Pelts v. Pelts

Cite as 2016 Ark. App. 75

ARKANSAS COURT OF APPEALS
DIVISIONS II & III
No. CV-15-305

GREGORY L. PELTS Opinion Delivered February 3, 2016
APPELLANTS
APPEAL FROM THE LONOKE
V. COUNTY CIRCUIT COURT
[NO. 43DR-13-649]

SHELLY A. PELTS HONORABLE WILLIAM PRICE
APPELLEE FELAND, JUDGE

AFFIRMED IN PART; REMANDED
FOR CLARIFICATION IN PART

CLIFF HOOFMAN, Judge

Appellant Gregory L. Pelts (AGregory@) appeals from a December 22, 2014 divorce

decree filed by the Lonoke County Circuit Court in favor of appellee Shelly A. Pelts

(AShelly@). On appeal, Gregory first contends that the circuit court erred when it treated

nonvested retirement benefits as property and thus capable of distribution in a divorce.

Second, Gregory contends that the circuit court erred when it ordered him to elect and pay

for survivor benefits for Shelly on his nonvested retirement plan. Alternatively, he contends

that the circuit court erred when it failed to order Shelly to pay for survivor benefits for him

on her vested retirement plan. We affirm in part and remand for further clarification in

part.

Gregory and Shelly were married on August 4, 1990, and separated on or about July
 Cite as 2016 Ark. App. 75

18, 2013. Shelly filed a complaint for divorce on July 18, 2013. Gregory subsequently

filed a response and counterclaim for divorce. After a hearing, the circuit court filed a

temporary order on October 10, 2013, addressing issues of child custody, alimony, and

property division, which were agreed on by the parties. However, the parties disagreed as

to the division of Gregory=s retirement account, which is also the subject of this appeal.

A second hearing was held on May 8, 2014. At that hearing, Shelly testified that

she was requesting that she receive one-half of the marital portion of Gregory=s military

retirement benefits. She explained that he had served in the military throughout most of

their marriage. According to Gregory’s “Army National Guard Annual Statement,@

Gregory entered into the military in 1985, and he had twenty-six years of “creditable

service.” If he was to retire at the date of the hearing, he would receive $3,734.51 per

month after he turned age 60. Shelly recognized the fact that he was currently serving

active duty and that he would have twenty years of active-duty service if he served an

additional four years. After an additional four years, he would be forced to retire because

he would have served a total of thirty years. She denied, however, that there are two

separate types of military retirement, reserve and active duty, because it is Acalled >creditable

service= . . . not called >reserve service= or >active service.=@ Therefore, she testified that

Gregory was already vested in his military retirement because he had twenty-six years of

creditable service.

Gregory testified that he was currently serving in the Army National Guard. He

2
 Cite as 2016 Ark. App. 75

entered into the Army Reserve on June 10, 1985. He later transferred into ROTC and

then went on active duty for three years. He further testified that he subsequently had a

ten-month break in service but that he joined the Army National Guard in part-time reserve

status for approximately eight or nine years. In 2001, he went back on active duty in the

Army National Guard.

Gregory contended that there were two separate military retirement plans, active and

reserve. He explained that he had twenty-six years of creditable service toward his reserve

retirement. However, he intended to pursue his active-duty retirement, and he testified

that he would not be allowed to draw from a reserve program if he did so. At the hearing,

he testified that he did not have a problem with electing survivor benefits to allow Shelly to

continue to draw benefits in the event of his death. After he obtained twenty years of

active-duty service, which was in about four more years, he explained that he would receive

benefits based on his highest three years of base pay instead of a point-based system as is used

in the reserve-retirement plan. While he admitted that his service during the marriage may

be relevant to his active retirement, he explained that he was not vested in the separate

active-duty retirement plan until he served twenty years on active duty, which he had not

done during the marriage.

