Robert Martin Thompson v. Christie Lee Thompson

02/09/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 5, 2021 Session

ROBERT MARTIN THOMPSON v. CHRISTIE LEE THOMPSON

Appeal from the Circuit Court for Putnam County

No. 2015-CV-229 Amy V. Hollars, Judge

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No. M2020-01293-COA-R3-CV

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The sole issue on appeal in this divorce action pertains to the coverture formula employed

to fund the husband’s marital interest in the wife’s retirement account via a deferred

distribution method. On the morning the case was set for a final hearing, the parties and

their attorneys appeared in open court and announced they had agreed to the division of

the marital estate with the exception of the implementing language required to fund the

husband’s marital interest in the wife’s retirement account. Because the wife had a

substantially larger account than the husband but lacked the financial resources to fund a

present distribution of her retirement account, the parties announced in open court that they

had agreed to an offset of their respective pensions and authorized the court to enter a final

judgment using the coverture formula to affect a deferred distribution. Following the entry

of the final order, the wife filed a Tennessee Rule of Civil Procedure 59.04 motion to set

aside the order, contending that the trial court applied a deferred distribution method that

did not reflect the parties’ agreement. The trial court denied the motion, and this appeal

followed. Finding no error, we affirm the trial court in all respects.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and W. NEAL MCBRAYER, JJ., joined.

Howard L. Upchurch and Stacy H. Farmer, Pikeville, Tennessee, and Kelsy A. Miller,

Cookeville, Tennessee, for the appellant Christie Lee Thompson.

Henry D. Fincher, Cookeville, Tennessee, for the appellee, Robert Martin Thompson.

OPINION

FACTS AND PROCEDURAL BACKGROUND

Robert Martin Thompson (“Husband”) and Christie Lee Thompson (“Wife”) were

married on September 22, 1995. This divorce action was commenced by Husband on

August 25, 2015. Following contentious proceedings, the parties were declared divorced

on December 22, 2017, resulting in a marriage totaling 22 years.1 Other issues, including

specifically the division of marital assets, remained unresolved.

During the majority of their marriage, both parties were employed as public

educators, and each individually participated in and accumulated rights to retirement

investments through Tennessee Consolidated Retirement System (“TCRS”).

Wife began working as a teacher and participating in her TCRS account in October

1995. Husband began working as a teacher and participating in his TCRS account in 2000.

Both Husband and Wife were still participating in their respective TCRS accounts when

Husband filed for divorce in 2015 and when the final decree was entered.

The values of the marital assets and debts were not disputed. Aside from their

respective TCRS accounts, the marital estate consisted primarily of debt at the time of their

divorce.2 The retirement benefits Wife accumulated during the marriage significantly

exceeded those accumulated by Husband due to her longer service, vesting, and higher pay.

David Pitts, Husband’s actuarial expert, assigned a present value of $365,314 to Wife’s

account and a present value of $115,013 to Husband’s TCRS account; however, neither

account vested during the divorce proceedings because the parties continued to work and

participate in their respective TCRS account. See Cohen v. Cohen, 937 S.W.2d 823, 826

(Tenn. 1996) (explaining that “[a]n unvested retirement account is one in which the time

requirements have not been fulfilled”).

When the case came on for a final hearing on March 19, 2018, the parties announced

in open court that they had settled the division of the marital estate. Because Wife’s TCRS

account was significantly larger than Husband’s account, and she lacked the liquid assets

to fund a present distribution of Husband’s marital interest in her TCRS account, the parties

agreed that Husband would receive a coverture percentage of 27% of Wife’s TCRS

retirement benefits via a deferred distribution method. However, the parties could not agree

upon the implementing language regarding the division of the parties’ retirement accounts.

To avoid the necessity of further litigation, the parties authorized the court to determine

and include in the Final Order the language needed to implement their agreement. During

1

The parties only child was an adult at the time of the divorce.

2

The parties’ marital estate included a home, that was encumbered, and personal vehicles of modest

value, which are not at issue in this appeal.

