan Copas, is awarded 50% of the disposable military retired pay the member [Richard] would have received had the member become eligible to receive retired pay on December 31, 1994, with the rank of SFC/E7, and with 21 years 9 months of service for basic pay purposes.
On November 26, 2008, Kathy filed a motion pursuant to CR 59.05 tо alter, amend, or vacate the November 17, 2008 order on the grounds that the family court improperly modified the 1999 Property Order concerning the division of Richard’s military retired pay. Kathy also filed a motion requesting a new trial under CR 59.01 and a motion for additional findings under CR 52.02. With respect to Kathy’s CR 59.05 motion, Kathy asked the family court to amend its November 17, 2008 order to, inter alia, require DFAS to take Richard’s disability income into account when dividing Richard’s military retired pay.
The family court held a hearing on January 6, 2009, to address Kathy’s motions. On March 11, 2009, the family court denied Kathy’s CR 59.01 and CR 52.02 motions, but granted, in part, Kathy’s CR 59.05 motion. In particular, the court altered its November 17, 2008 order to read as follows:
The former spouse, Kathy Joan Copas, is awarded 50% of the disposable military retired pay the member [Richard] would have received had the member become eligible to receive retired pay on June 18, 1997, with the rank of SFC/E7and with 21 years 9 months of service for basic pay purposes.
The [DFAS] Office is further directed tо take into consideration in its computation the disability of the Respondent which existed during the marriage relationship with the date of marriage of June 17, 1972 and Divorce Decree entered June 18,1997.
Kathy promptly filed an appeal challenging the family coui't’s authority to reopen and modify the 1999 Property Order with respect to Richard’s military retired pay. Richard filed a cross-appeal, claiming the family court improperly added additional language requiring DFAS to take into consideration his disability benefits in dividing his military retired pay. We address each party’s arguments in turn.
Standard of Review
The decision to grant or deny a motion under CR 60.02 or CR 59.05 rests within the trial judge’s sound discretion. See Schott v. Citizens Fidelity Bank & Trust Co.,
Division of Richard’s Military Retired Pay
Kathy asserts the family court abused its discretion in reopening the 1999 Property Order pursuant to CR 60.02(f). In particular, Kathy argues Richard failed to present any reason justifying extraordinary relief which would authorize the family court to reopen the 1999 Property Order under CR 60.02(f).
In response, Richard first contends his July 2007 motion, which failed to designate under which rule it was seeking relief, was not a CR 60.02(f) motion, but a motion to enforce the 1999 Property Order under CR 69.02. In the alternative, Richard asserts CR 60.02(f) is a proper method to reopen the 1999 Property Order because Kathy was unjustly receiving fifty рercent of Richard’s total disposable military retired pay instead of the portion of Richard’s disposable military retired pay attributable to the marriage. As a result, Richard argues, Kathy’s receipt of a benefit which was never intended by the family court constitutes an extraordinary reason authorizing the family court to reopen the 1999 Property Order pursuant to CR 60.02(f).
A judgment dividing marital property “may not be revoked or modified, unless the court finds the existence of conditions that justify the rеopening of a judgment under the laws of this state.” Kentucky Revised Statutes (KRS) 403.250(1); see also Burke v. Sexton,
The family court did not specify in its November 17, 2008 order under which rule
Relief pursuant to CR 60.02 is an extraordinary remedy which should be cautiously granted. Baze v. Commonwealth,
In Snodgrass v. Snodgrass,
Kathy next argues that, if the family court properly granted CR 60.02(f) relief, it nonetheless abused its discretion in modifying the 1999 Property Order’s clear аnd unambiguous language concerning the division of Richard’s military retired pay. Particularly, Kathy contends that, pursuant to the 1999 Property Order, she is entitled to fifty percent of Richard’s total military retired pay calculated at the time he retired. As a result, Kathy argues, the family court’s November 17, 2008 order improperly modifies the 1999 Property Order.
