Karen H. Foster v. Douglas S. Foster

05/02/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

December 5, 2018 Session

KAREN H. FOSTER v. DOUGLAS S. FOSTER

Appeal from the Chancery Court for Montgomery County

No. MCCHCVDI06-86 Laurence M. McMillan, Jr., Chancellor

___________________________________

No. M2018-00595-COA-R3-CV

___________________________________

This is the second appeal in a post-divorce proceeding involving the computation of

Wife’s portion of Husband’s military retirement pay. In the first appeal, we affirmed the

trial court’s computation and remanded the case for further proceedings. On remand, the

trial court assessed the arrearage of retirement pay that had accrued during the pendency

of the appeal and awarded Wife her attorney’s fees. Husband appeals, contending that

the trial court lacked subject matter jurisdiction and that Wife lacked standing to raise the

issue of calculation of military retirement pay; Husband also raises numerous other issues

related to the propriety of the judgment that was at issue in the first appeal, each party’s

entitlement to attorney’s fees, and the trial court’s denial of two motions to recuse itself.

We vacate the award of attorney’s fees for services rendered in another proceeding, and

affirm the judgment in all other respects; we award Wife her attorney’s fees incurred in

this appeal and remand the case for a determination of the amount to be awarded.

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

Montgomery County Vacated in Part and Affirmed in Part; Case Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ANDY D. BENNETT

and W. NEAL MCBRAYER, JJ., joined.

Douglas S. Foster, Ashland City, Tennessee, Pro Se.

Mark A. Rassas and Julia P. North, Clarksville, Tennessee, for the appellee, Karen H.

Foster.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

The parties were divorced by a Final Decree for Absolute Divorce entered in April

of 2006, which incorporated a Marital Dissolution Agreement (MDA); paragraph 6 of

that MDA stated:

The parties mutually acknowledge that they have been married during

thirteen (13) years (156 months) of Husband’s active military service and

that he now holds the rank of Captain (03). In the event Husband should

retire from the military at the rank of Captain or at a higher rank and

thereby becomes eligible for retired military pay, the parties agree that the

Wife shall have 33% of the Husband’s disposable retirement pay at the

grade of Captain and that said amount shall be payable for a period of

thirteen (13) years (156 months) regardless of whether the Husband attains

a higher rank than Captain. It is the express intent of the parties that the

Wife shall only be entitled to 33% of Husband’s disposable military

retirement pay for thirteen years (156 months) at the rank of Captain and

Wife forever releases Husband of any further payments. In the event that

the Husband draws disability payments that reduce his retirement benefits,

this will in no way reduce the Wife’s entitlement as stated above.

On January 19, 2016, Wife petitioned to hold Husband in contempt, alleging that

Husband had not complied with the requirement in the MDA that she receive a portion of

his military retirement. Wife asserted that her portion of Husband’s benefits should be 33

percent of the actual retirement benefits Husband received; Husband argued that

increases in military retirement pay that occurred after the divorce were not marital

property and that an award should therefore be calculated as of the date of the divorce.

The trial court entered an order on July 26, 2016 (“July 26 Order”), ruling that Wife was

entitled to 30.478 percent of Husband’s actual retirement pay; Husband appealed the

ruling. On July 14, 2017, this Court affirmed the trial court’s decision, awarded Wife

attorney’s fees for the appeal, and remanded the case for a determination of the amount.

Foster v. Foster, No. M2016-01749-COA-R3-CV, 2017 WL 2992979 (Tenn. Ct. App.

July 14, 2017).

On September 18, 2017, Wife filed a Motion to Assess Attorney’s Fees and

Arrearage, supported by the affidavit of her attorney, Mark A. Rassas, to which Husband

responded. The trial court heard the motion on November 3 and entered an order that

day, awarding Wife $8,541.87: $5,108.87 for the costs of Mr. Rassas’s representation in

the appeal; $1,210.00 for Mr. Rassas’ representation in a separate action filed in Wilson

2

County;1 and $2,223.00 for “post-trial fees through the date of hearing.” The court

referred the computation of the arrearage that accrued while the case was on appeal to the

Clerk and Master, who filed a report on January 8, 2018, computing the arrearage to be

$11,765.74. The trial court entered an order adopting the Master’s Report and awarding

Wife a judgment for that amount on March 2.

