Caldwell v. Caldwell

• Citation: 103 Md.App. 452,653 A.2d 994
• Decision Date: 01 September 1994
• Docket Number: No. 837,837
• Parties: Donald Wayne CALDWELL v. Connie Ann CALDWELL. ,
• Court: Court of Special Appeals of Maryland

Page 452

103 Md.App. 452

653 A.2d 994

Donald Wayne CALDWELL v. Connie Ann CALDWELL.

No. 837, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Feb. 13, 1995.

Dorothy R. Fait (Fait & Malament, on the brief), Rockville, for appellant

Alan D. Massengill (Lauri McEntire, on the brief), Gaithersburg, for appellee.

Argued before ALPERT, WENNER and HARRELL, JJ.

WENNER, Judge.

Appellant, Donald Wayne Caldwell, appeals from a judgment of absolute divorce entered by the Circuit Court for Frederick County, in favor of appellee, Connie Ann Caldwell. On appeal, appellant asks:

1. Whether the circuit court erred in awarding each party the full amount of the others' survivor benefit rather than the marital portion of the survivor benefit?

2. Whether the circuit court erred in awarding the appellee $1,000.00 per month in indefinite alimony when an unconscionable disparity did not exist between the parties?

3. Whether the circuit court erred in awarding appellee attorney's fees when the financial resources of the parties were roughly equal?

Finding no error, we shall affirm the judgment of the circuit court.

FACTS

The parties were married on 4 December 1966 in Libertytown, Maryland. During the early years of their marriage they lived in Europe while appellant was a member of the United States Air Force. Upon returning to the United States, the couple lived in College Park, Maryland. Appellant attended the University of Maryland at College Park, and in 1978 earned a Ph.D. in mechanical engineering. The parties returned to Frederick County in 1980, where they remained until their separation.

Both parties were employed during their marriage. Appellant is currently employed at Fort Detrick, with an annual salary in excess of $70,000. Appellee is employed at the National Institutes of Health, with an annual salary of $31,000.

In the summer of 1990, appellant began an affair that lasted until March 1992. As a result, appellee filed a complaint in the Circuit Court for Frederick County on 11 June 1992 seeking a divorce, alimony, property division, and attorney's fees. The trial court entered a judgment of absolute divorce in favor of appellee on 8 October 1993, and issued a court order acceptable for processing (COAP). The COAP provided:

ORDERED, that if the Participant predeceases the Former Spouse, whether before or after the Participant's retirement, the Former Spouse shall be entitled to 100% of the maximum Civil Service survivor annuity benefit payable to a spouse or former spouse for the duration provided by applicable law; and, it is further,

ORDERED, that the Participant shall promptly designate the Former Spouse as the survivor of the Former Spouse Survivor Annuity benefit and that [she/he] shall be treated Under the COAP, the parties would split the costs of the respective survivor annuities. The trial court also awarded appellee indefinite alimony of $1,000 monthly, and attorney's fees of $11,650.

as the surviving spouse of the Participant with respect to the maximum survivor annuity benefit and shall receive one hundred percent (100%) of the survivor annuity benefits. The Participant shall promptly prepare and deliver to the Office of Personnel Management ... written instructions that implement the survivor annuity benefit and shall promptly send written confirmation of such action to the Former Spouse. The parties were married on the 4th day of December, 1966 and the Participant has not yet retired. Thus, the survivor annuity is appropriately granted under 5 CFR Section 831.1704. ¹

This appeal followed.

DISCUSSION

Survivor Annuity Benefits

Appellant first contends that the manner in which the trial court awarded each party's survivor annuity benefits conflicts with our decisions in Pleasant v. Pleasant, 97 Md.App. 711, 632 A.2d 202 (1993); Heyda v. Heyda, 94 Md.App. 91, 615 A.2d 1218 (1992); and, Bangs v. Bangs, 59 Md.App. 350, 475 A.2d 1214 (1984). Specifically, appellant asserts that the trial court erred in awarding full survivor annuity benefits to each of them, entitling the former spouse to benefits accruing after the marriage ended.

A.

