                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                          June 15, 2010 Session

               PAULA KAY FRANCO v. ARMANDO OSCAR FRANCO

                Appeal from the Chancery Court for Montgomery County
            No. MC CH CV D1 94 7736      Laurence M. McMillan, Chancellor


                   No. M2009-01562-COA-R3-CV - Filed February 28, 2011


The trial court affirmed the Report of a special master interpreting the parties’ Marital
Dissolution Agreement as granting Wife a proportionate share of Husband’s retirement based
on the duration of the marriage and not based upon the thirty years he was in the military.
We affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, JJ., joined.

Carrie W. Gasaway, Clarksville, Tennessee, for the appellant, Paula Kay Franco.

H. Reid Poland, III, Clarksville, Tennessee, for the appellee, Armando Oscar Franco.

                                    MEMORANDUM OPINION 1

       The issue on appeal concerns interpretation of a single provision in the parties’ marital
dissolution agreement.




       1
           Tenn. R. Ct. App. 10 states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
       Paula Kay Franco and Armando Oscar Franco were divorced in July of 1995 after 13
years of marriage. The parties had married in 1981. Incorporated into the divorce decree
was the parties’ agreed upon Amended Marital Dissolution Agreement (“Agreement”). The
provision at issue concerns distribution of Husband’s military retirement. Husband served
in the military from August of 1976 until his retirement in August of 2006, a period of 30
years.

        When Mr. Franco retired from the military in August of 2006, the Defense Finance
and Accounting Office interpreted the parties’ Agreement to require that 50% of Mr.
Franco’s retirement pay go to Ms. Franco. Thereafter, in November of 2007, Mr. Franco
filed a Petition to Modify the Decree arguing that Ms. Franco was not entitled to a full 50%
of his retirement benefits. Mr. Franco argued in his petition that the parties’ Agreement
entitled Ms. Franco to 50% of the retirement attributable to the thirteen years they were
married but not the thirty years he served.

        The trial court referred the matter to a special master. The special master’s Report
dated January 15, 2009 found that under the terms of the Agreement Ms. Franco was not
entitled to 50% of Mr. Franco’s full retirement benefits, but rather 50% of the retirement
benefits that accrued during the marriage. Based on that finding, the special master found
Ms. Franco was entitled to 23% of Mr. Franco’s gross retirement pay. Since Mr. Franco had
overpaid Ms. Franco, the special master found Ms. Franco owed him $31,844, to be repaid
$100 monthly.

       The trial court entered an order confirming the report on February 27, 2009. The trial
court found that both parties had received the Report and no objection had been filed under
Tenn. R. Civ. P. 53.04(2). Consequently, the trial court confirmed the special master’s
Report and made it an order of the court. The court order noted the date when counsel for
the parties received the Report and that ten days had expired since receipt with no objection
having been filed. No one challenges receipt of the February order. Later, on March 6,
2009, Ms. Franco filed a motion for a hearing on the special master’s Report. In her motion
for a hearing, Ms. Franco argued that the special master erred since res judicata barred
modification of the divorce decree and, alternatively, asked for an evidentiary hearing to
determine the parties’ intent. The trial court denied the motion for a hearing as untimely on
July 10, 2009.




                                             -2-
      In this appeal, Ms. Franco asserts that the trial court erred by adopting the special
master’s Report because the Report violated the principles of res judicata.2

                                              A NALYSIS

        The provision at issue is found in Section 8 of the parties’ Agreement:

        Wife shall receive fifty percent (50%) of the Husband’s military retirement,
        upon his retirement, based upon a marriage that lasted more than thirteen (13)
        years.

        The findings of the special master did not purport to modify or revise Section 8 of the
Agreement, only to determine the parties’ meaning or intent. The special master found that
the language in Section 8 did not give Ms. Franco 50% of Mr. Franco’s full retirement
benefits, but that it did provide that she was entitled to 50% of his retirement benefits that
accrued during the 13 years they were married. The special master found that Section 8
“states a formula, although, not as clear as what should have been stated.”

       While Mr. Franco’s petition was styled a petition to modify the parties’ Agreement,
the court’s order simply settled a dispute between the parties as to how the provision should
be interpreted.

        As a general rule, marital dissolution agreements are enforceable contractual
agreements.3 Long v. McAllister-Long, 221 S.W.3d 1, 9 (Tenn. Ct. App. 2006). As such,
they should be construed as contracts. Id. The primary goal is to determine the parties’
intent, which begins with an examination of the contractual language. Id.

        We find the trial court did not offend res judicata by adopting the special master’s
Report. The Report adopted by the trial court contains the correct interpretation of the
marital dissolution agreement. First, the language of the Agreement provides Ms. Franco is
to receive 50% of the retirement based on the thirteen year marriage. That language leads
to the conclusion that the thirteen year marriage factors into the amount of retirement benefits
she is to receive. Second, if the parties had intended Ms. Franco to receive 50% of Mr.
Franco’s entire retirement benefits, then the phrase “based upon a marriage that lasted more


        2
       Ms. Franco does not raise failure by the trial court to grant a hearing as error on appeal.
Consequently, we will address only the issue raised by Ms. Franco on appeal.
        3
         Child support and alimony, on the other hand, merge into the divorce decree and are modifiable by
the courts. Long, 221 S.W.3d at 9, n.7.

                                                   -3-
than thirteen (13) years” is unnecessary. Also, given that Mr. Franco was in the service five
years before the marriage and twelve years thereafter, it is difficult to understand why he
would agree to give Ms. Franco 50% of a 30 year retirement based on a 13 year marriage.

        Ms. Franco argues that the trial court is barred by res judicata from revising the prior
order incorporating the parties’ Agreement. The trial court, by adopting the Report, however,
settled a dispute between the parties as to its interpretation and did not modify or revise the
order.

        Ms. Franco does not object to the specific calculation of retirement benefits due her
or to the overpayment award assuming the premise of the trial court’s decision is upheld.

        The trial court’s order adopting the special master’s Report and refusing to set it aside
is affirmed. Costs of appeal are assessed against Paula Kay Franco, for which execution may
issue if necessary.4




                                                          _________________________________
                                                          PATRICIA J. COTTRELL, JUDGE




        4
         An alternate ground to affirm the trial court offered by Mr. Franco is the failure by Ms. Franco to
serve objections to the report of the special master within 10 days as required by Rule 53.04(2) of the Tenn.
Rules of Civil Procedure. We decline to rely on this ground.

                                                    -4-