On September 25, 2017, appearing pro se, Husband moved the court to vacate the

July 26, 2016 Order; Wife responded, and the motion was heard on March 2, 2018. The

court denied the motion on March 2 and an order was entered on March 9 awarding Wife

attorney’s fees of $570.00 for defending the motion.

On March 16, 2018, Husband moved the court to recuse itself; Wife responded,

and the court entered an order on March 29, denying the motion on the ground of

mootness because the court had ruled on all issues in the case. Husband moved for

recusal a second time on April 25; the court denied the motion by order entered May 3.

Husband appeals, raising a plethora of issues2 related to the rulings on his Motion

to Vacate the July 26, 2016 Order, his motions to recuse, and Wife’s September 18, 2017

Motion for Attorney’s Fees.

1

Husband’s current wife filed suit in Wilson County Circuit Court (“Wilson County action”) on February

28, 2017, challenging a garnishment Wife filed on funds in a bank account owned by Husband and his

current wife to collect the judgment in the July 2016 Order.

2

The issues as stated by Father are:

1. The court is required, under Tenn. R. Civ. P. 12.08, to dismiss an action whenever it

appears by suggestion or otherwise that the court lacks subject matter jurisdiction.

Instead, the trial court dismissed a Rule 60.02(3) Motion to Vacate, containing multiple

examples the court lacked subject matter jurisdiction in the void Order. Did the trial court

err in dismissing the Motion to Vacate a void judgment?

2. The trial court Order of July 26, 2016, is the foundational order in this case; is the

Order void?

3. The trial court has no jurisdiction to enforce an unenforceable contract. Is the Order

void where the agreement in question was unenforceable to begin with?

4. Without lawful, constitutional standing or a justiciable cause of action, there is no

jurisdiction. Is the Order void for a judgment in which there was no cause of action to

support the judgment?

5. A judgment that violates a statute is outside the jurisdiction of the court, and Congress

alone may make laws regarding military retirement including laws regarding payments

from such to former spouses, and all such laws preempt any state domestic relations laws.

The “2015 retirement pay chart” used in the court Order is inconsistent with controlling

federal law. Is the Order void for violating federal statutes or state laws?

6. A judgment that is beyond the scope of the pleadings is beyond the jurisdiction of the

court. Is the Order void for being beyond or in excess of the scope of the pleadings?

7. Under the U.S. and Tenn. Constitutions, a person will not be deprived of a right to

property but by due process of law. The trial court awarded a portion of Mr. Foster’s

3

II. ANALYSIS

A. Law of the Case

In his Motion to Vacate the July 26 Order, Husband asserted five reasons the trial

court lacked jurisdiction: “(1) the court lacks jurisdiction over an unenforceable contract;

(2) the court lacks jurisdiction to calculate the respondent’s military retirement; (3) the

court lacks jurisdiction to calculate the petitioner’s award; (4) the court lacks jurisdiction

to redefine federally defined terms; and, (5) the court rendered a judgment beyond the

scope of the pleadings.” On appeal, Husband raises those issues, along with a number of

others related to the July 26 Order; his attempt to raise issues resolved in and related to

the July 26 Order implicates the law of the case doctrine. Our Supreme Court has

described that doctrine and set forth factors for its application:

The phrase “law of the case” refers to a legal doctrine which generally

prohibits reconsideration of issues that have already been decided in a prior

appeal of the same case. In other words, under the law of the case doctrine,

an appellate court’s decision on an issue of law is binding in later trials and

retirement to Ms. Brooks based on a document not in evidence and upon which Mr.

Foster was never heard. Is the Order void for violating constitutional rights or

protections?

8. A judgment which changes valid parts of a contract or agreement without the express

consent of the parties is beyond the jurisdiction of the court. Is the Order void for

violating the parties’ agreement or for changing valid parts of the agreement?

