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CourtListener opinion 9892079

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Extracted case name
MR MICHAEL DWAYNE GREGORY APPELLANT APPEAL FROM WHITLEY CIRCUIT COURT v. HONORABLE PAUL K. WINCHESTER
Extracted reporter citation
295 S.W.3d 850
Docket / number
2022-CA-1522-MR MICHAEL DWAYNE GREGORY APPELLANT
QDRO relevance 5/5Retirement relevance 5/5Family-law relevance 5/5gold label pending
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Machine-draft public headnote: CourtListener opinion 9892079 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to pension / defined benefit issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.

Retrieval annotation

Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.

Category: pension / defined benefit issues

Evidence quotes

QDRO

pellee Brenda Logan ("Brenda") were married in 1988, and on October 26, 2000, the Whitley Circuit Court entered the Decree of Dissolution ending their marriage. The Decree of Dissolution, in pertinent part, read [Michael and Brenda] further agreed that a QDRO [Qualified Domestic Relation Order] would be entered awarding Brenda one-half (1/2) of the value of all of Michael's pensions, retirement plans or thrift plans with FCI [Federal Correctional Institution] valued as of the date of entry of the Decree of Dissolution herein. In 2001, pursuant to the Decree of Dissolution, Brenda tendered two Court Order

retirement benefits

tion ending their marriage. The Decree of Dissolution, in pertinent part, read [Michael and Brenda] further agreed that a QDRO [Qualified Domestic Relation Order] would be entered awarding Brenda one-half (1/2) of the value of all of Michael's pensions, retirement plans or thrift plans with FCI [Federal Correctional Institution] valued as of the date of entry of the Decree of Dissolution herein. In 2001, pursuant to the Decree of Dissolution, Brenda tendered two Court Orders Acceptable for Processing ("COAP")1 that were subsequently entered by the court on November 13, 2001: the "2001 Pension COAP" and the "2001 TS

pension

HIEF JUDGE; CETRULO AND COMBS, JUDGES. CETRULO, JUDGE: Appellant Michael Dwayne Gregory ("Michael") appeals the Whitley Circuit Court orders denying his motions to amend post-dissolution orders modifying the portion of a divorce decree that distributed his pension. Finding no error or abuse, we affirm. I. FACTS AND BACKGROUND Michael and Appellee Brenda Logan ("Brenda") were married in 1988, and on October 26, 2000, the Whitley Circuit Court entered the Decree of Dissolution ending their marriage. The Decree of Dissolution, in pertinent part, read [Michael and Brenda] further agreed that a QDRO [Qualified D

survivor benefits

ly entered by the court on November 13, 2001: the "2001 Pension COAP" and the "2001 TSP COAP." The TSP is not in dispute; Michael's Federal Employees Retirement System ("FERS") pension2 is the source of this appeal. The 2001 Pension COAP awarded Brenda a surviving spouse annuity and stated, "This Order assigns to [Brenda] Fifty Percent (50%) of [Michael's] 1 Although the Decree of Dissolution refers to a QDRO, the orders in question are actually titled COAPs, but here, for our purposes, the title discrepancy is a difference without a distinction. 2 A pension is a defined-benefit plan "in which an employer commits to pay

Source and provenance

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courtlistener_qdro_opinion_full_text
Permissions posture
public
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machine draft public v0
Review status
gold label pending
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US
Deterministic extraction
reporter: 295 S.W.3d 850 · docket: 2022-CA-1522-MR MICHAEL DWAYNE GREGORY APPELLANT
Generated at
May 14, 2026

Related public corpus pages

Deterministic links based on shared title/citation terms and QDRO / retirement / family-law retrieval scores.

Clean opinion text

RENDERED: OCTOBER 13, 2023; 10:00 A.M.
 NOT TO BE PUBLISHED

 Commonwealth of Kentucky
 Court of Appeals
 NO. 2022-CA-1522-MR

MICHAEL DWAYNE GREGORY APPELLANT

 APPEAL FROM WHITLEY CIRCUIT COURT
v. HONORABLE PAUL K. WINCHESTER, JUDGE
 ACTION NO. 00-CI-00245

BRENDA LOGAN APPELLEE

 OPINION
 AFFIRMING

 ** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND COMBS, JUDGES.

CETRULO, JUDGE: Appellant Michael Dwayne Gregory ("Michael") appeals

the Whitley Circuit Court orders denying his motions to amend post-dissolution

orders modifying the portion of a divorce decree that distributed his pension.

