04/16/2018 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE March 14, 2018 Session

KATHLENE DENISE ROBERTS v. WILLIE DINO ROBERTS, JR.

Appeal from the Chancery Court for Montgomery County No. MCCHCVDI12-119 Laurence M. McMillan, Jr., Chancellor ___________________________________

No. M2017-00479-COA-R3-CV ___________________________________

Husband appeals the trial court’s decision in this post-divorce marital property dispute, arguing that the trial court erred in finding that certain retirement benefits “matured” in 2012. Discerning no reversible error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which RICHARD H. DINKINS and W. NEAL MCBRAYER, JJ., joined.

H. Reid Poland, III, Clarksville, Tennessee, for the appellant, Willie Dino Roberts, Jr.

Mark A. Rassas, Clarksville, Tennessee, for the appellee, Kathlene Denise Roberts.

OPINION

Background

On March 2, 2012, Plaintiff/Appellee Kathlene Denise Roberts (“Appellee” or “Wife”) filed a complaint for divorce against Defendant/Appellant Willie Dino Roberts, Jr. (“Appellant” or “Husband”) in the Montgomery County Chancery Court. In her complaint, Appellee asked that the court enforce a marital settlement agreement executed by the parties in September 2008. Relevant to this appeal, the agreement provided as follows:

IX. DIVISION OF MILITARY RETIRED PAY

The parties agree that the Wife has an interest in the Husband’s military retirement plan with the U.S. Army, and is entitled to the Husband’s assignment of benefits to the Wife in compliance with Federal Law. The parties were married for a period of seven years during which the Husband performed seven years of creditable military service. The parties acknowledge that any applicable rights of the Husband under the Servicemembers Civil Relief Act have been observed. The parties hereby agree that the Wife is awarded fifty per cent (50%) of the Husband’s disposable military retired pay as her separate property. If the Wife qualifies for a direct payment from the appropriate military finance center, the Husband agrees to provide any necessary forms or other information necessary to accomplish this designation. “Military retired pay” means the full monthly military retired pay the Husband would be entitled to receive before any statutory, regulatory, or elective deductions are applied. It includes retired pay paid or payable for longevity or active duty and/or reserve component military service and all payments paid or payable under the provisions of Chapter 61 of Title 10, United States Code. Military retired pay also includes all amounts of retired pay the Husband actually or constructively waives or forfeits in any manner and for any reason. The Wife will receive the same proportionate share of any cost of living increases as part of her property interest in the Husband’s military retired pay. Said payments shall continue to the death of either party, and shall not terminate upon the remarriage of Wife. The Husband agrees he will not pursue any course of action that would defeat, reduce, or limit the Wife’s right to receive the share of his military retired pay awarded herein. The Husband shall indemnify and hold harmless the Wife for any breach of this provision from funds of whatever source. The Husband guarantees to the Wife that he shall not merge his military pension and any possible future government pension, nor take any action so as to defeat the Wife’s right to share in the monthly retirement benefits as set forth in this Agreement. The Husband guarantees this and agrees to indemnify against any breach by him and agrees to hold the Wife harmless against any such breach.

On March 21, 2012, Appellant answered the divorce complaint, asserting that the agreement should not be enforced due to the circumstances surrounding the execution of the agreement, as well as changed circumstances in the parties’ lives in the four years since the agreement was signed.

On August 31, 2012, the parties filed an executed marital dissolution agreement (“MDA”) incorporating much of the language of the 2008 agreement concerning military retirement pay. Specifically, the MDA stated

The parties hereby ratify and agree to the terms of the Marital Separation Agreement dated September 18, 2008 and attached hereto as Exhibit A, with the following exceptions:

a. Section IX, “Division of Military Retired Pay” . . . is hereby amended, first, that the parties have been married in excess of eleven years, rather than seven years, and is further amended so as to award the Wife 45%, rather than 50%, of the Husband’s disposable military retired pay as her separate property.

