### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE
November 17, 2015 Session

EMILY JOYCE COLLINS v. WILLIAM MICHAEL COLLINS

Appeal from the Chancery Court for Rutherford County No. 11CV708 J. Mark Rogers, Chancellor

________________________________

No. M2014

- 02417

- COA

- R3

- CV

– Filed August 1, 2016

_________________________________

Parties in divorce proceeding entered into a n agreement on the day of trial, memorialized in writing, disposing of the marital assets and debts, adopting a paren ting plan, and agreeing “as

a division of marital assets” that Wife would “receive the sum of $2,100.00 per month directly from Husband’s military pension.” H usband filed motions both before and after the final decree was entered, seeking to modify the ag reement by removing the provision that required him to pay $2,100.00 to Wife on the ground that the $2,100.00 payment exceeded fifty percent of his military retirement and included a monthly payment for service

- related disability pay

. The trial court deni ed H usband’s motion s and he appeals

. Finding no error, we affirm the holding of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

R ICHARD H. D INKINS

, J., delivered the opinion of the court, in which F RANK G. C LEMENT

, J R ., P.J., M.S., and A NDY D. B ENNETT , J., joined.

John D. Drake, Murfreesboro, Tennessee, for the appellant, William Collins.

Robert J. Turner and J. Ryan Johnson, Nashville, Tennessee, for the appellee, Emily Joyce

Collins.

OPINION

I. F ACTUAL AND P ROCEDURAL B ACKGROUND

William Collins (“Husband”) and Emily Collins (“Wife”) were married on May 23,

1993 ; throughout the marriage, Husband w as enlisted in the United States Navy. O n May 3,2

2 011, Wife filed a complaint for divorce ; on January 29, 2013, when Husband’s base pay was $7,356.60 per month , he and Wife entered into an agreed temporary order whereby he was to pay Wife $2,500 .00 every two weeks in pendente lite alimony

. Husband retired from the Navy in October of 2013 and began receiving retirement pay of $3,678.30 per month. Husband failed to make payments due to Wife on October 15, 2013 and on November 1,

2013 , as a result of which Wife filed a petition for civil contempt on November 5, 2013.

The trial of the divor ce and the contempt petition was set for December 17, 2013 . O n that date, Husband and Wife entered into an a greement, memorialized in writing and signed by both parties and their counsel

, whereby Husband agreed

, inter alia

, to pay Wife $2,100 .00 per month and Wife agreed to dismiss her contempt claim s. Husband and Wife were placed under oath, and both confirmed their understanding and approval of the agreement in open

court

. For reasons not entirely clear from the record , the parties delayed in formulati ng the

final decree and the trial court did not enter the Final Decree of Divorce until July 1, 2014 ; the decree declared the parties divorced on stipulated grounds, divided the marital estate and debts, adopted the parenting plan for the parties’ child, and adopt ed the pertinent terms of the

written agreement presented to the court on December 17, 2013 (“the Decembe r 2013 agreement”)

.

S everal events which led to this appeal took place after the parties reached the

December 2013 agreement but before the court entered the Final Decree. O n January 13, 2014, Husband received notice from the Department of Veterans Aff airs that he had been

determined to have service

- related disabilities of 30% for generalized anxie ty and 10% for gastric reflux

, and that as a consequence

, he would receive a disability benefit of $687.54 per

month and his retirement pay would be reduced t o $3,080.56 per month. On May 15, 2014,

Husband filed a motion, styled “ Motion to Set Aside Agreement of Divorce and Set Hearing ” (herein “the May 15 motion”), wherein he “[gave] notice of his withdrawal from the announced agreement of the 17 th day of December, 2013 that has not been finalized into a final order,” asserting, inter alia

, that he had entered the December 2013 agreement under

duress

, and that the terms of the agreement w ere “ill advised, financially burdensome,

unconscionable and un fair

. ” Husband requested that the court “set aside any announced order of divorce and to reset this matter for further hearing where the issues of the division of Husband’s military retirement, survivor benefits, child support and parenting time may be

pr operly litigated.” The motion did not cite a rule of civil procedure in support of the requested relief.

