Bojarski v. Bojarski

• Decision Date: 12 April 2012
• Docket Number: Docket No. Cum–11–322.
• Citation: 41 A.3d 544,2012 ME 56
• Parties: Keri L. BOJARSKI v. Robert G. BOJARSKI.
• Court: Maine Supreme Court

2012 ME 56

41 A.3d 544

Keri L. BOJARSKI

v.Robert G. BOJARSKI.

Docket No. Cum–11–322.

Supreme Judicial Court of Maine.

Submitted on Briefs: March 1, 2012.Decided: April 12, 2012.

Robert G. Bojarski, appellant pro se.

Kenneth P. Altshuler, Esq., Childs, Rundlett, Fifield & Altshuler, LLC, Portland, for appellee Keri L. Bojarski.

Panel: ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

ALEXANDER, J.

[¶ 1] Robert G. Bojarski appeals from a divorce judgment entered in the District Court (Portland, Eggert, J.) ending his marriage to Keri L. Bojarski. Robert argues on appeal that the court erred by (1) failing to allocate to Robert the tax exemptions with respect to two of the couple's four children; (2) determining the marital portion of Robert's military retirement benefit based on the period of time that Robert was in military service during the marriage rather than on the number of service points Robert earned during the marriage; (3) finding incorrectly the amount of marital debt owed on a particular credit card; (4) making certain assumptions regarding Robert's tax liability; (5) dividing incorrectly the marital debt; and (6) declining to order a downward deviation from Robert's child support obligation pursuant to 19–A M.R.S. § 2007 (2011) with respect to weeks during the summer that Robert has primary custody of the children.¹ Because the court erred in certain respects in its division of marital property and debt and in allocation of dependent tax exemptions, we vacate the property division portion of the judgment and remand the matter to the District Court for further proceedings.

I. CASE HISTORY

[¶ 2] The record reflects that Robert and Keri Bojarski were married in September 1997 and have four children (two sets of twins, ages nine and seven). Keri filed a complaint for divorce in April 2010. The court held a hearing in June 2011 at which both parties appeared and testified, Keri represented by counsel and Robert representing himself.

[¶ 3] Keri is a registered nurse working in a pediatrician's office. Robert joined the military in 1988 and is currently in the Ready Reserve. Robert has also been a pilot for Continental Airlines since April 1999. The parties stipulated that Keri's annual income is $45,000, and Robert's annual income is $130,000.

[¶ 4] The record indicates that, as of the date of the divorce hearing, Robert had been in the military for twenty-three years, approximately ten of which occurred before the parties were married and thirteen of which occurred since the parties were married. Robert was in active service for the first nine to ten years of his total military service, then he joined the Ready Reserve.

[¶ 5] Robert testified that, although years of service in the Ready Reserve are factored into the calculation of his retirement benefit, his military retirement pension will be based on the number of points he accumulates during his years of service. He testified that he had earned 4203 points thus far, and of that amount, he believed that 962 were earned during the marriage. The number of points Robert accumulated varied from year to year depending on his duties. When Robert was in active duty before his marriage, he earned 365 points per year. In inactive reserve duty, however, he has earned significantly fewer points per year.

[¶ 6] At the hearing, the parties also addressed their credit card debt, including marital debt owed on a Navy Federal Credit Union (NFCU) credit card. Keri had a document at the hearing that listed her opinion of the value of certain property and debt. In this document, Keri estimated the amount of debt on the NFCU card to be $28,000. Keri stated that she was using the document as a demonstrative aid only “to help her testify” and was not introducing the document as substantive evidence. Keri subsequently offered the document, not as an exhibit, but as a summary of her testimony. The document was admitted as a summary of her testimony only, although she never actually testified that the debt on the NFCU card was $28,000. In contrast, a NFCU credit card statement introduced by Robert was admitted in evidence, stating that the balance owed on that credit card was $22,040 as of June 3, 2011, just three days before the divorce hearing.

[¶ 7] Keri also raised the issue of allocating the tax exemptions for the four dependent children at the divorce hearing. She stated that, “I think we've agreed to each party getting two income tax deductions, but I'm not sure I cleared that with Mr. Bojarski,” adding that she thought it fair for Robert to receive two dependent income tax exemptions because Robert has the higher income. Keri reiterated this position in later testimony. Robert agreed to dividing the four dependent exemptions equally between the two parties, to which the court replied, “Okay.” When subsequently taking evidence as to Robert's future tax liability, the court stated that Robert would be allocated two dependent exemptions for tax purposes.