In response, Richard contends the family court intended to grant Kathy fifty percent of his retirement benefit that he had earned up to the point of divorсe, but not what he earned after the divorce. As a result, Richard argues, the family court’s November 17, 2008 order properly clarified the 1999 Property Order by reducing
As noted, Kathy and, in turn, DFAS, interpreted the 1999 Property Order to mean that she is entitled to fifty percent of Richard’s total disposable military retired pay. Kathy’s and DFAS’s interpretation, however, is clearly contrary to Kentucky law because Kathy is not permitted to share in the nonmarital portion of Richard’s military retired pay. While “military retirement pay is to be treated as marital property[,]” Poe v. Poe,
It is clear to this Court that by limiting Kathy’s share to the portion of Richard’s military retired pay attributable to the marriage (not 360 month’s worth, but 261 month’s worth), the family court presumed the DFAS would award Kathy only her half of the marital portion of the military retired pay. However, the DFAS could not, or at least did not, find in the order all the information it needed to properly calculate the award consistent with the family court’s intent. See Dividing Military Retired Pay, p. 6 (“[I]n order for the award [of military retired pay] to be enforceable under the USFSPA [Uniformed Services Former Spouses’ Protection Act, 10 United States Code (U.S.C.) § 1408], it [the property division order] must be expressed in a manner consistent with the USFSPA and the court order must provide us with all the information necessary to compute the award.”).
The court’s November 17, 2008 order merely corrected the family court’s error by using language acceptable by DFAS. See Akers v. Stephenson,
Disability Benefits
In his cross-appeal, Richard objects to Kathy’s attempt to modify the 1999 Property Order by adding language requiring DFAS to take into account Richard’s disability pay when dividing Richard’s military retired pay.
As noted, after the family court entered its November 17, 2008 order granting relief pursuant to CR 60.02(f), Kathy filed a timely CR 59.05 motion. Kathy objected to the phrase “disposable military retired pay,” claiming the word “disposable” reduced her share of Richard’s military retired pay because Richard received disability payments which were excluded from and reduced his available military retired pay. The family court granted Kathy’s CR 59.05 motion, adding the following language to its November 17, 2008 order: “The [DFAS] Office is further directed to take into consideration in its computation the disability of the Respondent which existed during the marriage relationship with the date of marriage of June 17, 1972 and Divorce Decree entered June 18,1997.” It is this language to which Richard objects.
In Snodgrass v. Snodgrass,
Military retired pay is distributed to former spouses of military members in accordance with the Uniformed Services Former Spouses’ Protection Act (USFS-PA), 10 United States Code (U.S.C.) § 1408. “Disposable retired or retainer pay,” as defined in 10 U.S.C. § 1408, is simply the retired pay the Defense Finance and Accounting Service (DFAS) sends to the retiree after the government dеducts: (A) what was previously overpaid by the government to the retiree while a service member, (B) forfeitures resulting from military discipline, (C) portions of the retired pay attributable to disability payments to the service member who retires for reasons of physical disability, and (D) annuities set up by the service member for the benefit of his spouse or children. 10 U.S.C. § 1408(a)(4)(A)-(D). The wording of the federal statutes them,selves assures that DFAS will make the distribution only from the disposable retired or retainer pay.
Id. at 882, n. 6 (emрhasis supplied). In other words, disability payments are deducted from the retiree’s gross military retired pay, resulting in the retiree’s “disposable retired ... pay.” See id.; see also 10 U.S.C. § 1408(a)(4). Because the retiree’s disposable retired pay is lower when he or she receives disability payments, the retiree’s former spouse’s portion of the retiree’s retired pay is also reduced.
We are cognizant of the potential inequities which may result when a retiree elects to receive disability payments, thereby reducing the net amount of retired pay the retiree’s former spouse receives.
In Mansell v. Mansell,490 U.S. 581 ,109 S.Ct. 2023 ,104 L.Ed.2d 675 (decided May 30, 1989), the United States Supreme Court held that veterans’ disability benefits were not subject to division as marital property in a divorce proceeding even though the veteran had simply elected to reсeive the disability benefits in lieu of regular retirement benefits which would have been subject to division as marital property.... [Ajfter much consideration, we hold that pursuant to 10 U.S.C. § 1408(a)(4) ... VA benefits received in lieu of military retirement pay, are specifically excluded from division as marital property.
