Lebac v. Lebac

WENNER, Judge. John Lebac appeals from a judgment the Circuit Court for Montgomery Court entered in favor of appellee, Theresa Lebac. On appeal, he seeks our review of the following questions, which we have reordered and rephrased as follows: (1) Did the trial court err by (a) dismissing appellant’s exceptions for failing to comply with Rule 2-541; and (b) by failing to vacate its order dismissing appellant’s exceptions? (2) Did the trial court err in concluding that appellant was receiving retirement benefits, rather than workers’ compensation and/or disability benefits?

(3) Did the trial court err by awarding attorney’s fees to appellee? We shall answer the first two questions in the negative, and affirm that portion of the judgment of the circuit court. On the other hand, we shall answer the third question in the affirmative, and remand that portion of the case to the circuit court for further proceedings. Facts The parties had been married for fifteen years when their marriage was ended by a Judgment of Absolute Divorce granted on 26 November 1986, and their separation agreement was enrolled in the Judgment of Divorce.

The separation agreement provided in pertinent part: [W]hen and if the defendant John Lebac, Jr. shall be entitled to receive retirement benefits from his U.S. Secret ⁴⁰⁰ Service employment, the plaintiff, Theresa Lebac, as alternative payee, as and for marital property, shall receive a sum equal to twenty percent (20%) of any payment received by John Lebac, Jr. as a result of his employment by the U.S. Secret Service Uniformed Division, District of Columbia Police and Fire Fighters Retirement System. On 21 June 1991, appellant retired from the United States Secret Service Uniformed Division under provisions of the District of Columbia’s Police and Firefighters’ Retirement and Disability Act (the D.C. Act). After appellant failed to provide appellee with twenty per cent of his monthly retirement income, she sought entry of a modified order for payment of marital interest in appellant’s retirement benefits, an accounting, and entry of a judgment for arrearages. Testimony was taken before a domestic relations master on 6 January 1995.

The master filed her findings of fact and recommendations on 22 February 1995, providing the parties with a copy. Although appellant noted exceptions, he failed to furnish the circuit court with a “transcript of so much of the testimony as necessary to rule on the' exceptions.” 1 Accordingly, the circuit court denied appellant’s exceptions and adopted the master’s recommendations. Appellant then noted this appeal. We shall include such additional facts as may be necessary to our discussion.

Discussion L Appellant first contends that “through a misinterpretation of the [Md.Rules], the transcript was not promptly ordered by appellant’s counsel and was not filed within the 30 days[.]” Md.Rule 2-541(h)(2) requires in pertinent part that: ... a party who has filed exceptions shall cause to be prepared and transmitted to the court a transcript of so much of the testimony as is necessary to rule on the ⁴⁰¹ exceptions. The transcript shall be ordered at the time the exceptions are filed, and the transcript shall be filed within 30 days thereafter or within such longer time, not exceeding 60 days after the exceptions are filed, as the master may allow. The court may further extend the time for the filing of the transcript for good cause shown. * * * The court may dismiss the exceptions of a party who has not complied with this section. (Emphasis added).

Appellant freely admits that he failed to comply with Md.Rule 2—541(h)(2), but claims a transcript was not necessary as there are no disputed facts. 2 Thus, appellant contends that a transcript would not have assisted the trial court in reaching its conclusions, as it already had before it all of the parties’ pleadings and exhibits. We have often pointed out that we are neither obliged nor inclined to rummage through the record seeking support for a party’s position, see e.g. Hamilos v. Hamilos, 52 Md.App. 488, 497 n. 3, 450 A.2d 1316 (1982). Nor is a circuit court when called upon to deal with appellant’s exceptions.

Rule S74A requires an asserted error to be set forth with particularity. Otherwise, an exception “... is waived unless the court finds that justice requires otherwise.” In any event, we fail to see how exceptions can be properly considered without a transcript. Ironically, not until after the trial court had denied his exceptions and adopted the master’s recommendations did appellant inform the trial court why he had failed to file a transcript. It was only then that appellant filed a motion to alter or amend the judgment, which was denied.

In view of appellant’s utter failure to comply with Rule S74A, we are unable to find that the trial court abused its discretion in denying appellant’s exceptions and adopting the ⁴⁰² master’s recommendations, or by denying appellant’s motion to alter or amend. Nonetheless, we shall exercise the discretion bestowed upon us by Rule 8-131(a) 3 and consider appellant’s issues.

II

Before doing so, we shall review the circumstances surrounding appellant’s disability retirement. By an order of 24 June 1991, captioned DISABILITY RETIREMENT, appellant retired at the close of business 21 June 1991 on a surgical disability incurred during his service as a K-9 officer with the United States Secret Service Uniformed Division, under the provisions of § 4-616(a) of the D.C.Act. 4 Appellant principally contends that his disability benefits are in the nature of workers’ compensation. As they have been received after the termination of his marriage, appellant feels they are not subject to equitable distribution. Although appellant relies on Queen v. Queen, 308 Md. 574 , 521 A.2d 320 (1987), 5 we believe his reliance on Queen is misplaced. ⁴⁰³ As we see it, appellant’s disability payments are retirement benefits, and appellee is entitled to twenty percent of any payment received by appellant.

