Ex-Wife’s Attorney Should Have Made Sure QDRO Correct

Ex-Wife’s Attorney Should Have Made Sure QDRO Correct

Tennessee case summary after divorce regarding QDRO and retirement division.

Darlene Christmas Murray (Godsey) v. Louis Wade Godsey

The husband and wife in this Roane County, Tennessee case were married in 1976, and shortly thereafter the husband joined the navy.  He later worked for the Federal Aviation Administration and participated in the Civil Service Retirement System and the Thrift Savings Plan.  They were divorced in 1994, and the final decree found that the wife was entitled to half of retirement benefits.  The decree also called for a Qualified Domestic Relations Order (QDRO) to be prepared, and ordered the husband to provide the necessary information.

The attorneys drafted the QDRO and submitted a draft to the Office of Personnel Management (OPM), which stated that it did not pre-approve such orders.  It did, however, explain that it offered a $14 handbook on how to draft such orders.  The husband’s attorney notified the wife’s attorney that he believed the order to be satisfactory, and it was ultimately approved by the trial court.  The QDRO stated that the husband would notify the wife at least 60 days before receipt of any retirement funds.

The husband retired in 2013.  At some point, the wife reached out on Facebook to say that she had not received any payments.  The husband did not respond.  His current wife testified that she explained to the wife that she should contact OPM to figure out the problem.

In 2015, the wife’s new attorney wrote to OPM, who informed him that the 1997 QDRO was inadequate.  The wife then went to court and asked her husband to be held in contempt.  She requested her share of the pension to date, as well as attorney’s fees.

At hearing, each spouse took the position that it was the other spouse’s responsibility to notify OPM and straighten out the problem.

After a hearing, Judge Dennis W. Humphrey held the husband in contempt for failing to pay the wife her half of the retirement, and for not notifying her of the retirement.  The trial court took the position that the husband had “stonewalled” the wife.  As punishment for contempt, the trial court ordered the husband to pay $25,000 attorney’s fees.  After some post-trial motions, the husband appealed to the Tennessee Court of Appeals.

The wife first argued that the Court of Appeals did not have subject matter jurisdiction over the appeal, since there had not been a final judgment in the lower court.  However, the Court of Appeals noted that the finding of contempt was a final judgment, and it was proper to appeal that judgment, even though other issues remained to be resolved.  It ruled because the order stated a specific punishment for the contempt, and that aspect of the case was suitable for review.

The court then turned to the merits of the appeal.  The husband argued that holding him in contempt was in violation of both Tennessee and federal law.

The appeals court noted that for a contempt prosecution to be successful, the underlying order must be both lawful and clear.  It must precisely spell out the details of compliance so that reasonable persons will know what actions are required.  Finally, it must be shown that the person actually violated the order, and that the violation was willful.

The appeals court held that the order was lawful and sufficiently clear.  However, it differed with the lower court on whether the husband “actually violated” the order.

The lower court had found that the husband had “stonewalled her on communications,” but the order required only the communication of certain specific pieces of information.  The appeals court found that these had been communicated, and that the decree did not require “to make Herculean efforts on Wife’s behalf” to ensure that the order would be processed by OPM.

The appeals court pointed out that the wife’s problems didn’t stem from the husband’s “stonewalling,” but rather from the failure of the wife’s attorney to draft the proper kind of order that would be acceptable to OPM.

The appeals court also held that the evidence preponderated against a finding that the husband willfully failed to notify the wife of his retirement.

For these reasons, the Court of Appeals reversed the finding of contempt and the award of attorney’s fees.  The appeals court’s opinion was authored by Judge Kristi M. Davis, and joined by Judges Frank G. Clement, Jr., and Carma Dennis McGee.

No. E2020–00442-COA-R3-CV (Tenn. Ct. App. Jul. 19,  2021).

See original opinion for exact language.  Legal citations omitted.

To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.