Posted by: koherston | January 6, 2016

Relief Beyond Scope of Pleadings in Murfreesboro, TN Alimony Modification Matter: Long v. Long

you have to askFacts: Husband and Wife divorced in 2011. Wife was awarded as her separate property 30% of Husband’s military retired pay. Husband was also ordered to pay alimony to Wife in the amount of $1422 per month.

In 2013, Husband filed a motion to modify his alimony obligation. The motion sought a change in the amount of alimony because of Husband’s retirement and the resulting decrease in income.

After hearing, the trial court terminated Husband alimony obligation beginning on the date of his retirement. The trial court then calculated Wife’s portion of Husband’s retirement pay and ordered Husband to pay that amount to Wife.

Husband appealed.

On Appeal: The Court of Appeals reversed the trial court.

Husband argued Wife never requested any relief regarding the portion of his military retirement pay she was awarded as separate property at trial.

A judgment or decree that is beyond the fair scope of the pleadings is void. Because the purpose of pleadings is to give notice to the parties regarding what may be adjudicated, a judgment beyond the scope of the pleadings is beyond the notice given the parties and, thus, should not be enforced. A court cannot create a claim where none exists.

After reviewing the record, the Court explained:

Husband filed a petition that sought only to modify alimony…. Neither party raised an issue regarding Wife’s separate property share of Husband’s military retirement. Granted, Husband’s post-retirement income was a factor to consider in the alimony [] modification, but Wife never asked the trial court to resolve an issue regarding her separate property share of Husband’s military retirement. Instead, the trial court created a claim where none existed. Given that the trial court’s judgment with respect to Wife’s 30% share of Husband retired military income was outside the scope of the requested relief, we must reverse the trial court’s judgment in this regard, vacate the trial court’s rulings with regard to the calculation of disposable military retired pay, and vacate the trial court’s judgment for arrears for disposable military retired pay.

Accordingly, the portion of the trial court’s judgment addressing Husband military retirement pay was vacated.

Long v. Long (Tennessee Court of Appeals, Middle Section, December 29, 2015).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

%d bloggers like this: