Robert Covert v. Kimberloy Covert ( 2000 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 4, 2000 Session
ROBERT CARL COVERT v. KIMBERLY MARIE BRUGGER COVERT
Appeal from the General Sessions Court for Blount County
No. S-5149 William R. Brewer, Jr., Judge
No. E2000-00864-COA-R3-CV
FILED DECEMBER 27, 2000
Mother and Father were divorced and Mother moved to Oklahoma with the two minor
children. A Marital Dissolution Agreement was incorporated into the final decree. The MDA
provided that in return for Mother giving up all rights to Father's military retirement pay, Father
would pay all marital debt. Father's separation from the military was anticipated at the time of the
divorce. Father received severance pay upon his separation, not retirement pay because he only had
17 years of service. The Trial Court found that the pay Father received upon his separation was
severance pay rather than retirement, and was considered income for the purposes of determining
child support. The Trial Court, however, did not award Mother any of the pay for child support. The
Trial Court also ordered Mother to either provide transportation for the children one way from
Oklahoma on two major visitations per year or Father was to receive credit of $200 against his child
support for providing transportation both ways. Mother appealed. We affirm the judgment of the
Trial Court.
Tenn. R. App. P. 3; Judgment of the General Sessions Court affirmed; cause remanded
HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J.,
joined. CHARLES D. SUSANO, JR., J., filed a concurring opinion.
Gerald C. Russell, Maryville, Tennessee, for the appellant, Kimberly Marie Brugger Covert
Virginia A. Schwamm, Knoxville, Tennessee, for the appellee, Robert Carl Covert
OPINION
I. FACTS
The parties were married on May 25, 1985. Two children were born to the marriage; one,
on November 4, 1985 and a second on August 9, 1989. The parties separated in October 1997. On
December 16, 1997, the Trial Court entered a final judgment of divorce, which incorporated the
Marital Dissolution Agreement.
The Marital Dissolution Agreement provided for the parties to jointly share in the care,
custody, and control of their minor children. While Mother had primary residential custody of the
children, Father had “very liberal co-parenting time.” Father was to pay child support of $900 per
month, an amount that was in compliance with the Child Support Guidelines, until his separation
from the military, at which time it was to be re-evaluated. The following sections of the Marital
Dissolution Agreement are pertinent to the issues on appeal.
Section 4, ¶ 2.
The parties acknowledge that Husband will be leaving the military on or
about March 1, 1999. Accordingly, the parties agree to re-evaluate Husband’s child
support obligation in light of the circumstances of the parties on that date. The
parties, however, agree that for the purposes of the re-evaluation as of March 1, 1999,
that they agree to waive the fifteen percent (15%) statutory threshold and agree that
the Guidelines then in force shall be applied on that date.
Section 12.
The parties owe the following debts: Visa, Bankcard, Mastercard, Visa,
student loans, personal loans, and for the Chevrolet van. Said debts total
approximately Forty-Three Thousand Dollars ($43,000.00). Husband shall be
responsible for the payment of all of these debts. He shall indemnify and hold Wife
harmless from the claims of any of these creditors.
Section 15.
Husband has a retirement program with the United States Army. In exchange
for Husband’s assumption of all the debt now owed by the parties, this retirement
plan shall be awarded to Husband as his sole and exclusive property. All right, title
and interest of Wife in and to said retirement plan is hereby divested out of her and
vested in Husband. Wife shall execute any and all documents necessary to convey
her interest in said plan to Husband.
Father officially was separated from the United States Army on April 1, 1999.1 In order for
Father to obtain his separation pay of approximately $44,000, Father had to enlist in the United
States Army Reserves for three years. As a member of the United States Army Reserves, he serves
one weekend a month and attends a two week summer camp. Since his separation Father has not
been able to find permanent employment. He has applied for both civilian and military positions.
In order to supplement his income, Father flies short notice missions for the United States Army
1
At the time of the divorce, Father and Mother anticipated that Father would leave the United States Army
because he had been passed over for promotion three times in a row. At the time of his automatic termination, he had
a total of 17 years of military duty. For 12 of those years he was married to Mother.
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Reserves and Army National Guard as well as other types of missions, for which he receives one
day’s pay for each mission. His unemployment benefits of $255.00 per week are reduced by the
amount he earns each week.
While disputed, the evidence at trial indicated that if Father stopped serving in the United
States Army Reserves, he would be required to repay the $44,000. Also if he acquired another
military position, for which he had applied, and obtained enough time to retire (20 years), he would
not receive his retirement pay until the $44,000 he received as severance pay had been repaid to
the government.
