Brown v. Brown ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE February 25, 1999
Cecil Crowson, Jr.
Appellate C ourt
Clerk
LAUREN BROWN, ) C/A NO. 03A01-9806-CH-00178
)
Plaintiff-Appellant,)
)
)
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) HAMILTON COUNTY CHANCERY COURT
)
)
)
)
)
HENRY LEO BROWN, JR., )
) HONORABLE R. VANN OWENS,
Defendant-Appellee. ) CHANCELLOR
For Appellant For Appellee
PHILLIP C. LAWRENCE NO APPEARANCE ON APPEAL
JEFFREY A. POWELL
Lawrence, Lawrence
& Gerbitz, PLLC
Chattanooga, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
The parties were divorced by the Heidelberg District
Court (“the German trial court”) in the Federal Republic of
Germany on November 23, 1993. Subsequently, on May 23, 1996,
Lauren Brown (“Wife”) filed a complaint in the Hamilton County
Chancery Court (“the Chancery Court”) against her former husband,
Henry Leo Brown, Jr. (“Husband”), seeking to domesticate orders
from the proceedings in Germany. Wife’s complaint also seeks an
equitable division of Husband’s military retirement pay; a child
support arrearage based on the orders of the German trial court;
a new child support decree predicated on Husband’s present
income; and other relief. Being dissatisfied with portions of
the judgment of the Chancery Court, Wife appeals, arguing that
the Chancery Court awarded her an inequitable share of Husband’s
military retirement and that the court erred in failing to order
Husband to reimburse her for one-half of three payments made by
her on the parties’ mortgage. We affirm.
I. Background
The parties were married in Chattanooga, Tennessee, on
October 16, 1971. They were then, and still are, citizens of the
United States. Husband joined the United States Army in 1973.
In May, 1993, while residing in Germany, Wife filed for
divorce in the German trial court. By judgment “proclaimed” on
October 15, 1993, and effective November 23, 1993, that court
dissolved the parties’ marriage, and awarded Wife custody of the
parties’ four children. The November 23, 1993, judgment provides
that “[i]t is decided that the question of retirement benefits
2
will be made upon the reaching of retirement age.” That judgment
did not further address the parties’ property. By the same
token, it did not decree support for the minor children.
However, in subsequent orders, the German trial court did make
decrees regarding some of the parties’ property and did order
Husband to pay child support.
Husband’s military pension vested on August 6, 1993.
He retired from the Army effective September 1, 1995. At the
time of the hearing below, Husband was receiving a net monthly
pension by virtue of his military service in the amount of
$1,452.82. Husband and Wife now both live in the United States.
II. Chancery Court’s Judgment
The Chancery Court’s final judgment was entered on
March 23, 1998. It provides that the “orders and judgments of
the German court...are entitled to recognition by the courts of
Tennessee by virtue of the doctrine of comity.”1 The judgment
sets child support; decrees the sale of the parties’ Alexandria,
Virginia, residence; provides that the net proceeds from the sale
will be divided equally; decrees that Wife is entitled to recover
“credits” of $28,731.50 against Husband and that he is entitled
to “credits” against her in the amount of $19,733.52; and
provides that Wife’s net credits of $8,997.98 will be subtracted
from Husband’s share of the net proceeds from the sale of the
residence.
1
Appellant does not challenge this finding. The appellee did not file a
brief in this court.
3
In addition, the Chancery Court’s judgment provides the
following with respect to Husband’s military retirement:
[Wife] shall be entitled to receive and is
hereby awarded a portion of [Husband’s]
military retirement, pursuant to the
provisions of 10 U.S.C. § 1408 and 32 C.F.R.
§ 63, initially in an amount equal to
seventeen and one-half percent (17.5%) of the
net monthly benefits payable to [Husband],
and shall continue until one month after the
Virginia real estate is sold, at which time
[Wife] shall be entitled to receive an amount
equal to twenty-two and one-half percent
(22.5%) of [Husband’s] net monthly
benefits....For the purposes of this Final
Judgment, the word “net” shall mean the gross
monthly benefit less deductions for
withholding for federal income tax, social
security, and medicare tax. [Wife] shall be
entitled to receive her proportionate share
of any increases in benefits awarded to
[Husband].
III. The Parties’ Positions Re:
Husband’s Military Retirement
The parties agree to the obvious -- the bulk of
Husband’s military pension is a marital asset. It is being paid
to Husband because of his military service, some 92% of which was
accumulated during the parties’ marriage.2 It is clear, even
absent the parties’ agreement, that approximately 92% of this
asset is marital property. See Kendrick v. Kendrick, 902 S.W.2d
918, 921 (Tenn.App. 1994).