Although he testified that he had four more years until he was able to withdraw

active-duty retirement and that he planned on staying on active duty for another four years,

he testified that a lot of things could happen that would stop him from completing the four

3
 Cite as 2016 Ark. App. 75

years and that he was not yet vested in the active-duty retirement plan. He agreed that he

was vested in his reserve-retirement plan, although he did not receive anything under that

plan until he turned age sixty. That said, he admitted that some of his reserve time was

included in the military=s calculations when determining eligibility for active duty.

On June 9, 2014, Shelly filed a posttrial brief. In her brief, she argued that Gregory was

vested in his military retirement, based on his combined service, and that she should not

be divested of that marital asset. In Gregory=s posttrial brief, filed on August 15, 2014, he

admitted that he was vested in his reserve retirement, but he argued that he was not yet

vested in his active-duty retirement. He alleged that the two retirements were separate

and should not be grouped together. He explained that he would not be able to collect

under his reserve retirement until he was age sixty, but if he decided to continue in his

active-military duty for another four years, after which he would be vested in his active-

duty retirement, he would be able to start collecting active-duty retirement as soon as he

retired.

Despite his initial testimony to the contrary at the May 8, 2014 hearing, Gregory

additionally argued in his posttrial brief that he should not be required to elect the survivor

benefit plan when he retired because the expense was 6.5 percent of the retirement check

per month for doing so. He maintained that if the circuit court mandated that he elect the

survivor benefit plan, then Shelly should be required to pay for that benefit herself. In

summary, he requested the circuit court to find that he pay Shelly $1,258.02 per month

4
 Cite as 2016 Ark. App. 75

when he turned age sixty, which was based on the AMay [Retirement Points Annual

Statement] RPAS statement minus the points received prior to marriage and minus

Defendant=s share of Plaintiff=s teacher retirement;@ that no party should be required to elect

a survivor benefit plan for the other party; and that no party should be required to provide

a cost of living adjustment for the other party.

On December 1, 2014, a third hearing was held. At that hearing, Shelly=s counsel

indicated that although the decree had been drafted, Gregory=s counsel had objected to the

wording, and Gregory would not sign it. Both parties= counsel provided additional oral

arguments regarding their positions, and the circuit court issued a letter ruling in favor of

Shelly and directed Shelly=s counsel to prepare a modified divorce decree. A divorce

decree was filed on December 22, 2014, and it made the following findings regarding the

division of the retirement benefits:

6. The issue of retirement benefits was a disputed issue which was decided
by the Court as follows:

a. The Plaintiff shall receive one-half of the marital portion of Defendant=s
military retirement, without reduction for disability compensation, and regardless of
the form the benefits take, including but not limited to, whether the Defendant draws
an active duty or reserve retirement, as the Court finds this is an asset of the marriage
which cannot be divested. The Order Dividing Military Retirement shall be
prepared at Plaintiff=s expense. Plaintiff is entitled to a portion of Defendant=s
military retirement based upon the following formula: The numerator of the formula
shall be the months the parties were married while Defendant was in the military
service, or if applicable, the number of retirement points accumulated during the
months the parties were married while Defendant was in the military service. The
denominator shall be the total years the Defendant ultimately served in the military,
or if applicable, the retirement points accumulated during the Defendant=s military

5
 Cite as 2016 Ark. App. 75

service. The numerator will be divided by the denominator and multiplied by one
half to determine the amount of retirement to be paid to Plaintiff (months married /
total months of service x 2 = Plaintiff=s portion of retirement benefits);

b. That in accordance with Askins v. Askins, 288 Ark. 333 (1986), and the
facts herein, the Court finds that Plaintiff is entitled to the benefit of any
enhancement to the retirement which may occur between the date of divorce and
the Defendant=s retirement. Therefore, should the Defendant draw his retirement
benefits earlier than age sixty so shall the Plaintiff. The Plaintiff shall draw
retirement benefits from the Defendant=s military retirement whenever Defendant
draws;

c. Defendant shall elect and pay for survivor benefits for Plaintiff regarding
his military retirement; and

d. Defendant is awarded one-half of the marital portion of Plaintiff=s teacher
retirement which has accrued and vested for which a Qualified Domestic Relations
Order shall issue and be prepared at Defendant=s expense.

