Session September 18, 2019
from the Circuit Court for Shelby County No. CT-004932-13
James F. Russell, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed in Part; Affirmed in Part; and
Mitchell D. Moskovitz, and Kirkland Bible, Memphis,
Tennessee, for the appellant, Kelly Colvard Parsons.
Rice, Memphis, Tennessee, for the appellee, Richard Jearl
Armstrong, J., delivered the opinion of the court, in which
J. Steven Stafford, P.J., W.S. and Carma Dennis McGee, J.,
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
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.
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. 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
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.