Wife Awarded Portion of Husband’s Military Pension + Fees

Tennessee case summary on divorce military retirement in divorce.

Karen H. Foster v. Douglas S. Foster

The husband and wife in this Montgomery County, Tennessee, case were divorced in 2006.  They entered into a marital dissolution agreement, and one of the main issues covered was the husband’s retirement pay.  In 2016, the wife brought a petition for contempt, alleging that the husband had not received her portion of the retirement pay.  The trial court granted the wife about 30% of the pension, and the husband brought a first appeal to the Tennessee Court of appeals.  In 2017, the appeals court affirmed the lower court’s decision and awarded the wife her attorney’s fees.  It remanded the case to the trial court to determine the amount of those fees.

The trial court awarded attorney fees of over $8,000.  It also computed the husband’s arrearage at over $11,000.  The husband asked the lower court to set aside that order, but it refused.  Instead, it awarded the wife an additional $570 in attorney’s fees for defending the motion.  The husband also filed two motions for recusal of the judge, but those motions were denied.  Finally, the husband brought a second appeal to the Tennessee Court of Appeals.  He raised what the appeals court called a “plethora of issues.”

The appeals court first noted that many of those issues were not properly before the court, since they were decided in the first appeal, which served as the “law of the case.”  However, it did note that a few of the issues were not directly addressed in the first appeal.  Among these was the trial court’s subject matter jurisdiction.  It quickly disposed of this issue by pointing out that the action was one for contempt to enforce an earlier judgment, and that trial courts do have such jurisdiction.

The husband also argued that the wife lacked standing to file her petition for contempt.  The appeals court found that this issue was without merit, because the wife was seeking payment of the pension that should have been paid to her.

Next, the appeals court looked at the trial judge’s refusal to recuse himself.  The appeals court first agreed that the issue was moot, since the motion was made only after the court was done ruling.

Finally, the husband argued that the wife should not have received her attorney’s fees.  Here, the husband had a partial victory, since the fees of $1,200 for a related case in another county were subtracted.  But in all other respects, the Court of Appeals affirmed the lower court’s rulings.

No. M2018-00595-COA-R3-CV  (Tenn. Ct. App. May 2, 2019).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Property Division in Tennessee Divorce.