9. A judgment is not valid unless supported by evidence, with sufficient findings of fact

and conclusions of law to support the judgment. Is the Order void for insufficient

evidence or findings of fact or conclusions of law to support the extent of the Order?

10. Did the trial court err in not applying all relevant and outcome-changing evidence or

oral testimony?

11. Tenn. R. Civ. P. 15.02 authorizes amended pleadings to conform to the evidence; it

does not authorize amending evidence to conform to the pleadings. The Order is based

entirely on a document not offered, and certainly not admitted into, evidence. Is the trial

court Order void where Rules of Evidence were not followed and the Order was not

based on evidence of record?

12. A judgment that is procured through a fraud upon the court is void. Is the Order void

for a fraud committed upon the court?

13. Did the judge err in not recusing himself?

14. Marital property is held as Tenancy by the Entirety property in Tennessee. Did the

trial court err in releasing garnished funds to Ms. Brooks that were taken from a joint

marital bank account, in which one of the account holders is not a party to this case?

15. Did the trial court err in awarding attorney fees from another case in another county

and court against Mr. Foster?

16. Is the nature of Mr. Foster’s obligation under the MDA that of a property settlement

or of a form of alimony?

17. Does Mr. Foster have a right to attorney[’]s fees in this case in accordance with the

MDA?

4

appeals of the same case if the facts on the second trial or appeal are

substantially the same as the facts in the first trial or appeal. The doctrine

applies to issues that were actually before the appellate court in the first

appeal and to issues that were necessarily decided by implication. The

doctrine does not apply to dicta.

***

Therefore, when an initial appeal results in a remand to the trial court, the

decision of the appellate court establishes the law of the case which

generally must be followed upon remand by the trial court, and by an

appellate court if a second appeal is taken from the judgment of the trial

court entered after remand. There are limited circumstances which may

justify reconsideration of an issue which was issue decided in a prior

appeal: (1) the evidence offered at a trial or hearing after remand was

substantially different from the evidence in the initial proceeding; (2) the

prior ruling was clearly erroneous and would result in a manifest injustice if

allowed to stand; or (3) the prior decision is contrary to a change in the

controlling law which has occurred between the first and second appeal.

Memphis Pub. Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303,

306 (Tenn. 1998) (citations omitted).

The issues that Husband raise—including the enforceability and interpretation of

the MDA, federal preemption, the scope of relief granted, due process, the admissibility

of evidence offered in the hearing held before the July 26 Order was entered, fraud, the

classification of the retirement as alimony, and all other issues related to the July 26

Order—are all precluded under the law of the case doctrine. This Court affirmed the July

26 Order in the first appeal. Husband has not alleged matters which arose after the order

in the first appeal or presented evidence to show any of the limited circumstances that

might justify departure from the law of the case doctrine. Accordingly, we deem

Husband’s issues one through twelve and sixteen to be without merit and discern no error

in the court’s denial of Husband’s Motion to Vacate.

Notwithstanding our determination relative to the preclusive effect of the law of

the case doctrine on issues raised by Husband, because the threshold issues of whether

the trial court had subject matter jurisdiction of and whether Wife had standing to bring

the January 19, 2016, contempt petition were not directly raised in the first appeal, we

will address those issues.

B. Subject Matter Jurisdiction

The determination of subject matter jurisdiction is a “threshold inquiry.” Redwing

v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn. 2012); Benson

5

v. Herbst, 240 S.W.3d 235, 239 (Tenn. Ct. App. 2007) (“[W]hen a court’s subject matter

jurisdiction is challenged, the first order of business is to ascertain the nature or gravamen

of the case.”). “A court derives its subject matter jurisdiction, either explicitly or by

necessary implication, from the Tennessee Constitution or from legislative acts.” Benson,

240 S.W.3d at 239. Our Supreme Court has further explained Tennessee courts’ sources

of subject matter jurisdiction:

The existence of subject matter jurisdiction depends on the nature of the

cause of action and the relief sought. Thus, when a court’s subject matter

jurisdiction is challenged, the first order of business is to ascertain the

nature or gravamen of the case. Then, the court must determine whether the

Tennessee Constitution or the General Assembly has conferred on it the

power to adjudicate cases of that sort. Both determinations involve

questions of law which this court reviews de novo without a presumption of

correctness.

