                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                              SEPTEMBER 13, 2007 Session

   ANTHONY JOSEPH ZIOBROWSKI v. MARCY HAYS ZIOBROWSKI

                Direct Appeal from the Circuit Court for Williamson County
                            No. 95160    Russ Heldman, Judge



                  No. M2006-02359-COA-R3-CV - Filed December 20, 2007


This appeal involves a final decree of divorce that was entered in 1995, and a proposed qualified
domestic relations order (“QDRO”) entered pursuant to that decree in 2006. The former husband
claims that the proposed QDRO allows his former wife to receive a greater share of his monthly
retirement benefit than the trial court awarded to the wife when it divided the parties’ marital
property. We reverse and remand for further proceedings.


   Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed and
                                       Remanded

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the court, in which and DAVID R. FARMER ,
J., joined, AND HOLLY M. KIRBY , J., dissented.

A. Allen Smith, III, Goodlettsville, TN, for Appellant

Virginia Lee Story, Franklin, TN, for Appellee




                                           OPINION
                              I. FACTS & PROCEDURAL HISTORY

       On October 2, 1995, Anthony Joseph Ziobrowski, III, and Marcy Hays Ziobrowski were
divorced by a decree entered by Judge Donald P. Harris in the Circuit Court for Williamson County.
The final decree of divorce incorporated a memorandum, which, relevant to this appeal, valued and
divided the parties’ marital property as follows:

               5. MARITAL ESTATE. The court finds the marital property of the
               parties to be as follows:
               ...
               Saturn Retirement                               $7,652.98
               Saturn Individual Savings Plan (net value) $3,625.19
               GM Pension Benefit                              Not discernable
               Household furnishings                           Not discernable
               Ziobrowski vs. Westra (cause of action)         Not discernable
               ...
               7. PROPERTY DIVISION. The home of the parties shall be sold.
               From the proceeds of the sale . . . all indebtedness of the parties . . .
               shall be paid. . . . Thereafter, the next $11,493.77 shall be paid to
               wife. This amount represents the values of the Saturn Retirement and
               Individual Savings Plans ($11,278.17) plus the difference in net
               values of the vehicles each will receive ($215.60). Provided the
               proceeds are sufficient to pay wife this amount, the Saturn Retirement
               and Individual Savings Plans shall be awarded to husband free of
               any claim by wife. If the proceeds of sale are not sufficient to pay her
               this amount, husband shall pay to her the difference and wife shall
               have a lien on the Saturn plans to secure payment. . . .
                       ...
                       The value of the parties’ household furnishings, the GM
               retirement benefits (old) and the cause of action, Ziobrowski vs.
               Westra, are not discernable. The court intends an equal division of
               these assets. Such a division is made exceedingly difficult due to the
               fact the value of the cause of action is highly speculative and a
               substantial part of that cause of action represents [damages] that are
               not marital assets. . . . Accordingly, wife shall be awarded all the
               household furnishings except for [certain items awarded to husband].
               Since the court is of the opinion this division gives the bulk of the
               household furnishings to wife, husband shall be awarded the cause of
               action styled Ziobrowski vs. Westra. Wife is awarded one-half of the
               $676.60 monthly benefit payable on account of the old General
               Motors retirement account. Husband shall have prepared a qualified
               domestic relations order that shall cause one-half of this monthly
               benefit to be paid to wife.


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(emphasis added). The final judgment incorporating the memorandum was not appealed and became
final thirty days after entry. However, the proposed QDRO that would provide for Ms. Ziobrowski
to receive one-half of the GM monthly retirement benefit was never prepared. Apparently, the
QDRO matter was not addressed until ten years after the divorce, when Mr. Ziobrowski began to
contemplate early retirement because of health problems.

        The first relevant document in the record before us is an “Objection to Qualified Domestic
Relations Order” filed by Mr. Ziobrowski on March 31, 2006, in Williamson County Circuit Court,
basically alleging that a proposed QDRO submitted by Ms. Ziobrowski was inconsistent with the
final divorce decree. Mr. Ziobrowski requested that the court conduct a hearing before entering a
QDRO, and a hearing date was set, but there is no transcript of a hearing in the record. On June 21,
2006, Circuit Court Judge Russ Heldman ordered Mr. Ziobrowski to comply with the final divorce
decree by submitting an appropriate QDRO within ten days. On July 10, 2006, Ms. Ziobrowski filed
a “Motion for Contempt; and Motion for Entry of Wife’s Proposed QDRO.” On July 12, 2006, Mr.
Ziobrowski filed his proposed QDRO and responded to the motion for contempt, explaining that his
attorney had been out of town. We are unable to find a copy of Mr. Ziobrowski’s proposed QDRO
in the record.

