Johnson v Johnson, 99-00015

CourtCourt of Appeals of Tennessee
PartiesWILLIE JEAN CHERRY JOHNSON, Plaintiff/Appellant. VS. JAMES FRANKLIN JOHNSON, Defendant/Appellee. C.A.IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Filed
Docket Number99-00015
Decision Date14 September 1999

WILLIE JEAN CHERRY JOHNSON, Plaintiff/Appellant.
VS.
JAMES FRANKLIN JOHNSON, Defendant/Appellee.

C.A. No. 02A01-9901-CV-00015

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON

Filed September 14, 1999

From the Circuit Court of Shelby County at Memphis.

Shelby County Circuit Court No. 150843 R.D.

Honorable Robert L. Childers, Judge

Plaintiff Willie Jean Cherry Johnson (Wife) appeals the trial court's judgment denying her petition to modify a final divorce decree previously entered by the court in December 1996. We affirm the trial court's judgment based upon our conclusion that the disposition of this case is controlled by this court's decision in Gilliland v. Stanley, No. 02A01-9603-GS-00056, 1997 WL 180587 (Tenn. App. Apr. 16, 1997) (no perm. app. filed).

Ronald D. Krelstein, Memphis, Tennessee, Attorney for Plaintiff/Appellant.

Dennis J. Sossaman, Memphis, Tennessee, Attorney for Defendant/Appellee.

OPINION FILED:

AFFIRMED AND REMANDED

FARMER, J.,

CRAWFORD, P.J., W.S.: (Concurs), LILLARD, J.: (Concurs)

The parties were married in 1967 and were separated in 1994 after twenty-seven years of marriage. Throughout this time, Defendant/Appellee James Franklin Johnson (Husband) was on active duty with the United States Marine Corps. After their separation, the parties entered into a marital dissolution agreement (MDA) which purported to divide the Husband's military retirement benefits. As pertinent, the MDA provided that Husband agrees that Wife shall receive the sum of $1,845.00 per month as support commencing May 1, 1996, and continuing until February 1, 1997, at which time Husband will begin receiving his military retirement. In the event that Husband's military retirement commences sooner than February 1, 1997, support payments will stop as of that date. In the event that retirement does not become effective until after February 1, 1997, then alimony will continue until the first of the month following the effective date of retirement. Upon retirement, Wife shall receive one-half of all military retirement benefits due the Husband.

. . . .

Husband further agrees that he will provide proper notice to the appropriate military pay disbursement office of Wife's entitlement to receive one-half of all retirement benefits Husband receives effective with his retirement from the active duty with the United States Marine Corps. A copy of the letter making the designation shall be forwarded to Wife within 14 days after the notice has been given to the appropriate disbursement office. Husband agrees that Wife shall be entitled to provide the disbursement office with a copy of the [MDA] or any other appropriate order, including a Qualified Domestic Relations Order. Husband agrees to execute a Qualified Domestic Relations Order for entry in this cause and agrees to provide appropriate information to counsel for Wife.

In entering the final divorce decree, the trial court adopted, approved as equitable, and incorporated by reference the terms and provisions of the parties' MDA. In doing so, the trial court specifically referred to the MDA's provisions dividing the Husband's military retirement benefits:

The Court specifically approves that portion of the [MDA] which provides that [the Wife] shall be entitled to receive 50% of all military retirement benefits due to [the Husband] upon his retirement from active duty with the United States Marine Corps.

The trial court also set forth certain orders in the final divorce decree that were designed to ensure compliance with the MDA's provisions dividing the Husband's military retirement benefits. The trial court ordered that the Clerk of the Court provide [the Wife] with a certified copy of the Final Decree in accordance with the Uniformed Services Former Spouse's Protection Act, 10 U.S.C. § 1408, so that [the Wife] may comply with Form DD2293 and receive her share of the retirement benefits due and owing to [the Husband].

The trial court also ordered "that upon the retirement of [the Husband] from active duty, [the Wife] shall receive 50% of all retirement benefits due [the Husband]." Finally, the trial court indicated that it was retaining "jurisdiction over this matter in order to enforce all rights and remedies which may be available pursuant to the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408."

