RENDERED: DECEMBER 22, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0872-MR

ROBERTO J. FELIX APPELLANT 

v. 

APPEAL FROM BELL CIRCUIT COURT

HONORABLE ROBERT COSTANZO, JUDGE

ACTION NO. 18-CI-00238

MELISSA RIVERA APPELLEE 

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Roberto Felix appeals from the Bell Circuit Court’s 

orders regarding the distribution of a portion of his military retirement pay and 

failure to make the reduction of his child support payments retroactive. He also 

argues that the circuit court erred by not allowing him to appear telephonically at a 

hearing given that he resided in Puerto Rico.

We reverse the orders which denied Felix’s motion to participate 

telephonically in the court’s initial hearings, awarded a faulty amount of Felix’s 
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retirement pay to be distributed and, thus, awarded an erroneous amount of child 

support and remand with instructions to make both awards retroactive. 

Felix and Melissa Rivera were married on May 16, 1995, in Puerto 

Rico. They had two children, one of whom was still a minor during the events on 

appeal. Twelve years later, the parties were domiciled in New Mexico where 

Rivera filed for divorce in 2007. The parties entered into a Stipulated Marital 

Settlement Agreement which was filed on April 29, 2008. The agreement created 

a full settlement of all property, visitation, child support obligations, and retirement 

benefit issues and was incorporated into a final decree by the court in New Mexico 

on September 25, 2008.

In relevant part, as part of the property division, Felix was to pay 

Rivera a portion of his future military retirement pay. The pertinent part of that 

portion of the settlement agreement is:

The former spouse [Rivera] is awarded a 

percentage of the member’s disposable military retired 

pay, to be computed by multiplying 50% times a fraction,

the numerator of which is 160 months of marriage during 

the member’s creditable military service – 240 months. 

The former spouse is awarded 33.3 percent of the 

member’s military retired pay. Should respondent serve 

beyond 240 months Defense Finance and Accounting 

Systems (DFAS), will adjust this percentage downward 

accordingly by military law, and this Order shall in no 

way be construed or interpreted to conflict with military 

law and DFAS regulations. 
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The DFAS referenced in the agreement is the federal agency which processes 

court-ordered garnishments for military retirees who are themselves being paid by 

the Defense Finance and Accounting Service.

Following the graduation of their oldest child from high school in 

2015, the New Mexico court modified Felix’s original child support obligation and 

Felix was ordered to pay $871.00 per month to Rivera for support of the remaining 

minor child. Rivera later moved to Bell County, Kentucky. 

On June 8, 2018, Felix retired from active duty, after 282 months 

(23.5 years) of service. Upon retirement, Felix’s income dropped, and he began 

receiving $2,735.43 per month in gross retirement pay. Other than Felix testifying 

by affidavit that he spoke to Rivera in May 2018 and told her to send DFAS “the 

appropriate paperwork,” there is no record of either party making any attempts

prior to Felix’s retirement to have DFAS either calculate or process the required

post-retirement payments to Rivera in accord with their agreement. 

In July 2018, Rivera filed a verified petition for registration and 

enforcement of a foreign child custody order and marital settlement in Bell Circuit 

Court. Felix was residing in Puerto Rico where the parties had married.

On August 6, 2018, Rivera supplemented her filing with a motion for 

registration and enforcement seeking enforcement of both a prior child support 
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award of $871.00 per month and “33.3 percent of [Felix’s] monthly military retired 

pay.” 

Without conducting a hearing, on August 27, 2018, the circuit court 

entered an order, tendered by Rivera, which stated that Felix was to pay child 

support in the amount of $871.00 per month as provided in an August 24, 2015 

order entered in New Mexico, and “awarded 33.3 percent of Respondent’s monthly 

military retired pay” to Rivera. In 2019, Rivera filed her first motion to hold Felix 

in contempt for failing to abide by the circuit court’s order. 