The 2012 MDA therefore provided

The Wife is awarded 45% of the total amount of the Husband’s disposable military retired pay from the United States Army. The Parties were married in excess of ten years, during which time the Defendant served on active duty with the United States Army. The first such payment shall be received by the Wife no later than September 5, 2012. . . . It is the Court’s intention that if the Plaintiff receives a deduction from his military retirement pension, such as for an election of VA disability, then the percentage of the military retirement pension will be adjusted to equal the same dollar sum as if no disability or similar deduction was made.

The MDA also provided for an award of attorney’s fees for future enforcement actions. On September 4, 2012, the trial court entered its final decree of divorce incorporating, ratifying, and approving the parties’ MDA. Appellant immediately began paying Appellee $1,424.70 per month, which the parties understood to represent Appellee’s share in Appellant’s retirement income.

The parties proceeded without issue for several years. In March 2016, however, Appellee filed a petition for criminal contempt against Appellant for his failure to pay the ordered military retirement pay. According to the petition, Appellant made all required payments following the divorce until February 2016. Appellee alleged that when she questioned Appellant, he stated that it was no longer his intention to make the payment to Appellee. In addition to his failure to make the required payments, Appellee asserted that Appellant had also failed to provide her with information regarding the designation of Appellee as Appellant’s survivor for purposes of benefits, as well as any cost of living increases received by Appellant since the divorce; Appellee asserted that both were required under the parties’ MDA. As such, Appellee asked that Appellant be found in criminal contempt and that judgment for the arrearage be entered.

On April 7, 2016, Appellant’s counsel filed a notice of appearance, which raised “all . . . objections and defenses” under Rule 12.02 of the Tennessee Rules of Civil Procedure. Over a month later, Appellant filed an answer denying the material allegations in Appellee’s petition. At some point, Appellant resumed the payments upon the advice of counsel but soon terminated the payments once again.

At a September 2016 hearing on the contempt petition, Appellant failed to appear. The trial court therefore entered an order requiring Appellant to appear before the court in November to show cause why he should not be held in contempt based upon Appellee’s petition.

On November 15, 2016, the trial court entered an order following the November hearing. Therein, the trial court noted that despite being notified of the pending proceedings and hearing dates, as well as initially retaining counsel, Appellant failed to respond to discovery, failed to appear at the September hearing, and failed to appear at the November hearing.^[1] The trial court noted that Appellee had orally moved to amend her petition to add a request for civil contempt, which the trial court granted. The trial court thereafter found Appellant in civil contempt, reserved the issue of sentencing, and entered a default judgment against Appellant for the arrearage in the amount of $11,347.00, along with $1,250.00 for attorney’s fees.

On November 18, 2016, Appellant, through newly retained counsel, filed a motion to set aside the default judgment, asserting that there was a miscommunication that resulted in him not being present for the hearing. Appellee argued against setting aside the default judgment, noting Appellant’s history of failing to appear. Nevertheless, Appellee agreed to set aside the default if Appellant would appear at a January hearing. The trial court therefore entered an order taking the motion to set aside under advisement and stating that the default would be set aside if Appellant appeared at the January hearing.

Appellant appeared at the January hearing. Although no pleadings indicate that either Appellant or Appellee had specifically requested declaratory judgment on any issue, at the beginning of the hearing, the trial court noted that the case involved “a declaratory judgment aspect” and ruled that the pleadings would be amended to conform to the evidence pursuant to Rule 15.02 of the Tennessee Rules of Civil Procedure.^[2] The trial court further ruled that it would bifurcate the proof and consider the declaratory judgment action first. Because the proof was largely duplicative, we will consider the testimony presented with regard to each phase of the hearing together.

Appellant, Appellee, and Appellant’s girlfriend were the only witnesses. Appellant admitted that although he immediately began paying 45% of his military retirement to Appellee at the time of the divorce, a payment of $1,424.70, he temporarily terminated the payments in February 2016. Appellant admitted that the reason that he initially terminated the payments was because he “didn’t think [Appellee] needed [the payment] anymore.” Appellant conceded that his current girlfriend had sent Appellee text messages indicating that the purpose for stopping the payments was a belief that Appellee was victimizing Appellant and that Appellee was “greedy.” Later in the hearing, husband maintained that the decision to terminate the payments was his alone and resulted from a change in his disability status.

