Session March 14, 2018
from the Chancery Court for Montgomery County No.
MCCHCVDI12-119 Laurence M. McMillan, Jr., Chancellor
appeals the trial court's decision in this post-divorce
marital property dispute, arguing that the trial court erred
in finding that certain retirement benefits
"matured" in 2012. Discerning no reversible error,
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed and Remanded
Reid Poland, III, Clarksville, Tennessee, for the appellant,
Willie Dino Roberts, Jr.
A. Rassas, Clarksville, Tennessee, for the appellee, Kathlene
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Richard H. Dinkins and W. Neal McBrayer, JJ.,
STEVEN STAFFORD, JUDGE.
March 2, 2012, Plaintiff/Appellee Kathlene Denise Roberts
("Appellee" or "Wife") filed a complaint
for divorce against Defendant/Appellant Willie Dino Roberts,
Jr. ("Appellant" or "Husband") in the
Montgomery County Chancery Court. In her complaint, Appellee
asked that the court enforce a marital settlement agreement
executed by the parties in September 2008. Relevant to this
appeal, the agreement provided as follows:
DIVISION OF MILITARY RETIRED PAY
parties agree that the Wife has an interest in the
Husband's military retirement plan with the U.S. Army,
and is entitled to the Husband's assignment of benefits
to the Wife in compliance with Federal Law.
parties were married for a period of seven years during which
the Husband performed seven years of creditable military
parties acknowledge that any applicable rights of the Husband
under the Servicemembers Civil Relief Act have been observed.
parties hereby agree that the Wife is awarded fifty per cent
(50%) of the Husband's disposable military retired pay as
her separate property. If the Wife qualifies for a direct
payment from the appropriate military finance center, the
Husband agrees to provide any necessary forms or other
information necessary to accomplish this designation.
retired pay" means the full monthly military retired pay
the Husband would be entitled to receive before any
statutory, regulatory, or elective deductions are applied. It
includes retired pay paid or payable for longevity or active
duty and/or reserve component military service and all
payments paid or payable under the provisions of Chapter 61
of Title 10, United States Code. Military retired pay also
includes all amounts of retired pay the Husband actually or
constructively waives or forfeits in any manner and for any
Wife will receive the same proportionate share of any cost of
living increases as part of her property interest in the
Husband's military retired pay. Said payments shall
continue to the death of either party, and shall not
terminate upon the remarriage of Wife.
Husband agrees he will not pursue any course of action that
would defeat, reduce, or limit the Wife's right to
receive the share of his military retired pay awarded herein.
The Husband shall indemnify and hold harmless the Wife for
any breach of this provision from funds of whatever source.
Husband guarantees to the Wife that he shall not merge his
military pension and any possible future government pension,
nor take any action so as to defeat the Wife's right to
share in the monthly retirement benefits as set forth in this
Agreement. The Husband guarantees this and agrees to
indemnify against any breach by him and agrees to hold the
Wife harmless against any such breach.
March 21, 2012, Appellant answered the divorce complaint,
asserting that the agreement should not be enforced due to
the circumstances surrounding the execution of the agreement,
as well as changed circumstances in the parties' lives in
the four years since the agreement was signed.
August 31, 2012, the parties filed an executed marital
dissolution agreement ("MDA") incorporating much of
the language of the 2008 agreement concerning military
retirement pay. Specifically, the MDA stated
parties hereby ratify and agree to the terms of the Marital
Separation Agreement dated September 18, 2008 and attached
hereto as Exhibit A, with the following exceptions:
a. Section IX, "Division of Military Retired Pay" .
. . is hereby amended, first, that the parties have been
married in excess of eleven years, rather than seven years,
and is further amended so as to award the Wife 45%, rather
than 50%, of the Husband's disposable military retired
pay as her separate property.
2012 MDA therefore provided
Wife is awarded 45% of the total amount of the Husband's
disposable military retired pay from the United States Army.
The Parties were married in excess of ten years, during which
time the Defendant served on active duty with the United
first such payment shall be received by the Wife no later
than September 5, 2012. . . .
the Court's intention that if the Plaintiff 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
also provided for an award of attorney's fees for future
enforcement actions. On September 4, 2012, the trial court
entered its final decree of divorce incorporating, ratifying,
and approving the parties' MDA. Appellant immediately
began paying Appellee $1, 424.70 per month, which the parties
understood to represent Appellee's share in
Appellant's retirement income.
parties proceeded without issue for several years. In March
2016, however, Appellee filed a petition for criminal
contempt against Appellant for his failure to pay the ordered
military retirement pay. According to the petition, Appellant
made all required payments following the divorce until
February 2016. Appellee alleged that when she questioned
Appellant, he stated that it was no longer his intention to
make the payment to Appellee. In addition to his failure to
make the required payments, Appellee asserted that Appellant
had also failed to provide her with information regarding the
designation of Appellee as Appellant's survivor for
purposes of benefits, as well as any cost of living increases
received by Appellant since the divorce; Appellee asserted
that both were required under the parties' MDA. As such,
Appellee asked that Appellant be found in criminal contempt
and that judgment for the arrearage be entered.
April 7, 2016, Appellant's counsel filed a notice of
appearance, which raised "all . . . objections and
defenses" under Rule 12.02 of the Tennessee Rules of
Civil Procedure. Over a month later, Appellant filed an
answer denying the material allegations in Appellee's
petition. At some point, Appellant resumed the payments upon
the advice of counsel but soon terminated the payments once
September 2016 hearing on the contempt petition, Appellant
failed to appear. The trial court therefore entered an order
requiring Appellant to appear before the court in November to
show cause why he should not be held in contempt based upon
November 15, 2016, the trial court entered an order following
the November hearing. Therein, the trial court noted that
despite being notified of the pending proceedings and hearing
dates, as well as initially retaining counsel, Appellant
failed to respond to discovery, failed to appear at the
September hearing, and failed to appear at the November
hearing. The trial court noted that Appellee had
orally moved to amend her petition to add a request for civil
contempt, which the trial court granted. The trial court
thereafter found Appellant in civil contempt, reserved the
issue of sentencing, and entered a default judgment against
Appellant for the arrearage in the amount of $11, 347.00,
along with $1, 250.00 for attorney's fees.
November 18, 2016, Appellant, through newly retained counsel,
filed a motion to set aside the default judgment, asserting
that there was a miscommunication that resulted in him not
being present for the hearing. Appellee argued against
setting aside the default judgment, noting Appellant's
history of failing to appear. Nevertheless, Appellee agreed
to set aside the default if Appellant would appear at a
January hearing. The trial court therefore entered an order