Felix, pro se, filed a response opposing Rivera’s motion citing that he 

was now, after retirement, making much less money and attached a retiree account 

statement showing his retirement pay as $2,735.43 (gross pay) and $2,557.17 

(taxable income) and asserted that Rivera had not yet completed the paperwork 

necessary for her to obtain her portion of his retirement. 

Felix also filed a pro se motion for telephonic hearing. The circuit 

court denied Felix’s motion to appear telephonically. 

The circuit court conducted a hearing on October 14, 2019. Felix was 

not present and not allowed to participate telephonically. The circuit court took 

proof from Rivera. Upon inquiry by the circuit court, Rivera’s counsel advised 

that her application to DFAS for payment from Felix’s retirement was “in the 

process” and “pending.”
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On December 18, 2019, the circuit court entered its findings of fact, 

conclusions of law, and order which found Rivera in contempt for failing to pay 

the full award of child support and held that “[Rivera] was and is awarded $910.89

Per month from [Felix’s] retired military pay for the months beginning in July, 

2018 through October, 2019.”

This was the first time any court or agency had made a calculation of 

the monthly amount of Felix’s retirement to which Rivera was entitled. The circuit 

court made its computation by simply multiplying $2,735.43 (the sum listed as 

“gross pay” on the retiree account statement provided by Felix) by 33.3%. 

Felix retained counsel who filed her appearance on December 23, 

2019, together with a motion for a new trial or, in the alternative, to alter, amend,

or vacate the prior contempt order. All subsequent pleadings were made through 

counsel. Felix’s counsel argued the circuit court erred in its decision regarding the 

division of his retirement benefits and that its finding of contempt was 

inappropriate.

At the hearing regarding this motion on January 13, 2020, Felix’s 

counsel informed the court on the record that the “percentage was wrong” 

regarding the retirement benefits since Felix had served for more than 240 months 

(he had served for 282 months) prior to his retirement and therefore the court’s 

calculation was incorrect. 
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On February 7, 2020, the circuit court granted Felix’s motion 

regarding its prior contempt finding but made no changes in its determination that 

Rivera was owed 33.3% of Felix’s retirement pay. 

On February 26, 2020, Felix filed a motion to modify his child 

support obligation because the previous amount from the New Mexico court was 

based on Felix’s income while he was working. Felix also argued that the parties 

had previously worked out an agreement after he retired that he would pay $457 in 

child support a month and argued that he was entitled to a lower child support 

obligation post-retirement than the $871 the circuit court had previously ordered.

By an order entered March 9, 2020, the circuit did reduce Felix’s child 

support obligation to $394 per month based upon his post-retirement income, with 

this reduction made retroactive to February 26, 2020, when Felix’s counsel filed 

his motion to modify his child support obligation.

A June 10, 2020 order, which denied Kentucky Rules of Civil 

Procedure (CR) 59.05 relief, finalized the previous orders.

1

 Felix then appealed. 

Felix argues that: (a) the circuit court’s calculations with regard to 

Rivera’s portion of his retirement were incorrect and in disregard of both Kentucky 

and federal law; (b) because the initial award of child support was incorrect, when 

1 Felix previously tried to appeal from the December 18, 2019 order following the February 7, 

2020 denial of his CR 59 motion, but that appeal was premature.
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it was reduced such reduction should have been retroactive to the initial award in 

Kentucky; and (c) the circuit court’s refusal to allow Felix to participate by 

telephone when he was acting pro se was arbitrary and an abuse of discretion. 

Rivera did not file an appellee brief in this appeal.2

We discuss Felix’s third argument first as it relates to whether the 

circuit court’s subsequent rulings are valid. Felix argues that the circuit court 

abused its discretion in denying his request to appear telephonically in this matter 

when he was acting pro se. 

The test for abuse of discretion is whether the trial judge’s decision 

was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. 5 

Am.Jur.2d Appellate Review § 695 (1995); cf. Kuprion v. Fitzgerald, 888 S.W.2d 

679, 684 (Ky. 1994). Applying this test, we conclude that the circuit court abused

its discretion in denying Felix the opportunity to appear telephonically given the 

specific circumstances present here. 