The Wife initiated the present proceeding in May 1998 when she filed a petition to modify the final divorce decree. As grounds for modification, the Wife's petition contained the following allegations:

In accordance with the [MDA] and the Final Decree of Divorce, once [the Husband] retired from active duty, [the Wife] began receiving her share of [the Husband's] retirement benefits. [The Wife] received $1,446.00 monthly representing 50% of [the Husband's] retirement benefits.

Some time in late 1997, [the Husband] decided to accept part of his retirement pay as service connected disability benefits. These benefits are received by [the Husband] tax free.

However, federal law does not treat disability benefits as marital property for the purposes of being divided as a portion of the marital estate. As a result, the amounts now being received by [the Husband] as disability, $399.00 per month, are subtracted from his total gross retirement pay of $2,929.00. [The Wife's] share of [the Husband's] retirement benefits has dropped from $1,446.00 to $1,265.00.

In order to recoup this loss, the Wife asked the trial court to enter an order modifying the final divorce decree by requiring [the Husband] to pay as alimony the sum of $181.00 per month representing the difference between what [the Wife] would have received under the MDA, and the amount that she is now receiving based upon the unilateral modification of the retirement benefits owed to [the Husband].

The Wife later amended her modification petition to assert, as an alternative ground, that the Wife was entitled to relief from the final divorce decree pursuant to rule 60.02 of the Tennessee Rules of Civil Procedure. As amended, the Wife's petition asserted that the reduction in the Husband's retirement benefits constituted "any other reason justifying relief from the operation of the judgment." See T.R.C.P. 60.02(5). In support of her amended petition, the Wife submitted an affidavit which averred that, prior to executing the MDA, the Husband failed to inform the Wife that he already had begun proceedings to determine whether he could receive disability pay upon his retirement from the United States Marine Corps. The Wife's affidavit further averred that she did not learn of the reduction in benefits until some time after January 1, 1998, when she learned that her monthly payment was being reduced from $1,446.00 to $1,265.00.

In October 1998, the trial court entered its judgment denying the Wife's petition to modify the final divorce decree. In denying the Wife's petition, the trial court found that this court's decision in Gilliland v. Stanley, No. 02A01-9603-GS-00056, 1997 WL 180587 (Tenn. App. Apr. 16, 1997) (no perm. app. filed), was controlling. The Wife has appealed, contending that the trial court erred in ruling that the parties' MDA did not require the Husband to pay one-half of his disability benefits to the Wife.

We agree with the trial court's ruling that Gilliland v. Stanley, No. 02A01-9603-GS-00056, 1997 WL 180587 (Tenn. App. Apr. 16, 1997) (no perm. app. filed), controls the outcome of this case. In Gilliland v. Stanley, the final divorce decree, entered in July 1989, ordered the husband to pay by allotment to the wife thirty-five percent (35%) of the husband's military retirement benefits when the same vested as long as the husband received these benefits. When the husband retired in 1990, the wife began receiving 35% of the husband's military retirement benefits in accordance with the terms of the final divorce decree. Some time later, however, the husband "caused his military retirement benefits to be decreased when he elected to waive a portion of the retirement pay so that he instead could receive Veteran's Administration disability payments." Gilliland v. Stanley, 1997 WL 180587, at *1.(FN1) The decrease in the husband's military retirement benefits "resulted in a corresponding reduction in the amount of retirement benefits being paid to [the wife] as her division of marital property." Id.

When the wife discovered the husband's actions, she filed a petition seeking to enforce the provisions of the final divorce decree. Gilliland v. Stanley, 1997 WL 180587, at *1. Specifically, the wife asked the trial court to increase her interest in the husband's military retirement benefits from 35% to 49.5% so that she would receive the same amount she had received prior to the husband's waiver of retirement pay. Id., at *3. The trial court denied the wife's request, citing the United States Supreme Court's decision in Mansell v. Mansell, 490 U.S. 581 (1989), and finding that the husband had acted within his rights when he elected to waive a portion of his retirement pay in order to receive disability payments. Id., at *1.

On appeal, this court affirmed the trial court's refusal to increase the wife's interest in the husband's military retirement benefits. We first cited Mansell v. Mansell, 490 U.S. 581 (1989), wherein "the United States Supreme Court held that, under the Former Spouses' Protection Act, state courts do not have 'the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans' disability benefits.'" Gilliland v. Stanley, 1997 WL 180587, at *2...

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