Collins v. Collins

KENNEY, Judge. Lieutenant Colonel Daniel Collins (“Lt. Col. Collins”) appeals a decision of the Circuit Court for Montgomery County disposing of marital property, awarding child support, and awarding attorney’s fees to appellee, Cynthia Collins, Ph.D.

(“Dr. Collins”). On appeal, Lt. Col. Collins poses for our consideration three questions, which we have rephrased as follows: I. Did the trial court commit reversible error in arriving at the form and the amount of the monetary award, the pension award, and the reservation on the issue of alimony, made in favor of Dr. Collins?

II

Did the trial court commit reversible error in its child support award?

III

Did the trial court commit reversible error by awarding attorneys’ fees to Dr. Collins? For the reasons set forth below, we vacate the portion of the court’s monetary award requiring Lt. Col. Collins to pay Dr. Collins $5,896. 1 We vacate the child support order and attorneys’ fees award, and remand the case for further proceedings on those issues.

In all other respects, we affirm the judgment of the circuit court. ⁴⁰³ FACTUAL AND PROCEDURAL BACKGROUND The parties were married in Utah on July 21, 1979. When they divorced, Dr. Collins was fifty-one years old and Lt. Col. Collins was forty-nine years old.

Their only child, Jason Collins, was born on October 28, 1984. The family moved a number of times due to Lt. Col. Collins’ Air Force career, but, at the time of the divorce, they had lived in Maryland for twelve years.

Lt. Col. Collins, however, maintained his residency in the State of South Dakota, as members of the armed forces are permitted to do. 2 In early January 2000, Lt. Col.

Collins traveled from Maryland to South Dakota for a family funeral. On or about January 8, 2000, while still in South Dakota, he filed for divorce on the grounds of irreconcilable differences. During this time, Lt. Col.

Collins was in the process of retiring. His retirement became effective March 31, 2000. Lt. Col.

Collins subsequently returned to the marital home in Maryland, without telling Dr. Collins that he was seeking a divorce. On January 14, 2000, Dr. Collins returned from work to find that Lt. Col. Collins had left, taking a number of belongings with him.

He left notes for both Dr. Collins and Jason, but the notes did not explain why he had left or that he had filed for divorce. On January 15, 2000, a process server arrived at the marital home and served the South Dakota divorce papers. The petition for divorce alleged, inter alia, that Jason was not Lt. Col.

Collins’ son and requested paternity testing. Jason, who was looking at the papers over Dr. Collins’ shoulder, became immediately aware of these allegations. Consequently, Jason does not wish to see his father and has, throughout the proceedings below, refused visitation, even though Lt. Col.

Collins apparently had a paternity test conducted and has satisfied himself that Jason is his son. ⁴⁰⁴ Dr. Collins immediately retained counsel in both Maryland and South Dakota in an effort to dismiss the South Dakota case for lack of jurisdiction. 3 On February 1, 2000, Dr. Collins filed a complaint for absolute divorce in the Circuit Court for Montgomery County. On March 21, 2000, the Circuit Court of the Second Judicial Circuit of South Dakota determined that it had jurisdiction to grant or deny the divorce, but that it lacked jurisdiction to decide issues of alimony, child support, child custody, and the division of marital property. The divorce was granted on August 7, 2000. In the interim, the Maryland case was proceeding on the division of property, alimony, and child support and custody. 4 For a period of time, Dr. Collins was unable to serve Lt.

Col. Collins, who had left no forwarding address and was apparently making himself unavailable. Eventually, she had to arrange for alternative service. He finally answered the complaint on June 7, 2000.

In her complaint, Dr. Collins requested pendente lite relief, including child support, child custody, and alimony. A hearing was held before a Special Master on August 8, 2000, the day ⁴⁰⁵ after the parties’ divorce became final in South Dakota. At that hearing, Dr. Collins explained that she had obtained a Doctorate in Nursing Science during the marriage in order to increase her earning capacity. At the time of the hearing, she was earning $60,000 a year as an assistant professor at the University of Maryland in Baltimore.

Although Lt. Col. Collins had received a job offer, he had not yet commenced employment. The hearing resumed on August 23, 2000, at which time the matter was taken under advisement.

The master’s report and recommendations were filed on October 18, 2000. Lt. Col. Collins filed exceptions to the master’s recommendations on October 30, 2000.

The circuit court held a hearing on the exceptions on November 22 and December 8, 2000. It appears that the circuit court, in an oral ruling, granted some of Lt. Col. Collins’ exceptions and denied others, but it never entered a written order.