The parties also agree that Husband’s military pension
was not divided by the German trial court. However, the parties
2
Husband was in military service for 22 years and 25 days. He was
married to Wife for 20 years, 3 months, and 17 days -- all during the period
of his military service.
4
differ sharply as to whether the Chancery Court’s division of the
military pension is equitable. Wife argues on appeal that the
Chancery Court should have awarded her 50% of Husband’s military
retirement. She claims that an appellate court in Germany
divided her retirement, in effect, by approving Husband’s
agreement to accept a cash settlement as his share of her
retirement funds. It is her position that the settlement in
Germany amounted to an equitable division of her retirement funds
and that Husband’s military retirement should also be equitably
divided; this, according to Wife, can be achieved by awarding
each party 50% of that retirement.
Husband did not file a brief on this appeal; but at
trial he argued that the courts in Germany had not addressed
Wife’s retirement accounts. It was his position that the
Chancery Court, in dividing Husband’s military retirement, was
correct in taking into account the fact that Wife had retained
all of her retirement accounts following the close of the
proceedings in Germany.
IV. Standard of Review
Our review of this non-jury case is de novo
upon the record with a presumption of correctness as to the trial
court’s factual findings, unless the “preponderance of the
evidence is otherwise.” Rule 13(d), T.R.A.P.; Wright v. City of
Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995); Union Carbide Corp.
v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993); Catlett v.
Chinery, 952 S.W.2d 433, 434 (Tenn.App. 1997). The trial court’s
5
conclusions of law are not accorded the same deference. Campbell
v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley
v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993). Our review is
tempered by the well-established principle that the trial court
is in the best position to assess the credibility of the
witnesses; accordingly, such determinations are entitled to great
weight on appeal. Massengale v. Massengale, 915 S.W.2d 818, 819
(Tenn.App. 1995); Bowman v. Bowman, 836 S.W.2d 563, 567
(Tenn.App. 1991).
V. Law of Division of Property
T.C.A. § 36-4-121(a) mandates an equitable division of
marital property. It is clear that a trial court has broad
discretion when it adjusts and adjudicates the marital property
interests of divorcing parties. Watters v. Watters, 959 S.W.2d
585, 590 (Tenn.App. 1997). For this reason, a trial court’s
division of marital property is entitled to great weight on
appeal. Id. That division must be affirmed by us unless the
evidence preponderates against it. Rule 13(d), T.R.A.P. Batson
v. Batson, 769 S.W.2d 849, 859 (Tenn.App. 1988).
A litigant is not necessarily entitled to a share of
each item of marital property. Brown v. Brown, 913 S.W.2d 163,
168 (Tenn.App. 1994). Rather, the law requires only that the
overall division of all marital property be equitable to both
parties. Id. Furthermore, the goal is an equitable division,
6
not necessarily an equal one. Word v. Word, 937 S.W.2d 931, 933
(Tenn.App. 1996).
7
VI. Division of Military Retirement
A.
As previously indicated, the parties were sharply
divided at trial as to whether the courts in Germany, or the
parties by their agreement, had considered and divided Wife’s
retirement accounts. Wife argues on this appeal that those
accounts were equitably divided in the German proceedings and
that the Chancery Court should have divided Husband’s military
pension without regard to the fact that Wife ultimately
maintained ownership of her numerous retirement bank accounts and
other retirement-type assets.
It should be noted that the Chancery Court was not at
all sure if, and how, Wife’s retirement accounts were addressed
by the courts in Germany. This doubt is clear from the Chancery
Court’s memorandum opinion:
The [orders of the courts in Germany] make it
clear that the Court in Germany did not take
into consideration very much, in any event,
the retirement pension of the defendant here,
Henry Leo Brown, Jr. While defendant
contests the affect [sic], he essentially
concedes that the Court did not take into
consideration that retirement plan, nor did
the Court in Germany take into account the
retirement funds of Lauren Brown, according
to the defendant.
The parties have variously argued at times in
this case. But the Court supposedly
considered how they interpreted the decree of
the German court, what it meant, what the
obligations were and so forth. Certainly
it’s not absolutely clear to this Court
either as to what all was comprehended.
It seemed reasonable, however, to assume that
the Court in Germany was reluctant to order
8
or divide property to be paid by the United
States government for Mr. Brown’s military
service to be awarded to Mrs. Brown.
