from the Marion Superior Court The Honorable Patrick J.
Dietrick, Judge The Honorable Caryl F. Dill, Magistrate Trial
Court Cause No. 49D12-1606-DR-19232
Attorney for Appellant Nicholas Dandurand Gilley Dandurand
& Summerfield Law Group, LLP Anderson, Indiana
Attorneys for Appellee Kathleen M. Meek Justin T. Bowen Bowen
& Associates, LLC Carmel, Indiana
FRIEDLANDER, SENIOR JUDGE.
Russell McCallister appeals the trial court's order
finding him in contempt of court, directing him to reinstate
his former wife, Angela McCallister, as the beneficiary of
his Survivor Benefit Plan, and ordering him to pay
Angela's attorney fees. Concluding the trial court
correctly determined that Russell violated the parties'
Marital Settlement Agreement, but constrained by the federal
statutes which prevent the enforcement of the trial
court's order, we are compelled to reverse and remand in
part and affirm in part.
Russell raises three issues for our review, which we restate
1.Whether the trial court erred in ordering Russell to
reinstate Angela as the beneficiary under his Air Force
Survivor Benefit Plan.
2.Whether the trial court erred in finding Russell in
contempt of court.
3.Whether the trial court erred in ordering Russell to pay
Angela's attorney fees.
Russell and Angela married on June 11, 1983. For the duration
of the marriage, Russell served on active duty in the United
States Air Force. After more than twenty years of marriage,
Angela filed a petition for dissolution. On November 15,
2011, the parties executed a Marital Settlement Agreement
providing for the disposition of their property. The
Agreement included a clause that Russell would designate
Angela as his beneficiary under the Air Force Survivor
Benefit Plan ("SBP") and that he would execute all
necessary paperwork and provide documentation that he had
done so. Specifically, paragraph 19 of the parties'
19. SURVIVOR'S BENEFIT PLAN. Upon his
retirement, the Husband shall designate his Wife as his
beneficiary under the Air Force Survivor's Benefit Plan
as specifically authorized in the "Uniformed Services
Former Spouses' Protection Act" Public Law 97-252,
and all amendments thereto, to the extent of her interest in
the Husband's Military Retired pay. The Husband shall,
within 15 days of the date of execution of this agreement,
execute and forward to proper authorities, whatever documents
may be required to effectuate the provisions of this
paragraph. The Husband shall provide the Wife with copies of
all such documents within such 15 day period. A copy of the
Final Judgment of Dissolution of Marriage incorporating this
agreement shall be [sic] also be sent directly to the Defense
Finance and Accounting Service in order to qualify as a
"deemed election" of the Survivor Benefit Plan.
Appendix Vol. 2, pp. 55-56. On November 16, 2011, Russell
signed a form designating Angela as the beneficiary of his
SBP. The parties' Agreement was incorporated into a
divorce decree dated December 2, 2011.
On December 22, 2012, Russell remarried. In June 2013, he
changed the beneficiary of his SBP from Angela to his current
wife. Angela did not learn that she was no longer the
beneficiary of Russell's SBP until May 2016. Upon
learning this information, Angela filed a motion for rule to
show cause with the trial court. The court held a hearing on
Angela's motion and subsequently issued an order holding
Russell in contempt of court for violating the Marital
Settlement Agreement by removing Angela as the beneficiary of
his SBP, ordering Russell to reinstate Angela as the
beneficiary, and ordering Russell to pay Angela's
attorney fees. Russell filed a motion to correct error, which
the trial court denied. This appeal ensued.