A hearing on the merits of the case occurred on February 14 and 15, 2001, before a different judge. The trial court issued an oral ruling on the issues on February 15, 2001, and a written order followed on March 1, 2001. The order stated, in pertinent part: ORDERED that the plaintiffs TXAA/CREF [retirement account] is hereby determined to be marital property with a value of $4,971.00 and the defendant’s stocks are hereby determined to be marital property with a value of $3,752.00, and no distribution shall be made between the parties with respect thereto, and it is further ORDERED that the Utah land is hereby determined to be marital property with a value of $2,000.00, and said real property shall be sold, and the net proceeds of sale divided equally between the parties, and it is further ORDERED that the three (3) loose diamonds in defendant’s possession are hereby determined to be marital property with an existing value of $6,500.00, and it is further ORDERED that the Utah condominium is hereby determined to be defendant’s pre-marital property; however, for reasons placed on the record, plaintiff is hereby determined to have a marital interest therein in the amount of $6,158.00, and it is further ⁴⁰⁶ ORDERED that the defendant’s military pension is hereby determined to be marital property, and the plaintiff is hereby awarded an interest in said pension as follows: $3,685.00/mo. x 248 (# of mos. of service during marriage) x 50% 310 (# of mos. of service) or $1,474.00 per month, and it is further ORDERED that the defendant is determined to owe to the plaintiff the sum of $5,896.00 as her portion of pension benefits from May 1, 2000 to and including August 31, 2001, and it is further ORDERED that a monetary award is hereby granted in favor of the plaintiff and against the defendant in the amount of $15,304.00 as an adjustment of the equities of the parties in and to marital property, and it is further ORDERED that a judgment is hereby entered in favor of Cynthia Collins and against Daniel Collins in the amount of $15,304.00, and it is further ORDERED that commencing March 1, 2001, the plaintiff shall pay the monthly expense for survivor’s benefits in the defendant’s pension in the amount of $239.53 per month, and it is further ORDERED that the issue of alimony is hereby reserved, to be revisited by the Court in the event the defendant is declared disabled and begins to receive disability pay 5 which affects the ⁴⁰⁷ monthly amount plaintiff receives from defendant’s pension, and it is further ORDERED that the defendant shall pay to the plaintiff for the support and maintenance of the minor child as child support the sum of $1,709.00 per month, commencing and accounting from March 1, 2001, and due and payable on the first day of each month in advance, and it is further ORDERED that the defendant is determined to be in arrears in his payments of child support to and including February, 2001 in the amount of $14,144.94 (which sums represents child support arrears stipulated to by the parties of $15,500.94, less $1,356.00 credited to defendant as a result of the recalculation of child support for the months of May through August, 2000), and it is further ORDERED that a judgment is hereby entered in favor of Cynthia Collins and against Daniel Collins in the amount of $14,144.94, and it is further ORDERED that the defendant shall pay to the plaintiff as a contribution toward her attorney’s fees incurred in connection with these proceedings the sum of $17,500.00, and it is further ORDERED that a judgment is hereby entered in favor of Cynthia Collins and against Daniel Collins in the amount of $17,500.00. Since that accident I have continuous ringing in the ears, I have carpal tunnel syndrome on both wrists— I have a bad knee and two flat feet.

And I also have a dental problem, I have several cracked molars which the Air Force I am told by the dentist used a certain type of filling that over 10 to 12 years— I am in the process, I have had three surgeries in the last five weeks, I had a basil cell carcinoma removed from my forehead, as you can see the scar. I have had tongue surgery on the 29th of January and my tongue is still numb from that and I am still bleeding and having post nasal drip, that’s why we asked for the extension. And I have had a root canal and I am having a crown put on so I have had two crowns put on in like the last six months and I have a temporary crown on right now which fell out two days ago. ⁴⁰⁸ This appeal followed. DISCUSSION I. Monetary Award and Pension Distribution Appellant first argues that the trial court erred when it calculated the monetary award by including property that was non-existent at the time of the trial as well as by excluding certain property.

Specifically, appellant argues that the diamonds had been sold at the time of trial, and were therefore improperly included as marital property. He also complains that the trial court failed to award Lt. Col. Collins any portion of Dr. Collin’s pension account.

Further, he argues that the trial court erred in the division of Lt. Col. Collin’s military pension, in the award of $5,896 arising out of Lt. Col.

Collin’s pension payments, and by reserving on the issue of alimony. Dr. Collins, of course, contends that the trial court’s rulings were correct. A. The Monetary Award 1. Standard of Review Maryland Rule 8-131(c) states: When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence.

It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. See also Caccamise v. Caccamise, 130 Md.App. 505, 521 , 747 A.2d 221 , cert. denied, 359 Md. 29 , 753 A.2d 2 (2000) (quoting Gallagher v. Gallagher, 118 Md.App. 567, 580-81 , 703 A.2d 850 (1997), cert. denied, 349 Md. 495 , 709 A.2d 139 (1998)). The standard of review governing the court’s determination as to marital property is relevant here. Ordinarily, it is a question of fact as to whether all or a portion of an asset is marital or non-marital property.

Findings of this type are subject to review under the clearly erroneous standard ⁴⁰⁹ embodied by Md. Rule 8-131 (c); we will not disturb a factual finding unless it is clearly erroneous. Innerbichler v. Innerbichler, 132 Md.App. 207, 229 , 752 A.2d 291 , cert. denied, 361 Md. 232 , 760 A.2d 1107 (2000). “When the trial court’s findings are supported by substantial evidence, the findings are not clearly erroneous.” Innerbichler, 132 Md.App. at 230 , 752 A.2d 291 . Moreover, “[t]he decision whether to grant a monetary award is generally within the sound discretion of the trial court.” Alston v. Alston, 331 Md. 496, 504 , 629 A.2d 70 (1993) (citing Md.Code (1984, 1999 Repl.Vol.), § 8-205(a) of the Family Law Article (“FL”)). 2. Factors in Determining Amount and Payment of Award When a party petitions for a monetary award, the trial court must follow a three-step procedure.

