IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-66

Filed 05 September 2023

Mecklenburg County, No. 20-CVD-2976

AMANDA L. DIENER, Plaintiff,

v.

ROBERT BROWN, Defendant.

Appeal by Defendant from order entered 5 July 2022 by Judge Karen D. 

McCallum in Mecklenburg County District Court. Heard in the Court of Appeals 8 

August 2023.

Epperson Law Group, PLLC, by Steven B. Ockerman and Lauren E. R. 

Watkins, for Plaintiff-Appellee.

Wofford Law, PLLC, by J. Huntington Wofford and Rebecca B. Wofford, for 

Defendant-Appellant.

COLLINS, Judge.

Defendant Robert Brown appeals from the trial court’s order concluding that 

Defendant had breached the terms of a separation agreement between himself and 

Plaintiff Amanda Diener and ordering that Defendant specifically perform the 

agreement by paying Plaintiff 15% of his monthly military retirement pay for the 

remainder of his life and $8,550 in arrearages. Defendant argues that, because the 

separation agreement states that Plaintiff is to receive her portion of his monthly 

military pension directly from the Defense Finance and Accounting Service (“DFAS”), 
DIENER V. BROWN

Opinion of the Court

- 2 -

and because she is statutorily barred from receiving these payments directly from 

DFAS as the parties were not married for at least ten years, Plaintiff is no longer 

entitled to her portion of his monthly military pension. Defendant’s argument is 

perilously close to being frivolous, and we affirm.

I. Background

Plaintiff and Defendant were married on 17 April 2011. Defendant served in 

the United States Marine Corps during their marriage and retired in March 2016 

after 15 years of service. The parties separated on 15 March 2018 and were divorced 

on 8 May 2019. Prior to their divorce, the parties attended mediation on 22 January 

2019 and stipulated, inter alia, that Plaintiff was entitled to 15% of Defendant’s 

monthly military retirement.

The parties entered into a separation agreement (the “Agreement”) on 28 

February 2019, which provided, in pertinent part, as follows:

By this Agreement, the parties acknowledge that 

[Defendant] has military retirement and that [Defendant]

did participate in this account prior to the marriage of the 

parties, making there a premarital component to the 

account. [Plaintiff] shall receive fifteen percent (15%) of 

[Defendant’s] monthly military retirement for the 

remainder of his life. [Plaintiff’s] attorney shall be 

responsible for preparing the documents necessary for her 

to receive this monthly allotment and [Defendant’s] 

attorney shall have an opportunity to review the document 

prior to its submission to the military and the [c]ourt. In 

the event [Defendant’s] signature is required for the 

distribution to take place, he shall execute any and all 

necessary documents within fifteen (15) days of receipt 

from [Plaintiff’s] attorney. [Plaintiff] shall begin receiving 
DIENER V. BROWN

Opinion of the Court

- 3 -

the 15% of the military retirement effective February 1, 

2019. [Defendant] shall monitor the monthly statements 

related to the retirement each month. Upon [Plaintiff’s] 

retirement being deducted directly from the retirement, 

[Defendant] shall pay a make up payment for any months 

that were not deducted. Thereafter, [Plaintiff] shall be 

responsible for coordinating with DFAS for payments to 

come to her.

Plaintiff’s counsel notified Defendant’s counsel on 19 November 2019 that Plaintiff 

was unable to receive payments directly from the Defense Finance and Accounting 

Service (“DFAS”) because the parties were not married for ten years or more, as 

required by 10 U.S.C. § 1408(d)(2).

1 Plaintiff’s counsel suggested that Defendant set 

up automatic payments to Plaintiff so that he would not have to communicate directly 

with her. Defendant refused; Plaintiff did not receive any payments from Defendant’s 

military pension.

Plaintiff filed suit for breach of contract and specific performance on 14 

February 2020, alleging that Defendant had “failed to provide the military pension 

payments to Plaintiff as required by the Agreement.” Defendant filed a motion to 

dismiss and an answer; the trial court denied the motion to dismiss on 8 March 2021. 

Plaintiff moved for summary judgment; the trial court denied the motion on 28 

October 2021.

