Session February 14, 2017
from the Circuit Court for Shelby County No. CT-004932-13
James F. Russell, Judge
a post-divorce matter in which Ms. Parsons filed a petition
for civil and criminal contempt against her former husband,
Mr. Parsons. Ms. Parsons argues that Mr. Parsons unilaterally
modified the terms of their divorce by failing to compensate
her for what she alleges to be a vested interest in his
federal retirement benefits. At the conclusion of Ms.
Parsons' direct examination, Mr. Parsons moved for
dismissal on the ground that Ms. Parsons did not elect
whether she was seeking civil or criminal contempt at the
outset of the proceedings. The trial court dismissed Ms.
Parsons' petition for contempt, finding that she did not
prove contempt by clear and convincing evidence. Because the
trial court used the wrong legal standard and did not allow
Ms. Parsons to complete her proof, we vacate and remand to
the trial court for further proceedings.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Vacated and Remanded.
Mitchell D. Moskovitz, and Kirkland Bible, Memphis,
Tennessee, for the appellant, Kelly Colvard Parsons.
Rice, Memphis, Tennessee, for the appellee, Richard Jearl
Armstrong, J., delivered the opinion of the court, in which
D. Michael Swiney, C.J. and J. Steven Stafford, P.J., W.S.,
10, 2014, Appellant Kelly Parsons, and Appellee Richard
Parson filed a marital dissolution agreement (MDA) that was
incorporated into a final decree of divorce, which was
entered by the trial court on July 16, 2014. During the
parties' marriage, Mr. Parsons was employed by the
Federal Aviation Administration (FAA) as an air-traffic
controller. In November 2013, seven months prior to the
divorce, Mr. Parsons retired from his job pursuant to an FAA
mandate, requiring retirement at the age of 56. Mr.
Parsons' retirement benefits included a monthly annuity
from the Civil Service Retirement System (CSRS) in the amount
of $5, 325. Additionally, Mr. Parsons was to receive a
monthly supplement from the Federal Employees Retirement
System (FERS) in the amount of $1, 370 until he turned 62 and
became eligible for social security. In order to maintain
eligibility and continue receiving the FERS supplement, Mr.
Parsons' earnings could not exceed $15, 120 per year.
terms of the parties' MDA provided that Ms. Parsons would
receive 50% of Mr. Parsons' gross monthly CSRS annuity
and 50% percent of Mr. Parsons' FERS supplement, to wit:
Husband is eligible for retirement benefits under the Civil
Service Retirement System based on employment with the United
States Government. Wife is entitled to fifty percent (50%) of
Husband's gross monthly annuity under the Civil Service
Retirement System. Wife is entitled to fifty percent (50%) of
Husband's FERS supplement under the Civil Service
Retirement System. The United States Office of Personnel
Management is directed to pay Wife's share directly to
Wife. Wife shall be treated as the surviving spouse to the
extent necessary to ensure Wife's receipt of her portion
of the pension and FERS benefits in the event of
Husband's death. Wife will receive a proportionate share
of any cost of living increases made by the annuity and/or
The parties shall retain Attorney Blake Bourland to prepare
any necessary documents required for the division of this
gross monthly annuity and FERS supplement and the parties
shall equally divide the cost of same.
Prior to Wife's receipt of fifty percent (50%) of the
annuity and FERS supplement, Husband shall pay to Wife fifty
percent (50%) of said benefits to compensate Wife while the
necessary documents are being processed, in the amount of two
thousand six hundred eight dollars ($2, 608) monthly, due on
the 1st of July, 2014, and the first business day
of the month each month thereafter until Wife's receipt
of the pension and FERS benefit.
to the MDA, in July 2014, the parties hired Mr. Bourland to
draft and submit the necessary orders allocating Mr.
Parsons' federal retirement benefits pursuant to the MDA.
On August 22, 2014, the trial court entered a consent order
assigning the FERS benefits. However, Mr. Bourland was unable
to secure payment of Ms. Parsons' portion of the FERS
supplement, due to the apparent refusal of the Office of
Personnel Management to allocate the funds pursuant to the
April 2015, pursuant to the parties' parenting plan, Ms.
Parsons received Mr. Parsons' 2014 tax return and
discovered that in addition to the federal retirement
benefits contemplated in the MDA, Mr. Parsons had earned
income in excess of $52, 000, which exceeded the FERS cap of