First, for each disputed item of property, the court must determine whether it is marital or non-marital. FL [Family Law Article] § 8-203. Second, the court must determine the value of all marital property. FL § 8-204.

Third, the court must determine if the division of marital property according to title will be unfair; if so, the court may make an award to rectify the inequity. Doser v. Doser, 106 Md.App. 329, 349-50 , 664 A.2d 453 (1995). In balancing the equities, the court must consider the factors set forth in Md.Code (1984, 1999 Repl.Vol., 2000 Supp.), § 8-205(b) of the Family Law Article (“FL”): The court shall determine the amount and the method of payment of a monetary award, or the terms of the transfer of the interest in the pension, retirement, profit sharing, or deferred compensation plan, or both, after considering each of the following factors: (1) the contributions, monetary and nonmonetary, of each party to the well-being of the family; (2) the value of all property interests of each party; ⁴¹⁰ (3) the economic circumstances of each party at the time the award is to be made; (4) the circumstances that contributed to the estrangement of the parties; (5) the duration of the marriage; (6) the age of each party; (7) the physical and mental condition of each party; (8) how and when specific marital property or interest in the pension, retirement, profit sharing, or deferred compensation plan, was acquired, including the effort expended by each party in accumulating the marital property or the interest in the pension, retirement, profit sharing, or deferred compensation plan, or both; (9) the contribution by either party of property described in § 8—201(e)(3) 6 of this subtitle to the acquisition of real property held by the parties as tenants by the entirety; (10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and (11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in the pension, retirement, profit sharing, or deferred compensation plan, or both. “While consideration of the factors is mandatory, the trial court need not ‘go through a detailed check list of the statutory factors, specifically referring to each, however beneficial such a procedure might be ... for purposes of appellate ⁴¹¹ review.’” Doser; 106 Md.App. at 351 , 664 A.2d 453 (quoting Grant v. Zich, 53 Md.App. 610, 618 , 456 A.2d 75 (1983)) (other citation omitted). The court granted Dr. Collins a $15,304 monetary award “as an adjustment of the equities of the parties in and to marital property.” Lt.

Col. Collins complains that the judge “failed to set out the basis for the monetary award that he made to” Dr. Collins. It is true that the trial court did not specifically address each of the FL § 8-205 factors. Nevertheless, it clearly took into consideration the parties’ respective financial situations, “the circumstances that contributed to the estrangement of the parties,” how and when various property was acquired, and the duration of the marriage, saying, in respect to the latter factor, that “an important factor to consider in this case is the length of the marriage, it’s a marriage of long duration[.]” See Bangs v. Bangs, 59 Md.App. 350, 369-70 , 475 A.2d 1214 (1984).

Other marital property exists in this case. With respect to the family use personal property, the court issued a use and possession order but stated that, when the order expired, that property “shall be sold, unless the parties are able to agree otherwise upon its disposition, and the net proceeds of sale shall be divided equally between the parties.” There was also a substantial list of non-family use personal property submitted to the court, but the court reserved on the issue of distribution in the hope that the parties could come to an agreement. The court put the parties on notice that, if they could not agree, it would be sold and the proceeds equitably distributed. Indeed, Lt.

Col. Collins does not complain about the court’s decision to distribute the parties’ marital property equitably. His complaints regarding the monetary award are quite specific, and we shall address each in turn. S. The Diamonds With respect to the diamonds, Lt.

Col. Collins complains that the court’s determination that the diamonds were marital property and were worth $6,500 “was based solely on ⁴¹² the Appellee’s testimony that the Appellant had allegedly ‘told her sometime in the past’ that he had three diamonds.” Dr. Collins directs us to the court’s findings and argues that they speak for themselves. Now, there is an issue about three loose diamonds. The plaintiff testified there are diamonds that were acquired during the marriage, given to her because of an interest her husband had in diamonds.

It was his testimony they were the diamonds he purchased before the marriage and were non-marital property and he sold them for $1,500. It is her testimony they were, based on what he told her, worth about $6,500. I accept her testimony, the plaintiff, [and] I find that those three diamonds are marital property. They aren’t available now so I will determine that to be $6,500 and award and equitably distribute it equally between the parties.

We have previously held that, [a]s a general rule, property disposed of before trial cannot be marital property. Gravenstine v. Gravenstine, 58 Md.App. 158, 177 , 472 A.2d 1001 (1984). An exception to this rule is where one spouse claims that the property was improperly dissipated by the other spouse. See Rock v. Rock, 86 Md.App. 598, 618-20 , 587 A.2d 1133 (1991).