Finding no error or abuse, we affirm.
 I. FACTS AND BACKGROUND

 Michael and Appellee Brenda Logan ("Brenda") were married in

1988, and on October 26, 2000, the Whitley Circuit Court entered the Decree of

Dissolution ending their marriage. The Decree of Dissolution, in pertinent part,

read

 [Michael and Brenda] further agreed that a QDRO
 [Qualified Domestic Relation Order] would be entered
 awarding Brenda one-half (1/2) of the value of all of
 Michael's pensions, retirement plans or thrift plans with
 FCI [Federal Correctional Institution] valued as of the date
 of entry of the Decree of Dissolution herein.

 In 2001, pursuant to the Decree of Dissolution, Brenda tendered two

Court Orders Acceptable for Processing ("COAP")1 that were subsequently entered

by the court on November 13, 2001: the "2001 Pension COAP" and the "2001

TSP COAP." The TSP is not in dispute; Michael's Federal Employees Retirement

System ("FERS") pension2 is the source of this appeal.

 The 2001 Pension COAP awarded Brenda a surviving spouse annuity

and stated, "This Order assigns to [Brenda] Fifty Percent (50%) of [Michael's]

1
 Although the Decree of Dissolution refers to a QDRO, the orders in question are actually titled
COAPs, but here, for our purposes, the title discrepancy is a difference without a distinction.
2
 A pension is a defined-benefit plan "in which an employer commits to paying an employee a
specific benefit for life beginning at retirement." BLACK'S LAW DICTIONARY (11th ed. 2019). A
basic annuity – for a FERS pension – is computed based on an employee's highest average basic
pay earned during any three consecutive years of service ("high-3"), typically, the final three
years of service. See Computation, U.S. OFFICE OF PERSONNEL MANAGEMENT,
https://www.opm.gov/retirement-center/fers-information/computation (last visited Oct. 9, 2023).

 -2-
 Accrued Benefit under the Plan as of October 26, 2000." This order did not

clarify if October 26, 2000, would be (a) the cutoff date for the length of time

Brenda would be credited, (b) the cutoff date for the contributions added to the

pension, or (c) both.

 On November 29, 2001, Michael filed a motion to alter or amend the

2001 Pension COAP pursuant to Kentucky Rule of Civil Procedure ("CR") 60.02

to clarify Brenda's share of his future pension benefit ("2001 CR 60.02 Motion").

Michael stated in this motion that when a copy of the 2001 Pension COAP was

sent to his employer, the paymaster questioned its interpretation. The 2001

CR 60.02 Motion only challenged the verbiage in the 2001 Pension COAP that

described Brenda's share of Michael's pension. This motion did not challenge the

surviving spouse annuity clause in the 2001 Pension COAP.

 In December 2001, the court entered an order that expounded upon

the parties' intent within the 2001 Pension COAP ("December 2001 Order"). This

December 2001 Order, which was subsequently sent to Michael's employer,

stated:

 IT IS HEREBY ORDERED that the [2001 Pension
 COAP] were intended to divide [Michael's Pension] with
 50% to [Brenda] valued only as of the date of entry of the
 Decree of Dissolution herein, October 26, 2000, with
 whatever interest or gains are attributable thereto. IT IS
 FURTHER ORDERED that the [2001 Pension COAP]
 were not intended to award [Brenda] any contributions

 -3-
 made to these pensions by [Michael] or his employer after
 October 26, 2000.

