Session October 17, 2019
from the Circuit Court for Hamilton County No. 02D1607 J.B.
appeal arose from post-divorce litigation concerning the
trial court's distribution of marital assets,
specifically the distribution of the marital portion of the
husband's federal government pension to the wife. In its
divorce decree entered on August 10, 2004, the trial court
awarded to the wife "1/2 of [the husband's]
Administrative Law Judge Government Pension through the date
of this Final Decree." Upon the husband's appeal,
this Court affirmed the trial court's judgment in all
respects, including the trial court's award to the wife
of one-half of the marital portion of the husband's
pension. Dowden v. Feibus, No.
E2004-02751-COA-R3-CV, 2006 WL 140404 (Tenn. Ct. App. Jan.
18, 2006) ("Dowden I"). The husband sought
no further judicial review at that time. Following his
retirement from federal employment on May 1, 2017, the
husband received correspondence concerning the calculation of
the wife's portion of his pension from the federal
government's Office of Personnel Management
("OPM"). On August 2, 2018, the husband filed a
"Motion for Clarification and/or Relief from
Judgment" contending, inter alia, that OPM
miscalculated the portion of his pension that would be
diverted to the wife because the trial court's final
decree was "too vague" and did not "provide
sufficient guidance to OPM to allow them to correctly
compute" the wife's interest in the pension. On
December 6, 2018, the trial court entered an order finding
that there was "no lack of clarity" in its final
decree and denying the husband's motion. The husband has
appealed. Having determined that the trial court did not err
in denying the husband's motion, we affirm the judgment
of the trial court and remand to the trial court for
enforcement of the judgment. We decline to award
attorney's fees on appeal to the wife.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
Catherine M. White, Chattanooga, Tennessee, for the
appellant, Ronald J. Feibus.
L. North, Jr., and Nathan L. Kinard, Chattanooga, Tennessee,
for the appellee, Donita Dale Dowden.
R. Frierson, II, J., delivered the opinion of the court, in
which Charles D. Susano, Jr., and John W. McClarty, JJ.,
R. FRIERSON, II, JUDGE.
Factual and Procedural Background
case has a lengthy procedural history dating back to August
2, 2002, when the appellee, Donita Dale Dowden, filed a
complaint for divorce in the Hamilton County Circuit Court
("trial court") against the appellant, Ronald J.
Feibus, after nearly fifteen years of marriage. Following a
bench trial, the trial court entered a final decree of
divorce on August 10, 2004, wherein the court divided the
parties' assets and liabilities. Among the parties'
marital assets was Mr. Feibus's pension from his
employment with the federal government, a portion of which
accrued during the marriage. Mr. Feibus was employed as an
administrative law judge from October 20, 2001, until May 1,
2017, and the parties were married on October 29,
1987. The trial court awarded to Ms. Dowden
"1/2 of Administrative Law Judge Government Pension
through the date of this Final Decree." In addition, the
trial court ordered Mr. Feibus to pay alimony in futuro to
Ms. Dowden in the amount of $1, 000.00 per month.
trial court subsequently entered an order on October 15,
2004, based on several post-trial motions filed by the
parties regarding the cash value of particular assets. The
court's October 15, 2004 order amended its previous final
decree of divorce concerning the cash value of those assets.
The court further ordered Mr. Feibus to, inter alia,
"refinance the marital residence and pay to [Ms.
Dowden], on or before December 31, 2004, the sum of $158,
056.28" and ordered Ms. Dowden to "execute all
necessary documents to effect the refinancing of the marital
residence." On October 22, 2004, Mr. Feibus filed a
"Motion for Clarification or to Alter or Amend" in
which he alleged, in part, that Ms. Dowden was
"unwilling to sign the necessary paperwork" to
effectuate the refinancing of the marital residence and that
Ms. Dowden's actions had already cost Mr. Feibus
approximately $2, 000.00 in brokerage fees. The trial court
subsequently entered an "Agreed Order Regarding
Disbursement of Funds" on December 6, 2004, which
provided that Mr. Feibus had paid the $158, 056.28 previously
ordered by the court. Upon receipt of the funds, the court
stated that Ms. Dowden "shall deliver to [Mr.
Feibus's] counsel the fully executed quitclaim
Feibus timely appealed to this Court from the trial
court's final order. See Dowden I, 2006 WL
140404. Concerning Mr. Feibus's first appeal, this Court
enumerated the issues he raised as follows:
[W]hether the Trial Court erred in awarding alimony in futuro
instead of rehabilitative alimony; whether the Trial Court
erred in awarding [Ms. Dowden] one-half of [Mr. Feibus's]
federal pension when part of this pension was earned prior to
the marriage; and whether the Trial Court erred in awarding a
division of [Mr. Feibus's] 1998 personal injury award.
