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McCallister v. McCallister

Court of Appeals of Indiana

June 26, 2018

Russell McCallister, Appellant-Respondent,
v.
Angela McCallister, Appellee-Petitioner.

          Appeal 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.

         [¶1] 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.

         [¶2] Russell raises three issues for our review, which we restate as:

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.

         [¶3] 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' Agreement provided:

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.

         Appellant's 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.

         [¶4] 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.

         1. ...


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