Id.

The gravamen of this action is divorce; Chancery courts are vested with

jurisdiction to hear divorce actions at Tennessee Code Annotated section 16-11-110. The

specific issue presented involves the division of marital property, which is governed by

section 36-4-101, et seq. The trial court properly exercised jurisdiction in this divorce

action.

The contempt petition filed by Wife sought to secure Husband’s compliance with

the provision of the MDA that had been made an order of the court. The Tennessee

General Assembly has empowered the courts of this state to inflict punishments for

contempt of court. Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249

S.W.3d 346, 354 (Tenn. 2008). One of the statutory provisions enacted by the

Legislature allows a charge of contempt for the “willful disobedience or resistance of any

officer of the such courts, . . . to any lawful . . . order, . . . or command of such courts.”

Tenn. Code Ann. ' 29-9-102(3). The trial court had subject matter jurisdiction of the

proceeding.

C. Standing

Husband also argues that the trial court should have granted his Motion to Vacate

the July 26 Order because Ms. Foster lacked standing when she filed the Petition for

Contempt that led to the July 26 Order. This argument is without merit.

To show that a party has standing, that party must satisfy “three ‘indispensable’

elements.” Am. Civil Liberties Union of Tennessee v. Darnell, 195 S.W.3d 612, 619

(Tenn. 2006). We described those elements in City of Memphis v. Hargett:

6

First, a party must show an injury that is “distinct and palpable”; injuries

that are conjectural, hypothetical, or predicated upon an interest that a

litigant shares in common with the general citizenry are insufficient in this

regard. Second, a party must demonstrate a causal connection between the

alleged injury and the challenged conduct. While the causation element is

not onerous, it does require a showing that the injury to a plaintiff is “fairly

traceable” to the conduct of the adverse party. The third and final element is

that the injury must be capable of being redressed by a favorable decision

of the court.

414 S.W.3d 88, 98 (Tenn. 2013) (citations omitted).

Wife’s contempt petition asserted that Husband was not paying her the military

retirement benefits pursuant to the terms of the MDA, as incorporated into the court

order; this is an allegation of a “distinct and palpable injury” which is sufficient to

establish the first element of standing. Second, Wife established the second element of

standing by alleging that Husband was responsible for paying her a portion of his

retirement benefits and had failed to do so. Lastly, the trial court was able to redress

Wife’s injury by interpreting the MDA and enforcing the order adopting the agreement.

Accordingly, we conclude that Wife had standing to bring her petition for contempt.

D. Recusal

Husband filed his first Motion to Recuse on March 16, 2018, two weeks after the

trial court had entered its final order; the motion was filed pursuant to Rule 10B of the

Rules of the Supreme Court, and alleged that various rulings and other actions taken by

the court from July 26, 2016, through November 3, 2017, violated Rule of Judicial

Conduct (“RJC”) 2.11,3 2.15(B) and (D), 4 2.2,5 2.3,6 and 2.6.7 The trial court denied the

3

RJC 2.11 states:

(a) A judge shall disqualify himself or herself in any proceeding in which the judge’s

impartiality might reasonably be questioned, including but not limited to the following

circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a

party's lawyer, or personal knowledge of facts that are in dispute in the

proceeding.

4

RJC 2.15 (B) and (D) state:

(B) A judge having knowledge that a lawyer has committed a violation of the Rules of

Professional Conduct that raises a substantial question regarding the lawyer's honesty,

trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate

7

motion, holding that it was moot because the court had issued its final judgment. On

April 25, Husband again moved the court to recuse itself, reiterating the previous grounds

and asserting that the court gave Mother’s counsel “great leeway in his submissions to the

court and in not being held to legal standards of evidence among others,” and that such

actions violated RJC 2.11, 2.6 and 2.15 (B) and (D); the court denied the motion and

entered an order in accordance with Rule 10B.

We review the trial court’s recusal decision “under a de novo standard of review.”

