Divorce provision regarding military pension is not modifiable
Tennessee case summary on property division in divorce.
Divorce provision on military pension could not be modified.
Kari Dale Remus v. Brandon Joseph Nunn
The parties in this Robertson County, Tennessee, case were divorced in 2016. The decree adopted the parties’ marital dissolution agreements (MDA). The MDA stipulated, among other things that the wife was to receive a portion of the husband’s military retirement account. After a post trial modification, it was clarified in the order that the awarding of the military pension would only take place once other rehabilitative obligations for alimony were met. The wife was to be awarded $1646 of the military retirement.
Four years later, the husband came back to court for a modification of the order. He claimed that his pension would be $1879 a month and that the Defense Finance Accounting Office said that the wife’s portion would only be $507 a month. He argued that the additional $1138 should be considered alimony, which is modifiable, and he requested a modification.
The trial court disagreed, and held that the $1646 award was a division of property, and not alimony, and was not subject to modification. The trial court granted the wife’s request to dismiss the husband petition. The trial court also awarded a portion of the wife’s attorney’s fees. He first argued the trial court made a mistake in granting his wife’s motion stating that he failed to state a case. The court agreed, because such a motion is rarely appropriate in a declaratory judgment action.
However, the husband did not fare well when it came to the merits of the case. The wife argued the doctrine of res-judicata barred the issues before court. The appeals court, while not agreeing with this argument did affirm the lower court order. It noted that an MDA was a contract between parties and is interpreted as any other contract. The court will first look at the plain language in the contract. It also pointed out that retirement benefits that accrue during a marriage are marital property subject to equitable distribution.
The MDA treated them as such, and the plain language of the agreement treated them as marital property.The husband argued that federal law called for a different result. The court again pointed out that the parties had treated the retirement pay in the agreement as marital property and that the federal cases cited were not applicable. The MDA only applied to parties who initiated legal proceedings. This provision did not apply because the husband initiated the proceedings. The Court of Appeals reversed this award of attorney’s fee. It also denied her attorney’s fee request on appeal.
No. M2023-00589-COA-R3-CV (Tenn. Ct. App. Mar. Legal citations omitted. Legal citations have been omitted.To find out more, visit Property Division in Tennessee divorce and watch our video Is Tennessee 50-50 divorce state?
