Mariage of La Bruyere
Filed 5/12/06 Mariage of La Bruyere CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of PATRICIA J. and JOHN J. LA BRUYERE. | |
PATRICIA J. LA BRUYERE, Respondent, v. JOHN J. LA BRUYERE, Appellant. | D046479, D047321 (Super. Ct. No. D328403) |
APPEAL from a judgment and an order of the Superior Court of San Diego County, Thomas Hendrix, Judge. Affirmed.
This case involves a dispute concerning Patricia La Bruyere's entitlement to a portion of John La Bruyere's military retirement pension.[1] The dispute arose because John, Patricia's former husband, exercised his right to waive part of his retirement benefits to receive military disability benefits and thus reduced Patricia's monthly payment. Although in their marital settlement agreement (incorporated into the dissolution judgment) the parties had agreed that Patricia would receive her community property interest in John's military retirement pension, the agreement did not refer to disability benefits. After the dissolution judgment, Patricia obtained an order imposing a resulting trust on her share of John's retirement pay, including the portion of the retirement pay John had waived.
John challenges this order, arguing this case should be governed by Mansell v. Mansell (1989) 490 U.S. 581 (Mansell), which prohibits a family law court from dividing a military member's retirement pay that has been waived to receive disability benefits.[2] Patricia asserts this case should be governed by In re Marriage of Krempin (1999) 70 Cal.App.4th 1008 (Krempin), which holds Mansell is inapplicable when the military member spouse elects to waive retirement pay after the dissolution judgment.
We hold the record supports a finding that John did not elect to waive retirement pay until after the dissolution judgment, and accordingly the Krempin rule applies. Further, we hold the terms of the parties' marital settlement agreement show they intended that Patricia's award would not be reduced by John's election to receive disability benefits in lieu of a portion of his retirement pay. Accordingly, the trial court's imposition of the resulting trust was proper.
We further conclude the trial court properly corrected a typographical error in the marital settlement agreement that awarded Patricia 36.17 percent of John's pension rather than the intended one-half share (46.17 percent), and we reject John's argument that the trial court erred in failing to apply the doctrine of laches to defeat Patricia's claims. We also find no merit to John's arguments that the court failed to tailor the award of arrearages to avoid placing an undue burden on him, and that the court erred in characterizing the missing percentage created by the typographical error as an unadjudicated asset.
We affirm the judgment.
BACKGROUND
The issues in this case involve federal law governing a state court's power to divide military retirement pay, and the interplay between military retirement pay and military disability benefits under the federal system. As we will set forth in more detail, federal law essentially allows a family law court to divide as community property a military spouse's retirement pay, but prohibits the division of the spouse's military disability benefits. (Mansell, supra, 490 U.S. at pp. 584-585.) Further, under the federal system, to prevent " double dipping," military retirees who are entitled to both retirement pay and disability benefits may receive disability benefits only to the extent they waive a corresponding amount of their military retirement pay. (Id. at p. 583.) A retiree's waiver of retirement in favor of disability assists the retiree financially because disability benefits are exempt from taxation. (Id. at pp. 583-584.) In contrast, the waiver can operate as a detriment to a nonmilitary former spouse if he or she loses a portion of the retirement pay that would otherwise be community property because the retirement pay has been changed into nondivisible disability benefits. (Id. at p. 594.)
John entered the military in October 1961, and the parties were married in May 1962. They separated in May 1986, and divorced in July 1992. At the time of their divorce in 1992, John was not yet eligible to receive his military retirement pay.
Pursuant to the terms of a July 1992 marital settlement agreement incorporated into their judgment of dissolution, the parties agreed to the division of John's military pension. The agreement provided that there was a 92.35 percent community interest in John's retirement benefits, and that Patricia was entitled to " 36.17% of [John's] gross retirement pay." The agreement stated that " [u]ntil such time as [Patricia] receives her share of the retirement pay directly from the Armed Forces retirement center, [John] will pay to [Patricia] her share of the retirement pay from the proceeds received by him." Further, Patricia was entitled to receive " one-half of the community interest in any cost of living adjustments or other increase in the retirement benefits received by [John]." John was required to advise her in writing of any change in " the gross or disposable amounts of his retirement benefits." The court " reserve[d] jurisdiction to enforce the division of said retirement benefits."