This timely appeal followed.

On appeal, this court reviews divorce cases de novo on the record. Taylor v. Taylor,

369 Ark. 31, 250 S.W.3d 232 (2007). With respect to the division of property, we review

the circuit court=s findings of fact and affirm them unless they are clearly erroneous, or

against the preponderance of the evidence; the division of property itself is also reviewed

under the same standard. Brave v. Brave, 2014 Ark. 175, 433 S.W.3d 227. A finding is

clearly erroneous when the reviewing court, on the entire evidence, is left with the definite

and firm conviction that a mistake has been committed. Id. We give due deference to

the circuit court=s superior position to determine the credibility of witnesses and the weight

to be given their testimony. Id. As to issues of law, however, we give no deference to

6
 Cite as 2016 Ark. App. 75

the trial court and rather review issues of law and statutory construction de novo. Hargrove

v. Hargrove, 2015 Ark. App. 45, 453 S.W.3d 683.

Gregory first contends that the circuit court erred when it treated nonvested

retirement benefits as property and thus capable of distribution in a divorce. In essence,

Gregory admits that he is vested in his reserve-retirement plan, but he argues that he is not

yet vested in his active-duty retirement plan. He argues that the two retirements are

separate and should not be grouped together. Therefore, he argues that Shelly should only

be allowed to receive one-half of her marital portion of the reserve retirement that he would

have received at the date of divorce and that she should only be allowed to collect this

retirement when he turns age sixty, regardless of whether he starts collecting higher

retirement benefits in only four years under the active-duty retirement plan.

Shelly disagrees. She argues that A[w]hile the retirement benefits to which a service

member may become entitled to is computed differently depending upon whether they

serve in the non-regular or regular system, when they serve in both systems they still receive

but one retirement. In other words, regardless of whether or not Appellant remains in the

military long enough to draw >active duty retirement,= he will receive but one retirement

which is based upon his service in both the reserves and active duty.@ Therefore, she argues

that Gregory is already vested in receiving his military retirement, regardless of the form,

and that she is entitled to any future enhancement under our supreme court=s holding in

Askins v. Askins, 288 Ark. 333, 704 S.W.2d 632 (1986).

7
 Cite as 2016 Ark. App. 75

We find Shelly=s argument that there is only one military-retirement plan that

encompasses varying benefits depending on the length and type of service convincing.

This is supported by Gregory=s testimony that he would be entitled to receive only one

retirement check for his combined service, and even the relevant federal statutes use the

term Aretired pay,@ regardless of whether the statute references retirement benefits for reserve

or active-duty service. See 10 U.S.C.A. ' 12731 & 10 U.S.C.A. ' 1401. Furthermore,

Gregory has failed to provide any citation of authority that makes the distinction he now

proposes.

In determining whether Shelly is entitled to Gregory=s military-retirement benefits,

our supreme court=s decision in Christopher v. Christopher, 316 Ark. 215, 871 S.W.2d 398

(1994) is instructive. If a divorcing spouse has achieved an entitlement to military

retirement pay, that entitlement is an asset which may be divided between the parties to the

divorce. Id. If, however, the divorcing military spouse has not served for a time sufficient

to have earned the right to receive military retirement pay, the right has not Avested@ and

there is no asset to be divided upon divorce. Id. It is undisputed that Gregory=s right to

military retirement pay is vested based on his reserve service.

Additionally, Shelly is entitled to any future enhancements. In Askins, our supreme

court held that a spouse is entitled to any pre- and post-marital enhancement to military

retirement pay. Askins, supra. There, the service member argued that the formula for

dividing his military retirement should not have included any enhancements that occurred

8
 Cite as 2016 Ark. App. 75

prior to their marriage or any enhancements that occurred after the date of divorce but

before his actual retirement. Our supreme court disagreed and held the following:

The task of the court is to ascertain the value of the prospective military
pension as an asset of marital property. Section 34-1214 requires that it be divided
with fifty percent to each party unless other considerations stated in the statute make
other than equal division more equitable.
If Colonel Askins retired tomorrow or had retired on the day of his divorce,
as he is and was eligible to do, under the chancellor=s formula Mrs. Askins would
have been limited to a percentage of his base retirement pay determined as of that
date. That is and was in Colonel Askins=s power to determine. If he had retired
the day of the divorce and then gone to work for a company with a new retirement
program, Mrs. Askins would not have been entitled to participate in the new
retirement benefits. However, she is entitled to a percentage of whatever his military
pension may be because that is the asset to which she contributed.
We are in no position to say, especially given the record before us, that Mrs.
Askins=s contribution to the pension was any less because she was married to Colonel
Askins in the middle of his career than it would have been had she been married to
him for, say, the last twelve years of it. The enhancement of the ultimate retirement
pay may be most dramatic at the end, but the record before us contains no evidence
of that, and none whatever of military pay scales. Even if such evidence were in
the record, we could not say with assurance that Mrs. Askins=s entitlement, based on
her contributions to the marriage, should be less than, as in the example above, 12/28
of the pay expected. While no cases we have found, other than the one containing
the dissenting opinion cited above, have gone into this Aenhancement@ discussion,
many have approved a formula like that used by the chancellor in this case.

Askins v. Askins, 288 Ark. 333, 336B37, 704 S.W.2d 632, 634 (1986). Applying the

principles set forth by our supreme court to the present case, we conclude that the circuit

court committed no error in awarding Shelly one-half of her marital portion of Gregory=s

military retirement effective when Gregory retires and begins drawing benefits. Under the

particular circumstances of this case, we think this case is akin to Askins, supra, in that the

trial court permitted Shelly to share in the post-divorce enhancement of the retirement pay,

9
 Cite as 2016 Ark. App. 75

commensurate with the fraction of the years of marriage compared to Gregory=s total years

of military service. We hold that such a division did not run afoul of our marital-property

law and was not clearly erroneous.

Gregory contends in his second point on appeal that the circuit court erred when it

ordered him to elect and pay for survivor benefits for Shelly on his nonvested retirement

plan. Gregory additionally argues that he should not have been required to pay the entire

premium for the survivor benefits and that the circuit court erred in ordering him to do so

without any additional findings justifying the unequitable distribution. Shelly disagrees.

Shelly argues that the circuit court=s order does not require Gregory to pay the entire

survivor benefit premium. Instead, she explains the premium Acomes >off the top= of the

retirement before the division, with the effect that both parties . . . [pay] their share of the

[survivor benefit plan] costs.@ In his reply brief, Gregory states that if this court finds that

the circuit court did not err in awarding survivor benefits, then he does not object to the

survivor benefits if the cost is shared by the parties as Shelly suggests in her brief. However,

he suggests that the circuit court=s order needs to be modified to clarify that A>both parties

end up paying their share of the [survivor benefits plan] costs= instead of the current language

that states that the >Defendant shall elect and pay. . . .=@

As we found above in our discussion of the first point on appeal, the circuit court

did not err in dividing Gregory=s military retirement, including any future enhancements.

Additionally, we do not find that the circuit court erred in requiring Gregory to elect a

10
 Cite as 2016 Ark. App. 75

survivor benefit plan in its marital-property division. In Arkansas, military retirement

benefits are marital property. Surratt v. Surratt, 85 Ark. App. 267, 148 S.W.3d 761 (2004).

In Dove v. Dove, 2009 Ark. App. 682, this court found that a circuit court did not clearly

err when it ordered the parties to divide the monthly premium for the survivor=s benefit.

Although the circuit court=s order appears to order Gregory to bear the payment of the

premium in its entirety, appellee suggests, without objection from appellant, that she would

bear a proportional payment because of the manner in which the government issues the

retirement check. Based on this confusion on appeal and Gregory=s concession that he

would bear a proportional share of the obligation, as appellee indicated was her existing

understanding of the order, we remand this issue to the circuit court for further clarification

and modification of the divorce decree consistent with this opinion.