 On February 25, 2002, the Office of Personnel Management

("OPM"), the administrator of Michael's FERS retirement plan, sent a letter to

Brenda rejecting the 2001 Pension COAP. The letter stated the COAP did not

meet requirements mandated by the Code of Federal Regulations because the order

needed to include an explicit beginning date in order to compute Brenda's share of

the annuity. On March 15, 2002, Brenda moved for entry of a revised COAP "to

clarify that [Brenda] is receiving only the portion of the annuity pension earned

during the marriage and as of October 26, 2000." On April 8, 2002, the court

entered the revised pension COAP ("2002 Pension COAP"). Michael later stated

he did not receive a copy of the motion to enter this 2002 Pension COAP nor a

copy of the order after the court entered it;3 Brenda stated that a copy of the motion

was sent to Michael's then-attorney, and the order itself indicated a copy was sent

to Michael's then-attorney after the clerk entered it.

 This 2002 Pension COAP again awarded Brenda a survivor annuity,

but more importantly, substantively changed (from the December 2001 Order) how

Brenda's portion of Michael's FERS pension would be calculated. While the

3
 Michael's 2002 attorney submitted an affidavit in 2018 stating that he did not receive notice of
the motion to enter the 2002 Pension COAP nor a copy of the 2002 Pension COAP (after it was
entered) until February 2018.

 -4-
 December 2001 Order stated that the parties did not intend to award Brenda any

contributions made to the pensions by Michael or his employer after October 26,

2000, the 2002 Pension COAP stated that Brenda's share would be calculated

using Michael's "gross monthly annuity" at the time of retirement. The 2002

Pension COAP read, in relevant part:

 This Order assigns to [Brenda] Fifty Percent (50%) of the
 marital portion of [Michael's] monthly annuity
 determined as of the date of [Michael's] retirement. For
 purpose[s] of calculating [Brenda's] share of [Michael's]
 Benefit the marital portion of [Michael's] monthly annuity
 shall be determined by multiplying [Michael's] gross
 monthly annuity by a fraction the numerator of which is
 the total number of months of creditable service earned by
 [Michael] during the marriage (from July 12, 1988, the
 date of the marriage, until October 26, 2000, the date of
 the divorce), the denominator of which is the total number
 of months of [Michael's] creditable service accrued under
 [FERS] (including military service credited to the FERS
 should [Michael] opt out of receiving his military retainer
 pay.) The marriage began on July 12, 1988.

 In June 2017, Michael retired from federal service. In January 2018,

Brenda and Michael each received a letter from the OPM explaining the

calculations for Brenda's share of Michael's FERS pension, which was consistent

with the 2002 Pension COAP. In February 2018, more than 15 years after the

entry of the 2002 Pension COAP, Michael filed a motion for clarification and

repayment of overpayment and a motion to redocket. These motions were not

 -5-
 made pursuant to any rule, but the parties and court treated them as CR 60.02

motions to alter or amend the 2002 Pension COAP ("2018 CR 60.02 Motion").4

 First, Michael argued he did not have notice of the 2002 Pension

COAP. Second, he argued the 2002 Pension COAP improperly calculated

Brenda's award of Michael's FERS pension using the total contributions into the

pension at the date of his retirement, instead of the date of the divorce (thereby

improperly including in her portion his increased earnings post-divorce). Michael

essentially argued that his FERS pension should be treated similarly to a military

pension in that the non-military spouse pension award should be assessed both (a)

with only the months of the military service occurring during the marriage, and (b)

as of the date of divorce (i.e., not accounting for any increase in rank or salary that

occurred after the date of the divorce). Third, Michael argued that the 2002

Pension COAP added survivorship rights to Brenda that were not discussed in the

original Decree of Dissolution.

 In response, Brenda argued that she and the court had sent Michael's

then-attorney copies of the motion and order in 2002.5 Next, Brenda argued that

4
 Likewise, the parties and court treated Michael's response to Brenda's Verified Motion to
Overrule Motion for Repayment and Motion for Attorney Fees filed in March 2018 as a
CR 60.02 motion to amend.
5
 The last page of the 2002 Pension COAP includes a distribution list. On that list, Michael's
then-attorney has a handwritten checkmark next to his name, and the clerk initialed and dated the
distribution list.

 -6-
 although her portion of the pension was assessed at the date of Michael's

retirement (and reflected the pension value at that time), her allocation calculation

was correct because it limited her award to only 50% of the marital portion (i.e.,

the number of months of creditable service earned by Michael during the

marriage). Finally, Brenda pointed out that Michael's challenge to the

survivorship annuity was not timely because the same language was in the 2001

Pension COAP, and he did not object to it in his 2001 CR 60.02 Motion.