Although at the time of the 1992 marital settlement agreement John was not yet receiving military retirement payments, he was receiving military disability payments. According to John, he began receiving disability payments in 1967 or 1968, about 24 or 25 years before the marital settlement agreement. Patricia acknowledged that at the time of the marital settlement agreement John was receiving " a very small amount of disability. . . . "
In July 1998, six years after the marital settlement agreement, John became eligible to receive his military retirement pay. His gross monthly retirement pay at this time was $953 per month. Based on the terms of the marital settlement agreement, in 1999 John began paying Patricia 36.17 percent of that gross amount ($344.70 per month).[3]
At some point, John waived a portion of his military retirement pay in order to receive nontaxable military disability benefits, and concomitantly he reduced the amount of money he sent to Patricia.[4] John calculated Patricia's 36.17 percent share based on the reduced amount of retirement pay, and did not allocate to her a share of his disability benefits. For example, in April 2002, John was eligible to receive $1,046 gross monthly retirement pay. However, his actual monthly retirement pay was reduced to $607, based on his receipt of $439 in military disability benefits. John calculated Patricia's community property share of his retirement based on this $607 net amount rather than the $1,046 gross amount, paying her $219.55 for that month.[5]
In May 2003, about four years after she began receiving the pension payments, Patricia filed a motion (1) contending John was improperly calculating her share of his pension based on his net rather than gross retirement pay, and (2) requesting correction of a typographical error in the judgment which awarded her less than a one-half share of the community interest in the pension. Based on these claimed errors, Patricia requested an award of $12,302.57 arrearages plus interest.
Patricia argued that John's deduction of his disability benefits when he calculated her community share of the retirement pay was in contravention of her right under the marital settlement agreement to receive a division based on his gross retirement pay. Regarding her claim of a typographical error, Patricia explained that the marital settlement agreement erroneously awarded her 36.17 percent of the military pension instead of the correct amount of 46.17 percent (i.e., one-half of the 92.35 percent community interest). Patricia stated that prior to John's retirement, her attorney alerted her about the typographical error, and she in turn notified John in a letter sent in September 1994. Patricia provided the court with a copy of the letter, in which she requested that John give her attorney permission to correct the clerical mistake.
In response to Patricia's motion, John asserted that it was proper for his disability benefits to be deducted from the retirement pay distributed to Patricia. He noted he had been receiving disability benefits since 1967 or 1968, long before his retirement in 1998, and argued that at the time of the 1992 marital settlement agreement the parties understood " [h]e was going to get a disability benefit as part of his retirement."
John essentially conceded that the 36.17 percent figure in the marital settlement agreement was a mistake. He contended, however, that he never received a letter from Patricia advising him of the error and he had not realized he was supposed to be paying her 46.17 percent. He stated that a retroactive order would create a severe hardship for him.
Alternatively, John argued that given the delay between Patricia's knowledge that he was receiving disability benefits in lieu of retirement pay and the date she filed her motion, the claim pertaining to his disability benefits should be denied under the doctrine of laches. He also argued the claim based on the typographical error should be barred by both laches and the statute of limitations.
To explain her delay in filing a motion to raise her claims of error, Patricia declared that she had been suffering from depression following the death of their daughter, and that John was " so difficult to deal with that it took [her] a while before [she] could get the resolve to confront" the matter.
Trial Court's Ruling
The trial court rejected John's assertion that his waiver of retirement pay to collect disability benefits was merely a continuation of the disability he was receiving at the time of the settlement agreement. Instead, the court concluded the waiver of retirement pay was acquired after the marital settlement agreement and stipulated judgment. To support its finding, the trial court referred to a document prepared by the United States Defense Finance Accounting Service setting forth a summary of John's retirement benefits at the time of his July 1998 retirement eligibility date. The document specified that his gross monthly retirement pay at the time of retirement was $953[6] and included a deduction for the cost of a " Survivor Benefit Plan." [7] The trial court noted that the retirement pay specified in the document did not include a deduction for disability benefits, and from this observation concluded that John did not elect to receive disability in lieu of retirement until after the dissolution judgment. Based on this finding, the court ruled the case was governed by Krempin, supra, 70 Cal.App.4th 1008, which allowed the court to " 'take equitable action to compensate the former spouse' when that spouse's share of retirement pay is reduced by the other's postjudgment [VA disability] waiver." (Id. at p. 1015.)
