FAMILY LAW – Military retirement benefits, marital property, CR 60.02(f) to amend: Snodgrass v. Snodgrass (COA 10/16/2009)

Snodgrass v. Snodgrass
2007-CA-001974 10/16/09 2009 WL 3320601
Opinion by Judge Acree; Judge Clayton concurred; Judge Keller concurred in result only.

The Court vacated and remanded an order of the circuit court denying relief to appellant pursuant to , CR 60.02(f) by which he sought to amend language in a divorce decree relating to the division of his military retirement benefits. The Court held that the trial court erred in denying the motion. The family court’s implicit acknowledgement of the need to clarify the division suggested that appellant presented a prima facie case under CR 60.02(f). Appellant did not have a fair opportunity to present his claim at the trial on the merits when he was not notified that the final hearing would take place on the date a hearing before the domestic relations commissioner was scheduled, he was not given an opportunity participate telephonically, appellee waived the recording or transcript of the hearing, and appellant was deprived of his claim to his non-marital portion of his retirement benefits. Further, granting relief to appellant would not be inequitable to appellee as she was not deprived of rights or property to which she was entitled. The Court rejected appellee’s arguments that appellant should be denied relief for failure to hire an attorney to represent him in the dissolution action, for failure to appeal the decree and for waiting for six-and-one-half years to object to the decree’s language. The Soldiers’ and Sailors’ Civil Relief Act of 1940 protected appellant’s rights, as he was not available to appear in person because of his military service and his service had a material adverse effect upon his rights. Further, CR 60.02(f) was the proper vehicle to correct the error, as the original decree appeared on its face to accomplish what appellant sought. Finally, appellant was not dilatory in seeking a change in the language of the decree when he pursued the matter shortly before he retired, after he was informed that appellee was seeking a percentage of his total pay.