Id. at *7 (numbering omitted). This Court affirmed
the trial court's judgment in all respects, including the
issue of whether the trial court erred in awarding Ms. Dowden
one-half of Mr. Feibus's federal pension, specifically
holding that "the trial court awarded [Ms. Dowden] only
one-half of that portion of [Mr. Feibus's] federal
pension earned from the date [Mr. Feibus] became an
administrative law judge to the date of the divorce
decree." Id. at *10. When Ms. Dowden
subsequently remarried in 2012, the trial court entered an
order on March 21, 2012, terminating the alimony payments
previously awarded to her.
years later, on August 2, 2018, Mr. Feibus filed a
"Motion for Clarification and/or Relief from
Judgment," and he filed a brief in support thereof on
August 24, 2018. In his motion, Mr. Feibus referenced
Tennessee Rule of Civil Procedure 60, seeking clarification
of the trial court's 2004 final decree with respect to
the calculation of the portion of his pension that was
subject to equitable division. According to Mr. Feibus, at
the time of his retirement as administrative law judge, he
had earned 248 months of federal employment service, which
included pre-marital, marital, and post-divorce months. As an
illustration, Mr. Feibus submitted his own calculation of an
equitable division of his pension. Mr. Feibus also averred
that the trial court "should instruct [OPM] to consider
only the number of months the Defendant worked as an
Administrative Law Judge during the marriage and his earnings
during that time in computing [Ms. Dowden's] share of
[Mr. Feibus's] [p]ension," arguing that "OPM
has incorrectly calculated [Ms. Dowden's] portion"
of the pension "based on [Mr. Feibus's] entire
service record." As such, Mr. Feibus posited that the
trial court's final decree was "too vague and does
not provide sufficient guidance." Accordingly, Mr.
Feibus requested that the trial court issue an order of
clarification "instructing OPM as to the exact number of
months and the earnings during those months they should use
to compute [Ms. Dowden's] share of [Mr. Feibus's]
reply filed on September 24, 2018, Ms. Dowden argued,
inter alia, that Mr. Feibus's motion should be
denied because it was untimely. She also averred that the
trial court properly followed Tennessee law in rendering its
final divorce decree. Mr. Feibus filed an amended motion on
September 28, 2018, in which he restated his position that
the trial court's previous final decree incorporating the
court's memorandum opinion was "too vague and [did]
not provide ample guidance to the [g]overnment." Mr.
Feibus also renewed his request for an order of clarification
regarding the mathematical formula that OPM should use to
calculate his pension.
Feibus subsequently filed additional briefs in support of his
amended motion, contending in part that "the OPM
computation is both unfair to him and represents an improper
application" of Tennessee law. Furthermore, Mr. Fiebus
asserted that the trial court's final decree of divorce
was legally insufficient because it did not provide a
"methodology for determining the marital portion of the
[pension]." Mr. Feibus again provided a calculation of
what he claimed was an appropriate and equitable division of
November 26, 2018, Ms. Dowden filed a reply, asserting that
the brief filed by Mr. Feibus on November 20, 2018, was
untimely based upon the trial court's purported
instruction during an October 29, 2018 hearing that Mr.
Feibus was to file a brief on or before November 19, 2018,
addressing the "impact/affect" that three
particular appellate decisions would have on the trial
court's determination. Furthermore, Ms. Dowden averred
that Mr. Feibus only devoted "roughly one page of his
eleven  page brief in responding to the Court's inquiry
about the applicability of the three referenced cases, and
indicates that those cases '. . . offer no relevant
guidance to this case.'" Ms. Dowden again argued
that OPM had made the correct determination of the
calculation of her interest in Mr. Feibus's pension based
on applicable Tennessee law.
order entered on December 6, 2018, the trial court stated
that Mr. Feibus's motion "in effect asks this Court
[to] modify the decision of the Office of Personnel
Management." The trial court determined that there was
"no lack of clarity to its order," explaining that
"the formula outlined by this Court in the final decree
of August 10, 2004" was "perfectly clear" and
had been "affirmed by the Court of Appeals."
Furthermore, the trial court stated that "[i]f the
moving party has an issue with the way and manner in which
the formula was applied, that is a matter to be taken up with
the Office of Personnel Management and not with this
Feibus timely appealed. On March 26, 2019, Mr. Feibus filed a
notice, pursuant to Tennessee Rule of Appellate Procedure
24(d), that he would not be filing a transcript or statement
of the evidence.
Feibus presents a single issue on appeal, which we ...