The trial court then evaluated the terms of the marital settlement agreement and the parties' current declarations to determine whether the parties had intended to protect Patricia from a waiver of retirement for disability. The court found that this was their intention, ruling that the agreement to divide John's " 'gross retirement pay' did not include or contemplate the subtraction of any post retirement disability waiver." In reaching this conclusion, the court relied on the provisions in the agreement that reserved the court's jurisdiction over the pension and identified a specific percentage of the gross retirement pay that was awarded to Patricia. Further, the agreement required John to pay Patricia from his retirement pay until the retirement center paid her directly, thus suggesting an understanding that John was " ultimately responsible for insuring specific monthly payments." The court concluded that Patricia's interest in her share of the retirement pay vested on the date of the 1992 dissolution judgment; at that time there had been no waiver of retirement for payment of disability benefits; and John was not entitled to unilaterally decrease Patricia's vested interest.
As to the claim of a numerical error, the court found that the 36.17 percent figure in the marital settlement agreement was a typographical error, and the correct figure was 46.17 percent. The court construed the misstated percentage as an omitted or unadjudicated asset, thus removing any argument regarding the statute of limitations.
The court ordered that " a resulting trust be imposed on 46.17% of [John's] gross retirement pay including the disability waiver." Further, the court directed the parties to determine the arrearages due based on its findings, ruled that the arrearages should be paid or enforced as spousal support, and determined that up to 65 percent of John's retirement pay could be taken to satisfy the arrearages.[8]
DISCUSSION
Division of Gross Retirement Pay
John challenges the propriety of the court's order imposing a resulting trust on a portion of his gross retirement pay including the amount waived to receive disability benefits. He contends that because he was receiving disability at the time of the marital settlement agreement, his situation is not comparable to that in the Krempin case. He asserts that the court's ruling violates the rule in Mansell, supra, 490 U.S. 581, and 10 U.S.C. § 1408, which prohibits a state family law court from dividing military disability benefits.
Under federal law, a state court may treat " 'disposable retired pay'" of a member of the military as community property and determine its disposal in accordance with state law. (10 U.S.C. § 1408, subd. (c)(1); Krempin, supra, 70 Cal.App.4th at p. 1012.) The federal statute defines " 'disposable retired pay'" as " 'the total monthly retired pay to which a member is entitled'" less certain amounts, including amounts that are deducted from the retired pay as a result of a waiver of retired pay in order to receive military disability benefits. (10 U.S.C. § 1408, subd. (a)(4)(B); Krempin, supra, 70 Cal.App.4th at p. 1012.) In Mansell, the United States Supreme Court held that given the plain language in the federal statute, retirement pay waived by the retiree to receive disability benefits could not be treated by state courts as " property divisible upon divorce." (Mansell, supra, 490 U.S. at pp. 583, 587-589, 594-595.) The United States Supreme Court held the state family law court had no authority to divide the waived retirement pay in the dissolution judgment, under circumstances where the military spouse was already receiving a military pension and disability benefits at the time of the divorce. (Mansell, supra, 490 U.S. at pp. 585-586, 589.)
Evaluating Mansell in subsequent cases, state courts in California and other jurisdictions recognized the hardship imposed on a nonmilitary spouse in dissolution cases where all or part of the military spouse's retirement pay was waived to receive disability benefits. These courts concluded Mansell did not apply to situations where at the time of the dissolution judgment the military spouse had not yet elected to substitute retirement pay for disability benefits, and in the dissolution judgment the military spouse agreed to a community property division based on the full retirement pay. (Krempin, supra, 70 Cal.App.4th at pp. 1013-1015, 1021, and cases there cited.) The courts construed the military spouse's promise to make the division based on the full retirement pay as creating a vested interest in the nonmilitary spouse, which interest could not properly be altered by the military spouse's postjudgment decision to reduce the amount of retirement pay by taking disability benefits. (Id. at pp. 1014-1015.) In these situations involving a military spouse's election towaive retirement pay to accept disability benefits after the dissolution judgment, the courts concluded that a family law court could enforce the military spouse's promise to divide the community interest based on the full retirement pay without running afoul of federal law. The courts reasoned that in postjudgment waiver situations, the family law court was not dividing disability benefits in a dissolution judgment as proscribed by federal law, but rather was " enforc[ing] what had been a proper division of [retirement pay] marital property . . . ." (Id. at pp. 1015, 1021, italics added.)
