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OCIAL SECURITY BENEFITS RECEIVED POST-DIVORCE WAIVED IN MDA; ATTORNEYS FEES GRANTED FOR ENFORCEMENT OF MDA

Facts:

The parties married in 1998 and divorced in 2011. An MDA was filed and incorporated in to the parties' divorce decree. Though the parties were divorced, they maintained a joint bank account. In 2013, Husband received social security benefits equaling $52,422.90, which was deposited in to the joint bank account. Wife withdrew $25,000 of this money from the joint account. As retaliation, Husband retrieved Wife's Tahoe by using fake repo men. Husband then filed a petition for contempt, requesting the return of the $25,000 and his attorney's fees. As a response, Wife filed requesting the return of her vehicle and her attorney's fees. In September 2014, the Trial Court ordered that both parties return the requested property and awarded Husband his attorney's fees. Wife appealed.

Review:

Wife questions whether the Trial Court erred in ordering the return of the money, failing to find husband in contempt, and awarding Husband his attorney's fees. The Court of Appeals reviewed the language of the MDA.

The Appellate Court opinion noted:

"Furthermore, the "Waiver" section of the MDA states that the "parties waive any separate and distinct claim to any retirement or pension benefit of the other party except as may be set out by this agreement herein...." The inclusion of the word pension in this section, combined with retirement, shows that the parties intended to take an expansive approach concerning what retirement monies the MDA would control. Construed together, the language of the MDA shows a clear intent by the parties that they intended for the MDA to control any post-employment monies they received from any source. Considering the intent of the parties, as illustrated by the language employed in the MDA, we conclude that the payment made to Mr. Hanna by the Social Security Administration was covered by the "Retirement and Annuities" section of the MDA."

Therefore, the Appellate Court agreed that all post-employment money, including the social security benefits received by husband, was his sole property and upheld the judgment of the Trial Court to order the return of the $25,000 to Husband.

Regarding the issue of contempt, Wife failed to include an argument on this issue in her brief, which is required by Tennessee Rule of Appellate Procedure 27. Since Wife failed to provide an argument for this issue, the issue of contempt is waived.

The final issue addressed was the issue of attorney's fees. Wife claims that the Trial Court erred in awarding Husband his attorney's fees. According to the MDA, either party should be awarded their attorney's fees incurred by successfully enforcing the MDA. Wife claims that since the court ordered that her truck be returned, she successfully enforced the MDA and should be awarded attorney's fees instead of Husband. The Court of Appeals agrees that awarding only Husband his attorney fees was illogical in light of the MDA language cited by Wife. However, the Court finds that Husband was also successful in enforcing the MDA by gaining the return of his money. Therefore, both parties are entitled to their attorney's fees. On these grounds, the Court of Appeals orders that each party pay their own attorney's fees, reversing Husband's award for attorney's fees. Wife is granted attorney's fees spent on the appeal.

In summation, the Court of Appeals affirms the Trial Court's decision to return the $25,000 to Husband and the Tahoe truck to Wife. The Court of Appeals reverses the decision of the Trial Court to award Husband his attorney's fees. The case is remanded to Trial Court to determine the appropriate amount of attorney's fees to be awarded to Wife for the appeal only.

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Mr. McKellar was voted by his peers as a “Top Attorney” by Knoxville’s CityView magazine in its 2010, 2011, 2012, 2013, 2014, and 2015 editions. In 2014, 2015, and 2016, Mr. McKellar was selected as a member of the “Top 100 Trial Lawyers” by the National Trial Lawyers.

Ms. Easter was voted by her peers as a “Top Attorney” in Cityview Magazine for Family Law / Divorce / Child Support in 2012, 2013, 2014, 2015 and 2016.

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