Certainly the inferences most likely to this
Court is that the German court did not give
much consideration to the retirement funds of
Mrs. Brown.
We find and hold that the evidence does not
preponderate against a finding that the courts in Germany did not
divide Wife’s retirement accounts, and that the parties did not
settle the question of an appropriate division of either
Husband’s military retirement or Wife’s retirement accounts. We
make this determination based upon our reading of the German
orders and pleadings, which have been translated into English and
are a part of the record before us.
On October 8, 1973, Husband’s German attorney, on his
letterhead, submitted a petition to the German trial court
seeking “marriage net worth compensation.” This apparently is
tantamount to a petition in Tennessee seeking an equitable
division of marital property. Husband’s petition alludes to
some, but not all, of the parties’ property. It includes a
number of accounts that Wife identified in her testimony in
Chancery Court as funds maintained by her for retirement
purposes. In the instant proceeding, the Chancery Court
determined that these retirement accounts totaled “some $55,000
or perhaps as high as $65,000.” The evidence does not
preponderate against this finding.
As previously indicated, the German trial court
divorced the parties effective November 23, 1993, with the
9
notation that “the question of retirement benefits will be made
upon reaching of retirement age.”3 In the same judgment, the
German trial court made the following additional, significant
observation:
In accordance with German law, a court
decision regarding retirement benefits cannot
be made. Both parties had retirement
coverage through agencies of the USA. For
this reason, the benefits’ issue will have to
be determined at retirement age; such not
being possible at this time.
(Emphasis added.)
By order entered December 21, 1994, the German trial
court dismissed Husband’s petition for “marriage net worth
compensation.” That petition had sought money compensation of
$30,000. It is clear that Husband’s claim did not extend to the
parties’ real property in Alexandria, Virginia, which the German
trial court addressed in another order; nor did the petition
address certain other assets of the parties. As previously
noted, the petition apparently did list the bulk of Wife’s
retirement accounts.
In denying Husband’s claim for “marriage net worth
compensation,” the German trial court found that the claim was
“unfounded.” It gave a number of reasons for this finding:
The issue can be debated whether or not
[Husband] is in fact due such a claim in the
amount of $30,000.00, since according to para
3
Neither party retired while their divorce case was pending in Germany.
10
1381, sub-para 2 of the Civil Code,4 such is
out of the question as being blatantly
improper, since [Husband] culpably, and over
an extended period of time, did not fulfill
the financial obligations which arose from
their marriage relationship.
To these financial obligations belong the
support requirement towards their joint
children, not only for the duration of the
time of separation, but also after the filing
of the request for divorce as well as
following the actual divorce (See the
Düsseldorf Superior Court precedent FamRZ 87,
pp 821-822 w/addenda).5 This applies also,
and especially, when the husband must bear
the economic burden of support for the
children even though he may not have as yet
been ordered to do so.
[Husband] culpably violated this obligation.
* * *
It must additionally be taken into
consideration that the savings account
balance of [Wife] was accumulated for the
most part after the first separation of the
parties in 1988, solely through the efforts
of [Wife]. Based on the Düsseldorf Superior
State Court precedent FamRZ 87, pg 822,6 such
cannot in and of itself lead to a blatant
impropriety of the marriage net worth
compensation claim, but can indisputably be
brought into play in the case.
[Husband] did not contest the claim of the
[Wife] that the bank account monies are to
serve for retirement. Since a public law
settlement regarding retirement benefits was
not carried out, but rather the option having
been made to resolve the question upon
reaching retirement age; and since the
realization of such a claim may be quite
questionable, it is in the legitimate
interest of [Wife], that these financial
retirement assets, which have accrued as a
result of her efforts, not be required to be
shared with [Husband].
* * *
4
No attempt was made below to prove this authority. Cf. Rule 202(b)(5),
Tenn.R.Evid.
5
See footnote 4 to this opinion.
6
See footnote 4 to this opinion.
11
In total, compensation for marriage net worth
appears to be blatantly improper, primarily
because of the long-term violation of
[Husband’s] responsibility to provide support
to his children, which [Wife] had to
financially cover.
(Emphasis added).