Tenn. Sup. Ct. R. 10B, § 2.01. “The party seeking recusal bears the burden of proof.”

Cotham v. Cotham, No. W2015-00521-COA-T10B-CV, 2015 WL 1517785, at *2 (Tenn.

Ct. App. Mar. 30, 2015). “[T]he test for determining whether a Chancellor’s impartiality

might reasonably be questioned is, and must be, an objective one;” “the test for

determining whether an appearance of impartiality exists is whether a ‘person of ordinary

prudence in the Chancellor’s position, knowing all of the facts known to the Chancellor,

would find a reasonable basis for questioning the Chancellor’s impartiality.’” McKenzie

v. McKenzie, No. M2014-00010-COA-T10B-CV, 2014 WL 575908, at *2 (Tenn. Ct.

App. Feb. 11, 2014) (quoting In re Hooker, 340 S.W.3d 389, 395 (Tenn. 2011)) (citations

omitted). Our Court has further described from where the alleged bias must arise to give

merit to an assertion of bias:

authority.

***

(D) A judge who receives information indicating a substantial likelihood that a lawyer

has committed a violation of the Rules of Professional Conduct shall take appropriate

action.

5

RJC 2.2 states:

A judge shall uphold and apply the law, and shall perform all duties of judicial office

fairly and impartially.

6

The pertinent portion of RJC 2.3 cited by Husband states:

(A) A judge shall perform the duties of judicial office, including administrative duties,

without bias or prejudice.

***

(C) A judge shall require lawyers in proceedings before the court to refrain from

manifesting bias or prejudice, or engaging in harassment, based upon attributes including

but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age,

sexual orientation, marital status, socioeconomic status, or political affiliation, against

parties, witnesses, lawyers, or others.

7

RJC 2.6 states in pertinent part:

(A) A judge shall accord to every person who has a legal interest in a proceeding, or that

person's lawyer, the right to be heard according to law.

8

Generally, in order to justify recusal, any alleged bias must arise from

extrajudicial sources and not from events or observations during litigation

of a case. If the bias is alleged to stem from events occu[r]ring in the course

of the litigation of the case, the party seeking recusal has a greater burden to

show bias that would require recusal, i.e., that the bias is so pervasive that it

is sufficient to deny the litigant a fair trial.

McKenzie, 2014 WL 575908, at *3. Further:

“A trial judge’s adverse rulings are not usually sufficient to establish bias.”

Cannon, 254 S.W.3d at 308 (citing Alley, 882 S.W.2d at 821). Even rulings

that are “erroneous, numerous and continuous, do not, without more, justify

disqualification.” Id. (quoting Alley, 882 S.W.2d at 821). There is good

reason for this proposition: “If the rule were otherwise, recusal would be

required as a matter of course since trial courts necessarily rule against

parties and witnesses in every case, and litigants could manipulate the

impartiality issue for strategic advantage, which the courts frown upon.”

Davis, 38 S.W.3d at 565.

Boren v. Hill Boren, PC, 557 S.W.3d 542, 550 (Tenn. Ct. App. 2017).

At the outset, we address the court’s denial of the first motion on the grounds of

mootness. The motion was made on March 16, 2018, two weeks after the two orders

entered on March 2, one which adopted the Master’s Report and awarded Wife judgment

for $11,765.74, and the other which denied Husband’s Motion to Vacate the July 26

Order. At the time the motion to recuse was filed there was no matter pending before the

court. In the denying the motion, after detailing the post-remand history of the case, the

court held:

Following a hearing on Friday, March 2, 2018, this court entered an order

adopting the Master’s Report and awarding a judgment against the

Defendant for military retirement arrearage. A separate order was also

entered on March 2, 2018 denying the Defendant’s Motion to Vacate Void

Judgment and granting the Plaintiffs Request for Attorney Fees. This ruling

concluded all pending issues in the matter and was entered as a final

judgment and closing order. As this matter is now closed and there is

nothing further for this court to decide, the Motion to Recuse Chancellor

Laurence M. McMillan, Jr., is hereby denied as moot.