Once improper dissipation is alleged, the burden shifts to the spouse claiming that dissipation occurred to prove that the other spouse used the marital property during the marriage to prevent inclusion of the assets for any consideration of a monetary award. Choate v. Choate, 97 Md.App. 347, 366 , 629 A.2d 1304 (1993). See also Beck v. Beck, 112 Md.App. 197, 216 , 684 A.2d 878 (1996), cert. denied, 344 Md. 717 , 690 A.2d 523 (1997). Dr. Collins argued that the diamonds were dissipated.

Lt. Col. Collins has maintained that he sold the diamonds because he needed the money to help pay bills. Dr. Collins has claimed throughout that Lt.

Col. Collins voluntarily impoverished himself and had the ability to pay additional support but has not done so, apparently equating ⁴¹³ improper dissipation with voluntary impoverishment. Lt. Col.

Collins points out that the court, in the December 8, 2000 exceptions hearing, found no voluntary impoverishment. This finding, however, was directly related to the issue of whether Lt. Col. Collins was diligent in his efforts to locate post-retirement employment.

Moreover, no witnesses were called at the hearing on the exceptions, which concerned only the pendente lite child support, child custody, and alimony awards. We have never required a trial court to make a specific finding of dissipation. See Welsh v. Welsh, 135 Md.App. 29, 52 , 761 A.2d 949 (2000), cert. denied, 363 Md. 207 , 768 A.2d 55 (2001) (inferring a finding of dissipation from the trial court’s ruling). We infer a similar finding of dissipation in the trial court’s ruling here.

Clearly, the trial court credited Dr. Collins’ testimony that the diamonds were purchased during the marriage and that they were worth $6,500. Lt. Col. Collins argues that testimony that the diamonds had a value of $1,500 was “uncontroverted” and was “the only credible evidence of the value of the diamonds.” Lt.

Col. Collins never provided the court with an appraisal of the diamonds, a receipt for the diamonds’ sale, or identified to whom he sold the diamonds. Acknowledging that the diamonds were unavailable, the trial court accepted Dr. Collins’ valuation, which, according to her, was the value ascribed to them by Lt. Col.

Collins. As stated above, we will not find clear error in a ruling based on a credibility determination. Rule 8—131(c); Caccamise, 130 Md.App. at 521 , 747 A.2d 221 . At oral argument, Lt.

Col. Collins contended that the court was required to determine the “present value” of the diamonds, which he contends to be $1,500. We decline to reduce the monetary award to $750 to reflect the price for which Lt. Col.

Collins allegedly sold the diamonds. Even assuming that Lt. Col. Collins sold the diamonds for $1,500, absent some evidence of an arm’s length sale, there is no proof that this was the actual value of the diamonds.

The court’s conclusion was not clearly erroneous. ⁴¹⁴ k. Dr. Collins’ TIAA-CREF Account Lt. Col. Collins next contends that the court erred by failing to award him half of the value of Dr. Collins’ TIAA-CREF account, or, alternatively, by not allowing him to take a credit against the monetary judgment.

Again, Dr. Collins argues that the trial court’s findings and ruling speak for themselves. The trial court made the following finding with respect to this account: Then with regard to the TIA[A]-Cref account of the plaintiffs, I will accept the suggestion of the plaintiff that even though that is marital property, so was [sic] the stocks that Mr. Collins had possession of and has dissipated before the trial, they were marital property and dissipated so I will just treat that as a wash even though there is a slight difference in value, it’s not enough.to worry about. So she will be able to keep that Cref account intact because of the settlement. The trial court clearly found that Lt.

Col. Collins had dissipated certain “stocks” during the separation period. Consequently, we find no abuse of discretion in the court’s decision not to award Lt. Col.

Collins a portion of the TIAA-CREF account, but instead using his marital interest in it to offset the value of assets that he dissipated. 5. Monetary Award Based on Pension Payments We shall discuss other aspects of Lt. Col. Collins’ many complaints concerning the distribution of his pension in Section I.B of this opinion.

We address here his complaint concerning the sum of $5,896 included in the monetary award to Dr. Collins, based on pension payments he received prior to the divorce. He argues that this sum arose “solely out of the retirement pay received by the Appellant prior to the divorce between the Parties[.]” (Emphasis in appellant’s brief.) Because the pension payments were made prior to the time of the divorce, he argues that they could no longer be considered marital property. Dr. Collins argues that the pension award ⁴¹⁵ was proper because, as the court stated, “ ‘the Plaintiff has not received any portion of her marital share’ for the months of May thru August, 2000.” The court explained its ruling as follows: Now, insofar as marital, the military pension, the defendant has retired and is receiving from the military $3,685 a month and he began receiving this military pension in May of 2000 and to this date, the plaintiff has not received any portion of her marital share. And her marital share is equivalent to 40 percent of the pension based on the number of months the parties were married while the defendant was earning his pension to the date of his separation from the military and so I am considering the numerator to be 248 months and the denominator 311 months, 80 percent roughly divided by half equals 40 percent.