The foregoing order of the German trial court was
appealed to the 16th Civil Court of Appeals of the Karlsruhe
Superior State Court (“the German appellate court”). While the
case was pending on appeal, the parties settled Husband’s pending
claim. The settlement -- “[a]t the suggestion of the [German
appellate] court” -- simply provides as follows:
[Wife] obliges herself to pay [Husband] the
amount of $15,000.00 as compensation for the
accrued net worth from the marriage. Of this
amount, $3,000.00 are [sic] to be deducted
for costs ensued for naturalization of the
two daughters. The remaining balance of
$12,000.00 is due when the real estate of the
parties in Alexandria, Virginia is sold.
As previously indicated, other orders of the German trial court
addressed the parties’ property in Alexandria, Virginia, their
household goods and miscellaneous personal property, and other
assets. These latter orders were not appealed.
Significantly, none of the orders of the German courts
specifically awarded either Husband’s military retirement or
Wife’s retirement accounts.
12
It is clear that Wife ultimately maintained ownership
of all of her retirement accounts. While Husband received an
agreed-to settlement of $15,000, it is not at all clear that this
settlement was an offset for Wife having received all of her
retirement accounts. Wife may be correct in asserting that it
was; but this is pure speculation, based on the record before us.
Such speculation cannot form the basis for a decision by us to
disturb the Chancery Court’s division of marital property.
The Chancery Court was justified in finding: (1) that
the German trial court did not believe that it was appropriate
for it to divide the parties’ retirement monies; (2) that those
monies were not, in fact, divided by either the German trial
court or the German appellate court; (3) that Wife retained all
of her retirement accounts; and (4) that some eight percent of
Husband’s military retirement was related to Husband’s service
after the parties’ divorce. Furthermore, the division of
Husband’s military retirement as decreed by the Chancery Court
was equitable in view of the decrees made by the courts in
Germany and the evidence heard by the Chancery Court. To the
extent that the Chancery Court did not expressly make all of
these findings, we find and hold that they are justified by the
record before us and that they support the Chancery Court’s
judgment regarding Husband’s military retirement. See Rule
36(a), T.R.A.P. See also Kelly v. Kelly, 679 S.W.2d 458, 460
(Tenn.App. 1984) (“[W]e are called upon ultimately to pass upon
the correctness of the result reached in the proceeding below,
not necessarily the reasoning employed to reach the result.”)
B.
13
Alternatively, Wife argues that the Chancery Court
erred when it decreed that the receipt of her ultimate share of
Husband’s military retirement -- 22.5% -- would be delayed until
the Virginia residence was sold. The court’s judgment provides
that Wife is to receive 17.5% of the retirement until the house
is sold. Wife contends that she should have been awarded the
larger share, retroactive to the date on which Husband received
his first retirement check.
We do not find that the evidence preponderates against
the Chancery Court’s plan. Until the property was sold, both of
the parties were responsible for obligations pertaining to the
property. Once the property was sold, there were no further
assets jointly owned by the parties. That was not an
inappropriate time to “kick in” Wife’s full entitlement.
VII. Credit for Mortgage Payments
Wife contends that the Chancery Court intended -- but
failed -- to give her credit for mortgage payments on the
Virginia property made by her for the months of May, June, and
July, 1997. We agree that the court intended to give her credit
for these payments; but we cannot agree that the court failed to
do so.
In its memorandum opinion, the trial court made
reference to a number of credits due Wife from Husband, and also
to those due Husband from Wife. It then directed the parties to
check the Court’s computations:
14
THE COURT: I would expect counsel to take
these figures and adjust them or advise me of
any mistakes and certainly if I have
overlooked it or made a mistake on that.
The court’s final judgment was approved by counsel for both of
the parties. It provides as follows:
Plaintiff is entitled to credits totaling
$28,731.50, and Defendant is entitled to
credits totaling $19,733.52, resulting in a
net credit in favor of Plaintiff in the
amount of $8,997.98 for which sum judgment is
hereby rendered against Defendant.
The figures in the final judgment do not precisely correlate to
the various figures mentioned by the court in its memorandum
opinion. Apparently, counsel did what the court directed and
refined the court’s computations. In any event, the figures in
the judgment are the ones to which the parties agreed and we
cannot say that the evidence preponderates against their
accuracy. Since the trial court indicated that it believed that
Wife was entitled to credit for those three mortgage payments, we
have to assume, under the circumstances of this case, that it
gave her credit in the final numbers agreed to by the parties.
VIII. Conclusion
The judgment of the Chancery Court is affirmed. Costs
on appeal are taxed against the appellant. This case is remanded
to the Chancery Court for enforcement of the court’s judgment and
for collection of costs assessed below, all pursuant to
applicable law.
15
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Herschel P. Franks, J.
16