Glover v. Crayk
In Glover v. Crayk (Wyo. 2005) 2005 WY 143, 122 P.3d 955, the parties married in 1979 and separated in 1997.
They executed a property and child custody agreement, which awarded wife one-half of the sum that accrued in husband's military retirement fund during the first 17 years of his military career.
That agreement was then included within the divorce decree. (Id. at pp. 956-957.)
"The language of the divorce decree states that wife's entitlement is limited to 'one-half (1/2) of the sum that accrued in husband's retirement fund during the first seventeen (17) years of husband's military career.'" (Glover, supra, 122 P.3d at p. 958.)
In 2003, wife filed a motion to modify the retirement provision of the agreement pursuant to the time rule, and argued it would provide a fair and equitable distribution of husband's military pension. Husband objected because the proposed modification gave wife benefits beyond those accrued during the first 17 years of his service, as provided in their agreement. The trial court granted wife's motion and modified the agreement. (Glover, supra, 122 P.3d at pp. 956-957.)
"The divorce decree provided for the division of husband's military retirement benefits. The ambiguity in the decree is the absence of a formula to be applied in calculating the amount wife is entitled to from husband's retirement benefits. The district court accepted wife's argument that her one-half should be calculated pursuant to the 'time rule.' The 'time rule' is computed by multiplying 50% times a fraction, the numerator of which is the number of months of marriage during husband's creditable military service and the denominator of which is the total number of months of husband's creditable military service. The result is the percentage of husband's disposable retired pay to which wife is entitled. See In re Marriage of Hunt, 909 P.2d 525, 530-32 (Colo.1995). This allows wife to realize a benefit from promotions and pay increases husband may have received following the divorce up until the time of his retirement." (Glover, supra, 122 P.3d at p. 958.)
The Wyoming Supreme Court agreed with husband's argument that the wife's proposed distribution, as adopted by the trial court, violated the express terms of the separation agreement:
"Wife's formula is inconsistent with the language of the divorce decree. Wife's formula awards her the benefit of any income increases husband received after the first seventeen years of his military career. Wife supports this formula by simply stating that it is fair and equitable. The validity, let alone the 'equity,' of wife's formula is not the issue. The real issue is the intent of the divorce decree. Nowhere does wife present her formula within the context of the language of the decree. Upon review, we find no indication that the divorce decree anticipated husband's retirement calculation to be based upon sums yet to be accrued. Instead, the divorce decree speaks of sums already accrued. Indeed, the decree expressly defines the time frame for accrual as the first seventeen years of husband's military service. Under these circumstances, we hold that the district court erred in adopting wife's formula." (Glover, supra, 122 P.3d at p. 958.)