 On February 28, 2020, the court entered an order ("February 2020

Order") that detailed the pension allocation as implemented pursuant to the 2002

Pension COAP. Brenda's award included 18.01% (50% of 125 months of service

during the marriage divided by 347 months of Michael's total federal service) of

Michael's gross annuity benefit. Brenda's award included contributions made by

Michael and his employer after the date of dissolution, up and until his retirement.

Also, Brenda's 125 months of service credit included 24 months of Michael's

military service earned during the marriage, but not the 24 months of military

service earned before the marriage. As a result, Brenda's share amounted to

18.01% of Michael's gross annuity of $3,307.00, or $595.59 per month.6

6
 Brenda's half of the cost of the survivorship annuity further reduced Brenda's monthly share to
$553.59 per month.

 -7-
 The February 2020 Order found that Michael did have legal notice of

the 2002 Pension COAP, and, as a result, his arguments challenging the pension

allocation within the 2002 Pension COAP were not timely. Also, the court noted

that the survivorship rights were clearly stated in the 2001 Pension COAP (and

2002 Pension COAP) and "[w]hen [Michael] objected to the wording of the [2001

Pension COAP] he had no objection to [that survivorship] provision[;] . . . he

should have filed a Motion in 2002." As such, the court determined that he waived

the objection to the survivorship annuity. Additionally, the court determined that

the pension allocation was not unfair and there existed no grounds for equitable

relief under CR 60.02.

 Ten days later, on March 9, 2020, Michael timely filed a CR 59.05

motion to alter, amend, or vacate the February 2020 Order and a new CR 60.02

motion challenging the legal validity of the 2002 QDRO (collectively, "2020 CR

60.02 Motion"). In this 2020 CR 60.02 Motion, Michael repeated his contention

that he did not have notice of the 2020 Pension COAP and Brenda "should not be

awarded [overpayment] due to the court being misled to enter an Order in which

opposing counsel was never provided a copy."

 The court allowed discovery, depositions, and mediation to take place,

but the parties could not reach an agreement. In September 2022, Brenda filed a

motion for the court to rule without a final hearing as there existed no legal

 -8-
 grounds to alter, amend, or vacate the February 2020 Order nor the 2002 Pension

COAP. In November 2022, without a final hearing, the court entered an order

denying Michael's 2020 CR 60.02 Motion ("2022 Final Order"). The short body

of the order stated

 The Court having carefully reviewed the record,
 including all pleadings, Memoranda, the depositions, and
 prior Orders of this Court, the Court being of the opinion
 that there is no genuine issue of material fact sufficient to
 justify setting aside the [2002 Pension COAP] pursuant to
 CR 60.02 Motions filed in 2018 and thereafter, well more
 than one year after entry of the [2002 QDRO], and the
 Court being of the opinion that its [February 2020 Order]
 denying [Michael's] Motions is otherwise correct, IT IS
 ORDERED that [Michael's] CR 59 and CR 60 Motions
 are DENIED.

 Michael appealed.7

 II. STANDARD OF REVIEW

 On appeal, Michael challenges the court's factual finding that Michael

received legal notice of the 2002 Pension COAP. Any findings of fact by the trial

court "shall not be set aside unless clearly erroneous[.]" CR 52.01. Clearly

erroneous facts are those not supported by substantial evidence. Eagle Cliff

Resort, LLC v. KHBBJB, LLC, 295 S.W.3d 850, 853 (Ky. App. 2009) (citation

7
 According to the notice of appeal, Michael appeals only the 2022 Final Order. However, denial
of a motion to alter, amend, or vacate pursuant to CR 59.05 is not appealable because it does not
alter the judgment; rather, the appeal is from the underlying judgment. Ford v. Ford, 578
S.W.3d 356, 366 (Ky. App. 2019). As such, both the 2022 Final Order (regarding the denial of
Michael's 2020 CR 60.02 motion) and the February 2020 Order (as the underlying order to
Michael's CR 59.05 motion denial) are properly on appeal.

 -9-
 omitted). Additionally, our review must give due regard "to the opportunity of the

[circuit] court to judge the credibility of the witnesses." CR 52.01.

 Next, Michael argues the court erred in denying his CR 60.02

motions. When a trial court denies a CR 60.02 motion, this Court reviews using

the abuse of discretion standard. Age v. Age, 340 S.W.3d 88, 94 (Ky. App. 2011)

(citing Richardson v. Brunner, 327 S.W.2d 572, 574 (Ky. 1959)). "The test for

abuse of discretion is whether the trial court's decision was ‘arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.'" Id. (quoting

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).

 III. ANALYSIS

 On appeal, Michael argues the 2002 Pension COAP went beyond the

scope of the parties' original agreement within the Decree of Dissolution by

including – in Brenda's annuity calculation – increases Michael made to the

pension plan post-dissolution such as "time in grade bonus, increased earnings post

decree, and military time[.]" Michael asserts that because the court "ignored" his

argument that he did not receive proper notice of the 2002 Pension COAP, the

matter should be remanded for adversarial hearings to determine (1) if the 2002

Pension COAP was consistent with the Decree of Dissolution and (2) the

credibility of Michael's legal counsel regarding notice of the 2002 Pension COAP.

However, such hearings are no longer legally appropriate.

 -10-
 First, we are bound by the factual finding that Michael had legal

notice of the 2002 Pension COAP because that finding was based on substantial

evidence and therefore, was not clearly erroneous. In the February 2020 Order, the

court recognized that notice of the 2002 Pension COAP was "in dispute" but found

Michael had sufficient notice, waived his arguments, and then the court

adjudicated on the merits. The February 2020 Order stated that Brenda's motion to

enter the 2002 Pension COAP was sent to Michael's counsel, but no objection was

filed. Further, the clerk entered the 2002 Pension COAP, mailed it to Michael's

counsel, and it was not returned as undelivered. The court determined that Michael

had legal notice of the 2002 Pension COAP, based on substantial evidence, and

therefore, its finding was not clearly erroneous. We are bound by that finding.

 Second, Michael argues that the court abused its discretion in denying

his CR 60.02 motions because his arguments (1) were brought within a reasonable

time and (2) were of "an extraordinary nature justifying relief" because the 2002

Pension COAP did not represent the intent of the parties. Michael points to

language in the Decree of Dissolution and the 2001 Pension COAP that was altered

in the 2002 Pension COAP thereby making the new order "clearly inconsistent

with the original terms of the parties' agreement[.]" However, the finding of legal

notice limits our review.

 -11-
 CR 60.02 "was never meant to be used as another vehicle to revisit

issues that should have been included or could have been included in prior requests

for relief." Baze v. Commonwealth, 276 S.W.3d 761, 766 (Ky. 2008) (internal

quotation marks and citation omitted). Instead,

 [t]he purpose of CR 60.02 is to bring before a court errors
 which (1) had not been put into issue or passed on, and (2)
 were unknown and could not have been known to the
 moving party by the exercise of reasonable diligence and
 in time to have been otherwise presented to the court.

Brozowski v. Johnson, 179 S.W.3d 261, 263 (Ky. App. 2005) (quoting Young v.

Edward Tech. Grp., Inc., 918 S.W.2d 229, 231 (Ky. App. 1995)).

 Here, Michael's argument is limited by the factual finding that he had

legal notice of the 2002 Pension COAP. Because the court determined that he had

notice of the 2002 order, the alleged inconsistencies between the Decree of

Dissolution and the 2002 Pension COAP and between the 2001 Pension COAP and

the 2002 Pension COAP are no longer reviewable. Michael knew or should have

known about any inconsistency in time to present it to the court during the

previous appeals and CR 60.02 motions. Stated another way, if Michael wanted to

argue that the original intent of the parties was not followed in the 2002 Pension

COAP, he needed to request further findings and/or appeal that issue in a timely

manner. He presented no precedent that supports the contention that 16 years

(2002 Pension COAP to 2018 CR 60.02 Motion) is a reasonable amount of time to

 -12-
 wait to bring the appeal. True, Michael did move forward with litigation within a

year of receiving the post-retirement January 2018 OPM allocation letter stating

Brenda's award of his pension, but that letter is not the start of our reviewable

clock. The finding that he had notice requires us to use the filing of the 2002

Pension COAP as our starting clock, and almost 16 years is not reasonable under

these circumstances.