In order for a court to rule on a matter, the case must remain justiciable throughout

the entire course of litigation, including appeal. Alliance for Native American Indian

Rights in Tennessee, Inc. v. Nicely et al., 182 S.W.3d 333, 338 (Tenn. Ct. App. 2005);

9

State v. Ely, 48 S.W.3d 710, 716, n.3 (Tenn. 2001). A case is not justiciable if it does not

involve a genuine, continuing controversy requiring the adjudication of presently existing

rights. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000);

Ford Consumer Fin. Co. v. Clay, 984 S.W.2d 615, 616 (Tenn. Ct. App. 1998). A moot

case is one that has lost its justiciability because it no longer involves a present, ongoing

controversy. County of Shelby v. McWherter, 936 S.W.2d 923, 931 (Tenn. Ct. App.

1996). We agree with the trial court that, at the motion was filed, the case was not

justiciable and, consequently, the motion seeking the court’s recusal was moot.

Some of Husband’s arguments relating to the Chancellor’s impartiality are

actually thinly veiled attacks on the merits of the Court’s decision. As discussed in

section II (A), supra, there is no error in the rulings of the trial court. Accordingly,

Husband’s argument that the Chancellor should have recused himself because the rulings

against Husband violated the law and his constitutional rights is without merit.

Husband argues in his brief, as well as in his second motion to recuse in the trial

court, that the Chancellor’s impartiality can reasonably be questioned because:

From all reasonable inferences, Judge McMillan is protecting Mr. Rassas

from being held accountable for his actions. Judge McMillan’s previous

Chancery Court Clerk and friend is Judge Ted Crozier, Jr., and Judge

McMillan’s wife, Kim McMillan, is Mayor of Clarksville, TN. Judge

Crozier was a prior law partner with Mr. Rassas, and Mr. Rassas has

worked on-committees for Mayor McMillan, who was also a friend of

former Clarksville Mayor Ted Crozier, Sr. Mr. Rassas has a clear advantage

within his circle of friends, and he has clearly been given great leeway in

his submissions to the Court and in not being held to legal standards of

evidence, among others.

Husband has cited no evidence that shows that Mr. Rassas has been given “leeway” in his

submissions to the trial court, and in our review of the record, we discern no such

evidence.

Lastly, Husband argues that:

Because of their actions in this case, both Chancellor McMillan and Mr.

Rassas have no longer been in a position to objectively evaluate or apply

any laws. Both have a deeply personal interest in the outcome of this case

and whether or not this Court will provide legitimacy to their actions, and

Chancellor McMillan also likely realizes the possible impact his actions

may have on his wife’s career as the Mayor of Clarksville. It would be

obvious to any lay person with the knowledge of all of the facts of this case

to agree that Chancellor McMillan will always appear to be biased and

10

incapable of impartiality in such a case, one in which he has such a

personal interest.

Again, Mr. Foster cites no evidence to show that the Chancellor has an interest in the

outcome of this case, and we have found no evidence of such.

For these reasons we find no basis upon which the impartially of Chancellor

McMillan could be reasonably questioned or that he violated the Rules of Judicial

Conduct in any respect; Husband has not met the burden of showing grounds for recusal.

Accordingly, we conclude that the trial court was not required to recuse itself and did not

err in denying Husband’s motions to recuse.

E. Attorney’s Fees

Husband argues that (1) the trial court erred when it awarded Wife’s attorney’s

fees for the Wilson County action and (2) he should be awarded reasonable attorneys’

fees under the terms of the MDA; Wife argues that the trial court properly awarded her

attorney’s fees and this Court should award her attorney’s fees for this appeal.

“Litigants must typically pay their own attorneys’ fees absent a statute or

agreement providing otherwise”; [h]owever, parties to an MDA are free to agree that,

should litigation over the contract arise, the losing party will be responsible for the

prevailing party’s fees. Cherqui v. Laor, No. W2016-02502-COA-R3-CV, 2017 WL

4843185, at *4 (Tenn. Ct. App. Oct. 25, 2017) (citations omitted). Here, the parties’

MDA states:

In the event that it becomes necessary for either party to bring a court

action to assist in the enforcement of this Agreement, and the Court finds

that one of the parties has violated the terms of this Agreement, the parties

agree that any order to enforce compliance with the terms of this

Agreement shall include the expenses of litigation including attorney’s fees

assessed against the violating party.

