Wife Allowed to Clarify Final Decree 12 Years After Divorce

May 22, 2012
By The McKellar Law Firm, PLLC on May 22, 2012 4:35 PM |

Richmond v. Richmond, No E2011-01687-COA-R3-CV (Tenn. Ct. App. May 7, 2012), shows Tennessee Divorce Attorneys that although a Wife waited 12 years after her divorce to clarify her final decree, the elapsed time did not serve as a bar to her claim nor waive her right to her Husband's retirement.

In 1999, Husband and Wife divorced and Wife was awarded 50 percent of Husband's retirement from U.S. AIR Force through the date of divorce. In 2010, Husband retired from military with 28 years of service. In 2011, Wife filed motion to clarify the Final Decree which did not include sufficient language to allow direct payment of Husband's retirement to the Wife. Wife also sought award of any lapsed payments she would be entitled to while not receiving direct pay. In 2011, the trial court entered a Military Retired Pay Division Order ("MRPDO") which awarded Wife 42.5% of Husband disposable military pay. The trial court also determined that Husband owed Wife her share of his Federal military retirement which accrued between August 2010 and June 2011 and ordered Husband to pay $200.00 a month until the total due was paid, an amount of approximately $3,000.00. Husband appealed.

Husband raised two issues on appeal: (1) whether Wife's failure to file the necessary paperwork until 12 years later after the final divorce entitles Husband to the protection of the unclean hands doctrine; and (2) whether Wife waived her right to receive the past payments of her share of Husband's retirement by waiting 12 years to complete the necessary paperwork to secure such payments.

The doctrine of unclean hands, provides the court a reason to refuse to grant relief to parties who have willfully engaged in unconscionable, inequitable, immoral, or illegal acts with regards to the subject matter of their claims under a preponderance of evidence standard. The trial court here found Wife had not acted in such a manner. Wife's failure to complete the paperwork, the essence of Husband's argument, did not meet standard for unclean hands doctrine. The Court of Appeals ruled this issue was without merit.

Husband next argued Wife waived her rights by waiting 12 years to complete the necessary paperwork. A waiver is a voluntary relinquishment of a party of a known right and can be waived expressly or by acts or conduct which shows intent not to claim said advantage. Husband argues Wife knew of right and neglected and failed to act to claim retirement. The Court of Appeals disagreed, stating Wife attempted to claim her portion to payment once Husband retired in 2010 and was unable to do so with Final Order and MDA as written. Wife also attempted to get Husband to sign papers to facilitate her receipt of her portion but Husband refused to sign. Wife then sought an order from the court allowing her to claim her portion of Husband's retirement. Wife's twelve year wait did not constitute a waiver to the claim because Husband had not retired nor was there an express declaration of Wife to waive her right to the payment. Wife was not eligible to receive her portion of Husband's retirement until 2010. Therefore, the judgment of the trial court is affirmed on both issues.