Remus v. Nunn

1

KARI DALE REMUS v. BRANDON JOSEPH NUNN

No. M2023-00589-COA-R3-CV

Court of Appeals of Tennessee, Nashville

March 27, 2024

Assigned on Briefs January 2, 2024

Appeal from the Chancery Court for Robertson County No. CH-16-263 Ben Dean, Chancellor

In this post-divorce case, the husband filed a petition for declaratory judgment on the issue of whether a provision of the parties' marital dissolution agreement concerning military retirement was modifiable. The trial court dismissed the husband's petition on the ground of failure to state a claim upon which relief may be granted and ruled that the provision at issue was not modifiable. While we find that the trial court erred in granting the wife's motion to dismiss for failure to state a claim, we affirm the result reached by the trial court on the merits of the dispute. Further, we have determined that the wife was not entitled to an additional award of attorney fees at trial and is not entitled to her attorney fees on appeal.

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

B Nathan Hunt, Clarksville, Tennessee, for the appellant Brandon Joseph Nunn.

Steven C. Girsky, Clarksville, Tennessee, for the appellee, Kari Dale Remus.

ANDY D. BENNETT, J., delivered the opinion of the Court, in which CARMA DENNIS MCGEE and KRISTI M. DAVIS, JJ., joined.

OPINION

ANDY D. BENNETT, JUDGE

FACTUAL AND PROCEDURAL BACKGROUND

Kari Dale Remus ("Wife") and Brandon Joseph Nunn ("Husband") were divorced pursuant to a final decree entered on September 12, 2016, in which the trial court incorporated the parties' marital dissolution agreement ("MDA") and permanent parenting plan.^[1] The marital dissolution agreement contained the following provisions in a section entitled, "Alimony":

(2) As [a] form of non-modifiable rehabilitative alimony, the Husband agrees to pay the mortgage for the current marital residence (or an amount equal thereto if for some reason the Wife is no longer residing there); the car payment for the 2015 Chevy Malibu until the car is paid in full; the cell phone bill (at the rate of the current plan); the reasonable and usual utilities of the marital residence along with all other marital bills connected with the marital residence. This includes the obligation owing on the pool loan. The Husband's obligation to make these payments will forever terminate upon the minor child graduates [sic] from high school, the parties expressly agreeing that there will be no other terms or conditions that will justify the modification of this sum.

Upon the minor child graduating high school, the Husband shall only be obligated to the [sic] pay the Wife $1,646.00 a month with the anticipated source of payment being from the Husband's Army retirement pay or other government benefits. The payment shall be made to the Wife no later than the 15^th of each month directly to the Wife until such time as a direct payment can be set up through DFAS as set forth more specifically in paragraph () [sic] below.

In a later paragraph, concerning military retirement, the MDA stated:

(6) The Wife shall be awarded $1,646.00 of the Husband's military retirement account earned through his employment with the United States Army. The Wife will not make efforts to collect this sum until the obligations in paragraph 2 are met. Should the Wife's interest in the Husband's military retirement not equal at least $1646.00, the Husband shall make up the difference such that the Wife's total money received is $1646.00. The Husband shall name the Wife as the SBP^[2] beneficiary.

On August 28, 2017, Husband filed a petition to modify paragraph 2 of the MDA regarding alimony. In his petition, Husband asserted that paragraph 2 was "too vague and should therefore be set aside" and that "the award of rehabilitative alimony in this matter in perpetuity was not proper and should therefore be set aside." In the alternative, Husband requested that paragraph 2 be modified to provide that he would pay rehabilitative alimony "in a set amount for a set period of time." On April 9, 2018, before Husband's petition was to be heard by the court, the court entered an agreed order stating, in pertinent part, that paragraph 2 of the MDA was to be "modified and amended as follows":

a. Husband shall pay the following to Wife on a monthly basis:

Mortgage - 963 Granite Trail, Adams, TN 37101 $1,372.14

Wife's car payment (2015 Chevrolet Malibu) $301.00

AT&T cell phone bill $168.00

Swimming pool loan $503.66

Water bill $110.00

Electric bill $229.00

Direct TV $138.00

Charter Spectrum Internet $59.99

ADT home security $53.64

Garbage pickup $10.00

Propane tank rental fee $5.20

TOTAL: $2,950.63

b. Husband shall make said payments on the first (1st) day of each month by directly depositing said amount into the parties' joint bank account;

c. Upon Husband's satisfaction of any of the debts previously set forth herein related to the house, vehicle, or pool loan, then the total amount Husband shall pay to Wife shall be reduced by the amount of any debts satisfied.

d. That Husband shall continue to be responsible for support of the minor child, Kori Jean Nunn (DOB: 10/07/2005), after the child reaches eighteen (18) years of age if the child is in high school. The duty of support shall continue until the child graduates from high school or the class of which the child is a member when the child attains eighteen (18) years of age graduates, whichever occurs first; and, e. That upon said payments terminating as set forth above, paragraph 6 of the parties' Marital Dissolution Agreement entitled "Military Retirement" shall apply and be binding upon the parties, which provides that the Wife shall be awarded $1,646.00 of Husband's military retirement.

The agreed order further provided for the dismissal of Husband's petition to modify the MDA.

More than four years later, on October 17, 2022, Husband filed a "Petition for Declaratory Judgment" requesting a judgment from the court as to whether paragraph 2 of the MDA is subject to modification "upon the parties' minor child graduating from high school and Petitioner's other payments terminating." According to Husband's petition, he received "$1,879.00 per month in military retirement to which Wife would be entitled to 27% or $507.33 per month according to Defense Finance Accounting Service ("DFAS") regulation." Husband argued that "the balance of $1,138.67 would be considered alimony, which is subject to modification by the Court." Wife filed an answer and motion to dismiss for failure to state a claim upon which relief may be granted; she also asserted a counterpetition to enforce the court's final decree.

The matter was heard by the trial court on March 21, 2023, and the court entered an order on March 28, 2023, finding that the award of $1,646.00 of Husband's military retirement "was a division of property and is a final division of property." However, the court's order also included a provision allowing Husband thirty days from March 21, 2023, to do additional research and file a brief, if Husband felt it necessary, to "counter the Court's ruling that the division of property was final between the parties" and "whether there is any argument that Husband's previous conversion of a share of his military retirement to VA disability opens the door to modification of the $1,646.00 per month previously awarded to Wife."

In an "Order on Motion to Dismiss" entered on April 6, 2023, the court made additional findings, which will be discussed below as relevant to the issues raised in this appeal. The trial court concluded that Husband's petition failed to state a claim upon which relief may be granted and granted Wife's motion to dismiss. Nevertheless, the court went on to reiterate that the $1,646.00 constituted a division of marital property. The court dismissed Wife's counterclaim as moot and awarded Wife a portion of her attorney fees.

Husband appeals and presents the following issues: (1) Whether the MDA provision awarding Wife $1,646.00 per month is null and void or, in the alternative, is modifiable; (2) whether Wife is capped on the amount she can receive from Husband's military retirement; (3) whether ambiguities in the MDA should be construed against Wife; and (4) whether the issues before this court are barred by the doctrine of res judicata. Wife also presents issues for our review: (1) whether the trial court properly dismissed Husband's petition; (2) whether the trial court should have awarded her all of her reasonable attorney fees related to her motion to dismiss; and (3) whether she should be awarded her reasonable attorney fees on appeal.

ANALYSIS

I. Propriety of Dismissal

In this appeal, we must determine whether the trial court properly granted Wife's motion to dismiss Husband's petition for declaratory judgment on the basis of failure to state a claim upon which relief may be granted, pursuant to Tenn. R. Civ. P. 12.02(6). The propriety of a trial court's decision to grant or deny such a motion presents a question of law, which we review de novo with no presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894-95 (Tenn. 2011).

A motion to dismiss for failure to state a claim under Tenn. R Civ. P. 12.02(6) "challenges only the legal sufficiency of the complaint, not the strength of the plaintiff's proof or evidence." Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011). A defendant who makes such a motion to dismiss admits the truth of the material allegations of the complaint, but avers that the allegations do not establish a cause of action.^[3] Id. In considering the motion, the trial court is to "'"construe the complaint liberally, presuming all factual allegations...