In Krempin, at the time of the stipulated judgment the military spouse was not yet receiving retirement pay, and the parties agreed that the nonmilitary spouse would receive her share of the community interest in the military pension when the military spouse retired. (Krempin, supra, 70 Cal.App.4th at pp. 1010-1011.) After the military spouse retired, the nonmilitary spouse initially received her share of the pension as set forth in the stipulated judgment. (Id. at p. 1011.) Later, she began receiving a lesser amount because the military spouse opted to receive disability benefits in lieu of a portion of his retirement pay, and eventually she received no payments at all because the military spouse elected to receive 100 percent disability. (Ibid.)
After concluding that federal law did not prohibit a family law court's enforcement of a judgment dividing retirement pay, the Krempin court held that the ultimate resolution of the case turned on whether at the time of the dissolution the parties intended to protect the nonmilitary spouse in the event the military spouse later elected to waive the retirement pay to which the nonmilitary spouse was entitled. (Krempin, supra, 70 Cal.App.4th at p. 1019.) The Krempin court explained that if the parties intended that the nonmilitary spouse continue to receive her original share of the military spouse's retirement pay, even if the military spouse waived all or a portion of that pay to obtain disability benefits, the court could properly give the nonmilitary spouse the benefit of her bargain based on a resulting trust theory. (Id. at p. 1021.) The court reasoned that " [t]he resulting trust would adhere to money received as disability benefits, but there would be no division of those benefits in violation of federal law if [the military spouse] remained free to satisfy the obligation with other assets." (Ibid.) The Krempin court concluded that the particular stipulated judgment in the case before it was reasonably susceptible of an interpretation supporting either party's position regarding their intent, and accordingly remanded the matter to the trial court for receipt of extrinsic evidence and resolution of any conflicting factual issues. (Id. at pp. 1019-1020.)
With these principles in mind, we turn to the questions of (1) whether this case falls within the Krempin rule applicable to waivers of retirement pay after a dissolution judgment, and (2) if so, whether under the terms of the marital settlement agreement the parties intended that Patricia should receive an amount equal to her share of the full retirement pay without a deduction for any disability benefits that John might elect in lieu of retirement pay. To the extent resolution of these issues requires interpretation of written documents on undisputed facts, we review the matter de novo, and to the extent it involves conflicting facts, we apply the deferential standard of review and draw all inferences in favor of the judgment. (In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439; Krempin, supra, 70 Cal.App.4th at p. 1020; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866, & fn. 2.)
As to the first question, if the marital settlement agreement incorporated into the dissolution judgment divided John's disability benefits, this division was impermissible under Mansell. Contrariwise, if the marital settlement agreement merely divided the community interest in his retirement pay, with an intent to maintain the amount of that division irrespective of a subsequent waiver to receive disability benefits, under Krempin there was no violation of federal law.
Here, unlike the situation in Mansell, John was not yet receiving his retirement pay when the dissolution judgment was entered. Thus, we are not faced with a situation where the family law court divided a service member's gross retirement pay which included a deduction for disability benefits. Viewing the case from this perspective, the stipulated judgment did not implicate the federal rule against division of disability benefits because no retirement pay with a disability benefit deduction was being disbursed to John at the time of the judgment.
However, as pointed out by John, this case is factually distinct from Krempin because he was already receiving military disability benefits at the time of the marital settlement agreement. Arguably, federal law could be violated if John's anticipated retirement pay would necessarily include a deduction for disability benefits based on the existence of the disability benefits at the time of the dissolution judgment, and if the parties were aware of this fact when they agreed to the marital settlement agreement. We need not decide this issue because, as we shall explain, the record supports a finding that John's initial retirement pay in 1998 was not reduced by his receipt of disability benefits. Thus, the court's ruling is supported by the showing that the disability benefits John received at the time of the marital settlement agreement were not automatically carried over to reduce his retirement pay, which makes the postjudgment waiver rule set forth in Krempin applicable here.[9]
The document from the military summarizing John's retirement benefits when his military pension became payable in July 1998 lists his gross retirement pay and his net retirement pay after deductions. As noted by the trial court, the pay set forth in this document contains no deduction for disability benefits. Further, the record reflects that the payments made by John to Patricia when John first retired were calculated based on the full amount of his retirement pay with no reduction for disability. That is, in 1999, when John commenced making monthly payments to Patricia, he paid her $344.70, which constitutes the 36.17 percent share of his $953 gross retirement pay as specified in the marital settlement agreement. Because these figures show payments of Patricia's share based on division of gross retirement pay, this suggests that John had not yet elected to reduce his retirement pay to receive disability benefits.
