Dexter v. Dexter

CATHELL, Judge. Appellant, Charles Dexter, appeals from a judgment of the Circuit Court for Montgomery County rendered against him in the amount of $12,386.54 in favor of his former spouse, Sarah L. Dexter, appellee. He poses but one issue, which we reiterate as presented: Whether the trial court erred in ordering the Husband to pay the Wife a percentage of his disability pay received from the Veterans Administration!)] The trial court did not order the husband to pay the wife a percentage of his disability pay. The error that appellant alleges, even if error, was thus not committed.

The appeal does, however, present an issue for resolution. We shall explain. The parties, on the morning of the scheduled divorce hearing, entered into an agreement in respect to child custody, support, and property rights. That agreement was read into the record and ultimately incorporated into the decree of divorce.

As relevant to the case sub judice, it contained the following provision: ORDERED that pursuant to the agreement of the parties, forty-seven and a half percent (47.5%) of the [appellant’s] military pension is awarded to the [appellee] on a monthly basis “as, if, and when” it is paid by the Department of the Army to the [appellant]. [Emphasis added.] ⁶⁸⁰ Thereafter, on the 19th of September 1990, appellant retired from the Army. More important, not only did he retire from the Army, but he was also awarded retirement benefits from the Army and began receiving monthly benefits. Appellee, pursuant to the agreement, and pursuant to the appropriate documentation, also began to receive monthly benefits based upon appellant’s retirement and the agreement the two of them had reached. As we have indicated, that agreement had been incorporated into the decree of divorce.

Shortly after appellant was placed on retirement by the Army and awarded retirement benefits, he voluntarily waived his rights to the Army retirement benefits, thus terminating and cutting off all of his Army retirement benefits and appellee’s as well. He waived, ie. terminated, his Army retirement benefits in order to qualify for greater benefits, based upon disability, through the Veterans Administration (VA). The statute providing for VA disability benefits prohibits any division of those benefits to benefit a former spouse. Thus, neither the VA nor appellant made any payments to appellee.

The Army (Department of Defense) ceased payment of retirement benefits because appellant had waived his right to such benefits. Appellee then sought relief in the trial court. She requested that the trial court reduce its prior award, based upon appellant’s retirement pension, to judgment. She requested that the court order appellant to pay to her sums in the future at the rate of 47.5% of the sums received from the VA as a result of appellant’s waiver of his retirement benefits, and for other relief not pertinent here.

After several continuances had been granted at the request of both parties, Judge Cave, the Acting Administrative Judge of Montgomery County, correctly recognized that the matter was inappropriately set in on a motion docket when, in fact, the case was “a complaint and answer and therefore should be set for trial on the non-jury calendar.” Thereafter, the case came on for trial before the Honorable D. Warren Donohue. At the trial, both appellant’s and appel ⁶⁸¹ lee’s counsel agreed in opening statement (that was later supported by the testimony) that they and their clients had entered into the agreement, thereafter incorporated into the divorce decree, that appellee was to receive 47.5% of appellant’s Army retirement pension. We note that even appellant’s opening statement provided, in part: [W]e believe that the Doctrine of Res Judicata precludes the defendant here from attacking the judgment which was obtained by consent)[ 1 ] The parties intended this judgment to settle all matters relating to their marriage. Both parties were represented by counsel during the settlement of this divorce case and both were asked by the court if this agreement was what they intended.

Later, the trial court noted: [T]hey [appellee] are not asking for an order requiring whoever pays this money to pay a certain percent; they are asking him to make the difference in what she would have [received] if he had [stayed] retired from the Army. Still during the opening statement phase of the trial, the court noted: I am not even talking about part of his disability award; I am talking about him simply paying her money that would be the equivalent of what she would have received had he elected, which he could have done, to receive his Army retirement [as the evidence later indicated, he initially elected retirement then waived it]. I am not talking about the disability award ... but what about the alternative, which is that he just simply promises to pay whatever that amount is? Appellant, during direct examination by appellee’s counsel, when asked about the agreement, responded: Q ...

You intended your wife to get the 47.5 percent of whatever you got as a result of your service in the military? ⁶⁸² A After the divorce proceedings, I informed my wife how to apply for her 47.5 percent.... Q ... [I]t was part of the agreement that she was going to get 47.5 percent of whatever you got as a result of serving in the military, right? A She got 47.5 percent of my retirement pay because she was married to me during the time I was in the service for 19/& years. Q ...

And that was the agreement? A That was the agreement. Q That was what was in your mind when you negotiated the agreement through your attorney on February 1st, that she would get that money? A Yes.

Later, appellant was asked: • Q Okay. You have received all your checks from VA?[ 2 ] A Correct. Q Have you made out any checks since March of ’91 to Mrs. Dexter to recompense her for the amount of money that she lost as a result of your waiving the pension? A No, I have not.

After all the evidence was admitted, appellee, during the closing argument stage, argued for judgment on a breach of contract theory, in that appellant had “thwarted” the provisions of the contract and that appellee was seeking only “a money judgment.” The court said, “Basically, you are seeking to enforce the agreement.” After responding affirmatively, appellee then noted: And that if the Court feels it has the authority to grant an order directing the additional monies be paid each month ⁶⁸³ ... there comes a point in time that after you get that money ... it becomes property that you can pay out. If the Court does not feel it has that authority to award that, then I think that I am in the position of perhaps coming back every three years.... In rendering its oral opinion, the trial court, after discussing and dismissing the fraud claims, stated: What I do see, though, is parties ... entering into an agreement in which both of them contemplated ... the husband would retire ... and the wife would receive 47.5 percent of his retirement pay ... and that is what they bargained for, and that is what they intended ... I find as a matter of fact that that is what the parties intended. ...

I think implicit in an agreement is that both parties will take any and all reasonable steps to