 The same principle applies to the survivorship right language. This

language was contained in the 2001 Pension COAP, but Michael did not challenge

it in his 2002 CR 60.02 Motion. The court correctly found that if he wanted to

challenge that survivorship language, he needed to do so in 2002 when he

challenged other aspects of the 2001 Pension COAP. Again, CR 60.02 "was never

meant to be used as another vehicle to revisit issues that should have been included

or could have been included in prior requests for relief." Baze, 276 S.W.3d at 766

(internal quotation marks and citation omitted).

 Additionally, Michael argues the "extraordinary nature" of his claims

warrants relief pursuant to CR 60.02(f). Michael argues, citing Copas v. Copas,

359 S.W.3d 471 (Ky. App. 2012) and Snodgrass v. Snodgrass, 297 S.W.3d 878

(Ky. App. 2009), that the court should be permitted to modify the pension

distribution pursuant to CR 60.02(f). However, his reliance on those cases is

misplaced.

 -13-
 Both Snodgrass and Copas deal with military active-duty retirement

pensions that were reopened six years after the divorce decree was filed. Copas,

359 S.W.3d at 473; Snodgrass, 297 S.W.3d at 882. In both these instances, the

parties agreed that the non-military spouse would receive a percentage of the

military members' pension consistent with the months of the marriage, i.e., the

marital portion of the active duty time. Copas, 359 S.W.3d at 473-74; Snodgrass,

297 S.W.3d at 882-83. However, when the paperwork was submitted to Defense

Finance and Accounting Service ("DFAS"), the agency charged with administering

and distributing military retired pay, the non-military spouse was credited with all

the months of service, not just the marital months. Copas, 359 S.W.3d at 473-74;

Snodgrass, 297 S.W.3d at 882-83. In both cases, the courts reopened the pension

matter to correct that error. Copas, 359 S.W.3d at 474; Snodgrass, 297 S.W.3d at

883. Stated another way, in both Copas and Snodgrass, the property distribution

order failed to use language sufficient to convey the court's intent to the pension

administrator, thereby "result[ing] in an erroneous interpretation of the order

dividing marital property." Copas, 359 S.W.3d at 476-77 (emphasis added) (citing

Snodgrass, 297 S.W.3d at 886-91). That is not what happened here.

 First, Brenda's award was not calculated with non-marital months of

service. As the February 2020 Order points out, the 2002 Pension COAP states,

"This Order assigns to [Brenda] Fifty Percent (50%) of the marital portion of

 -14-
 [Michael's] monthly annuity determined as of the date of [Michael's] retirement."

(Emphasis added.) Brenda's award of the FERS pension only includes the months

of service before dissolution, the marital portion, not the months of service

Michael accrued post-dissolution. Second, despite Michael's frustration with the

inclusion of his increased earnings post-dissolution, the pension allocation to

Brenda determined "as of the date of [Michael's] retirement" was not an error or

misinterpretation. Determining Brenda's annuity as of the date of Michael's

retirement is exactly what the 2002 Pension COAP stated, and the February 2020

Order sustained. There was no mistake or misinterpretation in the 2002 Pension

COAP that needed "correction" by the court. Third, the pensions in Snodgrass and

Copas were full military pensions. We are not at liberty to extend the rules of

military pensions8 to all federal pensions, including FERS pensions.

 Michael did not present evidence to suggest the February 2020 Order

or the 2022 Final Order were arbitrary, unreasonable, unfair, or unsupported by

sound legal principles. As such, we find no abuse of discretion.

 IV. CONCLUSION

 Therefore, the February 2020 Order and the 2022 Final Order of the

Whitley Circuit Court are AFFIRMED.

8
 For example, excluding from the spouse annuity calculation all rank and salary increases after
the date of dissolution.

 -15-
 ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Douglas G. Benge Marcia A. Smith
London, Kentucky David O. Smith
 Corbin, Kentucky

 -16-