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Foster v. Foster

Court of Appeals of Tennessee, Nashville

July 14, 2017


          May 17, 2017 Session

         Appeal from the Chancery Court for Montgomery County No. MCCHCVDI06-86 Laurence M. McMillan, Jr., Chancellor

         This post-divorce case involves the interpretation of a paragraph in a marital dissolution agreement regarding the allocation of a portion of Husband's military retirement benefits to Wife. Both parties petitioned the trial court to interpret the terms of the agreement. The trial court held that the agreement awarded Wife 33% of Husband's actual disposable military retirement pay at the rank of Captain (his rank at the time of the divorce). On appeal, Husband contends that the award was intended to be alimony in solido calculable at the time of the divorce based on the value of his accrued benefits at that time. He also contends that Wife should be bound by her acknowledgment in pre-litigation discussions of $465.86 per month as the correct amount of the award. Having considered the issues advanced on appeal, we agree with the trial court's interpretation of the marital dissolution agreement and affirm its judgment in all respects. Additionally, we hold that Wife is entitled to an award of reasonable attorney's fees incurred on appeal pursuant to the terms of the marital dissolution agreement and remand this case to the trial court for a determination of the appropriate amount of those fees.

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

          William L. Aldred, Jr., Clarksville, Tennessee, for the appellant, Douglas S. Foster.

          Mark A. Rassas and Julia P. North, Clarksville, Tennessee, for the appellee, Karen H. Foster.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.



         Background and Procedural History

         Douglas S. Foster ("Husband") and Karen H. Brooks ("Wife") divorced in 2006 after 13 years of marriage. At the time of the divorce, Husband had served 14 years in the United States Army and held the rank of Captain. The final decree of divorce incorporated a marital dissolution agreement negotiated and entered into by the parties. Paragraph 6 of the marital dissolution agreement contained the following language concerning the division of Husband's disposable retirement pay:

The parties mutually acknowledge that they have been married during thirteen (13) years (156 months) of Husband's active military service and that he now holds the rank of Captain (03). In the event the Husband should retire from the military at a higher rank and thereby becomes eligible for retired military pay, the parties agree that the Wife shall have 33% of the Husband's disposable retirement pay at the grade of Captain and that said amount shall be payable for a period of thirteen (13) years (156 months) regardless of whether the Husband attains a higher rank than Captain. It is the express intent of the parties that the Wife shall only be entitled to 33% of Husband's disposable military retirement pay for thirteen years (156 months) at the rank of Captain and Wife forever releases Husband of any further payments. In the event that the Husband draws disability payments that reduce his retirement benefits, this will in no way reduce Wife's entitlement as stated above.

         In May 2015, Husband retired from the military at the rank of Major after 23 years of service. Shortly thereafter, Wife contacted the Defense Finance and Accounting Service ("DFAS") to apply for direct payment of her portion of Husband's disposable retirement pay. DFAS responded with a letter explaining that it was unable to approve Wife's request because the divorce decree submitted with her application did not provide the information needed to calculate the amount of the monthly payments. The letter directed Wife to obtain a clarifying court order that awarded her a fixed dollar amount or a percentage of Husband's actual disposable retirement pay.

         In June 2015, Wife contacted William H. Poland, the attorney who had represented Husband in the parties' divorce. In the months that followed, Mr. Poland acted as an intermediary between Husband and Wife as they discussed filing a joint petition to amend the marital dissolution agreement. Wife was not represented by an attorney during the discussions.[1] Photocopies of emails between Husband, Wife, and Mr. Poland are included in the record and shed light on the nature of their discussions. The emails reflect that, after his initial meeting with Wife, Mr. Poland began working on a joint petition to modify the marital dissolution agreement by deleting Paragraph 6 and replacing it with language that expressed Wife's award as a fixed dollar amount. On August 6, 2015, Mr. Poland sent Wife a draft of the proposed modification that provided in part:

Husband agrees to provide Wife a monthly payment from his entitlement in the amount of $465.86 beginning at the time Husband's retirement payments began (1 June 2015) for a period of 156 months, ...

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