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Parsons v. Parsons

Court of Appeals of Tennessee, Jackson

December 12, 2019


          Session September 18, 2019

          Appeal from the Circuit Court for Shelby County No. CT-004932-13 James F. Russell, Judge

         Wife/Appellant appeals the trial court's denial of relief on her post-divorce petition for contempt and breach of contract. The parties' MDA awarded Wife 50% of Husband/Appellee's FERS Supplement, which was subsequently terminated due to Husband's yearly earned income being in excess of the FERS cap of $15, 120.00. Because the parties' MDA did not preclude Husband from earning income in excess of the cap, and did not include a provision for such occurrence, the trial court properly denied Wife's petition. Although the trial court sua sponte modified child support to award an additional amount equal to the lost FERS Supplement, it did so in error. Accordingly, we affirm the trial court's grant of Husband's motion to alter or amend the award of additional child support. Because the MDA allows the prevailing party to recover attorney's fees and expenses, we reverse the trial court's denial of Husband's reasonable fees and expenses, and remand for determination of same, and for entry of judgment thereon. Reversed in part, affirmed in part, and remanded.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in Part; Affirmed in Part; and Remanded

          Mitchell D. Moskovitz, and Kirkland Bible, Memphis, Tennessee, for the appellant, Kelly Colvard Parsons.

          Larry Rice, Memphis, Tennessee, for the appellee, Richard Jearl Parsons.

          Kenny Armstrong, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S. and Carma Dennis McGee, J., joined.



         I. Background

         The procedural history in this case is protracted, and this is the second appeal to this Court. In the interests of judicial economy and consistency, we restate the relevant background information from Parsons v. Parsons, No. W2016-01238-COA-R3-CV, 2017 WL 1192111 (Tenn. Ct. App. Mar. 30, 2017) ("Parsons I"):

On July 10, 2014, Appellant Kelly Parsons, and Appellee Richard Parson[s] filed a marital dissolution agreement (MDA) that was incorporated into a final decree of divorce, which was entered by the [Shelby County Circuit Court ("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 [S]upplement, Mr. Parsons' earnings could not exceed $15, 120[.00] per year.
The terms of the parties' MDA provided that Ms. Parsons would receive 50% of Mr. Parsons' . . . FERS [S]upplement, to wit:
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 FERS [S]upplement.
In 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 $15, 120[.00]. Thus, Mr. Parsons was not eligible for the FERS [S]upplement of $1, 370 per month.
On June 22, 2015, Ms. Parsons filed a petition for civil and criminal contempt. In her petition, she alleged that Mr. Parsons should be held in willful civil and criminal contempt for failing and refusing to pay her the 50% share of his FERS [S]upplement. Ms. Parsons also alleged, inter alia, that Mr. Parsons owed an arrearage of $4, 795 for unpaid FERS benefits. The petition requested that the trial court order Mr. Parsons to pay such arrearages . . . .
On July 27, 2015, Mr. Parsons' attorney sent a letter informing Ms. Parsons that Mr. Parsons' FERS [S]upplement had been reduced to zero beginning August 2015. The letter also indicated that "because fifty percent (50%) of Zero Dollars ($0.00) is Zero Dollars ($0.00), [Ms. Parsons] will not receive a FERS [S]upplement payment beginning August 1, 2015." [Fn. 1. While the FERS [S]upplement ended in July 2015, Ms. Parsons alleges in her petition that Mr. Parsons did not pay her the 50% share of the [S]upplement for the months of December 2014 through June 2015 (the month the petition was filed), even though he was receiving the full FERS [S]upplement directly from the Office of Personnel Management.]. A letter from the Office of Personnel Management indicated that the reason for the elimination of the FERS [S]upplement is because Mr. Parsons' earned income during 2014 exceeded the $15, 120[.00] income cap. Ms. Parsons argues that her interest in Mr. Parsons' retirement benefits is a property interest, and as such, is non-modifiable. Ms. Parsons also argues that the entry of the final decree of divorce gave her a vested interest in one-half of Mr. Parsons' FERS [S]upplement, and that Mr. Parsons' failure to compensate her to the extent of her vested interest was an improper unilateral modification of the final decree of divorce. Mr. Parsons argues that Ms. Parsons knew prior to the entry of the MDA and the final decree of divorce that Mr. Parsons' income would exceed the $15, 120[.00] cap. Specifically, Mr. Parsons produced a letter from his new employer, Raytheon, dated April 7, 2014 stating that his hourly rate would be $26.50 and that he could not exceed more than 1500 hours per year. However, we note that Mr. Parsons signed the permanent parenting plan on July 10, 2014 swearing and affirming that his gross monthly income was only $4, 597.00 per month, which included his federal retirement benefits and his expected earnings from Raytheon.
The hearing on the contempt petition was held on March 2, 2016. After Ms. Parsons' attorney completed direct examination of Ms. Parsons, Mr. Parsons' attorney made an oral motion to dismiss . . . on the ground that Ms. Parsons failed to elect whether she was seeking civil or criminal contempt. Prior to ruling on the motion, the trial court heard statements from counsel for both parties regarding the status of the proof. The attorneys were in agreement that Ms. Parsons had not completed her proof; however, Mr. Parsons argued that the case was fundamentally flawed because it had proceeded without Ms. Parsons electing whether she was proceeding on either civil or criminal contempt. Mr. Parsons argued that the only remedy was dismissal. In order to expedite the proceeding, Ms. Parsons agreed to dismiss the criminal contempt component and proceed solely on the allegations of civil contempt. Despite statements from both attorneys that Appellant had not closed her proof, the trial court granted the motion to dismiss. . . .

Parsons, 2017 WL 1192111, at *1-2 (footnote in original). In Parsons I, we determined that the trial court applied an incorrect burden of proof and improper procedure; as such, we vacated the trial court's order and remanded the case for further proceedings.

         On remand from Parsons I, Ms. Parsons filed an amended petition for contempt on June 23, 2017. In addition to contempt, Ms. Parsons amended her petition to add, in the alternative, a breach of contract claim. Specifically, Ms. Parsons alleged that Mr. Parsons breached the MDA because he failed to pay her 50% of his FERS Supplement from December 2014 through the date of her amended petition. On September 12 and 13, 2017, the trial court heard Ms. Parsons' amended petition. On November 29, 2017, the trial court announced its ruling.[1] In pertinent part, the trial court held that: (1) there was no contempt because Ms. Parsons did not have a vested interest in the FERS Supplement; and (2) there was no order requiring Mr. Parsons to compensate Ms. Parsons should the FERS Supplement terminate. The trial court also denied Ms. Parsons' breach of contract claim on its finding that the MDA was a valid contract, which could not be altered "even under equitable interpretations." Nonetheless, the trial court ostensibly restored Ms. Parsons' share of the FERS Supplement by awarding an upward deviation in child support equal to $685 per month, which amount is equal to 50% of Mr. Parsons' previous FERS Supplement.

         On December 20, 2017, Mr. Parsons filed a motion to alter or amend, wherein he sought reversal of the portion of the trial court's order awarding an upward deviation in child support. On August 31, 2018, the trial court heard Mr. Parsons' motion. By order of October 18, 2018, the trial court granted the motion and reversed its prior ruling. Specifically, the trial court found that its award of $685 per month "was an erroneous upward deviation in child support." Ms. Parsons appeals.

         II. ...

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