It comes out to $1,474 a month effective May 1, 2000. There is no question that a pension, or rights to a pension, are part of marital property. FL § 8—204(b); Lookingbill v. Lookingbill, 301 Md. 283, 289 , 483 A.2d 1 (1984); Deering v. Deering, 292 Md. 115, 130-31 , 437 A.2d 883 (1981); Long v. Long, 129 Md.App. 554, 574 , 743 A.2d 281 (2000). Three methods of determining the value of a pension have been developed because most often the pension at issue has not vested as of the date of divorce.

See Deering, 292 Md. at 130-31 , 437 A.2d 883 (explaining the different methods of placing a value on a pension); Kelly v. Kelly, 118 Md.App. 463, 471 , 702 A.2d 999 (1997) (noting that the true value of a pension often cannot be ascertained with any certainty at the time of divorce). In this case, the pension had vested and present value was readily ascertainable. 7 The court used the Bangs formula to determine Dr. Collins’ marital portion of Lt. Col. Collin’s monthly pension of $3,685.

The division was to be fifty-fifty ⁴¹⁶ for pension benefits accruing during the marriage, as expressed in the following formula: 1 x (248 months of marriage) x $3,685 2 (310 months of service) Lt. Col. Collins was already in the Air Force when he married Dr. Collins. Therefore, her share would be 50% of the portion earned while the two were married, rather than 50% of the entire pension.

Lt. Col. Collins does not allege, nor do we perceive, any abuse of discretion in the trial court’s determination that Dr. Collins was entitled to 50% of the marital portion of the pension. Lt.

Col. Collins complains that the trial court could not require him to pay to Dr. Collins a share of pension benefits he received for the four months during which they were separated but not divorced. This is because, although the rights to a pension are considered marital property, “property disposed of before trial cannot be marital property.” Choate, 97 Md.App. at 366 , 629 A.2d 1304 . FL § 8-205 permits a monetary award “as an adjustment of the equities and rights of the parties concerning marital property!.]” (Emphasis supplied.) Although the court may consider any fact “necessary or appropriate” in arriving at a “fair and equitable” monetary award, the award relates back to marital property.

In Gravenstine v. Gravenstine, 58 Md. App. 158, 177 , 472 A.2d 1001 (1984), we said that marital property which generates a monetary award must ordinarily exist as “marital property” as of the date of the final decree of divorce based on evidence adduced at the trial on the merits or a continuation thereof. Therefore, property disposed of before commencement of the trial under most circumstances cannot be marital property. The pension payments at issue were made prior to the divorce and had been expended as of the date of the divorce. As observed earlier, an exception to the rule in Gravenstine is where one spouse claims that the property was “improperly dissipated by the other spouse.” Choate, 97 ⁴¹⁷ Md.App. at 366, 629 A.2d 1304 (citing Rock v. Rock, 86 Md.App. 598, 618-20 , 587 A.2d 1133 (1991)). “Dissipation may be found where one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown.” Jeffcoat v. Jeffcoat, 102 Md.App. 301, 308 , 649 A.2d 1137 (1994) (quoting Sharp v. Sharp, 58 Md.App. 386, 401 , 473 A.2d 499 (1984) (citing Klingberg v. Klingberg, 68 Ill.App.3d 513 , 25 Ill.Dec. 246 , 386 N.E.2d 517, 521 (1979))).

The party alleging dissipation has the initial burden of showing dissipation has taken place. Welsh v. Welsh, 135 Md.App. 29, 50 , 761 A.2d 949 (2000). Once the prima facie case of dissipation is proven, the burden shifts to the other party to show that the assets were expended appropriately. The court must then determine, either implicitly or explicitly, whether the joint funds were dissipated.

Welsh, 135 Md.App. at 50-51 , 761 A.2d 949 . Here, the court only expressed concern that Dr. Collins had not received any portion of the paid pension benefits. Even if we deemed that fact adequate to establish a prima facie case of dissipation, the evidence before the court was that Lt. Col.

Collins’ sole income during this period came from his retirement pay and that, at least, some monies were paid toward child support during this period. As he was in the process of retiring before the initiation of any divorce proceedings, there would be no reason to believe that his retirement was simply an attempt to reduce any equitable distribution award. Moreover, in consideration of the support issues, there was no finding that Lt. Col.

Collins should have had a job or was otherwise voluntarily impoverishing himself during this period. Unlike the court’s discussion regarding the diamonds and the stock, there is neither an express finding nor a clear basis for an implied finding that the pension funds were dissipated so as to entitle Dr. Collins to reimbursement as part of an adjustment of the equities between the parties. See Welsh, 135 Md.App. at 50-51 , 761 A.2d 949 . Therefore, we will vacate this portion of the trial court’s monetary award and remand ⁴¹⁸ for further proceedings on the issue of dissipation of these funds.

B. Pension Award and Reservation of Alimony Lt. Col. Collins argues that the formula the court used in making the pension award was erroneous and that the constituted pension order was improper. He also argues that the trial court erred by reserving on the issue of alimony. 1.