Mother acknowledged at trial that she was aware that Father would be leaving the United
States Army at the time the Marital Dissolution Agreement was drafted. It was unrefuted that
Mother knew Father would receive approximately $44,000 upon his separation from full time
military employment.
One weekend a month since the divorce, Father traveled to visit his children in Oklahoma.
From Father’s home in Tennessee to Oklahoma is approximately 738 miles one way. At times
Mother did not allow Father to see his children once he got there.
II. POST- DIVORCE PROCEEDINGS IN THE TRIAL COURT
Since the divorce, the relationship between Father and Mother has been very rancorous. On
April 29, 1998, Mother filed a petition for contempt averring that Father had fallen seriously behind
in the payment of the marital debt which Father assumed pursuant to the Marital Dissolution
Agreement and that creditors were looking to Mother for payment.
On May 27, 1998, Mother filed a petition seeking a change in the visitation schedule based
upon Father having his girl friend and her child present during overnight visitation.2
On January 25, 1999, Father filed a petition to modify the Marital Dissolution Agreement
averring that the parties had an oral agreement, which was not subsequently incorporated into the
written agreement, wherein Father would exercise one weekend per month co-parenting time with
the minor children. Father would drive to Oklahoma to visit the children only to be told by Mother
that she would not allow visitation that weekend. Mother refused to send appropriate clothing so
that Father could take the children to church. Mother refused to let the children bring any personal
possessions or toys with them on visits. Mother made derogatory and deprecatory statements about
Father to children. Father requested that the costs associated with transportation for visitation with
the children be divided equally between the parties. He sought modification of his child support
obligation in accordance with the guidelines upon his leaving the United States Army.
2
Father and his girl friend have since married.
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On May 11, 1999, Mother filed a motion for contempt in that Father dropped the dental
insurance on the children, refused to pay anything on dental expenses , refused to pay child support
as ordered and removed the parties’ children as beneficiaries on the $100,000 insurance policy. She
also wanted to change Father’s summer visitation with children and sought 50% of Father’s
severance pay from the military.
On June 11, 1999, Father filed an amended petition to modify the Marital Dissolution
Agreement asking the Trial Court to order, inter alia, Mother to consult with and obtain Father’s
agreement prior to obtaining elective medical treatments for the children and for information
concerning all persons providing medical care to the children. On the same day, Father filed an
answer to Mother’s motion for contempt.
Mother filed an answer to Father’s petitions to modify on July 1, 1999.
A hearing was held on July 27, 1999. The court entered a memorandum opinion. As
pertinent here the court found the following:
With a word about the separation pay, the separation pay the Court finds is
something that, while it may have been discussed, it wasn’t set out in the final decree
of divorce in any manner. It may have been something anticipated, but, you know,
they anticipated a lot of things. They didn’t put this in here. So I don’t find that it’s
any kind of part of the marital estate that could have been divided or will be divided
now. However, it certainly is, at this point in time, because of the contingencies that
have not been fulfilled yet or that might be fulfilled, it’s going to have to be
considered as income. I dare say that Mr. Covert is going to have to list it on his
income tax as income to him. Without hearing anything to the contrary the Court is
going to have to anticipate that, for child support purposes in other words.
...
Now, with regard to what he should have been paying up through today – and
I’m going to start the five hundred a month beginning next month in August. And
it’s a compromise. It’s a compromise with regard to what – I’m considering the
separation pay as to be income that he had. And I realize that, as I understand it, it’s
going. Well it’s still income. It’s for child support purposes. So he should – I’m not
going to grant the motion to decrease until – I’m not going to back it up. I’m not
going to make it retroactive. Like I said, I’m going to start it on August the 1st. I’m
going to require him to continue to pay the income that he bargained for in the MDA.
He should have paid thirty-six hundred from April, May, June and July. He’s paid
thirteen sixty-two. I’m going to find that he owes an arrearage of twenty-two thirty-
eight.
The Trial Court entered a final order on September 13, 1999, to which Mother filed a motion
to amend. When the parties could not agree upon the appropriate wording of the judgment, the Trial
Court filed its own order on December 8, 1999. That order set forth a revised visitation schedule
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with the children. Father was to pay for all travel expenses associated with his one weekend per
month co-parenting time and all co-parenting time except for Christmas and Spring Break. For the
Christmas and Spring Break co-parenting time, Father was to receive a $200.00 credit toward child
support for the transportation. Child support was set at $500 per month beginning August 1, 1999.
