Robert Martin Thompson v. Christie Lee Thompson ( 2022 )

02/09/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 5, 2021 Session
ROBERT MARTIN THOMPSON v. CHRISTIE LEE THOMPSON
Appeal from the Circuit Court for Putnam County
No. 2015-CV-229 Amy V. Hollars, Judge
___________________________________
No. M2020-01293-COA-R3-CV
___________________________________
The sole issue on appeal in this divorce action pertains to the coverture formula employed
to fund the husband’s marital interest in the wife’s retirement account via a deferred
distribution method. On the morning the case was set for a final hearing, the parties and
their attorneys appeared in open court and announced they had agreed to the division of
the marital estate with the exception of the implementing language required to fund the
husband’s marital interest in the wife’s retirement account. Because the wife had a
substantially larger account than the husband but lacked the financial resources to fund a
present distribution of her retirement account, the parties announced in open court that they
had agreed to an offset of their respective pensions and authorized the court to enter a final
judgment using the coverture formula to affect a deferred distribution. Following the entry
of the final order, the wife filed a Tennessee Rule of Civil Procedure 59.04 motion to set
aside the order, contending that the trial court applied a deferred distribution method that
did not reflect the parties’ agreement. The trial court denied the motion, and this appeal
followed. Finding no error, we affirm the trial court in all respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.
Howard L. Upchurch and Stacy H. Farmer, Pikeville, Tennessee, and Kelsy A. Miller,
Cookeville, Tennessee, for the appellant Christie Lee Thompson.
Henry D. Fincher, Cookeville, Tennessee, for the appellee, Robert Martin Thompson.
OPINION
FACTS AND PROCEDURAL BACKGROUND
Robert Martin Thompson (“Husband”) and Christie Lee Thompson (“Wife”) were
married on September 22, 1995. This divorce action was commenced by Husband on
August 25, 2015. Following contentious proceedings, the parties were declared divorced
on December 22, 2017, resulting in a marriage totaling 22 years.1 Other issues, including
specifically the division of marital assets, remained unresolved.
During the majority of their marriage, both parties were employed as public
educators, and each individually participated in and accumulated rights to retirement
investments through Tennessee Consolidated Retirement System (“TCRS”).
Wife began working as a teacher and participating in her TCRS account in October
1995. Husband began working as a teacher and participating in his TCRS account in 2000.
Both Husband and Wife were still participating in their respective TCRS accounts when
Husband filed for divorce in 2015 and when the final decree was entered.
The values of the marital assets and debts were not disputed. Aside from their
respective TCRS accounts, the marital estate consisted primarily of debt at the time of their
divorce.2 The retirement benefits Wife accumulated during the marriage significantly
exceeded those accumulated by Husband due to her longer service, vesting, and higher pay.
David Pitts, Husband’s actuarial expert, assigned a present value of $365,314 to Wife’s
account and a present value of $115,013 to Husband’s TCRS account; however, neither
account vested during the divorce proceedings because the parties continued to work and
participate in their respective TCRS account. See Cohen v. Cohen, 937 S.W.2d 823, 826
(Tenn. 1996) (explaining that “[a]n unvested retirement account is one in which the time
requirements have not been fulfilled”).
When the case came on for a final hearing on March 19, 2018, the parties announced
in open court that they had settled the division of the marital estate. Because Wife’s TCRS
account was significantly larger than Husband’s account, and she lacked the liquid assets
to fund a present distribution of Husband’s marital interest in her TCRS account, the parties
agreed that Husband would receive a coverture percentage of 27% of Wife’s TCRS
retirement benefits via a deferred distribution method. However, the parties could not agree
upon the implementing language regarding the division of the parties’ retirement accounts.
To avoid the necessity of further litigation, the parties authorized the court to determine
and include in the Final Order the language needed to implement their agreement. During
1
The parties only child was an adult at the time of the divorce.
2
The parties’ marital estate included a home, that was encumbered, and personal vehicles of modest
value, which are not at issue in this appeal.