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the hearing, the trial court acknowledged that an agreement had been reached and stated

the following:

It is the Court’s understanding that a resolution has been reached in this

matter which had to do with the property division and a request for support.

. . .

I have been provided with very thorough briefs by both attorneys telling me

what they believe the facts of the case would be, providing detailed

spreadsheets regarding your property and debt and differing valuations of the

defined benefits plans through TCRS. And I want to tell you that we took a

long time this morning trying to look at a spreadsheet, trying to adjust it to

try to reach some position of approaching equality.

That meant that I was presented with very different positions regarding how

those benefits plans should be valued and the Court gave Counsel my reading

of the law on how that valuation works. And under my understanding—

from my understanding of the appellant cases on this, that is a settled

issue of law, that those defined benefits plans must be valued according

to a calculation that takes into account the future income flow from that

account.

(Emphasis added).

In response to the court’s statements, Husband’s counsel explained during the

hearing—with no objection—that “[Wife] will be paying a coverture percentage of 27% of

the marital portion of the retirement to [Husband] upon her retirement.” After some

additional, unrelated discussion, the trial court specifically asked both Husband and Wife

whether they had heard what had been announced in court and if they agreed to it; both

parties responded affirmatively.

The Final Order was entered on October 29, 2018, and recited that the parties had

entered into an agreement regarding the division of their marital property and debts; that

the parties announced their agreement under oath to the court; and that the court approved

the parties’ agreement. The Final Order also reads in pertinent part:

2. The Court finds that the parties relied upon and agreed to a coverture

percentage division of [Wife’s] retirement account, and arrived at the

percentage in part based upon actuarial valuations that assumed the parties

would continue working and would receive periodic raises, and that the

following language shall be used to divide [Wife’s] Tennessee Consolidated

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Retirement System (TCRS) account and the TCRS is directed to abide by

said order of the Court:

Husband shall receive a share calculated by using a coverture

percentage of twenty-seven percent (27%), and that the

following formula shall be used to calculate Husband’s share

of Wife’s retirement: twenty-two (22) years of marriage

divided by Wife’s total years of TCRS service, said fraction

being multiplied by twenty-seven percent (27%). The resulting

percentage shall be applied to any payment from Wife’s TCRS

retirement of any nature, including lump sum, monthly

payments, beneficiary distributions or otherwise, and shall be

paid directly to Husband by TCRS.

(Emphasis in original).

Following the entry of the October 29, 2018 order, Wife filed a motion to alter or

amend the trial court’s judgment or, in the alternative, for a new trial, seeking relief under

either Tennessee Rule of Civil Procedure 59.04 or 60.02.3 Wife claimed that the Final

Order “erroneously set forth a division of [Wife’s] retirement benefits which would include

the increase in value or growth of [Wife’s] retirement benefits after entry of the Judgment

and through and until the date retirement benefits [are] distributed to [Wife].” Wife asserted

that the Final Order erroneously permits Husband to receive more than his marital portion

of her retirement benefits. Resultantly, she asked the trial court to amend the Final Order

to reflect the “true agreement of the parties.”

The court denied the motion and explained, “While the provisions are not verbatim,

the Court has reviewed the transcript and the Final Order filed on October 29, 2018, and

FINDS that the supplementary language in said order merely clarifies and implements the

provisions of the parties’ agreement as announced in Court and imposes no material

additional obligations on either party than what they assumed under oath in the presence

of the Court.”4

3

We note that Wife filed this motion within 30 days of the Final Order being entered. Importantly,

“Rule 59.04 allows a party to seek relief from a judgment within thirty days after being entered; conversely

Rule 60.02 affords a party a means to seek relief from a final, non-appealable judgment.” Ferguson v.

Brown, 291 S.W.3d 381, 387 (Tenn. Ct. App. 2008) (citing Campbell v. Archer, 555 S.W.2d 110, 112

(Tenn. 1977)). When Wife’s motion was received and filed by the clerk’s office, the judgment was not yet

a final, non-appealable judgment. Thus, Rule 59.04 is the applicable rule, and we decline to address any

argument for relief under Rule 60.02.