Dr. Collins’ Marital Share of the Pension Lt. Col. Collins contends that federal law, which governs his military pension, prohibits the court from assessing a marital award for the period between July 21, 1979, the day of the marriage, and June 25,1981, the date set forth in the Uniform Services Former Spouses’ Protection Act (“USFSPA”), 10 U.S.C. § 1480 (c) (2000). 8 Dr. Collins argues that, because the “instant case was filed after 1982, thus [she] has the full benefit of all USFSPA protections.” The court made no specific findings as to this issue. The pertinent provision of the USFSPA reads as follows: (c) Authority for court to treat retired pay as property of the member and spouse.

(1) Subject to the limitations of this section, a court may treat disposable retired pay 9 payable to a member for pay ⁴¹⁹ periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court. A court may not treat retired pay as property in any proceeding to divide or partition any amount of retired pay of a member as the property of the member and the member’s spouse or former spouse if a final decree of divorce, dissolution, annulment, or legal separation (including a court ordered, ratified, or approved property settlement incident to such decree) affecting the member and the member’s spouse or former spouse (A) was issued before June 25, 1981, and (B) did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member’s spouse or former spouse. 10 U.S.C. § 1408 (c)(1). The Court of Appeals “has stated many times ‘that the cardinal rule of statutory construction is to ascertain and effectuate legislative intention.’ ” State v. Green, 367 Md. 61, 81 , 785 A.2d 1275 (2001) (citations omitted). When we interpret a statute, our starting point is always the text of the statute.

Adamson v. Correctional Medical Services, Inc., 359 Md. 238, 251 , 753 A.2d 501 (2000). “[I]f the plain meaning of the statutory language is clear and unambiguous, and consistent with both the broad purposes of the legislation, and the specific purpose of the provision being interpreted, our inquiry is at an end.” Breitenbach v. N.B. Handy Co., 366 Md. 467, 473 , 784 A.2d 569 (2001). The plain meaning rule, however, is “elastic, rather than cast in stone[,]” and if “persuasive evi ⁴²⁰ dence exists outside the plain text of the statute, we do not turn a blind eye to it.” Adamson, 359 Md. at 251 , 753 A.2d 501 (citing Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 513-14 , 525 A.2d 628 (1987)). “[I]n determining a statute’s meaning, courts may consider the context in which a statute appears, including related statutes and legislative history.” Ridge Heating, Air Conditioning & Plumbing v. Brennen, 366 Md. 336, 350-51 , 783 A.2d 691 (2001). “We may also consider the particular problem or problems the legislature was addressing, and the objectives it sought to attain.” Sinai Hosp. of Baltimore v. Dep’t of Employment and Training, 309 Md. 28, 40 , 522 A.2d 382 (1987). “This enables us to put the statute in controversy in its proper context and thereby avoid unreasonable or illogical results that defy common sense.” Adamson, 359 Md. at 252 , 753 A.2d 501 . Lt. Col.

Collins contends that the plain language of 10 U.S.C. § 1408 (c) provides that any “disposable retired pay” accrued from pay periods before June 25, 1981, may not be treated as marital property. The plain language of the statute is that “a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981,” as marital property in accordance with applicable state law. There is no question that Lt. Col.

Collins’ pension became “payable” after that date. The Court of Appeals has previously recognized, albeit in dicta, the legislative history of the statute makes clear that disposable retired pay benefits accrued prior to June 25, 1981, can be distributed pursuant to the USFSPA. The Court addressed 10 U.S.C. § 1408 (c) in Andresen v. Andresen, 317 Md. 380 , 564 A.2d 399 (1989). The Andresens had been divorced on November 13, 1981, after forty years of marriage.

Earlier that year, on June 26, 1981, the U.S. Supreme Court held in McCarty v. McCarty, 453 U.S. 210 , 101 S.Ct. 2728 , 69 L.Ed.2d 589 (1981), that military retirement pay was not marital property and so was not divisible upon divorce. The Court of Appeals had applied McCarty in Hill v. Hill, 291 Md. 615, 621 , 436 A.2d 67 (1981). ⁴²¹ The trial court in Andresen , following Hill , did not award any portion of the husband’s military pension to Mrs. Andresen. Thereafter, Congress enacted the USFSPA “on September 8, 1982, codified in pertinent part at 10 U.S.C. § 1408 (c)(1), effective February 1, 1983.” Andresen, 317 Md. at 383 , 564 A.2d 399 . Mrs. Andresen sought to reopen her divorce on March 12, 1986, in light of the USFSPA.

Although the Court of Appeals ultimately decided that there was no procedural mechanism in Maryland allowing her to reopen the case, Id., at 391 , 564 A.2d 399 , it reviewed the legislative history behind the USFSPA. The Senate Report made the purpose of the Act clear: The purpose of this [Act] is to place the courts in the same position they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of nondisability military retired or retainer pay. The [Act] is intended to remove the federal preemption found to exist by the United States Supreme Court and permit State and other courts of competent jurisdiction to apply pertinent state or other laws in determining whether military retired or retainer pay should be divisible. Nothing in this [Act] requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution.