        On July 28, 2006, Judge Heldman signed and approved a proposed QDRO, which provided
for Ms. Ziobrowski to receive “50% of [Mr. Ziobrowski’s] accrued vested benefit as of September
27, 1995, or the next closest valuation date.” It appears that the proposed QDRO signed by Judge
Heldman was prepared by Ms. Ziobrowski’s attorney, but both parties filed motions to alter or
amend. Mr. Ziobrowski claimed that pursuant to Ms. Ziobrowski’s proposed QDRO, she would be
receiving over one thousand dollars per month from the GM retirement fund, rather than one half
of $676.60, as awarded in the divorce decree. Mr. Ziobrowski explained that his current benefit
under the GM plan was larger than it was at the time of the divorce because GM and Saturn had
since merged his three retirement accounts into the one GM plan. Mr. Ziobrowski sought an
opportunity to present the testimony of various representatives of Saturn, if necessary, regarding the
changes in the retirement plans.

        In response, Ms. Ziobrowski claimed that “[w]hat has happened at Husband’s employer since
the time of divorce has no bearing in the matter at hand.” She also claimed that the figure in the
divorce decree was only an “estimate of a future benefit” because Mr. Ziobrowski was not eligible
to draw retirement at that time. Finally, she claimed that if there had been a change in the estimated
value of the pension, Wife should receive the increased benefit because it was Mr. Ziobrowski who
failed to enter the QDRO earlier.

        On August 31, 2006, Judge Heldman signed and approved a second proposed QDRO and an
Amended QDRO, each with slightly different terms, but again providing that Ms. Ziobrowski would
receive “50% of [Mr. Ziobrowski’s] accrued vested benefit as of September 27, 1995, or the next
closest valuation date.” It appears that both of these proposed QDRO’s were prepared by Ms.
Ziobrowski’s attorney. The trial court subsequently entered an order denying the motion to alter or
amend. Mr. Ziobrowski filed a timely notice of appeal to this Court.


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                                     II. ISSUES PRESENTED

       Appellant presents the following issues for our review, which we slightly restate:

1.     Whether Ms. Ziobrowski’s marital share of the old GM retirement account is equal to
       $338.30 and constitutes non-modifiable alimony in solido.
2.     Whether Judge Heldman’s acceptance of the proposed QDRO submitted by Ms. Ziobrowski
       improperly modified Judge Harris’s award of alimony in solido.

Ms. Ziobrowski requests her attorney’s fees on appeal. For the following reasons, we reverse the
decision of the circuit court and remand for further proceedings. In addition, we decline to award
attorney’s fees to Ms. Ziobrowski.

                                   III.   STANDARD OF REVIEW

        “As with other written instruments, the interpretation of a judgment is a question of law.”
Brewer v. Piggee, No. W2006-01788-COA-R3-CV, 2007 WL 1946632, at *7 (Tenn. Ct. App. July
3, 2007) (citing Crull v. Crull, No. E2005-01430-COA-R3-CV, 2006 WL 770461, at *3 (Tenn. Ct.
App. Mar. 27, 2006)). We review a trial court’s conclusions of law under a de novo standard upon
the record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d
87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817
(Tenn. Ct. App. 1989)).

                                          IV. DISCUSSION

                                          A.   The Award

       Mr. Ziobrowski is correct in stating that alimony in solido is an award of a definite sum of
money that is paid in a lump sum or in installments over a definite period of time, and it may not be
modified. See Broadbent v. Broadbent, 211 S.W.3d 216, 222 (Tenn. 2006) (citing Burlew v.
Burlew, 40 S.W.3d 465, 471 (Tenn. 2001)). “Alimony in solido may be awarded in lieu of or in
addition to any other alimony award, in order to provide support, including attorney fees, where
appropriate.” Tenn. Code Ann. § 36-5-121(d)(5) (2005) (emphasis added). However, the
memorandum incorporated by the final decree of divorce in this case clearly classified the GM
retirement account as marital property of the parties, and it awarded Ms. Ziobrowski one-half of the
monthly benefit in equitably dividing the marital estate, not as spousal support.