4

The order went on to state:

Questions arose regarding the Qualified Domestic Relations Order (QDRO) that is

anticipated to be required in order to implement the parties’ announced agreement and the

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This appeal followed.

ISSUES

Wife contends that the trial court erred by entering the Final Order which was

contrary to the parties’ announced understanding and which provided for an erroneous

division of Wife’s TCRS retirement benefits.5

Husband insists the Final Order is fully consistent with the agreement announced in

open court. Husband also contends Wife’s appeal is frivolous, which entitles him to an

award of attorney’s fees.

STANDARD OF REVIEW

The matters at issue were first raised in Wife’s Tennessee Rule of Civil Procedure

59.04 Motion to Alter or Amend the Final Order. We review a trial court’s ruling on a

motion to alter or amend a judgment under Rule 59.04 for an abuse of discretion. Linkous

v. Lane, 276 S.W.3d 917, 924 (Tenn. Ct. App. 2008) (citing Stovall v. Clarke, 113 S.W.3d

715, 721 (Tenn. 2003)). Pursuant to this standard, we review a trial court’s decision to

determine, where applicable, whether there is a factual basis for the decision in the record,

whether the court properly identified and applied the applicable legal principles, and

whether the decision is within the range of acceptable alternative dispositions. Lee Med.,

Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).

Our review of a trial court’s determinations on issues of law is de novo, without any

presumption of correctness. See Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn.

2011).

Court’s order of October 29, 2018, regarding [Wife’s] Tennessee Consolidated Retirement

System (TCRS) retirement account. [Husband’s] counsel is directed to prepare a draft of a

proposed QDRO that reflects the Court’s order, to circulate it to counsel and then to provide

it to the Court through either agreement or lodging. TCRS shall be provided both a copy

of the Court’s October 29, 2018 order, this order, and the QDRO, and shall be requested to

review and approve the same.

5

Wife included an argument, for the first time, in her appellate brief that the trial court lacked the

authority to enter the Final Order because the parties could not agree upon the language to implement the

division of Wife’s TCRS retirement account. However, because this issue was not raised at the trial court

and has been raised for the first time on appeal, we conclude that the issue is waived. See In re M.L.P., 281

S.W.3d 387, 394 (Tenn. 2009) (holding that a party who did not properly raise an issue in the trial court

had “waived his right to argue this issue for the first time on appeal”); Dye v. Witco Corp., 216 S.W.3d 317,

321 (Tenn. 2007) (holding that an issue raised for the first time on appeal was waived); Black v. Blount,

938 S.W.2d 394, 403 (Tenn. 1996) (holding that “issues raised for the first time on appeal are waived”).

Thus, we decline to address this alternative argument.

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ANALYSIS

I. DIVISION OF WIFE’S RETIREMENT ACCOUNT

As explained above, the issues presented in this appeal were first raised in the trial

court in Wife’s Rule 59.04 Motion to Alter or Amend the Final Order.

“The purpose of Tenn. R. Civ. P. 59 motions is to prevent unnecessary appeals by

providing the trial courts with an opportunity to correct errors before a judgment becomes

final.” U.S. Bank, N.A. v. Tennessee Farmers Mut. Ins. Co., 410 S.W.3d 820, 826 (Tenn.

Ct. App. 2012) (citations omitted). “Rule 59 can provide relief from a judgment due to

mistake, inadvertence, surprise, or excusable neglect.” Pryor v. Rivergate Meadows

Apartment Associates Ltd. P’ship, 338 S.W.3d 882, 885 (Tenn. Ct. App. 2009) (citing

Henson v. Diehl Machines, Inc., 674 S.W.2d 307, 310 (Tenn. Ct. App. 1984)).