Davis, 777 S.W.2d at 230, 232 (emphasis supplied); see also West v. West,
“[T]he defined term — ‘disposable retired or retainer pay’ is used in § 1408(c)(1) to limit specifically and plainly the extent to whiсh state courts may treat military retirement pay as [marital] property.” Mansell,
Further, though the 1999 Property Order did not include the word “disposable,” it was presumed in the 1999 Property Order because, as explained, federal law only authorizes DFAS to distribute disposable income. 10 U.S.C. § 1408(a)(4); Dividing Military Retired Pay, p. 6 (“Since the United States Supreme Court has ruled that Congress authorized the division of only disposable retired pay, not gross retired pay, the regulation [Department of Defense Financiаl Management Regulation, Vol. 7B, Paragraph 290606] provides that all percentage awards are to be construed as percentage of disposable retired pay”).
The fact is that beginning with the 1999 Property Order, Kathy has only received a portion of Richard’s disposable retired pay. Kathy acknowledged this very fact when she used Form 2293 to claim and obtain “50 percent of [Richard’s] disposable retired pay per month.” Brief for Appellant, App. 4 (emphasis supplied). Effectively, Kathy’s goal in bringing her CR 59.05 mоtion was to eradicate the impact of the federal law that limits the division of retired pay to that which is “disposable” as that term is defined by the same federal law. That was not possible
Conclusion
The Shelby Family Court did not abuse its discretion in reopening and modifying the 1999 Property Order pursuant to CR 60.02(f). However, the family court did abuse its discretion by requiring DFAS to take into consideration Richard’s disability payments in dividing his military retired pay. Accordingly, we affirm in part, reverse in part, and remand for additional proceedings consistent with this opinion.
ALL CONCUR.
Notes
. The proper designation of this asset is “military retired pay.” It is paid from the Department of Defense Military Retirement Fund, 10 United States Code (USC) § 1461, tо eligible service members who retire from active duty following a minimum of twenty (20) years of service, as in Richard’s case, in the United States Army.
[Mjilitary retired pay differs in some significant respects from a typical pension or retirement plan. The retire[e] remains a member of the Army ... and continues to be subject to the Uniform Code of Military Justice.... In addition, he may forfeit all or part of his retired pay if he engages in certain activities. Finally, the retire[e] remains subject to recall to active duty by the Secretary of the Army ‘at any time.’
McCarty v. McCarty,
. There is one minor exception to the family court's embrace of the recommendations not relevant here.
. There is no reason to believe Kathy intended to mislead the DFAS. DFAS requires, and Kathy provided, a copy of the court’s order. We consider the DFAS’s misinterpretation of the court’s order simply a foible of administrative bureaucracy.
. During the July 2, 2008 hearing, the family court made handwritten notes on the case's docket sheet. Additionally, at the conclusion of the July 2, 2008 hearing, the family court expressed oral conclusions and asked Richard’s attorney to tender an order rеflecting those conclusions. As a result of the family court's handwritten notations and oral conclusions, Kathy filed a notice of appeal with this Court on July 31, 2008. On October 14, 2008, this Court dismissed Kathy's appeal as interlocutory. See Copas v. Copas, 2008-CA-001468-MR (Ky.App.2008).
. We believe Richard's motion could also have been brought pursuant to CR 60.01. See Brosick v. Brosick,
. For a fuller explanation of DFAS efforts to cooperate with state family courts, and a discussion of the proper methods and formulae for calсulating a division of military retired pay satisfactory to DFAS, see Snodgrass.
. In his brief, Richard argues the family court abused its discretion in granting Kathy's oral CR 60.01 motion to modify all prior orders to reflect additional language respecting Richard's disability. A careful review of the record reveals Kathy's oral CR 60.01 motion did not address Richard's disability, but instead
. Best practices may call for the parties, or the court, to include in the divorce decree a provision specifically providing that it may be reopened in the event the retired payer spouse elects to receive disability benefits or, in the alternative, an election of spousal support in lieu of benefits. 16 L. Graham & J. Keller, Kentucky Practice: Domestic Relations Law § 15:43 (2003).