The Wilson County action was commenced by Husband’s current wife to

challenge the garnishment Wife issued to collect the judgment granted in this action. The

trial court found that “the attorney’s fees and expenses related to the Wilson County

action, in which [Husband] was joined as a third party defendant, were necessary to

enforce compliance with the terms of the final decree . . . .” We do not disagree that

Wife’s defense of that action falls within the scope of the terms of the MDA. We do not

agree, however, that the court in this case had the authority to award fees for services

rendered in the Wilson County action; rather, any award for services rendered in that case

would be in the province of the Wilson County Circuit Court to make. See Carroll v

Corcoran, No. M2012-01101-COA-R3-CV, 2013 WL 2382292 (Tenn. Ct. App. May 29,

11

2013).8 Accordingly, we vacate the award of $1,210.00 for Mr. Rassas’ representation in

the Wilson County action.

We decline Husband’s request that he be awarded his attorney’s fees. In this

appeal, he is representing himself and has not incurred counsel fees. To the extent he

seeks an award for services prior to this appeal, he has not shown a basis for an award.

There is no order disposing of an application he made to the trial court for us to review;

indeed, the trial court agreed with Wife’s interpretation of the MDA and granted her

relief. Thus, we decline to award Husband attorney’s fees.

Wife requests that she be awarded her reasonable attorney’s fees for this appeal. In

the first appeal, we awarded Wife her attorney’s fees based on the above quoted language

of the MDA, holding:

In light of the above language, we conclude that we have no discretion to

deny Wife an award of attorney’s fees incurred on appeal. The applicability

of that provision turns on whether it was necessary for Wife to bring a court

action to assist in the enforcement of the marital dissolution agreement and

whether we find that Husband violated the terms of the marital dissolution

agreement. As we explained above, the agreement provides for Wife to

receive 33% of Husband’s disposable retirement pay based on his rank at

the time of the divorce. Before Wife instituted these proceedings, Husband

insisted that Wife should receive an amount based on his pay at the time of

the divorce. That amount was lower than the amount to which Wife was

entitled under the agreement. As such, Husband’s actions violated the

agreement, and it was necessary for Wife to enforce the agreement by

instituting these proceedings. Although the trial court denied Wife’s motion

to hold Husband in contempt, she ultimately achieved the primary benefit

that she sought in these proceedings because the trial court’s judgment,

which we have affirmed, ordered Husband to act in compliance with the

agreement by increasing the amount of his payments to Wife and

reimbursing her for the deficiencies in his earlier payments. Moreover,

because Husband initiated this appeal, Wife was forced to incur additional

attorney’s fees to defend the trial court’s judgment and ensure the

agreement’s continued enforcement. As such, we hold that Wife is entitled

to an award of attorney’s fees incurred on appeal and remand this case for a

determination of the appropriate amount of those fees.

8

Carroll was a custody and child support proceeding wherein this court held that the Circuit Court in

Sumner County, where Mother had initiated the proceeding, did not have authority to award fees for

actions taken by her counsel in a companion case filed by Father in Robertson County. Carroll v

Corcoran, No. M2012-01101-COA-R3-CV, 2013 WL 2382292 at *7 (Tenn. Ct. App. May 29, 2013).

12

Foster, 2017 WL 2992979, at *6 (footnote omitted). The same considerations addressed

in the first appeal apply to this appeal as well; Husband chose to appeal again and raise

multiple issues that were decided in the first appeal. Accordingly, we find that Wife is

entitled to her attorney’s fees on appeal and remand this case for determination of the

appropriate amount of those fees.

III. CONCLUSION

For the foregoing reasons, we vacate the award of $1,210.00 attorney’s fees for

services rendered in the Wilson County action, and affirm the judgment of the trial court

in all other respects.

RICHARD H. DINKINS, JUDGE

13