-2-
the hearing, the trial court acknowledged that an agreement had been reached and stated
the following:
It is the Court’s understanding that a resolution has been reached in this
matter which had to do with the property division and a request for support.
. . .
I have been provided with very thorough briefs by both attorneys telling me
what they believe the facts of the case would be, providing detailed
spreadsheets regarding your property and debt and differing valuations of the
defined benefits plans through TCRS. And I want to tell you that we took a
long time this morning trying to look at a spreadsheet, trying to adjust it to
try to reach some position of approaching equality.
That meant that I was presented with very different positions regarding how
those benefits plans should be valued and the Court gave Counsel my reading
of the law on how that valuation works. And under my understanding—
from my understanding of the appellant cases on this, that is a settled
issue of law, that those defined benefits plans must be valued according
to a calculation that takes into account the future income flow from that
account.
(Emphasis added).
In response to the court’s statements, Husband’s counsel explained during the
hearing—with no objection—that “[Wife] will be paying a coverture percentage of 27% of
the marital portion of the retirement to [Husband] upon her retirement.” After some
additional, unrelated discussion, the trial court specifically asked both Husband and Wife
whether they had heard what had been announced in court and if they agreed to it; both
parties responded affirmatively.
The Final Order was entered on October 29, 2018, and recited that the parties had
entered into an agreement regarding the division of their marital property and debts; that
the parties announced their agreement under oath to the court; and that the court approved
the parties’ agreement. The Final Order also reads in pertinent part:
2. The Court finds that the parties relied upon and agreed to a coverture
percentage division of [Wife’s] retirement account, and arrived at the
percentage in part based upon actuarial valuations that assumed the parties
would continue working and would receive periodic raises, and that the
following language shall be used to divide [Wife’s] Tennessee Consolidated
-3-
Retirement System (TCRS) account and the TCRS is directed to abide by
said order of the Court:
Husband shall receive a share calculated by using a coverture
percentage of twenty-seven percent (27%), and that the
following formula shall be used to calculate Husband’s share
of Wife’s retirement: twenty-two (22) years of marriage
divided by Wife’s total years of TCRS service, said fraction
being multiplied by twenty-seven percent (27%). The resulting
percentage shall be applied to any payment from Wife’s TCRS
retirement of any nature, including lump sum, monthly
payments, beneficiary distributions or otherwise, and shall be
paid directly to Husband by TCRS.
(Emphasis in original).
Following the entry of the October 29, 2018 order, Wife filed a motion to alter or
amend the trial court’s judgment or, in the alternative, for a new trial, seeking relief under
either Tennessee Rule of Civil Procedure 59.04 or 60.02.3 Wife claimed that the Final
Order “erroneously set forth a division of [Wife’s] retirement benefits which would include
the increase in value or growth of [Wife’s] retirement benefits after entry of the Judgment
and through and until the date retirement benefits [are] distributed to [Wife].” Wife asserted
that the Final Order erroneously permits Husband to receive more than his marital portion
of her retirement benefits. Resultantly, she asked the trial court to amend the Final Order
to reflect the “true agreement of the parties.”
The court denied the motion and explained, “While the provisions are not verbatim,
the Court has reviewed the transcript and the Final Order filed on October 29, 2018, and
FINDS that the supplementary language in said order merely clarifies and implements the
provisions of the parties’ agreement as announced in Court and imposes no material
additional obligations on either party than what they assumed under oath in the presence
of the Court.”4
3
We note that Wife filed this motion within 30 days of the Final Order being entered. Importantly,
“Rule 59.04 allows a party to seek relief from a judgment within thirty days after being entered; conversely
Rule 60.02 affords a party a means to seek relief from a final, non-appealable judgment.” Ferguson v.
Brown, 291 S.W.3d 381, 387 (Tenn. Ct. App. 2008) (citing Campbell v. Archer, 555 S.W.2d 110, 112
(Tenn. 1977)). When Wife’s motion was received and filed by the clerk’s office, the judgment was not yet
a final, non-appealable judgment. Thus, Rule 59.04 is the applicable rule, and we decline to address any
argument for relief under Rule 60.02.
