ILNews

COA reverses decree award of military benefits

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals reversed a portion of a divorce decree awarding some of the husband's military benefits and housing allowance to his wife because the separation agreement excluded granting the wife any rights to them.
 
In Timothy D. Wolshire v. Sharon M. Wolshire, No. 16A05-0812-CV-722, Timothy Wolshire appealed the divorce decree which added language to the provision of the parties' separation agreement governing the division of proceeds from the sale of the marital home; awarded Sharon a portion of his military benefits; and gave her a portion of Timothy's military housing allowance he received after the two separated.

The Wolshires filed for legal separation in September 2005; Sharon had an attorney and Timothy appeared pro se. They entered into a separation agreement awarding the marital home to Sharon and the amount Timothy would get if she sold the home. Under "Other Property," the provision stated except for anything otherwise specifically provided for in the separation agreement, Sharon or Timothy would retain separate and exclusive property of anything they already owned or arising out of the marital relationship.

After they separated, but before they officially divorced, Timothy began serving full time in the National Guard and received a basic allowance for housing in March 2006. In September 2007, he began sending the allowance to Sharon based on the advice of a military attorney. But because of the separation agreement, he wasn't legally required to send it.

In September 2008, the trial court issued its decree of dissolution and stuck to the separation agreement except it added language regarding the sale of the marital home that made Timothy responsible for repair and replacement of existing structures upon sale of the home. The trial court also awarded Sharon four months of housing allowance for a total of $5,648 and determined she'd be eligible for a portion of Timothy's military retirement benefits.

The Court of Appeals reversed the disputed portions of the divorce decree because the trial court should have followed the language in the separation agreement instead of adding in new language regarding the marital home or benefits.

When the parties entered into the agreement, there was no mention of Timothy's military benefits. Sharon testified that the benefits just didn't come up when they were putting together the agreement, but a mere oversight doesn't allow the trial court to grant her the benefits when the separation agreement doesn't specify, wrote Judge Patricia Riley.

In regards to Timothy's basic allowance for housing, those payments fall under the "Other Property" provision of the separation agreement and should remain only his property. Sharon's argument that the trial court should have dealt with the allowance because the agreement doesn't mention them is problematic because it would render the "Other Property" provision meaningless, the judge wrote. Because the allowance and benefits weren't specifically mentioned in the separation agreement, and because they were issued to Timothy, the trial court erred in awarding a portion of them to Sharon.

The parties lost any right they might have in later-acquired property when they entered into the separation agreement, and that's a risk Sharon took by signing the agreement, wrote Judge Riley. The case is remanded with instructions to amend the dissolution decree in accordance with the opinion.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  2. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

  3. Lots of potential "good boys" right in the heart of our nation .... "Nashville, TN has gained a reputation as a new “Ellis Island,” a magnet for immigrants from around the world. The number of foreign-born residents in the area has grown from 2 percent to almost 12 percent." Some 30 percent of students in Metro schools live in homes in which English is not the primary language. In 2012 Nashville had the fastest-growing immigrant population of any American city. It is the home of the nation’s largest Kurdish population, as well as sizable numbers from other countries such as Somalia, Sudan, Egypt, Eretria and Bhutan. Nashville has traditionally had a sizable and prominent African-American community, which accounts for nearly 16 percent of its population." http://www.tennessean.com/story/opinion/contributors/2015/05/17/nashville-welcoming-immigrants/27479183/ SMILE & CELEBRATE DIVERSITY!

  4. This story linked below about FBI shooting an unarmed Chechen suspect in his apartment six times in the chest and once in the back of the head, is unrelated. IT has NOTHING to do with Tsaernayev. And the agent was cleared of wrongdoing, even though the story says nothing of the other agents there with him at the time. Maybe the unarmed suspect was making a move for a butter knife on the table before they began punching him full of holes. Sad but of course, wholly unrelated....nothing to see here, keep moving http://www.npr.org/sections/thetwo-way/2014/03/21/292441681/reports-fbi-agent-who-killed-chechen-during-boston-bombing-probe-is-cleared

  5. Oh, bsides these troubled youts, maybe a few ex-contractors they had to relocate after Russia crushed the Western instigated insurgency, that's all. Nice boys. But when they go wrong, they need to be silenced. http://www.reuters.com/article/2009/09/24/us-russia-chechnya-cia-idUSTRE58N5S120090924

ADVERTISEMENT