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Pinkava v. Kovacs-Pinkava

Court of Appeals of Tennessee, Nashville

November 26, 2014

DANIEL LOUIS PINKAVA
v.
TAWANIA LEIGH KOVACS-PINKAVA

Session August 20, 2014

Appeal from the Chancery Court for Montgomery County No. 2000050161 Laurence M. McMillan, Jr., Judge

Gregory D. Smith and Sharon T. Massey, Clarksville, Tennessee, for the appellant, Daniel Louis Pinkava.

Mark A. Rassas, Clarksville, Tennessee, for the appellee, Tawania Leigh Kovacs-Pinkava.

Andy D. Bennett, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins, J., joined.

OPINION

ANDY D. BENNETT, JUDGE

Daniel Pinkava ("Husband") and Tawania Kovacs-Pinkava ("Wife") were married in 1987.[1] The parties were divorced in 2000. During their marriage, Husband served in the United States Air Force and accrued military retirement benefits. The final decree of divorce ratified and incorporated a marital dissolution agreement ("MDA") that contained the following language regarding Husband's military retirement:

17. RETIREMENT.
a. The parties agree that [Wife] shall receive twenty-five percent (25%) of [Husband]'s military retirement based on [Husband]'s current rank as a Captain. In the alternative, should [Husband] decide to receive an early-out or separation bonus such as VSI or SSB, [Wife] shall receive twenty-five percent (25%) of that amount after the taxes are paid. [Wife] shall be named as SBP for the twenty-five percent (25%) agreed retirement amount. [Husband] agrees to set up an allotment for the above mentioned amount, to a bank account of [Wife']s choosing. [Husband] does not waive any of his Rights under the Right to Privacy Act.

In late 2011, Wife contacted Defense Finance and Accounting Services ("DFAS") to assure that proper payment of her interest in Husband's retirement would be remitted to her upon Husband's retirement. DFAS responded to Wife's request by letter dated December 20, 2011, and explained that her application for payment of a portion of Husband's retirement could not be approved. The letter stated:

The court order you submitted provides for a division of retired/retainer pay by means of a hypothetical amount of retired pay as of the time of divorce -25% of the husband's military retirement based on the husband's current rank as Captain. However, the court order does not provide enough information to calculate the amount of the hypothetical retired pay. You must obtain a certified copy of a clarifying order which awards the former spouse a fixed dollar amount or percentage of the member's actual disposable retired pay.

On April 24, 2012, Wife filed a petition to amend the final decree of divorce, requesting the court to modify or clarify the wording of the MDA's retirement clause to meet with DFAS regulations and to require Husband to designate Wife as a beneficiary on the Survivor Benefit Plan. On June 18, 2012, Husband answered the petition and requested the court to dismiss the petition. On December 14, 2012, Wife amended her petition, [2] and Husband filed an answer on December 28, 2012.

A hearing was held on September 3, 2013, at which both parties testified. The trial court entered an order on September 27, 2013, "amending" the final decree of divorce as follows:

a. The former spouse, Tawania Leigh Kovacs, is designated as an irrevocable beneficiary under the Survivor's Benefit Plan (SBP) for 25% of the former husband's, Daniel Louis Pinkava, retirement, and because this is an amendment to the original Final Decree of Divorce, which relates back to the date of divorce, she may make application for such coverage directly with the SBP ...

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