Do as I Say and Not as I Do

"DO AS I SAY AND NOT AS I DO"

Priest v. Priest, No. 2016-CA-001270-MR (Ky. App. 2017)
Court of Appeals Makes a Plea to the Kentucky Supreme Court Regarding the Inequity Caused by a Diminishing Coverture Fraction as Directed under Current Law

Rendered: November 9, 2017
To Be Published
Opinion Affirming In Part, Reversing in Part, and Remanding

Author’s Note: Thank you Tim Theissen, Esq., of Strauss Troy, for sharing this case with me the day it came out - actually that very afternoon during a lunch meeting.  (Thanks for ruining my lunch, Tim!)

“Houston, we have a problem.”  This is the essence of Priest v. Priest.  Priest involves the division and assignment of a military pension in divorce, and you may remember it from the first time it came through the Court, in 2015, wherein the Court remanded back to the trial court for findings consistent with Poe v. Poe, 711 S.W.2d 849, 850 (Ky. App. 1986), and Snodgrass v. Snodgrass, 297 S.W.3d 878, 890-891 (Ky. App. 2009).  See my prior blog post at:  https://ezlawpllc.com/blog-posts/2015/5/17/qdro-catch-up-case-law-legislative-updates-in-ohio-kentucky. 

As background for Priest’s second incarnation, typically, when a pension accrues during the marriage, but only in part (e.g., service prior to the marriage, or after the marriage), a coverture fraction is used to determine the “time rule” or the marital portion of the pension that is subject to equitable distribution.  In essence, the coverture fraction is a measuring stick used to determine the marital period as applied against the pension, where the numerator is years (or months, whichever is more accurate) of marriage overlapping with service, and the denominator represents years (or months) of service through a date consistent with state domestic relations law. 

A long lineage of Kentucky law dictates that pensions should generally be valued and divided as of the date of divorce.  Arguments can (and have been) made that this “cut off date” is inappropriate, as it ignores the inflationary value of the non-pension spouse’s interest.  Too much for today’s post, but suffice it to say for now that if the pension benefit is to be valued and divided as of the date of divorce, then the date of divorce must also be the operative end-date of the coverture fraction’s denominator (e.g., years of service through the date of divorce).  Otherwise, an incongruent result will occur, because by way of analogy, the measuring stick is based upon standard units, but the benefit being measured is metric-based.  In other words, apples and oranges.

In Priest, and in following the antecedent cases before it, the Court is forced to do just that:  compare apples to oranges, by utilizing a coverture fraction where the denominator incorporates total years of service, but where the military pension is essentially valued and divided only as of the date of divorce. 

The result, as observed in Priest, is that the non-military spouse’s share is inappropriately diminished due to post-marital military service.  That is, as the military spouse continues to serve after divorce, the denominator continues to grow, but the value of the pension stands still.  As the denominator of any fraction increases, the fraction as a whole decreases.  So the result is that the non-military spouse receives a smaller and smaller share of the pension determined as of the date of divorce, as opposed to the intention that the non-military spouse should receive a set share of the pension determined as of the date of divorce (e.g., “50% of the marital portion, determined as of the date of divorce.”)

The Priest Court is rightly conflicted by its cognizance that Wife will not – under the calculation forced upon it by prior case law – receive 50% of the military pension earned during the marriage; instead, Wife will receive less and less with each passing year of service, the final result being something less than 50% of the marital portion.  This is an outcome that the Priest Court found, despite being otherwise bound, as being in conflict with the core concept of equitable distribution and state domestic relations law, and is the basis for its imploring the Kentucky Supreme Court for review.

And so we wait for Tim's update!

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