[¶ 8] Finally, with respect to child support, Robert requested that the court deviate from the child support guidelines by ordering that he is not obligated to pay Keri child support for the weeks during the summer when the children are in Robert's physical custody. Keri submitted a proposed divorce judgment, child support worksheet and order, and income withholding order to the court.

[¶ 9] On June 21, 2011, the court entered a divorce judgment, with an incorporated order of parental rights and responsibilities as stipulated to by the parties, and, adopting the documents as proposed by Keri, a child support worksheet, child support order, and income withholding order. For the distribution of marital property and debt, the court found that the marital home was in foreclosure and possibly subject to a short sale and ordered that Robert pay any deficiency after foreclosure of the marital home as well as any unpaid property taxes. For the allocation of debt, the court ordered that (1) Keri is responsible for the NFCU credit card debt, which the court found to be $28,000, and for the debt on another credit card; (2) Robert is responsible for the debt on two other credit cards; (3) Robert is responsible for any remaining taxes owed on the parties' joint tax returns; and (4) each party is responsible for any debt associated with the personal property retained by him or her.

[¶ 10] Addressing the marital portion of Robert's military pension, the court ordered that it would be calculated “using a fraction that divides the number of years of creditable [service] during marriage (numerator), into the total number of [years of] creditable service at the time that [Robert] retires (denominator) to determine the marital portion which is to be divided equally.”

[¶ 11] The court ordered, as agreed upon by the parties, that Robert and Keri share parental rights and responsibilities, that the children would primarily reside with Keri, but that the children would stay with Robert on certain weekends, certain holidays, and, generally, every other week during the summer vacation. The court ordered Robert to pay Keri $385.04 per week in basic child support and ordered Robert to pay Keri $750 per month in general spousal support for six years. The court's judgment was silent as to the allocation of dependent exemptions for tax purposes.

[¶ 12] Robert filed a motion to reconsider, requesting that the court (1) allocate two dependent tax exemptions to Robert for tax purposes as agreed to at the hearing; (2) amend its finding that the NFCU credit card debt was $28,000 to find that it was $22,000; (3) reconsider its assumptions regarding Robert's income tax liabilities going forward; (4) recalculate the marital portion of Robert's military benefit based on service points earned; and (5) reconsider certain of its decisions given its allocation of debt and Robert's net income.

[¶ 13] In response, Keri did not object to the allocation of tax exemptions for two dependents to Robert and stated that, because Robert controlled the family finances, she was unaware of the actual balance of the debt owed on the NFCU credit card. The court denied Robert's motion to reconsider on the grounds that Robert was rearguing matters considered at trial. Robert brings this appeal.

II. LEGAL ANALYSIS

[¶ 14] We conclude that the court erred in the determination or division of the marital property and debt in certain respects and in allocation of dependent tax exemptions, which we address in turn.

A. The Marital Portion of Robert's Military Pension

[¶ 15] A court's determination that a retirement benefit or account, or a part thereof, is marital or nonmarital property is reviewed for clear error. Murphy v. Murphy, 2003 ME 17, ¶ 20, 816 A.2d 814. However, we review the application of the law to the facts de novo. Warren v. Warren, 2005 ME 9, ¶ 20, 866 A.2d 97.

[¶ 16] A state divorce court is permitted to treat military retirement benefits as property that is divisible upon divorce. Black v. Black, 2004 ME 21, ¶¶ 5, 8, 842 A.2d 1280. In this case, the trial court applied a “time formula” to determine the marital portion of Robert's military benefit, ordering that the marital portion of the benefit will be calculated by dividing the number of years of creditable service during the marriage, though without finding how many years that is, into the total number of years of creditable service at the time Robert retires. This is a common method for calculating the marital portion of retirement benefits that accumulate based solely on time in employment, but it is not the proper method for determining the marital portion of a military retirement benefit that will include both active duty service and reserve duty service.

[¶ 17] Pursuant to statute, military retirement benefits for reservists are based on the total number of points that the service member accumulates. 10 U.S.C.S. §§ 12733, 12739 (1998 & Supp.2011); see Dew v. United States, 192 F.3d 366,...