Roger Dale Grice v. Dawn Marie Grice

10/20/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 21, 2021 Session
ROGER DALE GRICE v. DAWN MARIE GRICE
Appeal from the Circuit Court for Montgomery County
No. CC-19-CV-1543 Kathryn Wall Olita, Judge
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No. M2020-00931-COA-R3-CV
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Following a divorce, a husband appeals the trial court’s division of his military retirement
benefit. Discerning no error, we affirm the trial court’s order.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which THOMAS R. FRIERSON,
II, J., and KRISTI M. DAVIS, J., joined.
Daniel P. Bryant, Clarksville, Tennessee, for the appellant, Roger Dale Grice.
Sheri S. Phillips and Sharon T. Massey, Clarksville, Tennessee, for the appellee, Dawn
Marie Grice.
OPINION
I. BACKGROUND
Appellant Roger Grice (“Husband”) and Appellee Dawn Grice (“Wife”) were
married on December 16, 1998. They do not have children. The parties separated in May
of 2019 when Husband left the marital home. Husband filed a complaint for divorce in
July of 2019. During the marriage, both parties were active duty service members, but
both retired from the Army before the divorce. Husband was a member of the Army for
twenty-one years, eleven months, and ten days, from December of 1993 until February of
2015. Wife entered the Army in May of 1997 and was honorably discharged in 2015
because she could not pass a physical fitness test. Both parties deployed overseas during
their service. The Department of Veterans Affairs (“VA”) determined that Husband is
100% disabled and that Wife is 90% disabled due to service-connected disabilities.
Through mediation, the parties divided personalty. The case proceeded to trial on
March 10, 2020. Husband was then forty-four years old and Wife was then forty-two. The
parties stipulated the grounds for divorce. Husband testified that his injuries limit his
ability to work and that he has not maintained regular employment in several years.
Previously, Husband attended Miller-Motte College to learn truck driving. Over time, he
also acquired skills in automotive mechanics and used those skills when working on his
motorcycles. Husband presented a copy of his military retirement statement showing a
gross monthly military retirement benefit in the amount of $2,438. At the time of trial,
Wife had not worked in five years but was a junior at Austin Peay State University. Some
of her education was funded through the Post-9/11 GI Bill, but she paid the rest out of
pocket. Wife does not receive a retirement benefit from the Army but monthly receives
$2,017.96 of VA disability payments. She expressed her immediate goal as “get on my
feet and get a degree and . . . get a job.” At the time of trial, Husband’s monthly VA benefit
award was $3,279.22. Both parties are enrolled in the Thrift Savings Plan (“TSP”),1 and
each of their TSPs accrued value during the marriage. Husband’s TSP was valued at
$3,000 and Wife’s was valued at $47,318.22, as of the date of trial.
At the close of proof, the trial court announced its rulings and detailed the division
of marital property. By final decree entered April 15, 2020, the trial court declared the
parties divorced and summarized its rulings. As relevant to the issue on appeal, the trial
court determined that “Husband’s retirement is considered to be marital property.” The
court found that the parties had been married twenty-two years and that 195 months of the
marriage overlapped with Husband’s 263-month Army career. Thus, the trial court
calculated that 74% of Husband’s military retirement benefit was marital property and
awarded half (37%) of that benefit to Wife.2 The trial court awarded Husband half of the
value of Wife’s TSP as of March 10, 2020. Husband retained the entire value of his own
TSP. In its order, the trial court considered the factors regarding the division of property
as stated in Tennessee Code Annotated section 36-4-121(c) and found as follows:
(1) The duration of the marriage;
This is a long-term marriage. The duration of the marriage is twenty-two
years. [Tenn. Code Ann. § 36-4-121(c)(1).]
(2) The age, physical and mental health, vocational skills, employability,
earning capacity, estate, financial liabilities and financial needs of each of
the parties;
1
The retirement savings and investment plan for federal employees and members of the armed
services.
2
195 / 263 = 0.74. 0.74 / 2 = 0.37.
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Both parties have had physical and mental diagnoses, but both parties have
great skill sets; they have had lengthy and successful military careers;
Husband taught post-military and Exhibit 9 shows he has the capacity to
obtain new vocational skills. Wife’s separation from the military was
involuntary, but she is continuing her education and has skill sets. [Tenn.
Code Ann. § 36-4-121(c)(2).]
(3) The tangible or intangible contribution by one (1) party to the education,
training or increased earning power of the other party;
Both parties have contributed to the success of each other’s careers in the
military. [Tenn. Code Ann. § 36-4-121(c)(3).]
(4) The relative ability of each party for future acquisitions of capital assets
and income;
Both parties are young and have plans for their futures. They are equally
capable of making future acquisitions of assets and income, despite their
physical and mental diagnoses. [Tenn. Code Ann. § 36-4-121(c)(4).]