We shall explain. Appellant directs our attention to several cases discussing the notion that the D.C.Act is akin to states’ workers’ compensation acts. While we agree that, under some circumstances, benefits received under the D.C.Act may be classified as workers’ compensation benefits, appellant’s benefits do not fall into that category. In support of his position, appellant also cites Frye v. United States, 72 F.Supp. 405 (1947) and Brown v. Jefferson, 451 A.2d 74 (D.C.App.1982).

Frye involved an application for a tax refund by an injured firefighter and police officer. Construing the D.C.Act, the Court noted that the D.C.Act had the dual purpose of creating (1) a system for the compensation of policemen and firemen who have been disabled through injury received or disease contracted in the line of duty in the nature of a workmen’s compensation act; and (2) a system for the voluntary retirement of policemen and firemen who have served not less than 25 years and have reached the age of 55, and the involuntary retirement of policemen and firemen who have reached the age of 60. * * * Frye, 72 F.Supp. at 408 . The Court concluded that to the extent 26 U.S.C.Int.Rev.Code § 22(b)(5) excludes from gross income “amounts received through accident or health insurance or under workmen’s compensation acts as compensation for personal injuries or sickness” benefits received under category (1) supra, are exempt from taxation. Id. at 409.

Appellant contends that, as his disability benefits are exempt from taxation, we must consider them to be workers’ compensation benefits. We remind appellant that we are not here dealing with a tax problem. As we see it, appellant’s ⁴⁰⁴ benefits 6 exemption from taxation does not dispose of the question before us. The issue focused on in Brown was whether members of the District of Columbia uniformed services who had preexisting conditions aggravated while on duty were entitled to recover medical expenses.

Although the Brown Court said that “[i]t is clear, ... that both FECA and the substitute provisions applicable to the District of Columbia uniformed services are classified generally as workmen’s compensation statutes, and are to be interpreted accordingly,” Brown, 451 A.2d at 77 , that statement was made in the context of a dispute over the meaning of § 4r-525 of the D.C.Act, now § 4-613. Although § 4-613 does not expressly so provide, the Brown Court concluded that employees who incur medical expenses “resulting from on the job injuries which aggravate pre-existing conditions” are entitled to such benefits. Id. at 76 . Appellant’s retirement under § 4^616(a) of the D.C.Act, however, involves retirement benefits, not medical expenses. 7 Although we agree that, under some circumstances, certain benefits received under the D.C.Act may be considered as workers’ compensation benefits, we agree with the master and the trial court that the facts in the instant case compel a different conclusion.

The record before us discloses that appellant’s benefits are an “annuity solely drawn from his retirement funds deposited under [the D.C.Act] and does not include any disability insurance or workers’ compensation payments.” 8 Moreover, during direct examination of Virginia Mary Hartswick, a Senior Retirement Examiner from the D.C. Office of Pay and Retire- ⁴⁰⁵ merit System, the following colloquy ensued with appellee’s counsel: Counsel: * * * And did [appellant] receive his retirement benefits as some form of compensation for lost wages? Is that what the [retirement] fund is for? Witness: No, we have nothing to do with workmen’s compensation or any other kind of compensation. Counsel: What is the nature of Mr. [appellant’s] retirement?

Witness: It is strictly a disability retirement annuity. Counsel: What is a disability retirement annuity? Witness: Well, he [appellant] was found disabled. It was incurred in the performance of his duty, and so he was allowed to retire early, and— Counsel: If someone is found disabled in the performance of their duties, are there provisions of the law which allow them to act as their retirement fund earlier than otherwise?

Witness: Well, they can if they are disabled before they are eligible to go as optional. According to appellant, he could have taken normal retirement based on his twenty years of service despite his injury. Instead, he chose a disability retirement because “the benefits would have been less” under the twenty year retirement plan. In any event, appellant’s suggestion that he is receiving workers’ compensation benefits is not supported by the record.

In Lookingbill v. Lookingbill, the Court of Appeals noted that, under appropriate circumstances, a disability plan may constitute marital property, pointing out: [t]here are many types of retirement plans under which the rights the beneficiaries possess often differ, depending on a wide variety of factors. Dering [v. Deering, 292 Md. 115 , 437 A.2d 883 (1981) ], following the dominant trend of the law, rejected such distinctions in making the threshold determination of whether a retirement plan is marital prop ⁴⁰⁶ erty. * * * Pension payments are actually partial consideration for past employment whether the maturity of the pension is contingent upon age and service or upon disability. Thus, a disability plan is property and, within the meaning of the [Maryland Marital Property Act], constitutes marital property