2

In accord with the CR 76.12(8)(c): 

If the appellee’s brief has not been filed within the time allowed, the court 

may: (i) accept the appellant’s statement of the facts and issues as correct; 

(ii) reverse the judgment if appellant’s brief reasonably appears to sustain 

such action; or (iii) regard the appellee’s failure as a confession of error 

and reverse the judgment without considering the merits of the case. 

We have determined to accept appellant’s statement of facts and issues as correct, which is the 

least serious of the penalties provided by rule. However, in many respects that is no penalty at 

all in this case where the facts appear to be largely uncontested and the issues revolve around

questions of law and not fact. 
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Felix was a retired veteran residing outside the continental United 

States in Puerto Rico. There is no evidence that he had ever been in Kentucky. 

His only known income was his retirement. The circuit court needed to be mindful 

not only of the logistics of his travel, but of the parties’ financial resources. 

Requiring Felix to fly to an airport in either Kentucky or Tennessee, rent a car, 

drive to remote Bell County, obtain lodging, and then have to return to Puerto 

Rico, all for a short hearing with only limited issues was an abuse of discretion 

which was unfortunately compounded by the incorrect orders subsequently issued 

by the circuit court. 

While it would not be necessary or even prudent to allow all litigants 

to avoid appearances in court and this Court generally remains deferential to the 

discretion of lower courts in the conduct of their proceedings, this is a rare case in 

which the circuit court abused its discretion in prohibiting Felix from participating 

through alternative means. Even pre-COVID, when video and telephonic 

conferencing was less prevalent, it should not have been difficult for the circuit 

court to have allowed Felix to listen, and participate, at least by speaker phone. 

Next, we consider Felix’s main argument, that the circuit court erred 

in its calculation of how much of his retirement was due Rivera prior to DFAS

divvying up his retirement benefits and acting to distribute Rivera’s portion of 

those future monthly payments to her. In considering this issue, we are mindful of 
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the fact that the circuit court and our Court are both bound by the parties’ original 

settlement agreement.

Settlement agreements “are a type of contract and therefore are 

governed by contract law[.]” Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 105

(Ky. 2003) (citation omitted). Absent an ambiguity in the contract, it will be 

“enforced strictly according to its terms[.]” Id. at 106 (citation omitted). In 

negotiating the terms of a marital settlement agreement, “the parties may settle 

their affairs with a finality beyond the reach of the court’s continuing equitable 

jurisdiction elsewhere provided.” Brown v. Brown, 796 S.W.2d 5, 8 (Ky. 1990)

(emphasis added). 

Generally, the interpretation of a contract, including determining 

whether a contract is ambiguous, is a question of law for the courts and is subject 

to de novo review.3 Morganfield Nat’l Bank v. Damien Elder & Sons, 836 S.W.2d

893, 895 (Ky. 1992); First Commonwealth Bank of Prestonsburg v. West, 55

S.W.3d 829, 835 (Ky. App. 2000); Fay E. Sams Money Purchase Pension Plan v.

Jansen, 3 S.W.3d 753, 757 (Ky. App. 1999). “Any contract or agreement must be 

3 Neither party has provided any New Mexico authority which would conflict with our 

Commonwealth’s caselaw regarding the interpretation of contracts and marital settlement 

agreements. Being aware of no fundamental differences, we apply both Kentucky’s standard of 

review and our own precedent. 
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construed as a whole, giving effect to all parts and every word in it if 

possible.” City of Louisa v. Newland, 705 S.W.2d 916, 919 (Ky. 1986).

The parties’ arms-length agreement, originally accepted by the New 

Mexico court in its decree, should have been recognized as “final” on the issue of 

Rivera’s entitlement to a portion of Felix’s military retirement. The initial portion 

of the settlement agreement which addresses the percentage of Felix’s retirement 

pay which was awarded to Rivera states:

The former spouse [Rivera] is awarded a percentage of 

the member’s disposable military retired pay, to be 

computed by multiplying 50% times a fraction, the 

numerator of which is 160 months of marriage during the 

member’s creditable military service – 240 months. 