As a preliminary matter, we note that the purpose of a survivor annuity benefit is to protect the named beneficiary financially in the event of the death of the employee. Under 5 U.S.C. § 8341(h)(1) and 5 C.F.R. § 838.101(a)(1), in the event of a divorce, annulment, or legal separation, a court ² is authorized to order an employee to effect a survivor annuity benefit, naming the employee's former spouse as beneficiary. A former spouse is "a living person who was married for at least 9 months to an employee or retiree who performed at least 18 months of civilian service covered by CSRS ... and whose marriage to the employee or retiree was terminated prior to the death of the employee or retiree." 5 C.F.R. § 838.103. As we explained in Pleasant, a former spouse's survivor annuity benefit may be calculated in one of two ways: (1) as a percentage of the gross employee annuity, not to exceed 55 percent; or (2) as a percentage of the "maximum survivor annuity." ³

The court may further decide who should bear the cost of the survivor annuity benefit during the life of the employee. The cost of maintaining the survivor annuity benefit is reflected in the total pension annuity. When a survivor annuity benefit has been either elected or ordered, the total pension annuity is reduced by 2 1/2% of the first $3,600 plus 10% of the remaining amount. 5 U.S.C. § 8339(j)(4). If the named beneficiary either remarries before age 55 or dies, the employee may designate a new beneficiary. In any event, "[a] determination that the cost of the survivor annuity is to be borne in full or in part by the employee is neither an abuse of discretion, nor an award of non-marital earnings." Pleasant, supra, 97 Md.App. at 729, 632 A.2d 202. If the court does not designate who bears the cost, the Office of Personnel Management presumes that the court intended that the cost be deducted from the employee's pension annuity. See 5 C.F.R. § 838, Subpt. I, App. A, P 801. "If the former spouse's share is to be based upon the gross annuity, the cost of the survivor benefit is shared between the employee and the former spouse." Pleasant, supra at 729, 632 A.2d 202.

B.

We begin by considering whether a former spouse's share of a survivor annuity benefit must represent the marital share of the pension. In other words, is the court bound by the Bangs formula, as modified by Pleasant, supra, or may the court order that a former spouse receive an equitable share of the survivor annuity benefit. It is interesting to note that both parties cite Pleasant in support of their respective positions. In Pleasant, however, we were neither asked, nor did we directly address, the specific question here presented. Nonetheless, we noted that

it is within the trial court's discretion to award a former spouse survivor annuity in conjunction with an "if, as and when" payment, and to determine the method of payment for the survivor annuity. A determination that the cost of the survivor annuity is to be borne in full or in part by the employee is neither an abuse of discretion, nor an award of non-marital earnings. The former spouse's share of the annuity payment is a return to the non-employee spouse of his/her share of the marital portion of the pension.

Id. at 729, 632 A.2d 202.

According to appellant, Pleasant limits a former spouse to no more than the marital share of a survivor annuity benefit and makes it mandatory for a court expressly to determine how the cost of the survivor annuity benefit is to be borne. Appellant is wrong. In Pleasant, we were asked whether a court had authority to award a survivor annuity benefit to guarantee the former spouse's financial well being upon the employee's death. We concluded that the "right to a survivor annuity is incident to the marital relationship," and thus marital property over which a court has authority. Id. at 725, 632 A.2d 202. We also said that it is within the discretion of the trial judge to order that a former spouse survivor annuity be provided so as to continue the protection of the spouse's interest in the marital portion of the pension previously provided by the spousal survivor annuity.

Id. From this language, appellant apparently construes that a court may award no more than a marital share of the survivor annuity benefit. We reiterate, however, that we were not in Pleasant presented with the question here presented. In short, Pleasant is of no help to appellant.

Appellant also relies upon In re Marriage of Blackston, 258 Ill.App.3d 401, 196 Ill.Dec. 606, 630 N.E.2d 541 (5 Dist.1994). Although the Blackston court concluded that a former spouse is only entitled to the marital share of the survivor annuity benefit, we find Blackston unpersuasive. In reaching its conclusion, the Blackston court said:

The final point [husband] raises for our consideration is the trial court's allocation of the former-spouse-survivor annuity. The trial court's order directed:

[Wife] shall receive a Former Spouse Survivor Annuity equal to 48.5% of Petitioner's annuity and the costs associated with providing the Former Spouse Survivor Annuity shall be deducted from [wife]'s share of [husband]'s monthly retirement benefits. The Court has calculated the Former Spouse Survivor Annuity by multiplying 88.1% times 55%, which is the maximum Survivor Annuity amount.

[Husband] argues that the court's award of 48.5% is erroneous. He maintains that the court awarded [wife] 88.1% of the entire former-spouse-survivor benefit, and because the parties were married 88.1% of the time [husband] has been in the CSRS, [wife]'s award is the equivalent of a 100% interest in the annuity. This, [husband] argues, is inequitable because it gives [wife] a benefit that will accrue or increase in value, due to his postdissolution earnings and labor. [Husband] also contends that the allocation...