Marquis v. Marquis, 828, Sept. Term, 2006.

• Decision Date: 12 September 2007
• Docket Number: No. 828, Sept. Term, 2006.,828, Sept. Term, 2006.
• Citation: 931 A.2d 1164,175 Md. App. 734
• Parties: David D. MARQUIS v. Mary H. MARQUIS.
• Court: Court of Special Appeals of Maryland

931 A.2d 1164

175 Md. App. 734

David D. MARQUIS v. Mary H. MARQUIS.

No. 828, Sept. Term, 2006.

Court of Special Appeals of Maryland.

September 12, 2007.

David D. Marquis, pro se, of Dunkirk, for appellant.

Wendy Widmann, of Baltimore City, for appellee.

Argued before HOLLANDER, KRAUSER and BARBERA, JJ.

BARBERA, J.

In July 2004, the Circuit Court for St. Mary's County granted Mary H. Marquis, appellee ("Wife"), an absolute divorce from David D. Marquis, appellant ("Husband"). In the judgment of divorce, the court ordered Wife to receive 50 percent of the marital portion of Husband's military retirement benefits "on an if, as, and when received basis[.]" The court further directed that it would retain jurisdiction in the case for the purposes of a Constituted Pension Order ("CPO").¹

Upon Husband's retirement from military service, the parties disagreed about whether Wife's portion of Husband's retirement benefits would be calculated before or after statutory, regulatory, or elective deductions were applied. Wife filed a petition for contempt, alleging that Husband was in default of the divorce decree because, inter alia, he failed to consent to Wife's proposed CPO. Following a hearing on the petition, the master issued a report recommending that the court find Husband in contempt. Husband thereafter filed exceptions to the master's recommendations and petitioned for a hearing on the exceptions. The court did not conduct a hearing. The court entered an order finding Husband in contempt and requiring him to sign Wife's proposed CPO and pay $2,333.00 in attorney's fees to Wife.

Husband timely appealed. He presents eight questions for our consideration, which we have consolidated into three:

I. Did the court err by finding Husband in contempt of court for failing to sign Wife's proposed CPO?

II. Did the court err by entering a CPO that modified the parties' final judgment of absolute divorce?

III. Did the court err by granting Wife's motion to dismiss Husband's request for a hearing on his exceptions to the master's recommendations?

For the reasons set forth below, we affirm the circuit court's judgment.

FACTS

The parties married on August 8, 1986. Three children were born of the marriage: David Marquis, born September 30, 1988; Lindly Marquis, born July 7, 1990; and Matthew Marquis, born September 5, 1991.

Before the parties married, Husband entered into the United States Navy. He continued to serve in the Navy during the parties' marriage. The record indicates that Husband anticipated retiring on December 1, 2006, and, upon his retirement Husband was eligible to receive military retirement benefits.

On July 21, 2004, the parties divorced by a consent judgment of absolute divorce. In the judgment, the parties agreed that Wife would receive a 50 percent portion of the marital share of Husband's military retirement benefits. The judgment read, in part:

ORDERED, that the parties agree that [Wife] will receive a portion of [Husband's] retirement from the United State's [sic] Navy on an if, as, and when received basis with the numerator being 197 months, being the total amount of months married, the denominator being the total months earned towards the retirement divided by one half[.]

The court further ordered that it "shall retain jurisdiction in this matter for the purposes of a Qualified Domestic Relations Order [(`QDRO')] and/or a Qualifying Retirement Order[.]"

Following the divorce, both parties filed contempt petitions containing allegations related to, inter alia, alimony, child support, and the sale of the parties' real property. The disposition of those issues is not raised in this appeal.

On June 16, 2005, counsel for Wife mailed to counsel for Husband a proposed CPO that implemented the terms of the parties' judgment of divorce. Husband did not sign the proposed CPO, but he returned the draft to Wife with suggested changes.

After incorporating the suggested changes, counsel for Wife again sent the proposed CPO to counsel for Husband for signature. Paragraph 5B of the proposed CPO read:

Military Benefits. [Wife] shall receive Fifty Percent (50%) of a fraction of [Husband's] military retirement benefits. The fraction shall have as its numerator 197 and shall have as its denominator [Husband's] total months of creditable service for purposes of retired pay. [Wife's] share shall be credited with fifty percent (50%) of the same fraction of any future cost-of-living increases with respect thereto.