Finally, Gregory briefly argues that the trial court erred in not ordering Shelly to also

pay for survivor benefits for him on her vested retirement plan. However, this issue was

not sufficiently developed below to determine if such an election was even available under

Shelly=s retirement. Furthermore, the circuit court=s order does not contain a specific ruling

on this issue. Therefore, on this undeveloped record, we decline to address this issue. See

Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007); Parker v. Parker, 97 Ark. App. 298,

248 S.W.3d 523 (2007).

Affirmed in part; remanded for clarification in part.

GRUBER, GLOVER, VAUGHT, and BROWN, JJ., agree.

11
 Cite as 2016 Ark. App. 75

Hixson, J., dissents in part and concurs in part.

KENNETH S. HIXSON, Judge, dissenting in part and concurring in part.

Where military retirement benefits vest after twenty years of service, it is arguably unfair for

the spouse of a military member to be denied retirement benefits when the parties divorce

after nineteen years of marriage and the military member continues to serve, becomes

vested, and subsequently receives retirement benefits; yet, it is clearly the law. Similarly,

in a nonmilitary setting, where a retirement plan vests after twenty years of employment, it

is arguably equally unfair for the spouse of the retirement-plan member to be denied

retirement benefits when the parties divorce after nineteen years of marriage and the plan

member continues his or her employment, becomes vested, and subsequently receives

retirement benefits; yet, it is clearly the law. Here, the trial court and majority have

constructed a legal fiction to create an exception to the generally accepted “vesting” rules

for military retirement plans so that the military spouse may receive retirement benefits from

a retirement plan that does not vest for another four years. In my opinion, any exceptions

to the current vesting rules for military retirement plans that were created through binding

precedent by our supreme court should be pronounced by either our supreme court or the

Department of Defense, but not by our court. We should not create legal fictions in an

attempt to atone for perceived unfairness in divisions of military-retirement plans.

In this case, the evidence is largely undisputed. Lt. Col. Pelts has served both as a

reservist and in the active armed forces. There are two possible retirement plans available

12
 Cite as 2016 Ark. App. 75

to Lt. Col. Pelts. One plan is referred to herein as the “reservist” plan; and, the other plan

is referred to herein as the active armed-forces plan or the “active” plan. Each plan has its

own distinctive qualifications and benefits. The plans have common elements, but they

are mutually exclusive. One cannot receive benefits from both the active plan and the

reservist plan. 1

Lt. Col. Pelts described the Department of Defense retirement plans as follows in his

brief:

Emphasizing the different plans, the Congressional Research Service explained:
‘There are currently three separate but related retirement systems within the
[Department of Defense]: one for active duty members, one for reservists, and one
for those who become medically disabled and are unable to complete a 20-year
military career due to their disability.’ Kristy N. Kamarck, Military Retirement:
Background and Recent Development, 2 (April 30, 2015)[.]

Separate statutory schemes govern each retirement system. The “reservist” plan

promulgated by the U.S. Congress is codified at 10 U.S.C. §§ 12731−12741, and under

this plan, benefits cannot commence until the service member reaches the age of sixty.

The “active” plan promulgated by the U.S. Congress is codified at 10 U.S.C. §§

1401−1414, and these benefits become payable immediately upon retirement so long as the

service member has reached at least twenty years of active duty.

1 10 U.S.C. § 12731(a)(4) provides, in pertinent part, that individuals are prohibited
from receiving reservist retirement benefits if they are entitled to receive retirement from
any of the armed forces, i.e., active-plan benefits.

13
 Cite as 2016 Ark. App. 75

It is clear from the evidence that Lt. Col. Pelts is currently vested in the reservist

plan; therefore, the reservist plan is marital property. It is equally clear that because

Lt. Col. Pelts has only sixteen years of active duty, he is not vested in the active plan, and

he cannot become vested unless, and until, he serves another four years as defined by the

active plan; therefore, the active plan is not marital property. The evidence also showed

that the future monthly payments from the active plan are greater than the future monthly

payments from the reserve plan. And, while the payments from the active plan commence

immediately upon retirement, the payments from the reserve plan do not commence until

the military member obtains the age of sixty years. Clearly, the active plan is better than

the reservist plan. It pays more; and, it pays sooner. Not only is the active plan better,

the evidence was also clear that Lt. Col. Pelts plans on serving at least four more years in

active service so that he can vest in the active plan and receive the more attractive active-

plan benefits.

