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Roberts v. Roberts

Court of Appeals of Tennessee, Nashville

April 16, 2018


          Session March 14, 2018

          Appeal from the Chancery Court for Montgomery County No. MCCHCVDI12-119 Laurence M. McMillan, Jr., Chancellor

         Husband 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, we affirm.

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

          H. Reid Poland, III, Clarksville, Tennessee, for the appellant, Willie Dino Roberts, Jr.

          Mark A. Rassas, Clarksville, Tennessee, for the appellee, Kathlene Denise Roberts.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.




         On 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:


         The 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.

         The parties were married for a period of seven years during which the Husband performed seven years of creditable military service.

         The parties acknowledge that any applicable rights of the Husband under the Servicemembers Civil Relief Act have been observed.

         The 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.

         "Military 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 reason.

         The 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.

         The 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.

         The 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.

         On 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.

         On 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

         The 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.

         The 2012 MDA therefore provided

         The 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 States Army.

         The first such payment shall be received by the Wife no later than September 5, 2012. . . .

         It is 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 made.

         The MDA 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.

         The 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.

         On 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 again.

         At a 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 Appellee's petition.

         On 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.[1] 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.

         On 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 taking ...

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