4
The order went on to state:
Questions arose regarding the Qualified Domestic Relations Order (QDRO) that is
anticipated to be required in order to implement the parties’ announced agreement and the
-4-
This appeal followed.
ISSUES
Wife contends that the trial court erred by entering the Final Order which was
contrary to the parties’ announced understanding and which provided for an erroneous
division of Wife’s TCRS retirement benefits.5
Husband insists the Final Order is fully consistent with the agreement announced in
open court. Husband also contends Wife’s appeal is frivolous, which entitles him to an
award of attorney’s fees.
STANDARD OF REVIEW
The matters at issue were first raised in Wife’s Tennessee Rule of Civil Procedure
59.04 Motion to Alter or Amend the Final Order. We review a trial court’s ruling on a
motion to alter or amend a judgment under Rule 59.04 for an abuse of discretion. Linkous
v. Lane, 276 S.W.3d 917, 924 (Tenn. Ct. App. 2008) (citing Stovall v. Clarke, 113 S.W.3d
715, 721 (Tenn. 2003)). Pursuant to this standard, we review a trial court’s decision to
determine, where applicable, whether there is a factual basis for the decision in the record,
whether the court properly identified and applied the applicable legal principles, and
whether the decision is within the range of acceptable alternative dispositions. Lee Med.,
Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).
Our review of a trial court’s determinations on issues of law is de novo, without any
presumption of correctness. See Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn.
2011).
Court’s order of October 29, 2018, regarding [Wife’s] Tennessee Consolidated Retirement
System (TCRS) retirement account. [Husband’s] counsel is directed to prepare a draft of a
proposed QDRO that reflects the Court’s order, to circulate it to counsel and then to provide
it to the Court through either agreement or lodging. TCRS shall be provided both a copy
of the Court’s October 29, 2018 order, this order, and the QDRO, and shall be requested to
review and approve the same.
5
Wife included an argument, for the first time, in her appellate brief that the trial court lacked the
authority to enter the Final Order because the parties could not agree upon the language to implement the
division of Wife’s TCRS retirement account. However, because this issue was not raised at the trial court
and has been raised for the first time on appeal, we conclude that the issue is waived. See In re M.L.P., 281
S.W.3d 387, 394 (Tenn. 2009) (holding that a party who did not properly raise an issue in the trial court
had “waived his right to argue this issue for the first time on appeal”); Dye v. Witco Corp., 216 S.W.3d 317,
321 (Tenn. 2007) (holding that an issue raised for the first time on appeal was waived); Black v. Blount,
938 S.W.2d 394, 403 (Tenn. 1996) (holding that “issues raised for the first time on appeal are waived”).
Thus, we decline to address this alternative argument.
-5-
ANALYSIS
I. DIVISION OF WIFE’S RETIREMENT ACCOUNT
As explained above, the issues presented in this appeal were first raised in the trial
court in Wife’s Rule 59.04 Motion to Alter or Amend the Final Order.
“The purpose of Tenn. R. Civ. P. 59 motions is to prevent unnecessary appeals by
providing the trial courts with an opportunity to correct errors before a judgment becomes
final.” U.S. Bank, N.A. v. Tennessee Farmers Mut. Ins. Co., 410 S.W.3d 820, 826 (Tenn.
Ct. App. 2012) (citations omitted). “Rule 59 can provide relief from a judgment due to
mistake, inadvertence, surprise, or excusable neglect.” Pryor v. Rivergate Meadows
Apartment Associates Ltd. P’ship, 338 S.W.3d 882, 885 (Tenn. Ct. App. 2009) (citing
Henson v. Diehl Machines, Inc., 674 S.W.2d 307, 310 (Tenn. Ct. App. 1984)).
