Deering v. Deering

Digges, J., delivered the opinion of the Court. It has been said that when a marriage begins, it is made in heaven and will last for life. Modern earthly experience, however, has frequently proven otherwise. Thus, when the marital bond is terminated by law, there inevitably arises a profound necessity to determine as between the former partners what is to be the property of each. 1 To this end, Maryland’s new Property Disposition in Divorce and Annulment Law, Md. Code (1974, 1980 Repl.

Vol.), §§ 3-6A-01 et seq. of the Courts and Judicial Proceedings Article, has substantially modified the traditional property rights of the husband and wife in a divorce proceeding by allowing the chancellor to grant a monetary "adjustment of the equities ... of the parties concerning marital property. ...” With this opinion, in which we decide two cases involving the same basic issues, we shall address the scope of a spouse’s rights in civilian retirement benefits acquired by his or her marriage partner during the coverture period. 2 In the cases here, each wife has appealed from the chancellor’s decision that the husband’s pension rights do ¹¹⁸ not in any way constitute marital property under the statutory scheme. We disagree with these sweeping determinations, however, and remand these cases for further consideration of the claims here asserted. Before addressing the merits, we set forth the relevant facts of each action. In the first case we consider, the appellant, Rochelle K. Deering, was granted a divorce a vinculo matrimonii from Donald A. Deering, the appellee, by the Circuit Court for Prince George’s County, in March, 1981, after a marriage of sixteen years.

At the time of the divorce, the husband had been employed by the Maryland National Capital Park and Planning Commission as a park police officer for fifteen years and had attained the rank of captain. As a result of this employment, appellee possesses certain unmatured, fully vested pension rights based on obligatory contributions deducted from his pay. 3 The record discloses that between April, 1966, and June, 1972, Captain Deering contributed 5.5% of his base wages to a pension fund under a mandatory payroll deduction; since that time, 7% of his salary has been taken for this purpose. All of the husband’s payments to the pension fund, as of the divorce date, were made during the marriage, and, by December, 1980, these remittances, including interest, amounted to $18,181.68. The only way for appellee to withdraw his contributions to the retirement ¹¹⁹ plan in a lump sum, however, is to resign his position and surrender all future rights to the plan benefits.

In an effort to determine the value of the husband’s retirement annuity obtained during the marriage, Mrs. Deering adduced actuarial testimony to the effect that if the husband were to terminate his employment at the time of the divorce but leave his pension contributions in the park police retirement system, then in 1991, when appellee could begin to receive full benefits, he would collect $7,775.00 per year. The actuary calculated the present value of this stream of future pension income to be $64,233.00. In the trial court, Mrs. Deering claimed that, along with other enumerated items, her husband’s retirement fund constituted marital property, thus requiring a monetary award to adjust the equities between the parties. The chancellor, in granting the divorce, ruled that this pension right did not constitute marital property and denied the wife’s prayer for relief in this regard.

Appellant was, however, awarded custody of the parties’ two children and exclusive possession of the family home and the family use personal property for a period of three years. See Md. Code (1974, 1980 Repl. Vol.), §§ 3-6A-01, 3-6A-06 of the Courts and Judicial Proceedings Article. In addition, the husband was ordered to pay $150.00 per month in technical alimony and $300.00 per month for child support.

The wife appealed from that part of the decree which denied her assertion that the husband’s pension constituted marital property and we granted certiorari before the Court of Special Appeals ruled on the matter. Mary J. Andrews, the appellant in the other case before us, obtained in November, 1980, a divorce a vinculo matrimonii from appellee Samuel Justus Andrews in the Circuit Court for Anne Arundel County. The parties, by stipulation, settled in this case all issues concerning the termination of their sixteen-year marriage except one; Mr. and Mrs. Andrews could not agree on the proper consideration to be given the husband’s civil service pension when adjusting the equities of each spouse in marital property pursuant to §§ 3-6A-01, et seq. of the Courts and Judicial Proceedings Article. ¹²⁰ The record discloses that the husband, age 52, is employed by the United States Government as a pipe fitter and that he has worked in that capacity for fifteen years; Mr. Andrews served in the military for about six years before he obtained his present job. This combined 21 year government service entitled the husband to a civil service pension upon retirement at age 59. 4 Like that of Captain Deering in the other case now before us, appellee Andrews’ pension has vested and is funded in part by obligatory deductions from his basic pay. 5 U.S.C. §§ 8334 (a) (1), 8338(a).