In her motion, Wife claimed that the Final Order “erroneously set forth a division

of [Wife’s] retirement benefits which would include the increase in value or growth of

[Wife’s] retirement benefits after entry of the Judgment and through and until the date

retirement benefits [are] distributed to [Wife].” Stated another way, Wife asserted that the

Final Order erroneously permits Husband to receive more than his marital portion of her

retirement benefits. Resultantly, she asked the trial court to amend the Final Order to reflect

the “true agreement of the parties.”6

The crux of this matter is whether the implementing language the court employed

to fund Husband’s marital interest in Wife’s retirement account via a deferred distribution

method was contrary to the parties’ agreement as announced in open court or contrary to

Tennessee law.

6

More specifically, the motion reads, in pertinent part:

1. [A] Final Judgment was prepared by counsel for the Plaintiff, Robert Martin

Thompson, which erroneously set forth a division of these retirement benefits which

would include the increase in value or growth of the Defendant’s retirement benefits

after entry of the Judgment and through and until the date retirement benefits were

distributed to the Defendant.

2. All of these provisions were contrary to the understanding of the Defendant regarding

the disposition of these assets and the settlement agreement entered into between the

Defendant and the Plaintiff and announced to the Court on March 19, 2018.

3. That the Final Judgment entered on October 29, 2018 does not reflect the agreement

of the Defendant and contains the objectionable provisions identified in paragraph 2

above.

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We begin our discussion with the agreement as announced by the parties in open

court on March 19, 2018. With both Husband and Wife in attendance, their respective

counsel announced that an agreement had been made resolving the division of marital

property. Following this announcement, the trial court and counsel proceeded to outline, in

detail, the provisions upon which the parties agreed. Notably, the parties agreed to the

application of the coverture formula with a coverture percentage of 27%. In response to a

question by the trial court, Wife acknowledged that she understood and agreed to pay “a

coverture percentage of 27 percent of the marital portion of the retirement to [Husband]

upon her retirement.” (Emphasis added). Husband made a similar acknowledgment.

Moreover, at no point during the hearing in open court did Wife or her counsel state any

objection to the terms presented to the court. The Final Order that followed reads in

pertinent part:

2. The Court finds that the parties relied upon and agreed to a coverture

percentage division of [Wife’s] retirement account, and arrived at the

percentage in part based upon actuarial valuations that assumed the parties

would continue working and would receive periodic raises, and that the

following language shall be used to divide [Wife’s] Tennessee Consolidated

Retirement System (TCRS) account and the TCRS is directed to abide by

said order of the Court:

Husband shall receive a share calculated by using a coverture

percentage of twenty-seven percent (27%), and that the

following formula shall be used to calculate Husband’s share

of Wife’s retirement: twenty-two (22) years of marriage

divided by Wife’s total years of TCRS service, said fraction

being multiplied by twenty-seven percent (27%). The resulting

percentage shall be applied to any payment from Wife’s TCRS

retirement of any nature, including lump sum, monthly

payments, beneficiary distributions or otherwise, and shall be

paid directly to Husband by TCRS.

(Emphasis added).

Wife contends the trial court’s order is not consistent with the parties’ agreement.

Specifically, she contends it erroneously affords Husband a greater division of Wife’s

TCRS retirement benefits. This argument is based on Wife’s contention that she agreed to

Husband’s receipt of a specific percentage of the TCRS account accrued during their

marriage, but that the trial court’s inclusion of the phrase divided by Wife’s total years

of TCRS service in the coverture fraction affords Husband a greater distribution of her

benefits than the parties agreed to and permits Husband to receive benefits based off an

increase in value accumulated by post-divorce contributions.

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For his part, Husband maintains that the deferred distribution method provides a

workable framework for the division of Wife’s unvested retirement benefits and limits

Husband’s award to his martial portion of Wife’s retirement account. Husband takes the

position that the standard coverture formula only applies to the marital share of unvested

pension benefits because the coverture fraction7 requires the years of Wife’s service

accrued during the marriage to be divided by Wife’s total years of service calculated

on the date of her retirement. Husband further argues that application of the agreed-upon

coverture percentage8 ensures an equitable division of the marital portion of Wife’s

retirement benefits.

