Michael David Kinney v. Tracey (Fuller) Kinney

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-504

MICHAEL DAVID KINNEY

VERSUS

TRACEY (FULLER) KINNEY

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 75,893
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Michael G. Sullivan, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Tony C. Tillman
Attorney at Law
P. O. Drawer 648
Leesville, LA 71496-0648
(337) 239-7983
Counsel for Defendant/Appellee:
Tracey (Fuller) Kinney

Walter M. Sanchez
The Sanchez Law Firm, LLC
901 Lakeshore Drive, Suite 1050
Lake Charles, LA 70601
(337) 433-4405
Counsel for Plaintiff/Appellant:
Michael David Kinney

DECUIR, Judge.

Michael Kinney and Tracey Fuller Kinney were married on July 21, 1990. One

child was born of the marriage. Michael filed for divorce on April 5, 2006, and

Tracey reconvened seeking, among other relief, a formal partition of the community.

On June 19, 2008, the parties, through counsel, stipulated to a resolution of the

partition proceedings and specifically addressed aspects of Michael’s military

retirement benefits despite the fact that Michael was still on active duty. The trial

court entered judgment embodying the agreement between the parties on October 28,

2008. On October 30, 2008, Michael filed a motion for new trial, alleging the

judgment did not conform to the stipulation. The trial court rendered two separate

judgments revising the original judgment on partition of community property.

Michael lodged this appeal.

DISCUSSION

Several things are apparent to this court. First, the parties attempted to avoid

confrontation over future retirement benefits by stipulating to the terms of the

partition ahead of time. Second, the trial court, because of its experience with the

issues involved, attempted to implement a judgment that would effectuate the wishes

of the parties and still adhere to statutory and jurisprudential rules involving military

pensions. Third, three of the assignments alleged by Michael involve the application

of the judgment to his alleged disability retirement benefits.

Our review of the record indicates that at the time judgment was rendered

Michael was on active duty. There is no evidence in the record indicating that

Michael’s status has changed. Accordingly, we cannot consider any arguments

asserted by Michael involving his alleged disability retirement as they are not

supported by evidence in the record.

Michael’s final assignment alleges that the trial court’s judgment does not

conform to the stipulation by the parties. Specifically, he contends that the

requirement that Tracey Kinney remain as the sole primary beneficiary of the

Survivor Benefit Plan exceeds the scope of their stipulation. After carefully

reviewing the record, we find no merit to this assignment.

DECREE

For the foregoing reasons the judgment of the trial court is affirmed. All costs

of these proceedings are taxed to appellant Michael Kinney.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,
Courts of Appeal.

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