In sum, the record supports the trial court's finding that even though John was receiving disability benefits at the time of the marital settlement agreement, these benefits were not designated to reduce a portion of his anticipated retirement pay. Thus, the court was not adjudicating his disability benefits when it divided John's retirement benefits as set forth in the marital settlement agreement. Under the Krempin rule, the court had the authority to divide the retirement pay without violating the federal proscription against division of disability benefits, and the parties were free to decide whether any subsequent election to receive disability benefits would affect the amount of Patricia's entitlement.
Accordingly, we turn to the second question concerning the parties' intent. The marital settlement agreement expressly provides that Patricia was to receive a share of John's " gross retirement pay." Although John was receiving disability benefits at the time of the agreement, the agreement does not mention this fact. On its face, the use of the term " gross" creates a strong inference that the parties intended Patricia to receive an amount equal to her share of the full amount of retirement pay for which John was eligible, irrespective of any future deductions based on a waiver of retirement to receive disability. Further, the use of the term " gross" undermines John's suggestion that because he was already receiving disability benefits at the time of the agreement, the parties expected that Patricia's share of his retirement pay would be reduced by his disability benefits. Because the parties were aware of the possibility of disability benefits at the time of the agreement, if they intended that Patricia not receive her share based on the full retirement allotment, it appears likely that they would have used the term " net" or otherwise referred to this expectation in the agreement.
We conclude the language of the agreement and the surrounding circumstances indicate that the parties intended Patricia to receive her community interest based on the full amount of John's retirement pay prior to any disability benefit deduction. Accordingly, the trial court did not err in effectuating that intent by imposing a resulting trust on her share of John's gross retirement benefits, including the amount deducted for his disability benefits.
Laches, Hardship, and Unadjudicated Asset Ruling
John argues that Patricia's claims for increased future and past payments should have been barred under the doctrine of laches.
" Laches is an equitable defense to the enforcement of stale claims. It may be applied where the complaining party has unreasonably delayed in the enforcement of a right, and where that party has either acquiesced in the adverse party's conduct or where the adverse party has suffered prejudice thereby that makes the relief unfair or inequitable." (In re Marriage of Fogarty & Rasbeary (2000) 78 Cal.App.4th 1353, 1359; Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 359.) We review the court's ruling on a laches defense for abuse of discretion, drawing all reasonable inferences and resolving factual conflicts in favor of the judgment. (In re Marriage of Garcia (2003) 111 Cal.App.4th 140, 148.)
The trial court was not required to find John had established a laches defense regarding his future obligation to pay Patricia. There is nothing in the record suggesting that John altered his position in reliance on the amounts he paid in the past.
Similarly, regarding arrearages, the trial court was not compelled as a matter of law to bar Patricia's claims because of her delay. Patricia did not start receiving payments until 1999, and she filed suit in 2003. This four-year delay was not so lengthy as to conclusively establish her acquiescence to a decreased amount or prejudice to John. Further, as to the issue of her entitlement to payment based on gross retirement pay, the record suggests the delay was even less than four years because for several months after John began receiving his monthly checks there were apparently no reductions for disability benefits.
John also argues the trial court failed to tailor the order to avoid an undue burden on him. He asserts the court should not have ruled that the arrearages could be satisfied from 65 percent of his retirement pay, and should have allowed monthly payments to satisfy the arrears. (See Krempin, supra, 70 Cal.App.4th at p. 1021 [recognizing propriety of tailoring arrearages award to avoid undue burden].) In her respondent's brief on appeal, Patricia interprets the court's order--stating that the arrearages were to be paid or enforced as spousal support and could not exceed 65 percent of his retirement pay--as effectively requiring that the arrearages be paid on a monthly basis and not as a lump sum. John did not file a reply brief to dispute this interpretation. With this construction, the order properly accommodates the potential for financial hardship on John by avoiding a lump sum payment.