Therefore, Rivera’s percentage would be calculated as:

Disposable Military retired pay = $X

$X × .5 x 160 months of marriage / 240 months of service

$X × .5 x .666

$X × .333 

That very calculation is solved for in the next clause of the agreement 

which states: “The former spouse is awarded 33.3 percent of the member’s 

military retired pay.” If Felix had retired at exactly 240 months, Rivera’s agreed 
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upon award would have been one-third of Felix’s “disposable military retired 

pay.”4 However, the settlement agreement further provides: 

Should respondent serve beyond 240 months Defense 

Finance and Accounting Systems (DFAS), will adjust 

this percentage downward accordingly by military law[.]

Therefore, the parties agreed that Rivera was not to be awarded any 

portion of Felix’s retirement which was earned or accrued following 240 months of 

service. This makes logical sense as the retirement he would earn for additional 

service would not be marital. The parties did not provide a method for a court to 

determine exactly how Felix’s subsequently earned retirement would be excluded 

and instead agreed to defer to DFAS to make such a calculation, so that Rivera 

would receive an appropriate distribution of her marital share of Felix’s retirement.

It is well established that a former spouse is not entitled to any portion 

of a service member’s non-marital retirement pay, as was discussed in Snodgrass 

v. Snodgrass, 297 S.W.3d 878, 887-88 (Ky. App. 2009):

If a service member has not yet become eligible for 

retirement, any division of the gross retired pay will 

mean that the percentages of the nonmarital and marital 

portions will shift over time subsequent to the decree. 

The nonmarital percentage of the retired pay will 

necessarily increase and the marital portion decrease. 

Therefore, absent the service member’s agreement, such 

4 The term in the agreement, “disposable military retired pay,” is not defined in the agreement 

and not necessarily the same amount as Felix’s “gross retirement pay” which was used by the 

circuit court in its calculation. 
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a division will necessarily become unjust as a function of 

mathematics.

. . . 

Lisa is not entitled to share in any of the nonmarital 

portion of Guy[’s] retired pay. See Foster v. Foster, 589 

S.W.2d 223, 225 (Ky. App. 1979) (non-pensioner spouse 

“not entitled to share in any pension benefits earned after 

divorce and before retirement[.]”); McGinnis v. 

McGinnis, 920 S.W.2d 68, 71 (Ky. App. 1995) (“value of 

a pension, if any, should therefore be marital property for 

the portion accrued during coverture”), quoting Poe v. 

Poe, 711 S.W.2d 849, 855 (Ky. App. 1986). Since we 

presume the lower court followed the law, see Hilen v. 

Hays, 673 S.W.2d 713, 717 (Ky. 1984), we conclude the 

decree did not intend to award Lisa 46% of the entirety of 

Guy’s military retired pay, nonmarital and marital alike.

In Snodgrass, the Court was faced with DFAS misinterpreting a

judgment award and thus calculating a sum that was not in comportment with the 

decree. Here it was the circuit court that made a calculation contrary to the decree. 

While we know that the circuit court’s calculation was incorrect, we 

are still left with determining what actual percentage of Felix’s retirement should 

be awarded to Rivera. The answer is found in the parties’ agreement giving 

deference to DFAS to make the needed calculations consistent, rather than in 

conflict “with military law and DFAS regulations.” 
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Since this Court had not been informed of DFAS’s computations,

5

and 

otherwise being without the necessary information to mathematically quantify 

Rivera’s share, we too must defer to DFAS’s initial calculations before we could 

even attempt to determine if such DFAS generated figures are in comportment 

with both the law and the decree as we did in Snodgrass. 

This does not mean that the circuit court was without recourse in 

ensuring that Rivera received her agreed upon percentage of Felix’s retirement. 

The circuit court’s attempt to fashion what it considered to be a fair remedy in this 

circumstance may have seemed facially logical but was premature and 

unsupported. Had there been a showing that Felix had intentionally thwarted or 

delayed Rivera’s attempt to acquire her share of the retirement benefit, or that 

Rivera’s financial condition required some interim payment, the circuit court might 

have taken temporary measures as necessary to ensure that Rivera would not go 

wanting or otherwise be financially damaged. However, in this matter, there is no 

such evidence. 

Given that Rivera’s award was part of the parties’ property settlement 

agreement, and not maintenance, deference should have been given to the DFAS to 

first compute Rivera’s monthly award, and then the circuit court could have

5 Given that Rivera’s application to DFAS was “in the process” and was “pending” as far back as

October, 2019, we expect that it has at least generated its calculations by the time of this 

Opinion. 
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ordered Felix to pay to Rivera a lump sum (or make periodic payments) to 

compensate her for the amount of the retirement benefits he previously received 

which were due Rivera. Any payments ordered and paid prior to DFAS’s 

calculations are subject to revision as Rivera had no right to any amounts in excess 

of what was provided for in their settlement agreement.

Felix’s final argument is that the circuit court’s initial calculation of 

child support was “manifestly unjust” since it used Felix’s pre-retirement income 

in its calculations, and he was entitled to a retroactive adjustment back to August 

27, 2018, when the circuit court first ordered him to pay $871 a month in child 

support. We agree. 

A trial court enjoys “broad discretion in the establishment, 

enforcement, and modification of child support.” Bjelland v. Bjelland, 408 S.W.3d 

86, 87 (Ky. App. 2013). Accordingly, we review child support matters under an 

abuse of discretion standard, and we will only disturb the trial court’s findings of 

fact if they are clearly erroneous. Id. An abuse of discretion will only be found 

when a trial court’s decision is arbitrary, unreasonable, unfair, or unsupported by 

sound legal principles. Bell v. Bell, 423 S.W.3d 219, 222 (Ky. 2014). 

The circuit court, in the initial stage of the litigation, determined to 

enforce the last order regarding child support found in the record from the New 

Mexico court. What was not considered, since Felix was not allowed to participate 
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telephonically, is that he and Rivera had allegedly already agreed to what Felix 

would pay in child support following his retirement. Parties have the power to 

orally modify child support, and courts have the power to recognize such 

agreements when proven with certainty, they are fair and equitable, and if they 

would have been reasonably granted had modification been sought. See Price v.

Price, 912 S.W.2d 44 (Ky. 1995). Had the court inquired as to the parties’ oral 

agreement but determined not to enforce it, the initial child support order would 

still be erroneous as it utilized Felix’s pre-retirement income figures which were 

obviously no longer correct. Felix is correct that he was entitled to have his child 

support obligation modified after he retired and his income significantly declined.6

Accordingly, we reverse and remand the Bell Circuit Court’s orders 

regarding the child support and retirement benefits awarded to Rivera. 

Furthermore, this matter will be stayed pending DFAS’s determination regarding 

Rivera’s awarded portion of Felix’s retirement benefits. Once DFAS has made its 

determination, if either party objects to DFAS’s computation, then in that event the 

circuit court will only attempt to modify DFAS’s award by entering written 

findings setting forth both the legal and factual reasons why DFAS’s determination 

6 Subsequent changes to Felix’s and Rivera’s incomes once Felix’s retirement is distributed

pursuant to the DFAS’s calculations could make further modification of prospective child 

support appropriate. See Kentucky Revised Statutes (KRS) 403.213(2) (discussing presumptions 

regarding modification of child support based on changes to income). 
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was incorrect or not in comportment with the parties’ marital settlement agreement 

and the circuit court’s authority to order a modification of DFAS’s award. 

Subsequent to DFAS’s determination, and based upon how that determination 

affects both parties’ respective incomes, child support shall be calculated and made 

retroactive to the date of the filing of Rivera’s initial petition in Bell County. 

 

ALL CONCUR.

BRIEF FOR APPELLANT:

Jennifer F. Nagle

Keith A. Nagle

Middlesboro, Kentucky

NO BRIEF FOR APPELLEE FILED.