Our law is settled that only vested retirement accounts are considered marital property

and subject to division in the event of a divorce. Christopher v. Christopher, 316 Ark. 215,

871 S.W.2d 398 (1994). How, then, can the majority hold that the monthly payments

from the nonvested active plan are marital property and subject to division as marital

property in a divorce? There appears to be an impassable roadblock. The only way to

circumvent the roadblock and to conclude that the nonvested retirement benefits are marital

property is to judicially create a fiction. That, I cannot do.

14
 Cite as 2016 Ark. App. 75

The trial court, and our majority, have created an exception by legal fiction to the

“vesting” rule. The trial court stated, “The [appellee] shall receive one-half of the marital

portion of the [appellant’s] military retirement, . . . and regardless of the form the benefits take,

including but not limited to, whether the [appellant] draws an active duty or reserve retirement, as this

court finds this is an asset of the marriage which cannot be divested.” (Emphasis added.)

The trial court and our majority have concluded that somehow the reservist plan and the

active plan are actually one generic cumulative “Military Retirement Plan,” and because Lt.

Col. Pelts is vested in one aspect of the plan (the reservist plan), he is vested in the generic

cumulative combined plan. I would attempt to define this new exception as, “If one

spouse participates in two retirement plans that have some common elements (one vested

and one nonvested), one should really consider those plans as only one combined plan, and

that we should merge the benefits of those plans depending on future events and, further,

we should deem that the new ‘merged’ plan is vested despite the fact that part of the new

merged plan by its very terms cannot vest for another four years.” Confusing?

Apparently not.

By way of analogy, assume an employee of Acme Company is in middle management

and is eligible for the mid-level-management retirement plan after ten years of employment.

There is also an upper-management retirement plan that has better benefits and vests after

twenty years of employment, and the time accrued for the mid-level-management plan also

accrues toward the vesting period for the upper-management plan. Further assume that

15
 Cite as 2016 Ark. App. 75

the employee is promoted to upper management and is then divorced after fifteen years of

employment. Clearly, because the employee has been employed for ten years, the

employee is vested in the mid-management plan, and those plan benefits are marital property

subject to division in the divorce. It is equally clear that, although the employee is

currently employed in upper management, because the employee has not been employed

for twenty years, he is not yet vested in the upper-management plan and those benefits

would not be considered marital property. Is there any legal rationale to somehow find

that the employee is vested in the more attractive upper-management plan? That answer is

simple and it is “no”; he has not been employed for twenty years. However, if one would

apply the majority’s logic, the answer becomes “yes.” Because both plans emanate from

the Acme Company, because both plans have common elements, and because time served

for the mid-level plan also accrues for the upper-management plan, then, despite the fact

the employee has not been employed for the required twenty years, the employee would

be deemed currently vested in the newly named “Acme Company Combined Retirement

Plan” and entitled to the more attractive upper-management benefits; therefore, it would

be marital property. I cannot take such a leap.

As set forth above, the reservist plan emanates from 10 U.S.C. §§ 12731 et seq. The

active plan emanates from 10 U.S.C. §§ 1401 et seq. The plans pay different amounts; the

plans pay at different times. They are not the same plan. This is not a generic cumulative

“Military Retirement Plan.” If the United States Congress or the Department of Defense

16
 Cite as 2016 Ark. App. 75

want to merge the plans, they certainly have the authority to do so. But, in my opinion,

we do not have such authority.

