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Dowden v. Feibus

Court of Appeals of Tennessee, Knoxville

December 27, 2019

DONITA DALE DOWDEN
v.
RONALD J. FEIBUS

          Session October 17, 2019

          Appeal from the Circuit Court for Hamilton County No. 02D1607 J.B. Bennett, Judge.

         This 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.

         Tenn. 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.

          Harold L. North, Jr., and Nathan L. Kinard, Chattanooga, Tennessee, for the appellee, Donita Dale Dowden.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and John W. McClarty, JJ., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE.

         I. Factual and Procedural Background

         This 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.[1] 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.

         The 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 deed."

         Mr. 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.

         Several 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] [p]ension."

         In a 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.

         Mr. 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 his pension.

         On 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.

         By 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 Court."

         Mr. 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.

         II. Issues Presented

         Mr. Feibus presents a single issue on appeal, which we ...


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