Child support arrearage was set at $2,238.00. Father was to pay the arrearage on or before December
31, 1999. The Trial Court found that there were "sufficient grounds to deviate from the Child
Support Guidelines and the standard orders of the court with respect to visitation, transportation
costs, and the financial obligations between the parties." All contempt allegations were dismissed
with prejudice. Each party were order to paid their own attorneys’ fees and court costs were divided.
On January 5, 2000, Mother filed a Notice of Appeal of the order entered on December 8,
1999.
III. ISSUES
Mother presents two issues for our review.
1. After finding that Mr. Covert’s $44,000.00 army separation pay was
income for child support purposes, did the trial judge commit error by not awarding
Ms. Covert a portion of it for child support?
2. Did the trial court commit error by requiring Ms. Covert to pay
transportation costs of $400.00 per year for Mr. Covert to visit the parties’ children?
Father contends that the $44,000 received by him upon his discharge from the United States
Army were drawn against appellee's non-vested military retirement benefits and were awarded to the
Father in the divorce.
IV. LAW AND DISCUSSION
Our standard of review is de novo upon the record, with a presumption of correctness of the
findings of fact by the Trial Court. Unless the evidence otherwise preponderates against the findings,
absent an error of law, we must affirm the Trial Court’s judgment. Hass v. Knighton, 676 S.W.2d
554, 555 (Tenn. 1984). Rule 13(d), Tennessee Rules of Appellate Procedure.
In a de novo review, the parties are entitled to a reexamination of the whole matter of law
and fact. Where the evidence preponderates against the finding of the Trial Court, it is our duty to
enter such decree as the law and evidence warrant. Perry v. Carter, 188 Tenn. 409, 219 S.W.2d 905
(Tenn. 1949); Toomey v. Atyoe, 95 Tenn. 373, 32 S.W. 254 (Tenn. 1895); American Buildings Co.
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v. White, 640 S.W.2d 569 (Tenn. Ct. App. 1982); Thornburg v. Chase, 606 S.W.2d 672 (Tenn. Ct.
App. 1980); Rule 36(a), Tennessee Rules of Appellate Procedure.3
However, the Trial Judge is in the "premier position" to determine credibility. Bowman v.
Bowman, 836 S.W.2d 563, 567 (Tenn. Ct. App. 1991).
A.
The core of this appeal is the classification of the approximate $44,000.00 that Father
received as severance pay upon his separation from the United States Army. Mother seeks a portion
of that money either as an asset that was not divided in the Marital Dissolution Agreement or as an
increase in child support. The trial judge found that the $44,000 in severance pay was income for
child support purposes.
In Gray v. Estate of Gray, 993 S.W.2d 59, 63 (Tenn. Ct. App. 1998), this Court said:
A marital dissolution agreement is essentially a contract between a husband
and wife in contemplation of divorce proceedings. See Towner v. Towner, 858
S.W.2d 888 (Tenn. 1993). "A property settlement agreement between a husband and
wife is 'within the category of contracts and is to be looked upon and enforced as an
agreement, and is to be construed as other contracts as respects its interpretation, its
meaning and effect.' " Bruce v. Bruce, 801 S.W.2d 102, 105 (Tenn. App. 1990)
(quoting Matthews v. Matthews, 24 Tenn. App. 580, 593, 148 S.W.2d 3, 11-12
(1940)).
The interpretation of a written contract is a matter of law, rather than a matter of fact. See
Hamblen County v. City of Morristown, 656 S.W.2d 331, 335-36 (Tenn.1983); Realty Shop, Inc.
v. RR Westminster Holding, Inc., 7 S.W.3d 581, 597 (Tenn. Ct. App. 1999); Standard Fire Ins. v.
Chester O'Donley & Associates, Inc., 972 S.W.2d 1, 5-6 (Tenn. Ct. App.1998). The purpose of
interpreting a written contract is to ascertain and to give effect to the contracting parties’ intentions.
Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975);
Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 597 (Tenn. Ct. App. 1999);
Gredig v. Tennessee Farmers Mutual Ins. Co., 891 S.W.2d 909, 912 (Tenn. Ct. App.1994).
In the case of written contracts, these intentions are reflected in the contract itself. Thus, the
search for the contracting parties' intent should focus on the four corners of the contract. See
Whitehaven Community Baptist Church v. Holloway, 973 S.W.2d 592, 596 (Tenn. 1998); Hall v.
