JAMES HARRISON JENKINS,       )
                              )
     Plaintiff/Appellant,     )       Appeal No.
                              )       01-A-01-9803-CV-00134
v.                            )
                              )       Macon Circuit
ANNETTE CAROL JENKINS,        )       No. 3283
                              )
     Defendant/Appellee.      )
                              )                 FILED
                                                September 2, 1998
                 COURT OF APPEALS OF TENNESSEE
                                                Cecil W. Crowson
                                               Appellate Court Clerk

     APPEAL FROM THE CIRCUIT COURT FOR MACON COUNTY

                     AT LAFAYETTE, TENNESSEE


             THE HONORABLE BOBBY CAPERS, JUDGE




J. BRANDEN BELLAR
Bellar & Bellar
212 Main Street
P. O. Box 332
Carthage, Tennessee 37030
      ATTORNEY FOR PLAINTIFF/APPELLANT




WILLIAM JOSEPH BUTLER
Farrar, Holliman & Cassidy
102 Scottsville Highway
P. O. Box 280
Lafayette, Tennessee 37083
      ATTORNEY FOR DEFENDANT/APPELLEE




                     AFFIRMED AND REMANDED




                                       WILLIAM B. CAIN, JUDGE
                                     OPINION
           In this case James Harrison Jenkins appeals the action of the trial court in dismissing
his petition to modify a final decree of divorce.


           On October 31, 1990, after sixteen years of marriage, Appellant filed suit for
divorce on grounds of irreconcilable differences. Although Appellant receives a military
retirement benefit, neither party to the divorce was at that time a member of the armed services
and there were no children of the marriage under the age of eighteen years.


           In prayers for relief plaintiff sought: 1. "That the Plaintiff be awarded an absolute
divorce"; 2. "For approval of a Marital Dissolution Agreement" and, 3. "That the Plaintiff be
granted such other, further, different and general relief to which he may be entitled."


           Simultaneously, with the filing of the divorce complaint, Appellant filed a sworn
marital dissolution agreement executed by the parties on September 28, 1990.


           The marital dissolution agreement provided, in part:
                  Whereas it is the desire of both parties to determine and settle
           their property rights and all other rights arising from the marital
           relationship; . . .
                                             ...
                  7. That the Plaintiff agrees to pay to the Defendant Fifty (50%)
           of his military check he receives each month.
                                             ...
                  10. Annette Carol Jenkins waives service of process in the
           upcoming divorce as attested to by her signature on this Marital
           Dissolution Agreement.

                   The parties understand and agree that this Marital Dissolution
           Agreement is intended to be a full and final settlement of their property
           rights and each hereby waives and relinquishes to the other all rights or
           claims which each may have or acquire under the law or laws of any
           jurisdiction in the other's property now owned by either party or any
           property acquired in the future.

                  Each party agrees to execute any document necessary to comply
           with the terms of this agreement.

                 This agreement shall be incorporated in any decree of divorce
           between the parties subject to the approval of the Court in which such
           divorce is heard.



           In this dissolution agreement Appellee, Annette Carol Jenkins, waived service of
process and allowed appellant to proceed without contest. The final decree of divorce was
entered January 16, 1991, wherein Appellant was granted a divorce on irreconcilable


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differences grounds with the decree providing, in part:
                  Upon the reading of the Complaint, examination of the witnesses
           in open Court according to law, and from all the proof;

                  It appearing to the Court that the parties have no minor children
           born of this marriage.

                  It further appearing to the Court that the parties have entered into
           a Marital Dissolution Agreement containing the disposition of their real
           and personal property.

                   It is THEREFORE ORDERED, ADJUDGED and DECREED
           that the bonds of matrimony hereto existing between the parties be and
           the same are hereby and perpetually dissolved and the Plaintiff is vested
           with all the rights and privileges of an unmarried person.

                  It is FURTHER ORDERED, ADJUDGED and DECREED that
           the Marital Dissolution Agreement heretofore entered into by and
           between the parties be filed as part of this record, and shall be hereby
           adopted and filed in all respects and incorporated in and made a part of
           this decree.




           More than six years after the final decree of divorce, Appellant filed a petition to
modify the final decree, asserting that he had suffered a stroke and was in need of 100% of the
benefits of his military check that he receives each month, one-half of which had been awarded
under the marital dissolution agreement.


           On June 9, 1997, Appellee answered the petition to modify denying any basis
therefore and seeking judgment of dismissal.


           The petition to modify was heard by the trial judge on September 19, 1997, and after
considering the memorandum of law filed by the appellant and the argument of counsel the trial
court dismissed the petition, holding:
                   That the payment set out in the Final Decree of the divorce of the
           Parties was the Plaintiff's military retirement for which the wife was
           entitled to one-half thereof as marital property, and Plaintiff should not
           be entitled to modify this Court's Final Decree concerning the division
           of that marital property.
                   IT IS THEREFORE, ORDERED, ADJUDGED AND
           DECREED, that the Plaintiff's Petition is dismissed with prejudice, and
           all costs are taxed to the Plaintiff, for which execution may issue if
           necessary.


           The only way the appellant can succeed in an attempt to modify the final decree at
this late date is to establish that the provisions of paragraph 7 of the marital dissolution
agreement constitute alimony in futuro rather than either alimony in solido or distribution of
marital property. Towner v. Towner, 858 S.W.2d 888 (Tenn. 1993).


                                              -3-
           The marital dissolution agreement in this case is devoid of any mention of
obligations for future support or alimony of any kind. It is purely a contractual agreement
disposing of marital assets. The marital dissolution agreement thus does not lose its contractual
nature by merger into the decree of divorce. As such, the marital dissolution agreement does
not fall within the continuing jurisdiction of the court. Penland v. Penland, 521 S.W.2d 222
(Tenn. 1975).


           In Tennessee, as in the vast majority of other jurisdictions, both vested and non-
vested pension interests are marital property. Kendrick v. Kendrick, 902 S.W.2d 918 (Tenn.
App. 1994).


           The marital dissolution agreement at bar is not ambiguous in its purpose to settle
property rights and all other rights arising from the marital relationship. Paragraph 7, as held
by the trial court, involved disposition of marital property and under Towner and Penland is
not now subject to modification.


           Appellant seeks relief under Rule 60.02 of the Tennessee Rules of Civil Procedure.
Appellant made a free, calculated and deliberate choice in 1991, and thus Rule 60.02(5) is not
applicable. Tyler v. Tyler, 671 S.W.2d 492 (Tenn. App. 1984).


           The judgment of the trial court is in all respects affirmed and costs assessed against
appellant. The cause is remanded to the trial court for further proceedings consistent with this
opinion.




                                             ____________________________________
                                             WILLIAM B. CAIN, JUDGE




CONCUR:


__________________________________________
HENRY F. TODD, PRESIDING JUDGE, M.S.



__________________________________________
BEN H. CANTRELL, JUDGE




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