Appellant also agreed that he previously and currently receives three checks from the federal government: (1) social security representing a 100% disability; (2) a Veterans Affairs (“VA”) check for 100% disability; and (3) a military retirement check. In conjunction with Appellant’s testimony, a “Retiree Account Statement” detailing Appellant’s “US Military Retirement Pay” details a November 20, 2012 payment to Appellant for “gross pay” of $3,442.00 less the following deductions: (1) “VA waiver” of $276.00; (2) “SBP costs” of $223.73; and (3) “SITW” of $10.00, resulting in net pay in the amount of $2,932.27.3 The statement noted, however, that Appellant was “exempted from taxes due to [Appellant’s] disability status.”

Appellant further testified that at the time of the divorce, he was “on the temporary retired list” due to a traumatic brain injury (“TBI”) and post-traumatic stress disorder (“PTSD”). Appellant agreed that he “spent three years on the temporary retired list” and became “officially retired” in 2015. It was not until 2016, however, that Appellant stopped the payments to Appellee. Although the testimony was not entirely clear, Appellant testified that his current retirement was also based upon disability, rather than retirement, as his temporary disability retirement existed only until he was finally approved for full disability retirement. When asked about his current VA benefits, Appellant testified that he did not know and appeared to admit that he had never provided documents surrounding his current pay to Appellee in discovery. Other than the

of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

November 2012 retiree account statement, no documents were admitted during Appellant’s testimony. Appellant testified, however, that because of his medical issues, he often had trouble understanding paperwork.

In Appellee’s testimony, she detailed the number of payments Appellant had failed to make; according to Appellee, she was owed approximately $15,000.00 in unremitted payments. During the hearing, it was clear that Appellee abandoned any claim to cost of living increases.

At the conclusion of the proof on the declaratory judgment action, Appellant’s attorney made the following argument:

Your Honor, just basically he went on a temporary disabled retirement list during this period of time, prior to the time that they did get this divorce. That is a temporary list. It is not a permanent retirement, so our argument is that it had not vested at the time of the divorce and that everything that he has got is disability.

The trial court ruled that it would take the matter under advisement and ordered the parties to file proposed findings of fact and conclusions of law. Following the proof regarding the contempt petition, the trial court found Appellant not guilty of criminal contempt. Counsel for Appellee thereafter indicated that Appellee would seek a finding of civil contempt against Appellant in her proposed findings of fact and conclusions of law, on the basis of the trial court’s modification of the pleadings.

Each party thereafter filed their proposed findings of fact and conclusions of law. Appellant’s proposed findings were as follows:

1. That the parties were granted a Final Decree of Divorce in 2012 by this Honorable Court which granted [Appellee] 50% of the military retirement of [Appellant]. [Appellant] was on the temporary disabled retirement list at the time of the divorce.[4] 2. [Appellant] was medically retired From the US Army on 19 February 2015. 3. [Appellant] believed that the medical retirement and his Veteran’s Administration disability was not divisible. [Appellant] has be[en] diagnosed with PTSD and TBI and receives 100% disability. ^[4]. [Appellant] believed he was not responsible for retirement payments to the [Appellee] because he was only receiving disability.

5. [Appellant] contends that the medical retirement he currently receives is not divisible.

Appellant cited no legal authority in his conclusions of law section, but asserted that Appellant should be “relieved of any payments related to retirement because he is 100% medically disabled and has been so since prior to the divorce.” In contrast, Appellee’s proposed findings of fact and conclusions of law asserted that she was entitled to a judgment against Appellant for all unpaid past payments, a declaration that she was owed “the same dollar amount” in payments in the future, and attorney’s fees.