(5)(A) The contribution of each party to the acquisition, preservation,
appreciation, depreciation or dissipation of the marital or separate property,
including the contribution of a party to the marriage as homemaker, wage
earner or parent, with the contribution of a party as homemaker or wage
earner to be given the same weight if each party has fulfilled its role;
(B) For purposes of this subdivision (c)(5), dissipation of assets means
wasteful expenditures which reduce the marital property available for
equitable distributions and which are made for a purpose contrary to the
marriage either before or after a complaint for divorce or legal separation has
been filed.
Both contributed equally to the acquisition of assets in this marriage. No
evidence was presented that either was wasteful. [Tenn. Code Ann. § 36-4-
121(c)(5).]
(6) The value of the separate property of each party;
No evidence was presented of separate property that would impact an
equitable distribution of marital assets. [Tenn. Code Ann. § 36-4-121(c)(6).]
(7) The estate of each party at the time of the marriage;
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No evidence was presented of an estate brought into the marriage. [Tenn.
Code Ann. § 36-4-121(c)(7).]
(8) The economic circumstances of each party at the time the division of
property is to become effective;
The parties have been separated since May of 2019 and have made
adjustments to their economic circumstances in the course of transitioning
from a marital estate to single estates. Wife is continuing her education.
However, she is not to the point of earning any income as of the time of trial.
Both parties are capable of continuing to follow through with plans for
adjusting financially to living as single persons. [Tenn. Code Ann. § 36-4-
121(c)(8).]
...
(11) The amount of social security benefits available to each spouse;
The Court and the parties recognize that income from VA disability is not
subject to equitable division. Neither party receives social security. [Tenn.
Code Ann. § 36-4-121(c)(11).]
(12) Such other factors as are necessary to consider the equities between the
parties.
None. [Tenn. Code Ann. § 36-4-121(c)(12).]
Husband moved to alter or amend the final order. The trial court denied Husband’s
motion by order entered June 11, 2020. Husband appealed.
II. ISSUES
Husband raises one issue on appeal: (1) Whether the trial court erred in granting
Wife thirty-seven percent (37%) of Husband’s military retirement.
III. STANDARD OF REVIEW
This action was tried by the court without a jury, so we review the trial court’s
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findings of fact de novo upon the record with a presumption of correctness unless the
evidence preponderates otherwise. Tenn. R. App. P. 13(d); Watson v. Watson, 309 S.W.3d
483, 490 (Tenn. Ct. App. 2009). We review the trial court’s conclusions of law de novo
with no presumption of correctness. Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007).
The trial court has broad discretion in fashioning an equitable distribution of marital
property, and an appellate court will defer to a trial court’s distribution unless it is
inconsistent with the statutory factors or is not supported by a preponderance of the
evidence. Baggett v. Baggett, 422 S.W.3d 537, 543 (Tenn. Ct. App. 2013).
IV. DISCUSSION
1.
In all divorce cases, after classifying the parties’ property, the trial court is directed
to “equitably divide, distribute or assign the marital property between the parties without
regard to marital fault in proportions as the court deems just.” Tenn. Code Ann. § 36-4-
121(a)(1); Luplow v. Luplow, 450 S.W.3d 105, 109 (Tenn. Ct. App. 2014); Edmisten v.
Edmisten, No. M2001-00081-COA-R3-CV, 2003 WL 21077990, at *11 (Tenn. Ct. App.
May 13, 2003).
An equitable division of marital property does not require that the property
be divided equally. [Luplow, 450 S.W.3d] at 109–10 (citing Robertson v.
Robertson, 76 S.W.3d 337, 341 (Tenn. 2002)). Nor does it require that each
party receive a share of every item classified as marital property. Morton v.
Morton, 182 S.W.3d 821, 833–34 (Tenn. Ct. App. 2005) (quoting King v.
King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998)). In making its
determination, the trial court must consider statutory factors in view of the
evidence presented by the parties. Tenn. Code Ann. § 36-4-121(c); Flannary
v. Flannary, 121 S.W.3d 647, 650 (Tenn. 2003).
Cela v. Cela, No. M2019-01861-COA-R3-CV, 2021 WL 3240238, at *9 (Tenn. Ct. App.
July 30, 2021). In making an equitable division of marital property, the trial court is guided
by the following relevant factors:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability,
earning capacity, estate, financial liabilities and financial needs of each of
the parties;
(3) The tangible or intangible contribution by one (1) party to the education,
training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets
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and income;
(5) The contribution of each party to the acquisition, preservation,
appreciation, depreciation or dissipation of the marital or separate property,
including the contribution of a party to the marriage as homemaker, wage
earner or parent, with the contribution of a party as homemaker or wage
earner to be given the same weight if each party has fulfilled its role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of
property is to become effective;
(9) The tax consequences to each party, costs associated with the reasonably
foreseeable sale of the asset, and other reasonably foreseeable expenses
associated with the asset;
(10) The amount of social security benefits available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the
parties.