Lt. Col. Pelts is vested in the reservist plan. Those benefits are clearly marital

property subject to division in the divorce. The reservist plan currently pays $3734 in

monthly benefits,2 and those benefits do not commence for another fourteen years when

Lt. Col. Pelts turns sixty years of age in 2028. Mrs. Pelts is entitled to one-half of the

marital portion of those benefits. Therefore, in my view, Mrs. Pelts should be entitled to

begin receiving her share of the monthly reservist benefits from Lt. Col. Pelts in 2028 when

Lt. Col. Pelts reaches sixty years of age. There is nothing confusing or complicated about

that division of the marital property.

Lt. Col. Pelts is not currently vested in the active plan. Lt. Col. Pelts cannot vest

in the active plan unless, and until, he serves in the active armed forces for another four

years. If Lt. Col. Pelts were vested, the active plan would currently pay $4300 in monthly

benefits and those benefits would commence immediately upon retirement. Again, clearly

a better plan for the members of the active armed services as opposed to members of the

reserves.

2
One would presume that the reservist-plan monthly benefit will increase between
now and 2028 when the payment would commence. Mrs. Pelts would be entitled to her
portion of that increase in value as an enhancement.

17
 Cite as 2016 Ark. App. 75

Not only does the majority award benefits in a nonvested plan, the majority’s

definition of “vesting” is based on events that may, or may not, happen in four years.

While Lt. Col. Pelts certainly plans on serving in the active armed forces another four years,

his future plans are not sufficient to create vesting. This begs the question: If Lt. Col. Pelts

does not continue to serve active duty in years 17, 18, 19 or 20, will Mrs. Pelts still receive

her portion of the more attractive active-retirement benefits as marital property? 3

According to the majority opinion, apparently the answer is “yes” because Lt. Col. Pelts is

vested in the generic combined “Military Retirement Plan,” and that plan is marital

property. Because the majority opinion is based entirely upon what may, or may not,

happen in four years, in my view, the majority opinion is effectively an advisory opinion,

the likes of which, heretofore, this court has been reluctant to issue.

I would reverse the trial court and find that the reservist plan is marital property

subject to division according to the terms of that plan; and, that the active plan is not marital

property because it has not vested and is not subject to division. The trial court should

order Lt. Col. Pelts to begin making payments to Mrs. Pelts when he turns sixty years of

3
Similar arguments attempting to circumvent vesting rules in military retirement
plans have been repeatedly made to this court and the supreme court. The following
language has been cited on several occasions: “We agree with the chancellor. The proof
is that Durham will not be entitled to a pension until he has served for at least 20 years.
Until then, unlike the professor in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), Major
Durham has no vested right that must be recognized as marital property. He is employed
by the United States; so Congress could at any time change his retirement plan or abolish
it.” Durham v. Durham, 289 Ark. 3, 5, 708 S.W.2d 618, 619 (1986).

18
 Cite as 2016 Ark. App. 75

age in 2028 in an amount equal to Mrs. Pelts’s share of the monthly reservist retirement

benefit. 4 That is an ascertainable and calculable amount. That is the amount which is

marital property. If this holding would cause an inequitable result, then the trial court

would have the authority and opportunity, upon remand if so requested, to fashion whatever

remedy it saw fit to address any such inequality. 5

Because I disagree with the majority’s holding that Mrs. Pelts is entitled to share in

the active-plan retirement benefits should Lt. Col. Pelts ever become eligible for those

presently nonvested benefits, I likewise disagree with the majority’s holding that Lt. Col.

Pelts is required to elect survivor benefits for the active plan. However, I would hold that,

in the event Lt. Col. Pelts elects the presently vested reservist-retirement plan, he should be

required to elect survivor benefits for that plan if that plan so permits. I concur with the

majority’s decision to the extent it declined to address the undeveloped issue regarding

survivor benefits for Mrs. Pelts’s retirement plan.

For these reasons, I dissent in part and concur in part.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

Scholl Law Firm, P.L.L.C., by: Scott A. Scholl, for appellee.

4
See footnote 1.
5
However, the trial court could not award alimony or an unequal division of
property based on the amount of benefits in the active plan because the active plan is not
marital property. See Holaway v. Holaway, 70 Ark. App. 240, 16 S.W.3d 302 (2000).

19