Mr. Andrews acknowledges that he had contributed approximately $12,675.00 toward his retirement and that all of these payments were made during the marriage period. For her part, Mrs. Andrews pointed out to the chancellor that, "she stayed at home, .. . worked, . . . [and] helped [the husband] during [the] entire time that he was earning this pension....” The wife then argued that "she shouldn’t be cut out entirely ...” from enjoyment of a portion of the husband’s retirement benefits 'just because [the parties] are getting a divorce” on the eve of the husband’s retirement, and that it was the intention of the new divorce statute "to make this type of property marital property.” The chancellor, however, declared that Mr. Andrews’ pension rights were not marital property within the statute’s purview, prompting the wife to bring this appeal which we also examine on certiorari before the intermediate court has passed judgment on it. This State’s recently enacted Property Disposition in Divorce and Annulment Act, which spawned these twin controversies, is codified in sections 3-6A-01 through 3-6A-07 of the Courts and Judicial Proceedings Article (1974, 1980 Repl. Vol.), and, before discussing the merits of the issues presented here, we set forth its pertinent provisions.

Preliminarily, we are informed by section 3-6A-01 (e) of the act that "[m]arital property” is all property, however titled, acquired by either or both spouses during their ¹²¹ marriage. It does not include property acquired prior to the marriage, property acquired by inheritance or gift from a third party, or property excluded by valid agreement or property directly traceable to any of these sources. In dealing with such property, section 3-6A-05 (a) directs that [i]n granting an absolute divorce or annulment, or at any time within 90 days thereafter, if in its decree granting the divorce or annulment the court has expressly reserved the power to do so, the court shall determine which property is marital property if the division of property is an issue. Family use personal property or the family home shall not be considered marital property so long as it is the subject of a use and possession order.

Next, part (b) of section 3-6A-05 commands the court to determine the value of all such marital property. Part (b) then continues: After making the determination [of value of marital property], the court may grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded. The amount of the award and the method of its payment shall be determined 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 spouse; (3) The economic circumstances of each spouse at the time the award is to be made; (4) The circumstances and facts which contributed to the estrangement of the parties; (5) The duration of the marriage; (6) The age and the physical and mental condition of the parties; ¹²² (7) How and when specific marital property was acquired, including the effort expended by each party in accumulating the marital property; (8) Any award or other provision which the court has made under this Subtitle 6A with respect to family use personal property or the family home, and any award of alimony; and (9) Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award. Finally, part (c) of section 3-6A-05 provides that "[a] monetary award made under this section may be reduced to a judgment to the extent that any part of the award is due and owing.” Our initial task under this statutory outline, therefore, is to review the determination of the trial courts in these cases that the pension benefits acquired by the husbands did not constitute "marital property.” In considering the answer to this query, it is well to recognize that section 3-6A-01 et seq. represents a new legislative approach to the concept of marriage.

This is made clear by the preamble to that law where the General Assembly has declared "that marriage is a union between a man and a woman having equal rights under the law [and that] [b]oth spouses owe a duty to contribute his or her best efforts to the marriage, and both, by entering into the marriage, undertake to benefit both spouses....” 1978 Md. Laws, ch. 794; see Report of Governor’s Comm, on Domestic Relations Laws (1978). In this regard, it is significant that over the past several years, pension benefits have become an increasingly important part of an employee’s compensation package which he or she brings to a marriage unit. 5 Moreover, in a situation where economic circumstances prevent a husband and wife from saving or investing a portion of the wage earner’s income, the pension right swells in importance as retirement or ¹²³ vesting approaches, and may well represent the most valuable asset accumulated by either of the marriage partners. See In Re Marriage of Brown, 15 Cal.3d 838 , 847, 126 Cal.Reptr. 633, 638 (1976); In re Marriage of Miller, 609 P.2d 1185 (Mont. 1980); Fay v. Fay, 437 N.Y.S.2d 601, 602 (1981); Rogers and Rogers, 45 Or.App. 885 , 609 P.2d 877, 880-81 (1980). Accordingly, those states, which, like Maryland, confer authority on courts considering divorce matters to make some form of distribution of joint and separate property upon termination of a marriage, with near unanimity, subject retirement benefits in general to division between the former spouses.