3
Rule 36. Relief; Effect of Error.
(a) Relief To Be Granted; Relief Available. The Supreme Court, Court of Appeals, and Court of Criminal
Appea ls shall grant the relief o n the law and facts to which the party is entitled or the proceeding otherwise requires and
may grant any relief, including the giving of any judgment and making of any order; provided, however, relief may not
be granted in contraven tion of the pro vince of the trier o f fact. . ..
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Jeffers, 767 S.W.2d 654, 657-58 (Tenn. Ct. App.1988). The circumstances in which the contract
was made are to be considered. See Penske Truck Leasing Co. v. Huddleston, 795 S.W.2d 669, 671
(Tenn.1990); Pinson & Associates Ins. Agency, Inc. v. Kreal, 800 S.W.2d 486, 487 (Tenn. Ct.
App. 1990). All provisions of a contract should be construed as in harmony with each other, if such
construction can be reasonably made, so as to avoid repugnancy between the several provisions of
a single contract. Bank of Commerce & Trust Co. v. Northwestern National Life Ins. Co., 160
Tenn. 551, 26 S.W.2d 135 (1930); Rainey v. Stansell, 836 S.W.2d 117, 118-119 (Tenn. Ct. App.
1992).
In this matter, we have difficulty harmonizing Section 124 of the Marital Dissolution
Agreement with Section 15,5 unless we consider the severance pay received by Father as the
“retirement” plan referenced in the Marital Dissolution Agreement. Is it a coincidence that the
approximate amount of the debt assumed solely by the Father is approximately the amount of the
severance pay? We don’t think so. If we did not construe the Marital Dissolution Agreement in this
manner, Father would be left with agreeing to assume $43,000 of debt with no consideration, and
Section 15 would be a nullity. Both Father and Mother testified that they knew Father would be
leaving full-time military service early in 1999. Father testified, unrefuted by Mother, that the
parties had discussed his failure to obtain promotion and his military employment being terminated,
and that Father would receive approximately $44,000 when that event occurred.
In Nunn v. Stone, 356 So. 2d 1212 (Ct. Civ. App. Ala.1978), the relative provisions of the
agreement of the parties incorporated into the divorce decree provided:
"4. The parties agree that David Stone shall pay to Martha Jane Stone in advance the
sum of $400.00 per month for the support, maintenance and education of the minor
children. . .Provided, however, that upon the discharge of David Stone from the U.S.
Army the total amount of child support to be paid by David Stone to Martha Jane
Stone shall be reduced to $2000.00 per month, and such support shall continue as
herein above provided.
"5. It is hereby agreed between the parties hereto that upon the discharge of David
Stone from the U.S. Army and upon his receipt of his separation pay and disability
pay from the U.S. Army (by whatever name or term it is called) he shall pay to
Martha Jane Stone an amount equal to 50% of such separation and disability money
within thirty (30) days after such receipt by him. Suitable evidence will be provided
4
Section 12. The parties owe the following d ebts: Visa, Bankcard, Mastercard, Visa, student loans, personal
loans, and for the Chevrolet van. Said debts total approximately Forty-Three Thousand Dollars ($43,000.00). Father
shall be responsible for the payment of all of these debts. He shall indemnify and hold Wife harmless from the claims
of any of these creditors.
5
Section 15. Husb and has a re tirement pro gram with the Unite d States Arm y. In exchange for Husba nd’s
assumption of all the debt now owed by the parties, this retirement plan shall be awarded to Husband as his sole and
exclusive property. All right, title and interest of Wife in and to said retirement plan is hereby divested out of her and
vested in Husban d. Wife shall execute any and all documents necessary to convey her interest in said plan to Husband.
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to Martha Jane Stone by David Stone to enable her to ascertain the amounts of money
so received by David Stone."
Subsequent to the divorce, husband was removed from active duty and place on temporary
disability retirement. He received no lump sum separation or disability pay, but was paid $750 per
month; after being placed on permanent retirement he was paid $667 per month. Wife contended
that husband was never "discharged" from the army, but was "retired from active duty," the condition
provided in the agreement for the reduction of support from $400 to $200 per month had not
occurred. She further contended that if it is considered that husband was discharged and child
support was reduced to $200 per month, then husband was to pay her the additional sum of 50% of
his disability retirement pay.