The trial court eventually entered an order finding that Appellant was not in criminal contempt and that civil contempt had not been alleged in the petition. With regard to arrearages and future payment of military benefits, the trial court adopted Appellee’s proposed findings of fact and conclusions of law. As such, the trial court found that Appellant was not permitted to terminate the payment to Appellee and that the parties understood that Appellee would receive 45% of benefits regardless of its designation. The trial court further found that Appellant was on “a retired status” at the time of the 2012 divorce and that Appellant’s social security and VA benefits were “in addition to and not deducted from his military retirement check.” Based on these findings, the trial court ruled that Appellant owed Appellee $1,424.70 per month representing his military retirement benefits and reduced the arrearage to a judgment of $14,196.40. The trial court also awarded Appellee $1,250.00 in attorney’s fees. Appellee filed a motion to alter or amend, which was granted to the extent that the trial court clarified that its decision to deny Appellee’s request to hold Appellant in civil contempt was based upon Appellee’s failure to present sufficient proof and that the award of attorney’s fees was based upon the MDA. Appellant thereafter appealed to this Court.

Issues Presented

Appellant raises a single issue in this case: Whether “[t]he trial court erred in finding that Appellant’s military retirement payments to Appellee began in 2012 when Appellant did not officially retire from the U.S. Army until February 19, 2015.” Appellee also seeks an award of attorney’s fees incurred on appeal.

Standard of Review

Following a bench trial, the trial court’s findings of fact are reviewed de novo with a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). No presumption of correctness, however, attaches to the trial court’s conclusions of law and our review is de novo. Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). For the evidence to preponderate against a trial court’s finding of fact, it must support another finding of fact with greater convincing effect. 4215 Harding Road Homeowners Ass’n.

v. Harris, 354 S.W.3d 296, 305 (Tenn. Ct. App. 2011); Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000).

This case involves the interpretation of the parties’ MDA. Because MDAs are contracts between the parties, interpretation of an MDA is governed by the rules governing construction of contracts. Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006). As we have explained,

The cardinal rule in the construction of contracts is to ascertain the intent of the parties. Bradson Mercantile, Inc. v. Crabtree, 1 S.W.3d 648, 652 (Tenn. Ct. App. 1999) (citing West v. Laminite Plastics Mfg. Co., 674 S.W.2d 310 (Tenn. Ct. App. 1984)). If the contract is plain and unambiguous, the meaning thereof is a question of law, and it is the Court’s function to interpret the contract as written according to its plain terms. Id. (citing Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355 (1955)). The language used in a contract must be taken and understood in its plain, ordinary, and popular sense. Id. (citing Bob Pearsall Motors, Inc. v. Regal Chrysler–Plymouth, Inc., 521 S.W.2d 578 (Tenn. 1975)). In construing contracts, the words expressing the parties’ intentions should be given the usual, natural, and ordinary meaning. Id. (citing Ballard v. North American Life & Cas. Co., 667 S.W.2d 79 (Tenn. Ct. App. 1983)). If the language of a written instrument is unambiguous, the Court must interpret it as written rather than according to the unexpressed intention of one of the parties. Id. (citing Sutton v. First Nat. Bank of Crossville, 620 S.W.2d 526 (Tenn. Ct. App. 1981)). Courts cannot make contracts for parties but can only enforce the contract which the parties themselves have made. Id. (citing McKee v. Continental Ins. Co., 191 Tenn. 413, 234 S.W.2d 830 (1950)).

Pitt v. Tyree Organization Ltd., 90 S.W.3d 244, 252 (Tenn. Ct. App. 2002). Interpretation of an MDA is question of law, which we review de novo. Honeycutt v. Honeycutt, 152 S.W.3d 556, 561 (Tenn. Ct. App. 2003).

Analysis

I.

We begin with Appellant’s argument that the trial court erred in finding that Appellee’s entitlement to a portion of Appellant’s retirement pay began as of the 2012 divorce date, rather than the 2015 date that Appellant became “fully retired.”5 Specifically, Appellant states in his brief that he “does not contest that [Appellee] has an interest in part of his military retirement[,]” but rather raises the question of “when said military retirement matured and began being due, 2012 or 2015?” As such, Appellant characterizes the dispositive question in his brief as “when does [Appellant’s] retirement begin?” Indeed, Appellant makes a distinction between when Appellant was on the temporary disabled retirement list in 2012 and when Appellant was “fully retired” on February 19, 2015. Appellant therefore asks that this Court reverse the trial court’s ruling and instead rule that Appellant’s obligation to pay military retirement to Appellee “began on March 1, 2015.”