Tennessee authorizes two methods for the division of pensions in divorce

proceedings9: present value or deferred distribution. Cohen, 937 S.W.2d at 831. Present

value is an actuarial method of calculating the current value of a future income stream that

“requires the trial court to place a present value on the retirement benefit as of the date of

the final decree.” Id. “Once the present cash value is calculated, the court may award the

retirement benefits to the employee-spouse and offset that award by distributing to the other

spouse some portion of the marital estate that is equivalent to the spouse’s share of the

retirement interest.” Id. The present cash value method is preferable when “the marital

estate includes sufficient assets to offset the award.” Id.

7

The “coverture fraction” also known as the “time rule formula” or “martial property interest”

represents the marital portion of the benefits and is expressed:

Numerator: Years of Pension Service Accrued During Marriage

Denominator: Total Years of Service at Retirement

See Croley v. Tiede, No. M1999-00649-COA-R3-CV, 2000 WL 1473854, at *4 (Tenn. Ct. App. Oct. 5,

2000).

8

The “coverture percentage” is the percentage of the coverture fraction awarded to the non-

employee spouse. See Maher v. Woodruff, No. M2016-01468-COA-R3-CV, 2017 WL 1372865, at *5

(Tenn. Ct. App. Apr. 13, 2017). Classically, the coverture percentage is 50 percent. See, e.g., Croley, 2000

WL 1473854, at * 7 (holding that the “non-employee spouse should receive a portion, usually half, of the

amount which is the [coverture] fraction multiplied times the employee spouse’s actual monthly retirement

benefit”). But the coverture percentage can be any percentage that is agreed upon by the parties or deemed

equitable by the court. See Patric v. Patric, No. 03A01-9111-CH-00389, 1992 WL 32634, at *6 (Tenn. Ct.

App. Feb. 25, 1992) (explaining that the “[d]ivision of martial property must be equitable, not equal” and

that the trial court has “wide discretion in dividing the marital assets in order to best effectuate that

purpose”).

9

This court has explained that while unvested pension rights are not specifically included within

the statutory definition of marital property, unvested pension rights accruing during a marriage are marital

property subject to equitable division in divorce cases in accordance with Tennessee Code Annotated § 36-

4-121. Kendrick v. Kendrick, 902 S.W.2d 918, 923–24 (Tenn. Ct. App. 1994).

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In contrast, “deferred distribution” does not require a determination of the present

value. Instead, “the court may determine the formula for dividing the monthly benefit at

the time of the decree but delay the actual distribution until the benefits become

payable.” Id. (emphasis added). Thus, the deferred distribution method permits the non-

employee spouse to receive their marital share in the future rather than at the time of

divorce. See Kendrick, 902 S.W.2d at 927–28 (explaining that deferred distribution is

preferred when the marital estate does not contain sufficient property to offset an award

upon divorce of the parties). When vesting or maturation is uncertain or when the

retirement benefit is the parties’ greatest or only economic asset, courts have

preferred the “deferred distribution” method to distribute unvested retirement

benefits.10 Cohen, 937 S.W.2d at 831 (citing Kendrick, 902 S.W.2d at 927–28) (emphasis

added).11

It is undisputed that Wife’s TCRS account had not vested when the Final Order was

entered. This is because Wife is still working and still contributing to her plan. It is also

undisputed that Wife’s TCRS account was her greatest asset and that she lacked sufficient

liquid assets to fund a present distribution of the present value of Husband’s marital interest

in her TCRS account. Finding no error with the trial court’s decision to apply the deferred

distribution method to the facts of this case, we proceed with our analysis of the trial court’s

application of deferred distribution method.

The deferred distribution method is calculated in two steps: (1) the coverture or

marital fraction is multiplied by a percentage that represents the non-employee spouse’s

equitable interest in the martial portion of the retirement benefits; (2) and the resulting

percentage is multiplied by the employee spouse’s total monthly retirement benefits to

calculate the amount due to the non-employee spouse. See Croley, 2000 WL 1473854, at *

7; see also Cohen, 937 S.W.2d at 831 n.9. The coverture fraction represents the “marital

portion,” which is then equitably divided between the parties as marital property. See

McFarland v. McFarland, No. M2005-01260-COA-R3-CV, 2007 WL 2254576, at *14

(Tenn. Ct. App. Aug. 6, 2007) (explaining that the coverture fraction represents the marital

portion of the retirement benefits of which the non-employee spouse should receive a

portion to affect an equitable division of the employee spouse’s monthly benefits); see also

Tennessee Code Annotated § 36-4-121.