In her motion, Wife claimed that the Final Order “erroneously set forth a division
of [Wife’s] retirement benefits which would include the increase in value or growth of
[Wife’s] retirement benefits after entry of the Judgment and through and until the date
retirement benefits [are] distributed to [Wife].” Stated another way, Wife asserted that the
Final Order erroneously permits Husband to receive more than his marital portion of her
retirement benefits. Resultantly, she asked the trial court to amend the Final Order to reflect
the “true agreement of the parties.”6
The crux of this matter is whether the implementing language the court employed
to fund Husband’s marital interest in Wife’s retirement account via a deferred distribution
method was contrary to the parties’ agreement as announced in open court or contrary to
Tennessee law.
6
More specifically, the motion reads, in pertinent part:
1. [A] Final Judgment was prepared by counsel for the Plaintiff, Robert Martin
Thompson, which erroneously set forth a division of these retirement benefits which
would include the increase in value or growth of the Defendant’s retirement benefits
after entry of the Judgment and through and until the date retirement benefits were
distributed to the Defendant.
2. All of these provisions were contrary to the understanding of the Defendant regarding
the disposition of these assets and the settlement agreement entered into between the
Defendant and the Plaintiff and announced to the Court on March 19, 2018.
3. That the Final Judgment entered on October 29, 2018 does not reflect the agreement
of the Defendant and contains the objectionable provisions identified in paragraph 2
above.
-6-
We begin our discussion with the agreement as announced by the parties in open
court on March 19, 2018. With both Husband and Wife in attendance, their respective
counsel announced that an agreement had been made resolving the division of marital
property. Following this announcement, the trial court and counsel proceeded to outline, in
detail, the provisions upon which the parties agreed. Notably, the parties agreed to the
application of the coverture formula with a coverture percentage of 27%. In response to a
question by the trial court, Wife acknowledged that she understood and agreed to pay “a
coverture percentage of 27 percent of the marital portion of the retirement to [Husband]
upon her retirement.” (Emphasis added). Husband made a similar acknowledgment.
Moreover, at no point during the hearing in open court did Wife or her counsel state any
objection to the terms presented to the court. The Final Order that followed reads in
pertinent part:
2. The Court finds that the parties relied upon and agreed to a coverture
percentage division of [Wife’s] retirement account, and arrived at the
percentage in part based upon actuarial valuations that assumed the parties
would continue working and would receive periodic raises, and that the
following language shall be used to divide [Wife’s] Tennessee Consolidated
Retirement System (TCRS) account and the TCRS is directed to abide by
said order of the Court:
Husband shall receive a share calculated by using a coverture
percentage of twenty-seven percent (27%), and that the
following formula shall be used to calculate Husband’s share
of Wife’s retirement: twenty-two (22) years of marriage
divided by Wife’s total years of TCRS service, said fraction
being multiplied by twenty-seven percent (27%). The resulting
percentage shall be applied to any payment from Wife’s TCRS
retirement of any nature, including lump sum, monthly
payments, beneficiary distributions or otherwise, and shall be
paid directly to Husband by TCRS.
(Emphasis added).
Wife contends the trial court’s order is not consistent with the parties’ agreement.
Specifically, she contends it erroneously affords Husband a greater division of Wife’s
TCRS retirement benefits. This argument is based on Wife’s contention that she agreed to
Husband’s receipt of a specific percentage of the TCRS account accrued during their
marriage, but that the trial court’s inclusion of the phrase divided by Wife’s total years
of TCRS service in the coverture fraction affords Husband a greater distribution of her
benefits than the parties agreed to and permits Husband to receive benefits based off an
increase in value accumulated by post-divorce contributions.
-7-
For his part, Husband maintains that the deferred distribution method provides a
workable framework for the division of Wife’s unvested retirement benefits and limits
Husband’s award to his martial portion of Wife’s retirement account. Husband takes the
position that the standard coverture formula only applies to the marital share of unvested
pension benefits because the coverture fraction7 requires the years of Wife’s service
accrued during the marriage to be divided by Wife’s total years of service calculated
on the date of her retirement. Husband further argues that application of the agreed-upon
coverture percentage8 ensures an equitable division of the marital portion of Wife’s
retirement benefits.