Although the language of the court's order is not entirely clear, we further construe the 65 percent amount available from the retirement pay as including payments for both current and past due amounts (i.e., 46.17 percent for current due amounts and 18.83 percent for past due amounts).[10] The record shows that at the time of the court's order in 2005, John received $1,060 monthly gross retirement pay and $1,101 to $1,160 monthly Social Security benefits, creating a total monthly income of about $2,161. He pays $500 per month in mortgage payments. If John pays an amount equal to 65 percent of his gross retirement pay, his monthly payment to Patricia will be $689 until the arrearages are satisfied, leaving him approximately $1,472 to meet his monthly expenses ($2,161 minus $689). After paying the $500 mortgage payment, he still has approximately $972 income at his disposal (less whatever amount is deducted from his share of retirement pay for taxes).[11] Further, the record shows John has in the past been able to accrue money in a savings account.
Based on the evidence showing that John has other assets in addition to his military retirement/disability pay, the trial court could reasonably conclude it would not place an undue hardship to allot an amount equal to 65 percent of John's monthly retirement pay to the amounts he owes Patricia.[12]
Finally, John challenges the court's ruling that the misstated percentage can be treated as an unadjudicated asset so as to defeat any statute of limitations argument. There was no error. The missing percentage of the community property interest was not adjudicated because it was inadvertently left out of the marital settlement agreement. (Fam. Code, § 2556.) John also complains that the court's ruling incorrectly states that the unadjudicated asset was 36.17 percent of the retirement pay. He contends the court should have found the omitted asset was 20 percent of his retirement pay (based on the 10 percent difference between 46.17 and 36.17 for each party's respective interest). The record shows the language of the ruling has already been corrected. Although in its statement of decision the trial court characterized the unadjudicated asset as being the 36.17 percent, the matter was clarified in its subsequent findings and order after hearing, which states that the unadjudicated asset is the " difference between 46.17% and 36.17%."
DISPOSITION
The judgment and order are affirmed. John LaBruyere to bear Patricia LaBruyere's costs on appeal.
HALLER, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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[1] Because the parties share the same last name, we will subsequently refer to them by their first names.
[2] John filed two appeals in this case, one from a December 29, 2004 judgment and one from a September 1, 2005 order after hearing. Pursuant to the parties' stipulation, the two appeals have been consolidated.
[3] John received a lump sum payment in April 1999, representing retirement pay retroactive to July 1998. He paid a portion of this lump sum to Patricia, and thereafter started making monthly payments to her.
[4] The record does not show precisely when John obtained the waiver to substitute disability benefits for retirement pay.
[5] The $439 in disability benefits was not taxed. Federal income tax (totaling $38.60) was withheld from the $607 " net" retirement pay, resulting in a final net retirement payment of $568.40 to John.
[6] The document set forth his initial retirement pay in 1998, which by the time of the current proceedings had increased to $1,060.
[7] A Survivor Benefit Plan is an annuity available to benefit a survivor of the retiree. (10 U.S.C. §§ 1447 et seq., 1408, subd. (a)(4)(D).)
[8] The court also advised the parties that if they could not reach an agreement regarding the amount of arrearages, a court ruling on this matter would take into consideration the fairness factors arising from Patricia's delay in taking action and the fact that John had paid taxes on Patricia's share of the retirement income.
[9] We are also not persuaded by John's argument that the court's ruling constituted an improper division of disability benefits that became separate property after the parties separated. Under state law, it has long been recognized that a court may properly divide the community's interest in retirement pay, including the amount of pay reduced by the retiree's acceptance of disability benefits. (See In re Marriage of Stenquist (1978) 21 Cal.3d 779, 786-788.)
[10] The court's order states: " The court authorizes that up to 65% of respondent's retirement pay can be taken to satisfy the arrears." We do not construe this 65 percent as setting an amount in addition to the 46.17 percent due for current amounts.
[11] The December 2004 judgment provides that Patricia will pay the taxes on her share of the retirement pay.
[12] We note that the trial court ordered that the parties determine the amount of the arrearages, and indicated that if no agreement was reached the court would render an order which considered such fairness factors as Patricia's delay in bringing her claims. There is no arrearages order specifying the amounts due included in the record on appeal, and thus any such order is not before us for review.
