Divorce Provision Regarding Military Pension Not Modifiable

Tennessee case summary on property division in divorce.

Divorce provision on military pension could not be modified.

Kari Dale Remus v. Brandon Joseph Nunn

The parties in this Robertson County, Tennessee, case were divorced in 2016.  The decree adopted their marital dissolution agreement (MDA).  Among other things, the MDA provided that the wife would be awarded a portion of his military retirement account.  After a post-trial modification, the order was clarified that the award of the military pension was to take place after other rehabilitative alimony obligations were satisfied.  The wife was to be awarded $1646 of the military retirement.

Four years later, the husband came back to court for a modification of the order.  He argued that his pension was to be $1879 per month, and that according to the Defense Finance Accounting Office, the wife’s share would be only $507 per month.  He argued that the additional $1138 should be considered alimony, which is modifiable, and he requested a modification.

The trial court disagreed, and held that the $1646 award was a division of property, and not alimony, and was not subject to modification.  The trial court made its ruling as a grant of the wife’s motion to dismiss the husband’s petition.  The trial court also awarded the wife a portion of her attorney’s fees.

The husband then appealed to the Tennessee Court of Appeals.  He first argued that the trial court erred in granting the wife’s motion that he had failed to state a claim.  The court agreed, because such a motion is rarely appropriate in a declaratory judgment action.

However, the husband did not fare well when it came to the merits of the case.  The wife argued that the issues before the court were barred by the doctrine of res judicata.  While the appeals court did not agree with this argument, it did nonetheless affirm the lower court’s order. 

It noted that an MDA is a contract between the parties, and is interpreted like any other contract.  Courts look first to the plain language of the contract.  It also pointed out that retirement benefits that accrue during a marriage are marital property subject to equitable distribution.  The MDA treated them as such, and the plain language of the agreement treated them as marital property.

The husband argued that federal law called for a different result.  But again, the court pointed to the fact that the parties treated the retirement pay as marital property, and the federal cases cited by the husband did not apply.

The husband did fare better when it came to attorney’s fees.  The MDA applied only to a party who instituted legal proceedings.  Since the husband had initiated the proceeding, that provision did not apply.  Therefore, the Court of Appeals reversed the award of attorney’s fees.  It also denied her request for attorney’s fees on appeal.

No. M2023-00589-COA-R3-CV (Tenn. Ct. App. Mar. 27, 2024).

See original opinion for exact language.  Legal citations omitted.

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