The Nunn trial court construed the agreement to intend that the $400 per month continued
until the husband was released from active military service by whatever type of release was deemed
appropriate by the army. This was the event which would cause a substantial reduction in the
income of the husband, and child support should be set at $200 per month. The court further
construed paragraph 5 of the agreement which referred to the receipt of separation pay and disability
pay upon discharge to mean lump sum payments anticipated to be received upon or shortly after his
discharge. The testimony disclosed that such anticipated lump sums were not forthcoming due to
his retirement on disability rather than being severed by a full discharge. To have construed the
agreement otherwise would have required the husband to pay the Mother from his retirement
compensation the sum of $200 per month as child support and the further sum of 50% of such
retirement or $333.50 per month. Husband would only retain $133.50 per month from his
compensation payments. If Mother's contentions were sustained, the husband would have to pay her
all of his disability compensation with a deficit of $66.50 per month. The appellate court considered
that the trial court's construction of the agreement was reasonable and sufficiently supported by the
evidence.
Unfortunately, in the case at hand, the parties did not refer to the retirement or separation pay
as the parties did in the Nunn case ("by whatever name or term it is called"). We are confident,
based on the record before us, that the separation pay was the "retirement" pay that was referenced
in the Marital Dissolution Agreement. In no other way could the Martial Dissolution Agreement be
interpreted to give both parties the benefit of the bargain contracted for in the agreement. Mother
is entitled to no part of those funds. While the Trial Court found that the money was "severance pay"
and subject to be considered under the Child Support Guidelines, he also found that "based upon the
proof at trial, there are sufficient grounds to deviate from the Child Support Guidelines." We agree
that the record in this case supports the Trial Court decision and award of child support.
B.
It was unrefuted at trial that Father would drive to Oklahoma (approximately 738 miles one
way) to visit his children approximately one weekend a month. At times Mother would refuse to let
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him visit with his children once there. The costs associated with Father's co-parenting time are in
excess of $3,500 annually. Mother argues that the Martial Dissolution Agreement did not require
her to provide any transportation or any costs associated with the Father's co-parenting time and that
therefore it was the agreement of the parties that Father would provide and pay for all transportation.
While this may have been the parties’ understanding at the time of the divorce, we do not find this
to be an impediment to a new arrangement going forward.
We note that Mother was not supportive of Father's co-parenting time. This Court as well
as the Trial Court has a mandate to promote the development of the children's relationships with
both the custodial and noncustodial parent. Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988). See
also Bryan v. Bryan, 620 S.W.2d 85, 88 (Tenn. Ct. App. 1981) (relationship with a noncustodial
parent); Dillow v. Dillow, 575 S.W.2d 289, 291 (Tenn. Ct. App. 1978) (relationship with a
noncustodial parent). While this is not a custody case, Tenn. Code Ann. § 36-6-106(10) states:
The court shall consider . . . (10) Each parent's past and potential for future
performance of parenting responsibilities, including the willingness and ability of
each of the parents to facilitate and encourage a close and continuing parent-child
relationship between the child and the other parent, consistent with the best interest
of the child.
Father, in this case, has - with no pun intended - "gone the extra mile" in order to maintain
relationships with both his children. We see nothing in this record that indicates that Mother is
facilitating and fostering a close and continuing parent-child relationship between the children and
Father. This Court encourages Mother to cast off her animosity toward Father, reconsider her actions
in this regard and look to what is in the best interests of her children.
The Trial Court gave Mother a choice of either traveling to pick up the children or giving
Father a credit against his child support when the children visited Father at Christmas and Spring
Break. The Trial Court awarded Father a $400 credit against his child support for the costs of
transporting the children during those co-parenting times.
Trial Courts are vested with wide discretion in matters of visitation. See Edwards v.
Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App. 1973). Precedent precludes us from disturbing a
lower court's determination on this issue absent a showing that the court below abused its discretion.
See Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988). Because "custody and visitation
determinations often hinge on subtle factors, including the parents' demeanor and credibility" during
the proceedings, appellate courts "are reluctant to second-guess a trial court's decisions." Gaskill v.
Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). The Trial Court did not abuse its discretion
in this regard. We affirm the holding of the Trial Court.
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V. CONCLUSION
The decision of the Trial Court is affirmed. This matter is remanded to the Trial Court
for such further proceedings as may be necessary consistent with this opinion and collection of
costs below. Costs on appeal are adjudged against the appellant, Kimberly Marie Brugger
Covert, and her surety.
_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE
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