Senate Report No. 97-502, July 22, 1982, reprinted in 1982 U.S.Code Cong. & Admin. News, 1555, 1596, 1611. Andresen, 317 Md. at 383-84 , 564 A.2d 399 . See also Evans v. Evans, 75 Md.App. 364, 368 , 541 A.2d 648 (1988) (quoting Senator Jeremiah Denton from the same Senate Report at 1626 as saying: “Those wives who have loved and served as wives and mothers for many years deserve more than mere recognition.

They are entitled to a degree of security.”). Prior to June 26, 1981, when the Supreme Court decided that military retirement or retainer pay was not divisible marital property, the decision had been left to state law. Military pensions were considered to be divisible marital property in certain states. See McCarty, 453 U.S. at 218 , 101 ⁴²² S.Ct. 2728 (reviewing a ruling by California state courts finding that the military pension was “subject to division as quasi-community property.”); Hill, 291 Md. at 621 n. 4, 436 A.2d 67 (citing In re Marriage of Miller, 187 Mont. 286 , 609 P.2d 1185 (1980), vacated and remanded, Miller v. Miller, 453 U.S. 918 , 101 S.Ct 3152 , 69 L.Ed.2d 1000 (1981) (noting that Montana, an equal distribution state, found the military pension to be divisible marital property.)).

See also 1982 U.S.Code Cong. & Admin. News at 1602 (“The committee notes that until June 26, 1981, a number of state courts traditionally recognized that military retired pay could be dealt with as marital property and divided between the parties.”). Because the purpose of the USFSPA was to “place the courts in the same position they were in on June 26, 1981,” the date’s relevance is to ensure continuity with the pre-June 26, 1981, law for the period between June 26, 1981, and the passage of the USFSPA. Congress specifically overruled the Supreme Court with the intent to return to state law. “[U]nder Maryland law, as construed in Deering v. Deering, supra, pensions generally, including military pensions, are marital property.” Andresen, 317 Md. at 384 , 564 A.2d 399 .

As the Court of Appeals explained, the legislative history [of the USFSPA] reveals that Congress contemplated that divorce decrees, entered between the date of the McCarty decision and the effective date of the USFSPA, might be reopened. The previously quoted report of the Senate Committee on Armed Services stated (Senate Report No. 97-502, supra, 1599-1600): “Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have an opportunity to return to court to have their decrees modified in light of this legislation.” And later, the report explains (id. at 1611): This power is’returned to the courts retroactive to June 26, 1981. This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the ⁴²³ effective date of this legislation the opportunity to return to the courts to take advantage of this provision. Andresen, 317 Md. at 384-85 , 564 A.2d 399 .

Accordingly, the Senate specifically contemplated the revision of decrees that had been entered or modified during the period between the date of the McCarty decision and the effective date of the USFSPA. 10 If the language of the statute referring to “treating] disposable retired pay payable to a member for pay periods beginning after June 25, 1981,” were construed without reference to the legislative history, part of the purpose of the statute, to fix the inequities caused by the McCarty decision, would be defeated. As recognized by the California Court of Appeals, First Appellate District, the USFSPA “contained no provisions relating to the division of military retirement pay which became ⁴²⁴ payable prior to June 25, 1981.” In re Marriage of Curtis, 7 Cal.App.4th 1, 14 , 9 Cal.Rptr.2d 145 (1992). Based on the history of the statutory provision, the court stated “that benefits which had become payable prior to the enactment of [the USFSPA], would also be divided in accordance with state law principles (because McCarty would not be applied retroactively).” Id. Courts addressing this issue, but not applying McCarty retroactively, have declined to apply the decision retroactively because of the res judicata effect of final divorce decrees as well as the fact that the Supreme Court provided no indication in McCarty that it intended a retroactive application. 11 See Armstrong v. Armstrong, 696 F.2d 1237, 1238 (9th Cir.), cert. denied, 464 U.S. 933 , 104 S.Ct. 337 , 78 L.Ed.2d 306 (1983); Erspan v. Badgett, 659 F.2d 26, 28 (5th Cir.1981); Erbe v. Eady, 406 So.2d 936, 938-39 (Ala.Civ.App.), cert. denied, 406 So.2d 939 (Ala.1981); Rodriguez v. Rodriguez, 133 Ariz. 88 , 649 P.2d 291, 291 (Ct.App.1982), approved, 133 Ariz. 87 , 649 P.2d 290 (1982); Burt v. Smith, No. CA84-26, 1984 WL 6558 , at ¹, 1984 Ark.App. LEXIS 1823 at ³ (Ark.Ct. App. Oct. 24, 1984); Allcock v. Allcock, 107 Ill.App.3d 150 , 62 Ill.Dec. 865 , 437 N.E.2d 392, 396 (1982); Tarver v. Tarver, 441 So.2d 451, 452 (La.Ct.App.1983), cer t. denied, 445 So.2d 1232 (La.1984); Chisnell v. Chisnell, 149 Mich.App. 224 , 385 N.W.2d 758, 760 (1986); Duke v. Duke, 98 Nev. 148 , 643 P.2d 1205, 1206 (1982); Stroshine v. Stroshine, 98 N.M. 742 , 652 P.2d 1193, 1195 (1982); In re Marriage of Vinson, 57 Or.App. 355 , 644 P.2d 635, 636 (1982); Bachelder v. Moore, 288 S.C. 405 , 343 S.E.2d 32, 33 (App.1986); Segrest v. Segrest, 649 S.W.2d 610, 612 (Tex. 1983); and In re Marriage of Brown, 98 Wash.2d 46 , 653 P.2d 602, 605 (Wash.1982). ⁴²⁵ Accordingly, we hold that the portion of Lt.

