Salemi v. Salemi

972 So. 2d 1, 2007 WL 2770711
CourtCourt of Appeals of Mississippi
DecidedSeptember 25, 2007
Docket2006-CA-01312-COA
StatusPublished
Cited by1 cases

This text of 972 So. 2d 1 (Salemi v. Salemi) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salemi v. Salemi, 972 So. 2d 1, 2007 WL 2770711 (Mich. Ct. App. 2007).

Opinion

972 So.2d 1 (2007)

Vincent F. SALEMI, Jr., Appellant
v.
Sheila Hill SALEMI, Appellee.

No. 2006-CA-01312-COA.

Court of Appeals of Mississippi.

September 25, 2007.
Rehearing Denied January 8, 2008.

Luther Putnam Crull, attorney for appellant.

Rebecca Ryan Shappley Moutoux, attorney for appellee.

*2 Before MYERS, P.J., BARNES and ROBERTS, JJ.

ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. Vincent and Sheila Salemi divorced and executed a property settlement agreement. Nine years after the divorce, Vincent filed a M.R.C.P. 60(b)(6) motion for relief. Vincent specifically sought relief from the provisions of the property settlement agreement that addressed division of Vincent's retirement benefits. In response, Sheila filed a motion to dismiss and claimed that Vincent's motion for relief was untimely. The chancellor agreed with Sheila and dismissed Vincent's motion. Vincent appeals and submits that the chancellor committed reversible error when he dismissed Vincent's motion for relief. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 3, 1996, Vincent and Sheila Salemi received a divorce based on irreconcilable differences after approximately nineteen years of marriage. Vincent and Sheila executed a property settlement agreement, and the Desoto County Chancery Court incorporated that agreement into the divorce decree. This dispute focuses on the provisions of that property settlement agreement; particularly the portion of that agreement that addressed division of retirement benefits.

¶ 3. According to paragraph 7 of the settlement agreement Vincent and Sheila were to equally divide their retirement benefits as of the time of their divorce. The agreement specifically set forth:

Wife shall receive one-half (1/2) of the value of Husband's pension through his employment with the United States Postal Service as of the date of the entry of the Final Decree of Divorce. Distribution of said pension shall be made according to the rules governing such pension plan as provided by the U.S. Postal Service. Further, Husband shall receive one-half (1/2) of the value of Wife's Pension and Retirement plan, including her 401(k), through her employment with Allen & O'Hara as of the date of the entry of the Final Decree of Divorce. Distribution of said retirement shall be made according to the rule governing such retirement plan as provided by Allen & O'Hara.

On October 31, 1996, the chancellor entered a Qualified Domestic Relations Order (QDRO) regarding Vincent's pension. On November 7, 1996, the chancellor entered a QDRO in reference to Sheila's 401(k) plan. Paragraph 7 of Sheila's QDRO states:

Amount of alternate Payee's Benefit: This Order assigns to alternate Payee an amount equal to fifty percent (50%) of the total value of the Participant's 401(k) Plan as of the date of the entry of the Final Judgment of Divorce, which is September 3, 1996.

On April 29, 1997, the chancellor entered an Amended QDRO in reference to Vincent's retirement pension with the U.S. Postal Service. Paragraph 7 of the Amended QDRO stated:

Amount of Alternate Payee's Benefit: This Order assigns to Alternate Payee an amount equal to fifty percent (50%) of the Marital Portion of the Participant's Accrued Benefit under the Plan as the Participant's Accrued Benefit under the Plan as the Participant's benefit commencement date, or the Alternate Payee's benefit commencement date, if earlier. The Marital Portion shall be determined by multiplying the Participant's Accrued Benefit by a fraction (less than or equal to 1.0), the numerator *3 of which is the number of months the parties were married while Participant was an employee of the United States Postal Service, (the parties were married from March 27, 1977 to September 3, 1996), and the denominator which is the total number of months the Participant is an employee of the United States Postal Service.

¶ 4. Vincent continued to work with the postal service for the next six and one-half years. He retired in October of 2003. Pursuant to the amended QDRO, Sheila began receiving over $600 per month from Vincent's monthly retirement benefits.

¶ 5. In early May of 2005, Vincent sent the following letter to the U.S. Postal Service Office of Personnel Management:

I am responding pertaining to your letter dated June 2, 1997 regarding payment of my civil service benefits to my former spouse. According to the official court decree, I was obligated to pay the 1/2 of the balance (at date of record) as settlement. My records indicate that amount to be approximately $14,000.00 (Benefit balance at date of decree was $28,000.00)[.]
Since my retirement in October 2003, I have been paying her $600.00 per month toward that obligation. At this rate I will have met my obligation to her in October 2005 ($600 x 24 = $14,400.00).
It is my request to validate my full obligation will be met this October. I would also like to request the payment amount that I will receive beginning November 2005. Four [sic] your benefit I am providing page 4 of the divorce decree and a[sic] page 1 of your letter dated June 2, 1997.

However, Sheila continued to receive over $600 per month of Vincent's pension retirement after October of 2005.

¶ 6. In January of 2006, Vincent filed a Rule 60(b)(6) motion for relief. According to Vincent, he was entitled to relief because the property settlement agreement was ambiguous because he thought Sheila was only entitled to a total of $14,000 of his retirement benefits. To support his contention, Vincent submitted that, "[t]his understanding of said provision by Husband is further supported by the fact that Wife paid him one lump-sum payment of one-half (1/2) of the value of her 401(k) with Allen and O'Hara at the time of the divorce decree, which was less than $1,000.00." Vincent noted that the Amended QDRO granted Sheila the right to receive a portion of his retirement annuity until his death. Vincent further noted that he did not sign the amended QDRO. Vincent claimed that the amended QDRO "was either never fully explained to him or because of his disability he did not understand the terms" of the amended QDRO. Finally, Vincent claimed that "[i]f he had known that by signing the Settlement Agreement he would have obligated himself to pay [Sheila] from his retirement annuity until his death, he would not have entered into the Settlement Agreement."

¶ 7. Sheila responded and filed a motion to dismiss Vincent's motion for relief. According to Sheila, the settlement agreement language was clear and unambiguous. Further, Sheila claimed that Vincent's motion for relief was untimely as it was filed nine years after they received their divorce.

¶ 8. In June of 2006, the chancery court convened for a hearing. However, the chancellor did not require arguments from the parties. Instead, the chancellor announced that he had reached a decision based on the written submissions. According to the chancellor:

once I went completely through the agreement of divorce, and I think you *4 got to do that, looked at who got what and what was done and what was not done.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

J.S. v. J.C.
219 So. 3d 666 (Court of Civil Appeals of Alabama, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
972 So. 2d 1, 2007 WL 2770711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salemi-v-salemi-missctapp-2007.