        Nevertheless, like awards of alimony in solido, “court orders distributing marital property
are not subject to modification.” Johnson v. Johnson, 37 S.W.3d 892, 895 (Tenn. 2001) (citing
Towner v. Towner, 858 S.W.2d 888, 892 (Tenn. 1993)). Once a divorce judgment becomes final,
the division of marital property is not subject to modification. Sutton v. Sutton, No. 03A01-9710-
CH-000492, 1998 WL 331309, at *1 (Tenn. Ct. App. E.S. June 24, 1998). Here, the divorce decree
became final thirty days following its entry on October 2, 1995. Therefore, the trial court’s original


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division of marital property could not be modified by a subsequent order. See, e.g., Sutton, 1998
WL 331309, at *1 (holding that a trial court considering a petition to modify alimony did not have
the power to re-divide the marital property). This requires us to first determine what the trial court
actually awarded in the memorandum incorporated by the final decree of divorce.

                                            B.     The Divorce Decree

         “Judgments are to be construed like other written instruments, and the determinative factor
is the intention of the court as gathered from all parts of the judgment.” Lagrone v. Lagrone, No.
01A01-9603-CH-00125, 1996 WL 512032, at *2 (Tenn. Ct. App. W.S. Sept. 11, 1996) (citing
Branch v. Branch, 35 Tenn. App. 552, 249 S.W.2d 581 (1952)). The construction given to a
judgment should give force and effect to every word of it, if possible, and make its several parts
consistent, effective, and reasonable. Id.

         In the memorandum incorporated by the divorce decree, the court first awarded Ms.
Ziobrowski $11,278.17 representing her interests in the Saturn retirement plan and the Saturn
individual savings plan. Next, the court noted that the values of certain assets, including the GM
retirement plan, were “not discernable.” However, the court went on to assign a specific value to
the GM retirement monthly benefit and equitably divide it, awarding Ms. Ziobrowski “one-half of
the $676.60 monthly benefit payable on account of the old General Motors retirement account.” Mr.
Ziobrowski was ordered to prepare a proposed QDRO “that shall cause one-half of this monthly
benefit to be paid to wife.” We do not interpret this provision as merely reciting a useless “estimate”
of what the benefit would be in the future. In plain language, it awarded Ms. Ziobrowski “one-half
of the $676.60 monthly benefit payable on account of the old General Motors retirement account,”
without limitation. In Cohen v. Cohen, 937 S.W.2d 823, 831 (Tenn. 1996), our Supreme Court
explained the difficulties encountered in dividing future retirement benefits and common equitable
methods of doing so. “The choice of valuation method remains within the sound discretion of the
trial court to determine after consideration of all relevant factors and circumstances.” Id. Because
of the limited record before us, it is unclear how the trial court reached this specific value for the GM
monthly benefit. However, as previously discussed, Ms. Ziobrowski did not appeal the final divorce
decree that valued the asset, and it became final in 1995. Therefore, we cannot address the issue on
appeal.1 The fact remains that the trial court did assign a value of $676.60 to the GM monthly
retirement benefit, and the court awarded one-half of that monthly benefit, or $338.30, to Ms.
Ziobrowski. This aspect of the court’s division of marital property was not subject to modification
or amendment by a subsequent order or QDRO.

                                                 C.     The QDRO


         1
            In her brief, M s. Ziobrowski claims that it is M r. Ziobrowski who is now attempting to “contest” the trial
court’s 1995 decree that classified and divided the marital property, and that he has waived his arguments by not
appealing the final divorce decree within thirty days. We do not see how Mr. Ziobrowski’s appeal could be
characterized as an attempt to contest the divorce decree, and we find no merit in Ms. Ziobrowski’s claim that this Court
“lacks the jurisdiction to hear this matter.”


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        In his motion to alter or amend, Mr. Ziobrowski contended that under Ms. Ziobrowski’s
proposed QDRO, which the trial court approved, she would receive more than one thousand dollars
per month rather than the specified amount of $338.30 awarded pursuant to the divorce decree. Ms.
Ziobrowski does not state the value of the monthly benefit she will receive under her proposed
QDRO. She does, however, state that her proposed QDRO contained “the standard language” that
is “the same as in any other GM QDRO.”

        In Maxwell v. Maxwell, No. 01A01-9402-CV-00086, 1994 WL 527134, at *1 (Tenn. Ct.
App. M.S. Sept. 28, 1994), a QDRO was entered that was inconsistent with the parties’ divorce
decree because it allowed the former wife to receive a greater share of the husband’s retirement
benefits than she was entitled to. On appeal, the court noted that “the QDRO amended, in an
impermissible manner, the final judgment, and to the extent it deviated from the judgment, it is
void.” Id. The court determined that the divorce decree became final when it was not appealed, and
one party could not reinterpret it in an inconsistent QDRO. Id. at *2. The court vacated the QDRO
“as being beyond the authority of the Court to grant, since it purports to amend a judgment that had
become final more than seven years previously.” Id.

