Brown v. Brown

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.

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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:

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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.

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__________________________

Charles D. Susano, Jr., J.

CONCUR:

________________________

Houston M. Goddard, P.J.

________________________

Herschel P. Franks, J.

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