On July 1, 2014, the trial court entered the Final Decree of Divorce , which includes the following language:3

This cause came to be heard . . . on the 17th day of December, 2013, . . . whereas the parties reached an Agreement on the morning of the hearing, said Agreement being announced to the Court and the Court finding such is fair and

reasonable.

***

It is further ORDERED, ADJUDGED and DECREED th at as a division of marital assets, Wife shall receive the sum of $2,100.00 per month directly from Husband’s military pension, beginning January 1, 2014 and said payment shall continue for the entirety of Husband’s life.

. . .

In the event that Husband becomes disabled and/or is no longer eligible to receive his retirement benefit for any reason, then he shall continue to pay unto Wife the sum of $2,100.00 per month for the entirety of his life.

The parties agree and stipulate that this Order may be supplemented, if necessary to comply with any rules and regulations of the U.S. Military in

order to divide said retirement in accordance with the above terms.

On July 29 Husband filed another motion (herein “the July 29 motion”) , also styled

“ Motion to Set Aside Agreement of Divorce and Set Hearing

, asking the court to “set aside the final order in this cause pursuant to Tenn essee R ules of Civ il P rocedure 60.02(1) for mistake, inadvertence, surprise or excusable neglect ” ; the gro unds asserted in support of the

motion were substantially the same as those asserted in the prior motion

. After a hearing, the

court entered an order den ying the motion, holding in part:

3. That both Parties were represented by counsel at every stage of the proceeding.

4. That both parties are well educated.

5. That litigation in this matter extended from May of 2011 to December of

2013.

6. On December 17, 2013, both parties were represent ed at the trial in this cause and announced an agreed order in open court.

7. That both parties confirmed that they were freely and voluntarily entering into this agreement.

8. That both parties took an oath that they freely and voluntarily entered into this agreement.

9. That the Court then went through the terms of the agreement in open

court.
10. That the Court’s Divorce Coordinator had contacted the previous attorneys in this cause to submit a Revised Final Decree and Permanent4 Parenting Plan with in thirty (30) days. Prior counsel failed to do so.

11. As to the Father’s claim of duress, the court finds that the pressures of litigation and the threat of contempt are simply the normal pressures anyone would experience during litigation, which is in and of itself stressful, but not duress.

12. That no one protested this agreement at trial.

13. That there was no mistake or caveat of Rule 60 which entitled the Father

to relief.

14. That this was not an Irreconcilable Differences Divorce and that th ere was no Marital Dissolution Agreement triggering contractual relief.

Husband appeals

, contend ing that the case should be remanded for the trial court to consider the motion filed on May 15, 2014 , and that the trial court erred in allowing a division of Husband’s retirement pay which exceeded 50% and which included payment for a

service

- related disability

.

II. A NALYSIS

A. Husband’s M otions to Set Aside Agreement and Set Hearing

We first address Husband’s contentions regarding the two motions, both of which he styled “Motion to Set Aside Agreement and Set Hearing.” Citing Tenn. R. App. P. 4(e), 1
Husband contends that the trial court never disposed of the May 15 motion and that “the trial

court re tains jurisdiction (and conversely, this court lacks jurisdiction) until the trial court enters an order” disposing of the May 15 motion. Husband argues that, although he failed to cite a rule for the relief requested in the May 15 motion, he intended tha t it be treated as a motion to alter or amend pursuant to Tenn. R. Civ. P. 59.04.

Motions filed pursuant to Rule 59 must “be filed and served within 30 days after judgment has been entered.” Tenn. R. Civ. P. 59.02 (emphasis added). In this case, the final decree was not entered until July 1; t hus, under Rule 59.02, the May 15 motion was not timely and his reliance on Rule 4(e) is misplaced

. Hi s contention that this case should be

remanded to the trial court is without merit.

H usband argues that the July 29 motion which cit ed Tenn. R. Civ. P. 60.02 as the basis for relief, was filed within thirty days of entry of the Final Decree and that, therefore, the court had an obligation to treat it as a Rule 59 motion. Wife disagrees an d contends that

1 Tenn. R. App. P. 4(e) provides, in relevant part, that “[t]he trial court retains jurisdiction over the case pending the court’s ruling on any timely filed motion ...” (emphasis added).5

the July 29 motion should be treated as a Rule 60 motion. We agree that the July 29 motion, having been filed within 30 days of entry of the Final Decree

, was to be treated as a Rule 59 motion, notwithstanding the fact that it cited Rule 6 0 in support of the requested relief. See Ferguson v. Brown

, 291 S.W.3d 381 , 386

- 88 (Tenn. Ct. App. 2008) (holding that a party may obtain relief pursuant to Rule 59.04 from an order entered as a result of mistake, inadvertence, or excusable neglect by a p arty’ s counsel notwithstanding the fact the party erroneously stated in its motion that it was seeking relief pursuant to Rule 60.02(1) ).

Appellate courts review de cisions dealing with Rule 59.04 and Rule 60.02 motions

under an abuse of discretion standa rd since these requests for relief are “addressed to the trial

court’s discretion.” McCracken v. Brentwood United Methodist Church , 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997). An appellate court is not permitted to substitute its judgment for

that of the t rial court under an abuse of discretion standard. Henry v. Goins , 104 S.W.3d 475, 479 (Tenn. 2003). Only when a trial court has “applied an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an injustice to the party complaining” is the trial court found to have abused its discretion. State v. Stevens , 78 S.W.3d 817, 832 (Tenn. 2002) (quoting State v. Shuck , 953 S.W.2d 662, 669 (Tenn. 1997)).

B. Division of Military Retirement Funds and Disability Awards

Husband asserts that the agreement awa rds Wife an amount exceeding 50 percent of his disposable retired pay and includes pay that was subject to a disability award in violation

of the Uniformed Services Former Spouses Protection Act (hereinafter referred to as the “Act”), 10 U.S.C. § 1408

. The Act permits state courts to divide a military retiree’s “disposable retired pay” in a divorce proceeding, but “ the Federal Government will not make community property payments that exceed 50 percent of disposable r etired or retainer pay.”

See Johnson v. Johnson , 37 S.W.3d 892, 895 (Tenn. 2001) (qu oting 10 U.S.C. § 1408(c)(1));

Mansell v. Mansell , 490 U.S. 581, 585 (1989)

. The Act defines “ d isposable retired pay” as

“ the total monthly retired pay to which a member is entitled less any amounts

. . . deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a

court

- marital or as a result of a waiver of retired pay required by law i n order to receive compensation under title 5 [Government Organization and Employees] or title 38 [Veteran’s Benefits].” 10 U.S.C § 1408(a)(4)(B)

.

T his case presents issues similar to those in Gonzalez v. Gonzalez , No. M2008

- 01743

- COA

- R3

- CV, 2011 WL 221888 (Tenn. Ct. App. Jan. 24, 2011), and Selitsch v. Selitsch , No.

12CV

- 1621, 2015 WL 6730955 (Tenn. Ct. App. Oct. 14, 2015). In Gonzalez , this Court

considered whether a final decree violated the Act by awarding the wife 100 p ercent of the husband’s military retirement pay. Gonzalez , 2011 WL 221888, at *1

. W e adopted the reasoning employed in cases in other jurisdictions “that the 50% limit in [the Act] only6

addresses the amount of the pension that can be paid direc tly to the former spouse by the government.” Id. at *3, *5. Finding “no legal authority prohibiting [the husband] from agreeing to provide his ex

- wife with 100% of his retirement pay as part of a comprehens ive property settlement,” w e held that the final decree did not violate the act. Id. at *5

.

The husband and wife in Selitsch negotiated an agreement, whereby the husband agreed to pay the wife one

- half of his retirement pay. Selitsch v. Selitsch

, 2015 WL 6730955,

at *1

. At the ti me the parties entered into the agreement, the husband was retired from the military with a 100 percent disability rating

, and thus

, did not have any disposable retired pay that was subject to division as marital property. Id. The husband filed a Rule 60 .02 motion

to set aside the agreement , contending that the parties mistakenly believed his military retirement pay was marital property

. Id. On appeal, this Court ruled that the Act “ did not preclude spouses from contractually agreeing to divide non

- disposable retired pay.” Id. at *7. The husband did not dispute the fact that “the trial court did not make the initial division,”

but rather it was undisputed that the husband and the wife “agreed to share equally

Husband’ s retirement ” ; therefore, th is Court affirmed the denial of the motion. Id. at *7.

In this case, w e ar e not persuaded that Husband’s argument s diff er in any significant respect from the arguments rejected in Gonzalez and Selitsch

. While Husband asserts that the
agreement violates the Act because it awards Wife roughly 57 percent of his retirement pay, the agreement we upheld in Gonzalez awarded the w ife 100 percent of the husband’s retirement pay. As we stated in Selitsch , parties are free to contractually determine the

division of military retirement pensions and disability benefits, and a court may order a part y to pay such monies to give effect to the agreement. Similar to the lower court in Selitsch , the
trial court in this case did not make the initial division of Husband’s military benefits. Rather, Husband and Wife entered into a contractual agreement, whereby Husband voluntarily agreed to pay Wife $2,100.00 per month directly from his military pension. Moreover, the parties in this case specifically noted in their agreeme nt that “[i]n the event that Husband becomes disabled and/or is no longer eligible to receive his retirement benefit for any reason, then he shall continue to pay unto Wife the sum of $2,100.00 per month for the entirety of his life.” Based on the languag e in the agreement, it is clear that the parties contemplated the possibility of Husband’s retirement pay changing and intended Husband’s obligation to pay Wife $2,100.00 per month to remain

, irrespective of such change. Thus, we reject Husband’s insisten ce that he entered into the agreement under a mistake of fact.

Parties seeking relief under Rule 59.04 have the burden of showing that the trial court “applied an incorrect legal standard, or reached a decision which is against logic or reasoning

that cau sed an injustice to the party complaining.” Stevens , 78 S.W.3d at 832. Here,

Husband has not carried this burden. Th e parties’ agreement does not violate the Act and the trial court did not err by denying Husband’s Motion to Set Aside Agreement and Set Hearing.7 C. Frivolous Appeal

Wife contends that Husband’s argument is “devoid of merit in that it fails to address any legal standards as to why the trial court’s interpretation of Rule 60.02 was an abuse of

discretion and instead goes directly to the m erits ” and should be deemed frivolous in order that she be awarded attorneys’ fees incurred in defending this case.

This court is authorized to award just damages against the appellant if we determine the appeal is frivolous or that it was taken solely for delay. Tenn. Code Ann. § 27

- 1

- 122. A frivolous appeal is one that is devoid of merit or has no reasonable chance of success. Wakefield v. Longmire , 54 S.W.3d 300, 304 (Tenn. Ct. App. 2004). The statute, however, is to be “interpreted and applied strictly so as not to discourage legitimate appeals.” Id. (quoting Davis v. Gulf Ins. Group , 546 S.W.2d 583, 586 (Tenn. 1977). Although we have ruled adversely to Husband concerning the issues he ra ised, we are unable to conclude that his appeal is devoid of merit. Accordingly, we do not find this appeal frivolous.

III. C ONCLUSION

For the reasons set forth above, the judgment of the trial court is affirmed.

RICHARD H. DINKINS, JUDGE