        Similarly, in Lagrone v. Lagrone, No. 01A01-9603-CH-00125, 1996 WL 512032, at *2
(Tenn. Ct. App. W.S. Sept. 11, 1996), a QDRO was entered that conflicted with the provisions of
an MDA that was incorporated by a divorce decree. This Court found that the QDRO did not
conform to the provisions of the final decree of divorce, which had become final long before the
QDRO was entered. Id. at *3. We then concluded that “the provisions of [the] QDRO would, in
effect, modify a property division which is not modifiable once the divorce decree becomes final,”
and accordingly, we vacated the QDRO and remanded the case to the trial court. Id.

       In Whisenhunt v. Whisenhunt, No. 02A01-9506-CV-00126, 1997 WL 305296, at *2 (Tenn.
Ct. App. W.S. June 9, 1997), a QDRO authorized a former wife to receive a greater portion of her
former husband’s profit sharing plan than the trial court had actually awarded. We modified the
QDRO on appeal, limiting the amount of benefits that the former wife would receive to the amount
that was ordered by the trial court. Id.

        In the case before us, the divorce decree awarded Ms. Ziobrowski one-half of a $676.60
monthly benefit, or $338.30 per month, in dividing the marital property. According to Mr.
Ziobrowski, the proposed QDRO approved by the trial court allows Ms. Ziobrowski to receive over
one thousand dollars per month. He claims that his current benefit under the GM plan has increased
because it was consolidated with his Saturn retirement plans, and that he had already paid Ms.
Ziobrowski $11,278.17 for her marital share of those plans. Therefore, he claims that Ms.
Ziobrowski is not entitled to simply receive one-half of his current GM benefit. Again, Ms.
Ziobrowski does not dispute this contention, but simply claims that her proposed QDRO was proper
because it contained “standard language” entitling her to one-half of whatever he earned during the
marriage. Clearly, though, if the Saturn retirement funds are now part of Mr. Ziobrowski’s GM plan
and current benefit, standard language allowing Ms. Ziobrowski to receive one-half of his total
benefit earned during the marriage would be improper. Ms. Ziobrowski already received her marital


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share of the Saturn funds, $11,278.17, at the time of the divorce in 1995. More importantly, Ms.
Ziobrowski would be receiving a portion of the monthly benefit that is far in excess of what the trial
court actually awarded.

        Unfortunately, the record before us contains no evidence from which we can conclusively
establish how much of the monthly benefit Ms. Ziobrowski will receive under the proposed QDRO
entered by the court. The terms of the plan are not in the record, and Mr. Ziobrowski only alleged
in his motion to alter or amend that the proposed QDRO allowed Ms. Ziobrowski to receive more
than one thousand dollars per month. At oral argument, his attorney stated that the benefit was now
valued at around three thousand dollars per month. We have determined that the final decree of
divorce awarded only $338.30 of the monthly benefit to Ms. Ziobrowski. Therefore, the proposed
QDRO is void to the extent that it conflicts with the final decree. This case is remanded to the trial
court for a determination of the value of the monthly benefit that Ms. Ziobrowski will receive
pursuant to the QDRO that was entered, and upon making this determination, the court shall amend
the QDRO if necessary to conform to the October 2, 1995 judgment. Ms. Ziobrowski may not
receive more than $338.30 of Mr. Ziobrowski’s monthly benefit, according to the division of marital
property set forth in the memorandum incorporated by the final decree of divorce.

                                  B.    Attorney’s fees on Appeal

       Ms. Ziobrowski requested attorney’s fees on appeal, claiming that Mr. Ziobrowski’s appeal
was frivolous and that she should be awarded her fees as the prevailing party. Because Mr.
Ziobrowski was successful on appeal, we deny Ms. Ziobrowski’s request for attorney’s fees.

                                         V. CONCLUSION

        For the aforementioned reasons, we reverse the decision of the circuit court and remand for
further proceedings. Further, we decline to award attorney’s fees to Ms. Ziobrowski. Costs of this
appeal are taxed to Appellee, Marcy Hays Ziobrowski, for which execution may issue if necessary.



                                                       ___________________________________
                                                       ALAN E. HIGHERS, P.J., W.S.




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