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Ex-Spouse’s Lawyer Ought to Have Made Certain QDRO Right

Ex-Spouse’s Lawyer Ought to Have Made Certain QDRO Right

Tennessee case abstract after divorce concerning QDRO and retirement division.

Darlene Christmas Murray (Godsey) v. Louis Wade Godsey

The husband and spouse on this Roane County, Tennessee case have been married in 1976, and shortly thereafter the husband joined the navy.  He later labored for the Federal Aviation Administration and took part within the Civil Service Retirement System and the Thrift Financial savings Plan.  They have been divorced in 1994, and the ultimate decree discovered that the spouse was entitled to half of retirement advantages.  The decree additionally known as for a Certified Home Relations Order (QDRO) to be ready, and ordered the husband to offer the required info.

The attorneys drafted the QDRO and submitted a draft to the Workplace of Personnel Administration (OPM), which said that it didn’t pre-approve such orders.  It did, nevertheless, clarify that it provided a $14 handbook on how one can draft such orders.  The husband’s lawyer notified the spouse’s lawyer that he believed the order to be passable, and it was in the end authorised by the trial court docket.  The QDRO said that the husband would notify the spouse at the least 60 days earlier than receipt of any retirement funds.

The husband retired in 2013.  In some unspecified time in the future, the spouse reached out on Fb to say that she had not acquired any funds.  The husband didn’t reply.  His present spouse testified that she defined to the spouse that she ought to contact OPM to determine the issue.

In 2015, the spouse’s new lawyer wrote to OPM, who knowledgeable him that the 1997 QDRO was insufficient.  The spouse then went to court docket and requested her husband to be held in contempt.  She requested her share of the pension thus far, in addition to lawyer’s charges.

At listening to, every partner took the place that it was the opposite partner’s accountability to inform OPM and straighten out the issue.

After a listening to, Choose Dennis W. Humphrey held the husband in contempt for failing to pay the spouse her half of the retirement, and for not notifying her of the retirement.  The trial court docket took the place that the husband had “stonewalled” the spouse.  As punishment for contempt, the trial court docket ordered the husband to pay $25,000 lawyer’s charges.  After some post-trial motions, the husband appealed to the Tennessee Court docket of Appeals.

The spouse first argued that the Court docket of Appeals didn’t have material jurisdiction over the attraction, since there had not been a closing judgment within the decrease court docket.  Nonetheless, the Court docket of Appeals famous that the discovering of contempt was a closing judgment, and it was correct to attraction that judgment, although different points remained to be resolved.  It dominated as a result of the order said a particular punishment for the contempt, and that facet of the case was appropriate for evaluate.

The court docket then turned to the deserves of the attraction.  The husband argued that holding him in contempt was in violation of each Tennessee and federal regulation.

The appeals court docket famous that for a contempt prosecution to achieve success, the underlying order should be each lawful and clear.  It should exactly spell out the small print of compliance in order that affordable individuals will know what actions are required.  Lastly, it should be proven that the individual truly violated the order, and that the violation was willful.

The appeals court docket held that the order was lawful and sufficiently clear.  Nonetheless, it differed with the decrease court docket on whether or not the husband “truly violated” the order.

The decrease court docket had discovered that the husband had “stonewalled her on communications,” however the order required solely the communication of sure particular items of data.  The appeals court docket discovered that these had been communicated, and that the decree didn’t require “to make Herculean efforts on Spouse’s behalf” to make sure that the order could be processed by OPM.

The appeals court docket identified that the spouse’s issues didn’t stem from the husband’s “stonewalling,” however reasonably from the failure of the spouse’s lawyer to draft the correct type of order that might be acceptable to OPM.

The appeals court docket additionally held that the proof preponderated towards a discovering that the husband willfully didn’t notify the spouse of his retirement.

For these causes, the Court docket of Appeals reversed the discovering of contempt and the award of lawyer’s charges.  The appeals court docket’s opinion was authored by Choose Kristi M. Davis, and joined by Judges Frank G. Clement, Jr., and Carma Dennis McGee.

No. E2020–00442-COA-R3-CV (Tenn. Ct. App. Jul. 19,  2021).

See authentic opinion for precise language.  Authorized citations omitted.

To study extra, see The Tennessee Divorce Process: How Divorces Work Start to Finish.

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