Fischbach v. Fischbach, 1080, September Term, 2008.

CourtCourt of Special Appeals of Maryland
Citation187 Md. App. 61,975 A.2d 333
Docket NumberNo. 1080, September Term, 2008.,1080, September Term, 2008.
PartiesDonald FISCHBACH v. Greer FISCHBACH.
Decision Date07 July 2009
975 A.2d 333
187 Md. App. 61
No. 1080, September Term, 2008.
Court of Special Appeals of Maryland.
July 7, 2009.

[975 A.2d 337]

Marietta B. Warren, Annapolis, MD, for Appellant.

Stephen P. Krohn (Krohn & Krissoff, P.A., on the brief), Annapolis, MD, for Appellee.


DAVIS, Judge.

This case involves a dispute as to whether Donald Fischbach, appellant, should be required to pay Greer Fischbach, appellee, a sum of $19,936 in pension arrears.1 On January 15, 2008, appellee filed a complaint in the Circuit Court for Anne Arundel County requesting an award of pension arrears against appellant, which appellant was alleged to have accrued from the date of his retirement in 2001 through 2007. Appellant filed an answer, asserting the defenses of waiver and laches, and he also filed a motion for summary judgment. After hearing argument by counsel on June 30, 2008, the trial court (Jaklitsch, J.) denied appellant's motion for summary judgment. A trial on the merits was conducted that same day. At the conclusion of trial, the trial court entered judgment in favor of appellee. On appeal, appellant asks us to review three questions,2 which we have consolidated as follows:

I. Did the trial court abuse its discretion by denying appellant's motion for summary judgment?

II. Did the trial court err by awarding appellee $19,936.00 in pension arrears?

For the reasons that follow, we answer both questions presented in the negative

975 A.2d 338

and affirm the judgments of the Circuit Court for Anne Arundel County.


On October 5, 1990, the parties entered into a Separation Agreement, which was incorporated, but not merged, into the Judgment of Absolute Divorce entered on October 22, 1990 that terminated the marriage of the parties. The Separation Agreement, which was executed by both parties and placed under seal, provided, in pertinent part:

Husband shall pay to wife a portion of the pension he receives from his employer, C & P Telephone Company, if, as, and when he receives the same in an amount calculated by multiplying 40% times a fraction, the numerator of which is the number of years the parties have been married during which he has been accruing pension rights and the denominator of which is the total number of years he accrues pension rights as of the date of his retirement, further multiplied by the total amount of the pension he will receive from the said employer. Husband shall assign to Wife, assuming he can do so, an amount of the survivor benefits in the said pension equal to the percentage of the said pension the Wife shall receive hereunder, with the further understanding that, in the event there is any cost for him to do so, whether a one time cost or a continuing deduction from the said pension, the Wife shall bear said expense to the extent it is necessary for her to receive the said percentage of the said survivor benefits.

The Judgment of Absolute Divorce provided that the court would retain jurisdiction to amend the order issuing the judgment pursuant to subsequently filed Qualified Domestic Relations Orders (QDRO) relating to the parties:

This Court shall retain jurisdiction to amend this Order to establish its qualifications under Annotated Code of Maryland, Family Law, and the United States Code, including specifically authority to make such modifications as to form to constitute a Qualified Domestic Relations Order (QDRO) constitute [sic] the Agreement of the parties entered therein.

Approximately eleven years later, in September 2001, appellant, a lineman, retired from Verizon, the successor to C & P Telephone. Appellant was sixty-two years old at the time. Thus, in 2001, appellant began to receive his pension benefits. Appellant made no effort to contact appellee to alert her to the fact of his retirement or the resulting payment of his pension benefits. In fact, both parties concede that "neither party made any attempt to contact the other until appellant received a proposed QDRO from appellee's attorney in February or March of 2006."

According to appellee's testimony at trial, she assumed that appellant would naturally retire at the age of sixty-five. Thus, in 2006, having heard nothing from appellant regarding his retirement, appellee approached an attorney to inquire about receiving her portion of appellant's pension benefits. Appellee subsequently learned that appellant had, in fact, retired in 2001. Accordingly, appellee initiated the process of preparing and submitting a QDRO in order to access future payments from appellant's pension benefits, as agreed to by the parties in their Separation Agreement.