Col. Collin’s retirement pay available for distribution was not limited to the portion accruing after June 26,1981. 2. The Constituted Pension Order Lt. Col.

Collins’ arguments as to why the constituted pension order (“CPO”) was improper became more clear at oral argument. 12 Based on the assumption that the CPO would remain valid in the event Lt. Col. Collins is entitled to and awarded disability pay, his problem with the CPO is twofold. First, he contends that the CPO awarded Dr. Collins more than 50% of his disposable retired pay, because the CPO speaks in terms of a specific dollar amount, rather than a percentage.

Second, he complains about the following language: ORDERED, that the Member is specifically directed, under the penalty of contempt to pay the Spouse her interest in his retired pay as herein provided. The Member is not relieved of this obligation except that he is notified that the full interest of the Spouse has been paid directly to her by the Defense Finance Center; and it is further, ORDERED, that if the payment of benefits to the Spouse from the transferred interest of the Member does not begin at the time specified herein, or if the payments of the Spouse cease or are suspended for any length of time, or if such payments are less than the amount specified herein, or if the Member shall waive entitlement to receive any part of all of his military pension entitlement for any reason, the Member shall pay to the spouse an amount equal to the amount that the Spouse would have received from the Service Finance Center had the Center paid those amounts ⁴²⁶ as required hereby. Any such payment or payments by the Member shall be made within thirty (30) days after the date on which each such payment would have been paid b[y] the Center in accordance with this Order[.] Dr. Collins argues that it is proper to express an award using a dollar amount. She points out that the court drafted the CPO with the notion that it might be abrogated if Lt.

Col. Collins gets disability pay. At oral argument, appellee’s attorney appeared to assume that a new CPO would be entered in that event. The court expressly retained jurisdiction to modify the order: ORDERED, that the following facts are found: * * * 8.

That this Court should retain jurisdiction to modify this Order as necessary; and it is further ORDERED, that this Order shall be interpreted in light of the Uniformed Services Former Spouses’ Protection Act (“Act”) codified at 10 U.S.C. § 1408 , as amended, and is subject to modification, should it become necessary to conform this Order to the requirements of the Act or the implementing regulations^] The constituted pension order does not award Dr. Collins more than 50% of Lt. Col. Collin’s current disposable retired pay. The award is clearly for 40% of his monthly pension payment even though it is expressed in terms of a dollar amount.

This is entirely proper pursuant to 10 U.S.C. § 1408 (a)(C). 13 ⁴²⁷ This specified dollar amount, however, would be incorrect if and when Lt. Col. Collins is awarded disability pay, because disability payments are not divisible marital property. . Evans, 75 Md.App. at 369 , 541 A.2d 648 .

Lt. Col. Collins argues that, as currently worded, the CPO would require him to pay the difference between the $1,474 monthly award set forth and his disposable retired pay taking disability into account. If he does not pay her, he would be subject to contempt proceedings under the CPO.

It is clear that the court recognized the potential of a disability award and the need to enter a new CPO in the event of a disability award. Under the circumstances of this case, because it would preclude the need for a new CPO, it would have been preferable to express the monthly award as a percentage rather than a dollar amount. On the other hand, the CPO provides: ORDERED, that it is this Court’s intent to provide the Spouse with the share of the Member’s retirement benefits that fairly represent her marital share of said retirement benefits. If this Order is determined not to accomplish this intent, or, for whatever reason, is hot accepted by the Service Finance Center (or by such other successor agency or entity which shall review this Order), any necessary modification Order shall be entered nunc pro tunc [.] Under the circumstances, Lt.

Col. Collins should not be held either personally liable or in contempt for any difference in payments should he receive a disability award. Because we are remanding this case for other reasons, we believe that it would be appropriate to enter an amended CPO with the award expressed in terms of the percentage of disposable retired pay to forestall any problems that might occur as a result of a disability award. 3. Reservation of the Issue of Alimony Coupled with Lt.

Col. Collins’ arguments concerning the CPO is his complaint that the trial court improperly reserved the issue of alimony. Dr. Collins argues that the ⁴²⁸ reservation of this issue is entirely proper, because her award will be reduced if Lt. Col.

Collins is awarded disability pay. The trial court’s reasoning for its ruling was as follows: Now, there is another issue in this case and that issue is raised by the defendant that he has applied for disability payment because of a disability that occurred while he was in the military service and if he is successful in being determined to be disabled, it will affect his military pension and if that occurs, that portion would not be, whatever he gets would not be marital property