E.g., Malone v. Malone, 587 P.2d 1167 (Alaska 1978); Van Loan v. Van Loan, 116 Ariz. 272 , 569 P.2d 214 (1977) 6 ; In Re Marriage of Mitchell, 579 P.2d 613 (Colo. 1978) (en banc); In Re Marriage of Brown, 15 Cal.3d 838 , 126 Cal.Reptr. 633, 544 P.2d 561 (1976) (en banc); Robert C.S. v. Barbara J.S., 434 A.2d 383 (Del. 1981); Tavares v. Tavares, 58 Hawaii 541 , 574 P.2d 125 (1978); Ramsey v. Ramsey, 96 Idaho 672 , 535 P.2d 53 (1975); In Re Marriage of Hunt, 78 Ill.App.3d 653 , 397 N.E.2d 511 (1979); Libunao v. Libunao, 388 N.E.2d 574 (Ind.App. 1979); In Re Marriage of Schissel, 292 N.W.2d 421 (Iowa 1980); Foster v. Foster, 589 S.W.2d 223 (Ky.App. 1979); Sims v. Sims, 358 So.2d 919 (La. 1978); Miller v. Miller, 83 Mich.App. 672 , 269 N.W.2d 264 (1978); Elliott v. Elliott, 274 N.W.2d 75 (Minn. 1978); In Re Marriage of Powers, 527 S.W.2d 949 (Mo.App. 1975); Vert v. Vert, 613 P.2d 1020 (Mont. 1980); Kullbom v. Kullbom, 306 N.W.2d 844 (Neb. 1981); Kruger v. Kruger, 375 A.2d 659 , 73 N.J. 463 (1977); LeClert v. LeClert, 80 N.M. 235 , 453 P.2d 755 (1969); Majauskas v. Majauskas, 441 ¹²⁴ N.Y.S.2d 900 (1981); Keig v. Keig, 270 N.W.2d 558 (N.Dak. 1978); Rogers v. Rogers, 45 Or.App. 885 , 609 P.2d 877 (1980); Hansen v. Hansen, 273 N.W.2d 749 (S.D. 1979); Cearley v. Cearley, 544 S.W.2d 661 (Tex. 1976); Englert v. Englert, 576 P.2d 1274 (Utah 1978); Payne v. Payne, 82 Wash.2d 573 , 512 P.2d 736 (1973) (en banc); Bloomer v. Bloomer, 84 Wis.2d 124 , 267 N.W.2d 235 (1978). See generally Annot., Pension or Retirement Benefits as Subject to Award or Division by Court in Settlement of Property Rights Between Spouses, 94 A.L.R.3d 176 . This compendium of representative cases essentially views pension benefits as an economic resource acquired with the fruits of the wage earner spouse’s labors which would otherwise have been utilized by the parties during the marriage to purchase other deferred income assets. In this regard, the New Jersey Supreme Court, in interpreting the provisions of that state’s marital property act, which is similar to that of Maryland, stated: [t]he equitable distribution provision is not concerned with income but with a person’s assets in an economic sense on a date certain.

The right to receive monies in the future is unquestionably such an economic resource. In most situations its present dollar value can be computed. ... No one would quarrel with the proposition that the recipient of a life estate created by a testamentary or inter vivos trust owned a valuable asset which would be subject to equitable distribution. So, too, if one purchased or acquired an insurance annuity which paid a weekly sum certain to the beneficiary for life, the right to collect those funds would also be considered property subject to distribution.

There are many different types of employee benefits, which employees or former employees receive, which everyone would readily admit are assets that have been acquired during employment. Deferred compensation, stock options, profit-sharing and pensions are typical examples. [Kruger v. Kruger, supra, 375 A.2d at 662 .] ¹²⁵ We agree with the analysis used by our sister state, for there is no reason to exclude one form of deferred income asset from the marital estate while including others. Both the nonemployed spouse and his or her wage earning marital partner have the same retirement goals and expectancies regarding the pension benefits as they would if they provided for their later years by using wage income to purchase other investments. And it is manifestly contrary to the language and purpose of section 3-6A-05 to strip the nonemployee spouse of the value of the retirement asset by precluding the chancellor from evaluating its worth prior to adjudicating the property rights of the estranged marriage partners.

This determination is certainly supported by the sweeping language of section 3-6A-01 (e). There, "marital property” is defined as "all property, however titled, acquired by either or both spouses during the marriage.” (emphasis supplied). 7 The term property, "when considered in a broad sense, is a term of wide and rather comprehensive signification.... It has been stated that the term embraces everything which has exchangeable value or goes to make up a man’s wealth — every interest or estate which the law regards of sufficient value for judicial recognition.” Diffendall v. Diffendall, 239 Md. 32, 36 , 209 A.2d 914, 915 (1965). See Bouse v. Hutzler, 180 Md. 682, 686 , 26 A.2d 767, 769 (1942).

We recognize that there are, of course, a wide variety of retirement plans available to both private and public employees. Funding and administration of retirement annuities often differ, and most important, the rights which the beneficiaries possess depend on many factors — some flowing from the contract establishing the plan, others from statute. See discussion in Robert C.S. v. Barbara J.S., 434 A.2d 383, 385-86 (Del. 1981). 8 While the appellate tribunals ¹²⁶ in jurisdictions requiring distribution of marital property generally acknowledge a spouse’s right, co-extensive with that of the wage earner spouse, to a portion of retirement benefits earned during the marriage, some of these courts attempt to distinguish among the various types of retirement plan benefits, determining one to constitute marital property while another variety of pension right is not so classified. For example, a few jurisdictions, while characterizing vested, unmatured pension benefits as marital property, have declined to so classify a non-vested retirement annuity.

E.g., Miller v. Miller, 83 Mich.App. 672 , 269 N.W.2d 264 (1978); Daffin v. Daffin, 567 S.W.2d 672 (Mo.App. 1978). It is on this basis, also, that some courts which recognize spousal rights in accumulated retirement benefits upon termination of a marriage have held that military