Karen H. Foster v. Douglas S. Foster, M2016-01749-COA-R3-CV

Parties divorced in 2006 after 13 years of marriage; Husband (Army) had 14 years’ service and rank of Captain at the divorce.
Marital dissolution agreement, ¶6, awarded Wife “33% of the Husband’s disposable retirement pay at the grade of Captain” for 156 months, payable regardless of whether Husband later attained a higher rank; Wife released Husband from further payments after term.
Husband retired in May 2015 as a Major with 23 years’ service; DFAS would not pay Wife without a clarifying court order stating a percentage of actual disposable retired pay or a fixed dollar amount.
Wife sought court enforcement; Husband argued the award was calculable at divorce (33% of Captain pay based on 2006 accrued benefits = $465.86) and alternatively relied on emails where Wife earlier accepted $465.86.
Trial court applied the retained-jurisdiction method, awarding Wife 33% of the actual disposable retirement pay a Captain retiring with Husband’s service would receive (33% of $3,844 = $1,281.33/month) for 156 months and judgment for past-due amounts; denied contempt and trial fees.
On appeal, the Court of Appeals affirmed, held Husband violated the agreement, and remanded for award of Wife’s reasonable appellate attorney’s fees under the contract.

Issue	Foster (Wife) Argument	Foster (Husband) Argument	Held
Proper valuation method for Wife’s 33% award	Use retained-jurisdiction: 33% of Captain’s actual disposable pay when Husband retired	Treat award as alimony in solido calculable at divorce; use 2006 accrued Captain pay (33% = $465.86)	Retained-jurisdiction appropriate; award is 33% of Captain’s actual disposable retirement pay at retirement (affirmed)
Effect of Wife’s pre-litigation emails acknowledging $465.86	Emails not binding where agreement language is clear and unambiguous	Emails show parties’ intent to fix amount at $465.86	Emails do not override clear contract language; Wife not bound by $465.86 acknowledgment
Whether Wife may recover appellate attorney’s fees	Contract authorizes fees for enforcement; prevailing party entitled to fees on appeal	No discretion to deny contractual fee provision	Wife entitled to reasonable appellate attorney’s fees; remanded to quantify amount

Barnes v. Barnes, 193 S.W.3d 495 (Tenn. 2006) (marital dissolution agreements interpreted as contracts)
Buettner v. Buettner, 183 S.W.3d 354 (Tenn. Ct. App. 2005) (contractual intent at execution governs interpretation)
Cohen v. Cohen, 937 S.W.2d 823 (Tenn. 1996) (vested vs. unvested retirement rights; marital property includes both)
Kendrick v. Kendrick, 902 S.W.2d 918 (Tenn. Ct. App. 1994) (present-value vs. retained-jurisdiction methods; retained jurisdiction appropriate for unvested rights)
Long v. McAllister-Long, 221 S.W.3d 1 (Tenn. Ct. App. 2006) (marital dissolution provisions construed like other contracts)
Honeycutt v. Honeycutt, 152 S.W.3d 556 (Tenn. Ct. App. 2003) (clear, unambiguous contract language must be enforced as written)
Cracker Barrel Old Country Store, Inc. v. Emerson, 284 S.W.3d 303 (Tenn. 2009) (American Rule on attorney’s fees; fees recoverable only by contract or statute)