For purposes of this Order, "military retirement benefits" means retired pay actually paid to which [Husband] would be entitled based on length of active duty or reserve military service and all payments paid or payable under the provisions of Chapter 36 or Chapter 61 of Title 10 of the United States Code, before statutory, regulatory, or elective deductions are applied. It also includes all amounts taken by [Husband] in lieu of retirement benefits.

(Some emphasis added.)

Husband did not sign and return the proposed CPO.

On August 24, 2005, Wife mailed the proposed CPO to Husband for signature a third time. In a cover letter accompanying the proposed CPO, counsel for Wife warned counsel for Husband that Wife would file a petition for contempt if Husband did not sign the proposed CPO. Again, Husband did not sign the CPO.

On September 28, 2005, Wife filed a petition for contempt. She alleged that Husband was in default of the divorce judgment because he failed, inter alia, to sign the proposed CPO.

On November 15, 2005, Wife's petition for contempt came on for a hearing before a master. Both parties were represented by counsel. The master first addressed allegations contained in the petition that are not relevant to the present appeal. Regarding the proposed CPO, Husband informed the master that he sought to change the words "military retirement benefits" in Paragraph 5B of the proposed CPO to "disposable military retired pay." The master deferred argument on issues relating to the CPO to permit the parties to obtain expert witnesses. The master stated that, in the event he found Husband's proposed changes to the CPO would harm Wife's rights as established in the judgment for divorce, Husband would be held in contempt and ordered to pay attorney's fees and expert witness fees.

Two weeks after the hearing, Husband, through counsel, mailed to Wife's counsel a letter requesting that the word "before" in Paragraph 5B of the proposed CPO be changed to "after." In effect, such a change would allow Wife's 50 percent of the marital share of Husband's military retirement pay to be calculated after statutory, regulatory, or elective deductions were taken from Husband's payments. In other words, Wife's share would be calculated from the amount of retirement pay that Husband actually receives, rather than from the gross amount before statutory, regulatory, or elective deductions are applied.

On January 10, 2006, the parties held a hearing before the master to address the allegations contained in Wife's petition for contempt relating to the proposed CPO. Husband was not represented by counsel at that hearing. Wife's expert witness, Wendy Widmann, was qualified as an expert in the area of "Qualified Domestic Relations Orders including those orders dealing with the division of military benefits under Maryland law." She testified that Husband's proposal to change "before" to "after" in Paragraph 5B of the proposed CPO would reduce Wife's portion of Husband's military retirement benefits by limiting her share of retirement benefits to Husband's disposable retired pay. She testified that such a limitation was not supported by the judgment for divorce.

Wife testified at the hearing about the counsel and expert witness fees she incurred in filing the contempt petition.

Husband also testified at the hearing. He testified that, if the language of the proposed CPO were changed from "before" to "after," he would not take any action to reduce Wife's one-half share of his retirement benefits. He further argued that the judgment of divorce did not require him to cooperate in signing Wife's proposed CPO, and that his failure to sign the order did not render him in contempt of court. Husband did not present an expert witness.

Following the close of Husband's case, the master set forth his findings. He stated, in part:

The Court finds that [Husband], in his testimony and presentation to the Court on today's date, agrees that it was always his intent that his wife receive — or his former wife receive her portion of his military retirement benefit based on the [Bangs] formula. That being the numerator being one hundred and ninety seven months over the denominator being the total number of months earned.

* * *

The Court finds the difference between military retirement benefits and disposable retired pay is significant. That disposable retired pay allows the military service member to take certain exclusions that in fact would reduce the base amount of his retirement that [Wife] would be eligible for.

The master noted that in two cases, Dexter v. Dexter, 105 Md.App. 678, 661 A.2d 171, cert. denied, 341 Md. 27, 668 A.2d 36 (1995), and Potts v. Potts, 142 Md.App. 448, 790 A.2d 703, cert. denied, 369 Md. 181, 798 A.2d 553 (2002), this Court recognized that, absent an agreement by the parties, a service member should not be allowed to reduce his potential retirement benefits by electing a disability portion or by electing other exclusions. The master found that changing the word "before" to "after" would permit Husband "to take certain exclusions including elected deductions that would in fact reduce the base amount of his retirement and would impact [Wife's] property rights." He recommended that the court find Husband in contempt for his failure to authorize Wife's proposed CPO. He also recommended that the court set the purge amount at $2,333.00, which includes $2,083.00 in Wife's expert witness fees and $250.00...