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In re Marriage of Kraft

April 25, 1991

IN THE MATTER OF THE MARRIAGE OF DONNA L. KRAFT, RESPONDENT, AND BRYCE A. KRAFT, APPELLANT


Shields, A.c.j. Munson and Thompson, JJ., concur.

Author: Shields

Bryce Kraft appeals the property distribution and postmajority support provided by the dissolution decree ending his marriage to Donna Kraft. He alleges the court (1) erred as a matter of law by treating the disability portion of his military retirement pay as a divisible asset, (2) abused its discretion in dividing the parties' property, and (3) erred by imposing postmajority support for their college bound son on Mr. Kraft only. We reverse and remand.

Bryce and Donna Kraft were married September 23, 1967. They had two children, Troy, 18, and Karen, 15; both remained with Mrs. Kraft at the parties' residence after the parties separated on March 19, 1988. Troy had been accepted at Eastern Washington University for entrance in

the fall of 1989. Mr. Kraft moved into a hunting cabin without water, electricity or telephone.

At the time of trial, Mrs. Kraft was employed as a counselor; Mr. Kraft was retired from the military and supplemented his retirement income by caring for an elderly man. He had accumulated credit for 21 years of service, during 14 of which the parties were married. Mr. Kraft suffers from several physical disabilities, has a disability rating of 50 percent, and waives 50 percent of his retirement pay to receive disability benefits.

The court found*fn1 Mrs. Kraft's net monthly earned income is approximately $1,700. She also receives monthly rent on the parties' Alabama residence which was awarded to her. The net income averages $200 after deducting mortgage payments, management fees, and expenses from the rent of $435. The court found Mr. Kraft received military benefits in the gross amount of $1,317, one-half of which represented retirement benefits and one-half disability benefits, and average net income of $500 from his caretaking job. The court then deducted $200, representing Mrs. Kraft's community one-half interest in two-thirds of the military retirement benefits and added that sum to her income. Thus, Mrs. Kraft's monthly income was determined to be $2,100 and Mr. Kraft's, $1,600. The court used these figures to determine support for the minor daughter.

The court found Mr. Kraft had received disability pension overpayments totaling approximately $21,000. When Mr. Kraft left the military in 1972, he began receiving disability pay. He went back on active duty in 1976, but continued receiving the disability pay, resulting in the overpayment. As best we can determine from the record, when the overpayment was discovered in 1987, Mr. Kraft agreed to repay the debt to the Veterans Administration (VA) at the rate of $70 per month. When he elected to

waive retirement pay to receive disability benefits, then computed at 40 percent, the government began deducting the entire amount of the disability portion of his monthly checks to repay the VA. At trial, it was revealed Mr. Kraft's disability rating had been increased to 50 percent; presumably, that would increase the amount of the monthly deduction.

The court also found the Krafts were indebted to: Rainier Bank in the amount of $1,800; their son in the amount of $3,500; their daughter in the amount of $1,200; and Mrs. Kraft's father in the amount of $1,000. The court then allocated the property as follows:

To Mrs. Kraft:

Colville house and acreage $126,000 subject to $60,000 mtg.

Alabama house and acreage 55,000 subject ...


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