On March 29, 2006, the circuit court entered a QDRO, jointly executed by the parties, that provided for the disposition of appellant's pension benefits. This QDRO was subsequently rejected by the pension plan administrator and a second, amended QDRO was signed by both parties and entered by the circuit court on April 23,

975 A.2d 339

2007. Appellee began receiving pension benefits in September 2007, in the form of a lump sum payment of $7,710.65 and subsequent payments of $441.46 per month. Neither of the aforementioned QDROs addressed appellee's claim to pension arrears accumulated from the time of appellant's retirement to the point in time when the QDROs were filed.

On January 15, 2008, appellee filed a complaint in the Circuit Court for Anne Arundel County, alleging that she was entitled to $24,515.93 in pension arrears accrued during the seventy-three month period between appellant's retirement and appellee's receipt of the first partial payment pursuant to the approved QDRO. Appellant answered and raised, inter alia, the affirmative defenses of statute of limitations, laches and waiver.

Motion for Summary Judgment

Appellant subsequently filed a motion for summary judgment, arguing that the Separation Agreement constituted a "contract under seal," and, as such, was subject to a twelve-year statute of limitations pursuant to § 5-102(a)(5) of the Courts and Judicial Proceedings Article.3 According to appellant, appellee's cause of action as to her right to his pension benefits accrued on October 5, 1990, the date that the Separation Agreement was executed. Thus, because appellee's complaint was filed on January 15, 2008, more than twelve years after the Separation Agreement was executed and placed under seal, appellant asserted that appellee's claim was barred by the statute of limitations. Appellant further contended that appellee waived her right to collect any benefits by failing to mention the arrearage in any of the QDROs submitted to the court. Finally, appellant argued that appellee's claim was barred by the doctrine of laches.

After hearing arguments by both counsel at a hearing scheduled for that purpose, the trial court denied appellant's motion for summary judgment.


Both appellant and appellee testified at trial. Appellee testified that appellant began working at C & P Telephone in the mid-1960s, when he was approximately twenty-six to twenty-eight years old. Appellant was fifty years old at the time of the divorce. Notwithstanding the fact that the parties are parents to two adult children, appellee stated that she shared no communication with appellant, adding that appellant rarely visited with his children. Appellee stressed that she never knew that appellant retired in September 2001 and assumed that he would retire at sixty-five years old. According to appellee, she first learned about appellant's retirement in September 2001 from her attorney, when, in 2005, appellee retained counsel in order to access pension payments. Appellant asserts that he was sixty-six years old at that time.

Appellee first began to receive benefits, pursuant to the aforementioned QDRO, in September 2007, when she received a lump sum payment and began to receive subsequent monthly payments from appellant's pension benefits. Appellee emphasized that she sought, through the instant lawsuit, to recover $24,515.93 in pension arrears.

According to appellant, the parties understood, during their marriage, that appellant could retire from his job anytime after thirty years of employment. He further testified that the company allowed

975 A.2d 340

him to retire at sixty-two years old, which he did, in September 2001. Although he testified that he never concealed his retirement, he also conceded that he never notified appellee about it. According to appellant, he first learned what a QDRO was when he was contacted by appellee's counsel. As for receiving pension benefits without deducting any portion therefrom for appellee, appellant testified:

Q What was your understanding regarding the fact that nothing was being taken out for your ex-wife?

A I really didn't give it much thought. I figured she would have a reason. I don't know, I got on with my life not just, I guess like I said remarried, got on with my life. My past was my past.

Appellant acknowledged, during cross-examination, that he understood that appellee was entitled to a percentage of his pension benefits and stated that he took "no steps, whatsoever" to notify her of his retirement. Appellant was further questioned as to whether appellee deserved any of his pension benefits:

Q Well, let's ask it a different way. You kept the money, didn't you?

A Yes, I kept the money. I worked 35 years for it.

Q It was your feeling then in 1990 when this agreement was signed and then again when you retired in 2001 that she wasn't entitled, didn't deserve any of it, isn't that right?

A Based on our divorce, why we are divorced, right.

Q You didn't think she deserved any of it?

A No, sir I don't now.

Q Well, that explains why you didn't tell her. In addition to that, with respect to the survivor benefit you were also required to provide her as the designated survivor beneficiary, were you not?

A I don't recall that, sir. No...

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