Tennessee authorizes two methods for the division of pensions in divorce
proceedings9: present value or deferred distribution. Cohen, 937 S.W.2d at 831. Present
value is an actuarial method of calculating the current value of a future income stream that
“requires the trial court to place a present value on the retirement benefit as of the date of
the final decree.” Id. “Once the present cash value is calculated, the court may award the
retirement benefits to the employee-spouse and offset that award by distributing to the other
spouse some portion of the marital estate that is equivalent to the spouse’s share of the
retirement interest.” Id. The present cash value method is preferable when “the marital
estate includes sufficient assets to offset the award.” Id.7
The “coverture fraction” also known as the “time rule formula” or “martial property interest”
represents the marital portion of the benefits and is expressed:
Numerator: Years of Pension Service Accrued During Marriage
Denominator: Total Years of Service at Retirement
See Croley v. Tiede, No. M1999-00649-COA-R3-CV, 2000 WL 1473854, at *4 (Tenn. Ct. App. Oct. 5,
2000).
8
The “coverture percentage” is the percentage of the coverture fraction awarded to the non-
employee spouse. See Maher v. Woodruff, No. M2016-01468-COA-R3-CV, 2017 WL 1372865, at *5
(Tenn. Ct. App. Apr. 13, 2017). Classically, the coverture percentage is 50 percent. See, e.g., Croley, 2000
WL 1473854, at * 7 (holding that the “non-employee spouse should receive a portion, usually half, of the
amount which is the [coverture] fraction multiplied times the employee spouse’s actual monthly retirement
benefit”). But the coverture percentage can be any percentage that is agreed upon by the parties or deemed
equitable by the court. See Patric v. Patric, No. 03A01-9111-CH-00389, 1992 WL 32634, at *6 (Tenn. Ct.
App. Feb. 25, 1992) (explaining that the “[d]ivision of martial property must be equitable, not equal” and
that the trial court has “wide discretion in dividing the marital assets in order to best effectuate that
purpose”).
9
This court has explained that while unvested pension rights are not specifically included within
the statutory definition of marital property, unvested pension rights accruing during a marriage are marital
property subject to equitable division in divorce cases in accordance with Tennessee Code Annotated § 36-
4-121. Kendrick v. Kendrick, 902 S.W.2d 918, 923–24 (Tenn. Ct. App. 1994).
-8-
In contrast, “deferred distribution” does not require a determination of the present
value. Instead, “the court may determine the formula for dividing the monthly benefit at
the time of the decree but delay the actual distribution until the benefits become
payable.” Id. (emphasis added). Thus, the deferred distribution method permits the non-
employee spouse to receive their marital share in the future rather than at the time of
divorce. See Kendrick, 902 S.W.2d at 927–28 (explaining that deferred distribution is
preferred when the marital estate does not contain sufficient property to offset an award
upon divorce of the parties). When vesting or maturation is uncertain or when the
retirement benefit is the parties’ greatest or only economic asset, courts have
preferred the “deferred distribution” method to distribute unvested retirement
benefits.10 Cohen, 937 S.W.2d at 831 (citing Kendrick, 902 S.W.2d at 927–28) (emphasis
added).11
It is undisputed that Wife’s TCRS account had not vested when the Final Order was
entered. This is because Wife is still working and still contributing to her plan. It is also
undisputed that Wife’s TCRS account was her greatest asset and that she lacked sufficient
liquid assets to fund a present distribution of the present value of Husband’s marital interest
in her TCRS account. Finding no error with the trial court’s decision to apply the deferred
distribution method to the facts of this case, we proceed with our analysis of the trial court’s
application of deferred distribution method.