1

“If the spouse or former spouse to whom payments are to be made under this section was not 

married to the member for a period of 10 years or more during which the member performed at least 

10 years of service creditable in determining the member’s eligibility for retired pay, payments may 

not be made under this section to the extent that they include an amount resulting from the treatment 

by the court . . . of disposable retired pay of the member as property of the member or property of the 

member and his spouse.” 10 U.S.C. § 1408(d)(2).
DIENER V. BROWN

Opinion of the Court

- 4 -

After a hearing on the division and payment of Defendant’s military retirement 

pay, the trial court entered a consent order on 16 November 2021, concluding that 

“[Plaintiff] qualifies for direct payment from the appropriate military finance center 

for her monthly share of military retired pay attributable to [Defendant’s] military 

service under Title 10, United States Code § 1408(d)(2)[.]” Plaintiff submitted to

DFAS an Application for Former Spouse Payments from Retired Pay in December 

2021. DFAS denied Plaintiff’s application by letter dated 3 January 2022, confirming

that it could not honor her request for direct payment because the parties were not 

married for 10 years or more, as required by 10 U.S.C. § 1408(d)(2).

After a bench trial on 24 March 2022, the trial court entered a written order 

on 5 July 2022 concluding that Defendant had breached the Agreement and ordering 

Defendant to specifically perform the Agreement by paying directly to Plaintiff 15% 

of his monthly military retirement pay for the remainder of his life and $8,550 in 

arrearages. Defendant timely appealed.

II. Discussion

A. Breach of Agreement

Defendant argues that the trial court erred by concluding that “Defendant 

willfully violated and continues to violate the terms of the Agreement.”

“The standard of review on appeal from a judgment entered after a non-jury 

trial is whether there is competent evidence to support the trial court’s findings of 

fact and whether those findings support the conclusions of law and ensuing 
DIENER V. BROWN

Opinion of the Court

- 5 -

judgment.” Ward v. Ward, 252 N.C. App. 253, 256, 797 S.E.2d 525, 528 (2017) 

(citation omitted). A trial court’s conclusions of law are reviewable de novo. 

Donnell-Smith v. McLean, 264 N.C. App. 164, 168, 825 S.E.2d 672, 675 (2019). 

Furthermore, where the trial court labels as a finding of fact what is in substance a 

conclusion of law, we treat that finding as a conclusion and review it de novo. 

Westmoreland v. High Point Healthcare, Inc., 218 N.C. App. 76, 79, 721 S.E.2d 712, 

716 (2012).

“Questions relating to the construction and effect of separation agreements 

between a husband and wife are ordinarily determined by the same rules which 

govern the interpretation of contracts generally.” Lane v. Scarborough, 284 N.C. 407, 

409, 200 S.E.2d 622, 624 (1973). “Whenever a court is called upon to interpret a 

contract its primary purpose is to ascertain the intention of the parties at the moment 

of its execution.” Id. at 409-10, 200 S.E.2d at 624 (citations omitted). “Our Supreme 

Court has long recognized that the heart of a contract is the intention of the parties, 

which is to be ascertained from the expressions used, the subject matter, the end in 

view, the purpose sought, and the situation of the parties at the time.” Jones v. Jones, 

263 N.C. App. 606, 620, 824 S.E.2d 185, 195 (2019) (quotation marks, brackets, and 

citation omitted).

Here, the Agreement provides as follows:

Intangible Property. Except as specifically provided for 

herein, the parties have divided to their satisfaction all 

intangible property owned by them, individually or jointly, 
DIENER V. BROWN

Opinion of the Court

- 6 -

including, but not limited to, checking and savings 

accounts, stocks, bonds, mutual funds, trusts, interest in 

pension and profit sharing plans, retirement benefits, 

promissory notes, IRA accounts, interest in businesses, 

partnerships, choses in action, certificates of deposit, 

money market accounts, cash management accounts, life 

insurance policies (including any cash values) and the like.

By this Agreement, [Plaintiff] conveys and releases to 

[Defendant] any and all interest, marital or otherwise, 

which she may have in his Bank of America 401(k).

