Session September 6, 2016
from the Chancery Court for Montgomery County No.
MCCHCVDI02435 Ross H. Hicks, Chancellor
primary issue in this appeal is whether the former spouse of
a military retiree is entitled to a share of his military
retirement. The military retiree submits that, because of his
service-connected disability rating of 100%, his former
spouse is not entitled to a share of his military retirement.
Based on its interpretation of the parties' marital
dissolution agreement, the trial court ruled in favor of the
former spouse and awarded her a percentage of the
retiree's "total military retired pay, "
including disability benefits. Upon our de novo review, we
conclude that the trial court erred in awarding the former
spouse a percentage of the retiree's disability benefits.
But the trial court correctly determined that the military
retiree's disability rating did not deprive his former
spouse of an interest in his military retirement.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed as Modified and Case
R. Olson and Taylor R. Dahl, Clarksville, Tennessee, for the
appellant, Gregory Alan Vlach.
A. Rassas and Julia P. North, Clarksville, Tennessee, for the
appellee, Joanna Marie Vlach (Schroer).
Neal McBrayer, J., delivered the opinion of the court, in
which Frank G. Clement, Jr., P.J., M.S., and Richard H.
Dinkins, J., joined.
NEAL McBRAYER, JUDGE
Marie Vlach ("Wife") and Gregory Alan Vlach
("Husband") married on November 3, 1982, separated
in April 2002, and ultimately divorced on December 9, 2002.
The final decree of divorce entered by the Chancery Court for
Montgomery County, Tennessee, incorporated the parties'
marital dissolution agreement ("MDA"). As part of
the property settlement, the MDA included a provision
dividing the military retirement of Husband, who served in
the United States Army.
provision granted Wife a percentage of Husband's
"disposable retirement pension." The provision also
took into consideration that retired pay might be impacted by
Husband's receipt of disability benefits. Specifically,
the provision provided as follows:
The Wife shall receive twenty-six percent (26%) of the
Husband's disposable retirement pension from the United
States Army, with no consideration for disability until the
Husband is classified as seventy-four percent (74%) disabled.
It is the understanding and belief of the Parties that the
Husband's twenty (20) year military retirement will equal
to forty percent (40%) of his base pay, meaning that the
Wife's entitlement would equal twenty-six percent (26%)
of the total retirement, but if the percentage of base pay is
higher, the controlling figure will be twenty-six percent
(26%) of disposable retirement pension. The Parties will be
married in excess of ten (10) years at the time of the entry
of the Final Decree, during which time the Husband served on
active duty with the United States Army. For the purpose of
this agreement, disposable retirement pension will include,
any and all VA, any early-out or separation bonus such as VSI
or SSB, or other disability pension to which the Husband is
entitled. The Husband waives any right of privacy, including
but not limited to any rights pursuant to the privacy act 10
U.S.C 1450(f)(3)(A) to the Wife in order to obtain
information pertaining to the Husband's retirement
It is the Court's intention that if the Wife 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, up to 74% as previously stated.
Husband's retirement date approached, Wife contacted the
Defense Finance and Accounting Services ("DFAS").
An agency of the Department of Defense, DFAS "manages
the pay accounts for and provides payroll service to . . .
military retirees." Kucinich v. Def. Fin. &
Accounting Serv., 183 F.Supp.2d 1005, 1007 (N.D. Ohio
2002). DFAS informed Wife that it could not issue a direct
payment or garnishment based on the wording of the MDA.
According to the DFAS, the language concerning Husband's
retirement pay included "to [sic] many
contingencies." And DFAS requested that the wording be
requested, on January 7, 2011, Wife filed a "Motion to
Clarify Final Decree of Divorce." Wife's motion also
proposed an interpretation of the MDA language. Husband
disputed Wife's interpretation, primarily on the ground
that the MDA contemplated a retirement following twenty years
of service. Because he had served longer and been promoted,
Husband argued that Wife should not share in amounts earned
after the divorce based on "longevity and additional
promotions." Ultimately, the trial court determined that
Wife's motion was premature because Husband had not yet
retired from the military.
three years later, Wife moved for a new hearing on her motion
to clarify. Wife alleged that Husband planned to retire in
September 2014. The court granted the motion, and a ...