Other than a single federal case cited in a footnote, discussed infra, Appellant cites various Tennessee and other state court decisions purportedly concerning the maturation date of a retirement pension. Specifically, Appellant asserts that Appellant’s retirement account did not become “mature,” i.e., “become ready for payment,” until Appellant was fully retired, rather than merely placed on the temporary disabled retirement list, citing Kendrick v. Kendrick, 902 S.W.2d 918, 921 (Tenn. Ct. App. 1994) (“A pension interest is mature when an employee has satisfied all the conditions required to receive a retirement benefit and has an immediate right to that benefit.”). Additionally, Appellant contends that Tennessee law requires that a retiree meet all of the “terms and conditions” of the “retirement contract” in order to qualify for a retirement benefit, quoting Felts v. Tennessee Consol. Ret. Sys., 650 S.W.2d 371, 372 (Tenn. 1983).

A review of the caselaw cited by Appellant, the evidence presented at trial, and the parties’ MDA demonstrates that Appellant’s argument is not well-taken. As an initial matter, we note that the quote cited by Appellant from Felts is taken from a statute governing retirement benefits to state judges. See id. at 372 (citing Tenn. Code Ann. § 17-301, effective in 1965 at the time of the judge’s retirement).6 Despite Appellant’s reference to a “retirement contract” in his appellate brief, Appellant presented no retirement contract at trial nor does he cite a single statute applicable to military retirement benefits to support his argument that the “terms and conditions” of Appellant’s

however, that Appellant prevailed on both the criminal and civil contempt arguments in the trial court and does not raise either contempt as an issue in the issues presented section of his brief. Appellee also has not raised an issue concerning the trial court’s dismissal of her contempt allegations. Given that Appellant prevailed on both the civil and criminal contempt petitions, regardless of whether they were properly pleaded, we will not analyze the propriety of the trial court’s ruling on this issue.

military retirement had not been met until 2015 in this case. Additionally, from our review of the evidence presented at trial, it appears that there was no dispute that Appellant was no longer serving as active duty military personnel at the time of the 2012 divorce.^[7] Rather, the single Retiree Account Statement contained in the record indicates that Appellant was receiving “US Military Retirement Pay” in 2012, regardless of Appellant’s testimony that the benefits were for temporary disability retirement. The evidence in the record therefore support’s the trial court’s finding that Appellant “was on retired status” from the military at the time that he executed the MDA.

Although Appellant does not specifically address the language of the MDA in any fashion in the argument section of his brief, we note that the plain language of the MDA also supports the trial court’s finding that Appellee was entitled to her share of the military retirement benefits in 2012. Here, the MDA clearly states that Appellee is entitled to a portion of Appellant’s “disposable military retirement pay.” The MDA defines “military retirement pay” as including “all payments paid or payable under the provisions of Chapter 61 of Title 10, United States Code” and the totality of the MDA makes clear that Appellee is entitled to a share of any payments that fall within this chapter. Among the provisions of Chapter 61 of Title 10 of the United States Code is a provision governing the temporary disabled retired list. See 10 U.S.C. § 1402 (concerning the “temporary disability retired list”). Finally, the MDA specifically states that Appellant will begin paying the benefits to Appellee “no later than September 5, 2012.” Thus, considering the military retirement provision of the parties’ MDA as a whole, the plain language reveals that the parties intended that Appellee would begin receiving her portion of benefits at the time of the divorce decree, regardless of whether Appellant’s retired status was only “temporary” at that time.^[8]

As pointed out by Appellee in her brief, we note that military pensions are governed not by state law, but by federal law. As such, divorce courts are limited in how they may dispose of military retirement benefits in their divorce decrees. In Mansell v.