The deferred distribution method is calculated in two steps: (1) the coverture or
marital fraction is multiplied by a percentage that represents the non-employee spouse’s
equitable interest in the martial portion of the retirement benefits; (2) and the resulting
percentage is multiplied by the employee spouse’s total monthly retirement benefits to
calculate the amount due to the non-employee spouse. See Croley, 2000 WL 1473854, at *
7; see also Cohen, 937 S.W.2d at 831 n.9. The coverture fraction represents the “marital
portion,” which is then equitably divided between the parties as marital property. See
McFarland v. McFarland, No. M2005-01260-COA-R3-CV, 2007 WL 2254576, at *14
(Tenn. Ct. App. Aug. 6, 2007) (explaining that the coverture fraction represents the marital
portion of the retirement benefits of which the non-employee spouse should receive a
portion to affect an equitable division of the employee spouse’s monthly benefits); see also
Tennessee Code Annotated § 36-4-121.
The trial court used the following to compute the first step: 22 years of marriage
divided by Wife’s total years of TCRS service at retirement, said fraction to be multiplied
10
This court has held that the present value method is inappropriate when pension rights are
unvested and has recommended the deferred distribution method to value and distribute an unvested
pension. Kendrick, 902 S.W.2d at 928.
11
We note that when dealing with retirement accounts, the choice of valuation method is a
discretionary one that depends on the facts of the case. Kendrick, 902 S.W.2d at 928 (citations omitted).
-9-
by 27%.12 The resulting percentage of that calculation was then ordered to be applied to
Wife’s monthly TCRS retirement.
The formula used by the trial court reflects the parties’ agreement. At the final
hearing, counsel for both parties agreed to use the deferred distribution method. The parties
do not dispute that they were married from September 22, 1995, until December 22, 2017,
totaling 22 years of marriage, which is the number represented by the numerator in the trial
court’s coverture fraction. The trial court left the denominator as an unknown—Wife’s
total years of TCRS service at retirement—a number that will only be determinable at
Wife’s retirement.13 The parties agreed that Husband should receive “27% of the marital
portion of the retirement account,” which is reflected in the Final Order. Nothing in the
trial court’s application of the coverture formula was erroneous or in contradiction to
Tennessee Law.
The trial court properly applied the deferred distribution method with respect to the
division of Wife’s future monthly benefit and the parties’ agreement. Accordingly, we
affirm the judgment of the trial court in all respects.
II. ATTORNEY FEES
As a final matter, we acknowledge Husband’s request for attorney’s fees pursuant
to Tennessee Code Annotated § 27-1-122, which states:
When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include, but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the appeal.
“The decision whether to award damages for a frivolous appeal rests solely in our
discretion.” Kramer v. Kramer, No. E2018-00736-COA-R3-CV, 2019 WL 1239867, at *5
(Tenn. Ct. App. Mar. 18, 2019) (citing Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn.
12
We acknowledge the possible confusion presented by the trial court’s reference to Wife’s
equitable interest of 27% as a “coverture percentage of 27%,” but we recognize that in application, the trial
court correctly applied the deferred distribution method. In explaining the division of Wife’s retirement
account, the trial court ordered the coverture fraction to be multiplied by 27%, which the parties agreed
represented Husband’s equitable interest in the martial portion of Wife’s retirement benefits. The trial court
ordered that the resulting percentage “should be applied to any payment from Wife’s TCRS retirement.”
Despite the trial court’s references to a “coverture percentage of 27%,” it is apparent from the record that
the court was referring to an equitable interest of 27%.
13
Notably, as Wife continues to work, the denominator of the coverture fraction increases, and the
non-employee spouse’s share in the retirement benefit decreases. Croley, 2000 WL 1473854, at *9.
- 10 -
Ct. App. 2009)). “A frivolous appeal is one that is ‘devoid of merit,’ or one in which there
is little prospect that it can ever succeed.” Indus. Dev. Bd. of City of Tullahoma v. Hancock,
901 S.W.2d 382, 385 (Tenn. Ct. App. 1995) (citations omitted). Based on our review of
the record and in the exercise of our discretion, we decline to award attorney’s fees in this
appeal.
IN CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded for further
proceedings consistent with this opinion. Costs of appeal are assessed against Wife,
Christie Lee Thompson.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
- 11 -