By this Agreement, the parties acknowledge that 

[Defendant] has military retirement and that [Defendant] 

did participate in this account prior to the marriage of the 

parties, making there a premarital component to the 

account. [Plaintiff] shall receive fifteen percent (15%) of 

[Defendant’s] monthly military retirement for the 

remainder of his life. [Plaintiff’s] attorney shall be 

responsible for preparing the documents necessary for her 

to receive this monthly allotment and [Defendant’s] 

attorney shall have an opportunity to review the document 

prior to its submission to the military and the [c]ourt. In 

the event [Defendant’s] signature is required for the 

distribution to take place, he shall execute any and all 

necessary documents within fifteen (15) days of receipt 

from [Plaintiff’s] attorney. [Plaintiff] shall begin receiving 

the 15% of the military retirement effective February 1, 

2019. [Defendant] shall monitor the monthly statements 

related to the retirement each month. Upon [Plaintiff’s] 

retirement being deducted directly from the retirement, 

[Defendant] shall pay a make up payment for any months 

that were not deducted. Thereafter, [Plaintiff] shall be 

responsible for coordinating with DFAS for payments to 

come to her.

The Agreement establishes that the intention of the parties at the moment of its 

execution was that, in exchange for releasing any interest in other intangible 

property, Plaintiff would be entitled to 15% of Defendant’s monthly military 
DIENER V. BROWN

Opinion of the Court

- 7 -

retirement for the remainder of his life. Because Plaintiff has not received any 

payments from Defendant’s military pension, the trial court did not err by concluding 

that Defendant had breached the Agreement.

B. Specific Performance

Defendant argues that the trial court erred by ordering specific performance 

because Defendant “had not breached the terms of the separation agreement[.]” 

(capitalization altered).

“The remedy of specific performance rests in the sound discretion of the trial 

court and is conclusive on appeal absent a showing of a palpable abuse of discretion.” 

Crews v. Crews, 264 N.C. App. 152, 154, 826 S.E.2d 194, 196 (2019) (quotation marks 

and citation omitted). An abuse of discretion results where the trial court’s order is 

manifestly unsupported by reason or is so arbitrary that it could not have been the 

result of a reasoned decision. Paynich v. Vestal, 269 N.C. App. 275, 278, 837 S.E.2d 

433, 436 (2020).

A separation agreement may be enforced through the equitable remedy of 

specific performance. Reeder v. Carter, 226 N.C. App. 270, 275, 740 S.E.2d 913, 917 

(2013). Specific performance is appropriate if the remedy at law is inadequate, the 

obligor can perform, and the obligee has performed her obligations. Crews, 264 N.C. 

App. at 154, 826 S.E.2d at 196. Our Supreme Court has established that damages 

are usually an inadequate remedy in the context of separation agreements. See Moore 

v. Moore, 297 N.C. 14, 17, 252 S.E.2d 735, 738 (1979) (“[W]hen the defendant persists 
DIENER V. BROWN

Opinion of the Court

- 8 -

in his refusal to comply, the plaintiff must resort to this remedy repeatedly to secure 

her rights under the agreement as the payments become due and the defendant fails 

to comply. The expense and delay involved in this remedy at law is evident.”).

Here, Plaintiff’s remedy at law is inadequate because she would have to 

repeatedly sue to secure her portion of Defendant’s monthly military pension that she 

is entitled to under the Agreement. See id. Furthermore, despite Defendant’s 

testimony at trial that he was capable of paying Plaintiff through a check or direct 

deposit, Plaintiff has not received a single payment from Defendant’s military 

pension. Finally, Plaintiff performed her obligations under the Agreement because 

she submitted to DFAS an Application for Former Spouse Payments from Retired 

Pay in December 2021, but her application was denied because the parties were not 

married for 10 years or more.

Accordingly, the trial court did not abuse its discretion by granting Plaintiff’s 

claim for specific performance.

III. Conclusion

The trial court did not err by concluding that Defendant had breached the 

Agreement and ordering that Defendant specifically perform the Agreement by

paying Plaintiff 15% of his monthly military retirement pay for the remainder of his 

life and $8,550 in arrearages. Accordingly, we affirm.

AFFIRMED.

Judges ZACHARY and RIGGS concur.