Tenn. Code Ann. § 36-4-121(c). The factors are not listed in order of importance, and each
is to be considered in relation to the specific facts of each case. See Powell v. Powell, 124
S.W.3d 100, 108 n.8 (Tenn. Ct. App. 2003).
Husband acknowledges that his military retirement benefit is marital property
subject to equitable division. See Tenn. Code Ann. § 36-4-121(b)(1)(B)(ii) (“‘Marital
property” includes the value of vested and unvested pension benefits, vested and unvested
stock option rights, retirement, and other fringe benefit rights accrued as a result of
employment during the marriage[.]”); Kendrick v. Kendrick, 902 S.W.2d 918, 926 (Tenn.
Ct. App. 1994). He also recognizes that the trial court calculated Wife’s percentage of this
asset by applying the most common method. See Matthews v. Matthews, No. M2009-
00413-COA-R3-CV, 2010 WL 1712961, at *6 (Tenn. Ct. App. Apr. 28, 2010) (“In cases
where the amount of the pension depends on years of service (such as in the military) and
those years overlap the marriage, the ratio between the years of marriage during which the
pension accrued and the total number of years of accrual gives us the most common
formula for calculating what proportion of the pension should be considered as marital
property.”).
Husband argues that “[n]one of the typical equities are present in this case to justify
a division of the military retirement.” In his view, because Wife also enjoyed a career in
the Army, there is “no sacrifice” on her part that justifies a division of his military
retirement benefit earned during the marriage. Upon a careful study of the appellate record,
we disagree. The parties lived together in five locations throughout their military careers.
The hard work and sacrifices of each party, including individual overseas deployments,
contributed to their mutual success and to the acquisition of assets during the marriage.
Husband complains that “Wife has cited no evidence that she supported [his] career in any
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way.” However, on appeal, it is not Wife’s burden to do so. We have determined that the
evidence does not preponderate against the trial court’s findings on the relevant statutory
factors and that the award of thirty-seven percent of Husband’s military retirement to Wife
was equitable under the circumstances.
In addition, citing testimony that he suffers from post-traumatic stress disorder and
memory issues, Husband contends that Wife has a much greater earning capacity than he
does. We disagree. The evidence shows that Husband and Wife are both young and have
the skills to earn a living despite their physical and mental diagnoses. Husband’s
neuropsychological evaluation consult report introduced at trial opines that “[t]here is
absolutely no evidence that [Husband] would be unable to learn and go on to acquire a new
skill or college degree,” particularly “hands-on” skills which are his strength. The
evaluator also advised Husband to make certain lifestyle changes to improve his processing
speed and executive functioning. The trial court properly credited this evaluation in
making its findings, and the evidence does not preponderate against the trial court’s
findings on the parties’ vocational skills, employability, and earning capacities.
In sum, the final order sets forth the evidence relevant to the trial court’s
consideration of each applicable statutory factor. “All that Tenn. Code Ann. § 36-4-121requires is essential fairness in light of the facts of the case.” Kendrick, 902 S.W.2d at 929.
The record before us confirms this essential fairness, keeping in mind that Husband was
awarded half of Wife’s TSP earned during her military service while retaining all of his
own TSP. In light of the statutory factors, including the relatively modest financial
circumstances of each party, the length of the marriage, and each party’s employability and
earning capacity, we cannot conclude that the evidence preponderates against the trial
court’s findings or that the trial court erred in its division of Husband’s military retirement.
Accordingly, we affirm.
2.
At the conclusion of her brief, Wife seeks to recover her attorney fees incurred on
appeal. However, this request was not presented in the statement of issues or supported by
argument in Wife’s brief. A request for attorney fees is waived if not included in the
statement of issues. See Keeble v. Keeble, No. E2019-01168-COA-R3-CV, 2020 WL
2897277, at *4 (Tenn. Ct. App. June 3, 2020) (citing Killingsworth v. Ted Russell Ford,
Inc., 205 S.W.3d 406, 410–11 (Tenn. 2006)). Accordingly, Wife’s request for attorney
fees on appeal is waived.
V. CONCLUSION
We affirm the judgment of the trial court. The case is remanded for such further
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proceedings as may be necessary and consistent with this opinion. Costs of the appeal are
taxed to the appellant, Roger Dale Grice.
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JOHN W. McCLARTY, JUDGE
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