The trial court used the following to compute the first step: 22 years of marriage

divided by Wife’s total years of TCRS service at retirement, said fraction to be multiplied

10

This court has held that the present value method is inappropriate when pension rights are

unvested and has recommended the deferred distribution method to value and distribute an unvested

pension. Kendrick, 902 S.W.2d at 928.

11

We note that when dealing with retirement accounts, the choice of valuation method is a

discretionary one that depends on the facts of the case. Kendrick, 902 S.W.2d at 928 (citations omitted).

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by 27%.12 The resulting percentage of that calculation was then ordered to be applied to

Wife’s monthly TCRS retirement.

The formula used by the trial court reflects the parties’ agreement. At the final

hearing, counsel for both parties agreed to use the deferred distribution method. The parties

do not dispute that they were married from September 22, 1995, until December 22, 2017,

totaling 22 years of marriage, which is the number represented by the numerator in the trial

court’s coverture fraction. The trial court left the denominator as an unknown—Wife’s

total years of TCRS service at retirement—a number that will only be determinable at

Wife’s retirement.13 The parties agreed that Husband should receive “27% of the marital

portion of the retirement account,” which is reflected in the Final Order. Nothing in the

trial court’s application of the coverture formula was erroneous or in contradiction to

Tennessee Law.

The trial court properly applied the deferred distribution method with respect to the

division of Wife’s future monthly benefit and the parties’ agreement. Accordingly, we

affirm the judgment of the trial court in all respects.

II. ATTORNEY FEES

As a final matter, we acknowledge Husband’s request for attorney’s fees pursuant

to Tennessee Code Annotated § 27-1-122, which states:

When it appears to any reviewing court that the appeal from any court of

record was frivolous or taken solely for delay, the court may, either upon

motion of a party or of its own motion, award just damages against the

appellant, which may include, but need not be limited to, costs, interest on

the judgment, and expenses incurred by the appellee as a result of the appeal.

“The decision whether to award damages for a frivolous appeal rests solely in our

discretion.” Kramer v. Kramer, No. E2018-00736-COA-R3-CV, 2019 WL 1239867, at *5

(Tenn. Ct. App. Mar. 18, 2019) (citing Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn.

12

We acknowledge the possible confusion presented by the trial court’s reference to Wife’s

equitable interest of 27% as a “coverture percentage of 27%,” but we recognize that in application, the trial

court correctly applied the deferred distribution method. In explaining the division of Wife’s retirement

account, the trial court ordered the coverture fraction to be multiplied by 27%, which the parties agreed

represented Husband’s equitable interest in the martial portion of Wife’s retirement benefits. The trial court

ordered that the resulting percentage “should be applied to any payment from Wife’s TCRS retirement.”

Despite the trial court’s references to a “coverture percentage of 27%,” it is apparent from the record that

the court was referring to an equitable interest of 27%.

13

Notably, as Wife continues to work, the denominator of the coverture fraction increases, and the

non-employee spouse’s share in the retirement benefit decreases. Croley, 2000 WL 1473854, at *9.

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Ct. App. 2009)). “A frivolous appeal is one that is ‘devoid of merit,’ or one in which there

is little prospect that it can ever succeed.” Indus. Dev. Bd. of City of Tullahoma v. Hancock,

901 S.W.2d 382, 385 (Tenn. Ct. App. 1995) (citations omitted). Based on our review of

the record and in the exercise of our discretion, we decline to award attorney’s fees in this

appeal.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded for further

proceedings consistent with this opinion. Costs of appeal are assessed against Wife,

Christie Lee Thompson.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

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