Marquis v. Marquis

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: ⁷⁴⁰ 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 ⁷⁴¹ 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 CP O. 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 ⁷⁴² 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 ⁷⁴³ 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 ⁷⁴⁴ 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 in Wife’s attorney’s fees. On January 18, 2006, Husband filed exceptions to the master’s recommendations.

He argued, inter alia, that the recommendations provide Wife with relief that was not granted in the parties’ judgment of divorce. He further asserted that the master’s recommendation that he pay Wife’s expert witness fees is “punitive.” Wife filed a response to Husband’s exceptions, arguing that Husband failed to act in good faith in negotiating the terms of the CPO and that the evidence and testimony adduced at trial supported the master’s findings. On February 14, 2006, Husband filed a request for a hearing on the exceptions, and the court scheduled a hearing for March 14, 2006. On February 27, 2006, Wife filed a motion to strike Husband’s request for a hearing, arguing that Husband’s request was untimely pursuant to Maryland Rule 9-208(i)(l).

That same day, the court continued the hearing on Husband’s exceptions until April 13, 2006. Two weeks later, the court set the matter for a hearing on May 4, 2006. On April 3, 2006, Wife filed a second request to continue the hearing on Husband’s exceptions. The court granted the request and continued the hearing until May 23, 2006, but a hearing was never conducted.

On May 11, 2006, the master filed a written report setting forth his recommendations. That same day, the court entered three orders. In the first order, the court struck Husband’s petition for a hearing on the ground that the petition was not timely filed. In the second order, entitled “Constituted Pension Order,” the court directed Husband to pay Wife her 50 percent marital share of Husband’s military retirement bene ⁷⁴⁵ fits before any statutory, regulatory, or elective deductions were applied.

The court signed a third order in which it found Husband in contempt of court for failure to authorize Wife’s proposed CPO, ordered Husband to sign the CPO, and ordered that Husband could purge himself of contempt by paying $2,333.00 to Wife. Husband noted a timely appeal. 2 DISCUSSION I. Husband raises a number of arguments in support of his contention that the court erred in finding him in contempt for failing to sign Wife’s proposed CPO. He argues, inter alia, that the court erred in accepting the master’s recommendations because the master relied solely on misleading expert testimony, improperly excluded exhibits demonstrating his good faith efforts to cooperate in drafting a CPO, and failed to advise him of his right to counsel at the January 10, 2006 hearing. Husband further argues that the court abused its discretion by finding him in contempt because no statute or court order required him to sign Wife’s proposed CPO.

He also contends that the court erred in failing to rule on his exceptions to the master’s recommendations. He argues, moreover, that the court erred in setting the purge amount. We address each contention in turn. We begin by briefly summarizing Maryland law relating to civil contempt proceedings. “A civil contempt proceeding is intended to preserve and enforce the rights of private parties to a suit and to compel obedience to orders and ⁷⁴⁶ decrees primarily made to benefit such parties.” State v. Roll and Scholl, 267 Md. 714, 728 , 298 A.2d 867 (1973); accord Bahena v. Foster, 164 Md.App. 275, 286 , 883 A.2d 218 (2005). “[CJivil contempt proceedings are generally remedial in nature and are intended to coerce future compliance,” and “a penalty in a civil contempt must provide for purging.” Bahena, 164 Md.App. at 286 , 883 A.2d 218 (internal quotation marks omitted).

Civil contempt “need be proved only by a preponderance of the evidence.” Id. (citation and internal quotation marks omitted). The failure to obey a court order may precipitate the initiation of contempt proceedings. See id. “[OJne may not be held in contempt of a court order,” however, “unless the failure to comply with the court order was or is willful.” Id. at 287 , 883 A.2d 218 . “The order must be sufficiently definite, certain, and specific in its terms so that the party may understand precisely what conduct the order requires.” Droney v. Droney, 102 Md.App. 672, 684 , 651 A.2d 415 (1995).

The decision to hold a party in contempt is vested in the trial court. See Bienenfeld v. Bennett-White, 91 Md.App. 488, 514 , 605 A.2d 172 , cert. denied, 327 Md. 625 , 612 A.2d 256 (1992). “This Court will only reverse such a decision upon a showing that a finding of fact upon which the contempt was imposed was clearly erroneous or that the court abused its discretion in finding particular behavior to be contemptuous.” Droney, 102 Md.App. at 683-84 , 651 A.2d 415 ; see also Bienenfeld, 91 Md.App. at 514 , 605 A.2d 172 . A. Husband’s primary challenge on appeal relates to the trial court’s acceptance of the master’s recommendations. He argues that the court erred in accepting the master’s recommendations because the master relied solely on misleading expert testimony, improperly excluded exhibits, and failed to advise him of his right to counsel at the January 10, 2006 hearing.

We find no merit in any of those complaints. ⁷⁴⁷ Husband takes issue with the testimony offered by Wife’s expert, Ms. Widmann, concerning 10 U.S.C. § 1408 . That section, entitled “Payment of retired or retainer pay in compliance with court order,” addresses the payment of child support and alimony from a retired service member’s retirement pay. Regarding § 1408, Ms. Widmann testified: “[T]he statute says that [] an order that does not limit the amounts paid to disposable retired pay is an acceptable order to the military. It says that in the statute specifically.” Husband claims that Ms. Widmann’s statement is “false or at least misleading” in light of 10 U.S.C. § 1408 (e)(5), which provides: A court order which itself or because of previously served court orders provides for the payment of an amount which exceeds the amount of disposable retired pay available for payment because of the limit set forth in paragraph (1), or which, because of previously served court orders or legal process previously served under section 459 of the Social Security Act (42 U.S.C. 659), provides for payment of an amount that exceeds the maximum amount permitted under paragraph (1) or subparagraph (B) of paragraph (4), shall not be considered to be irregular on its face solely for that reason.

However, such order shall be considered to be fully satisfied for purposes of this section by the payment to the spouse or former spouse of the maximum amount of disposable retired pay permitted under paragraph (1) and subparagraph (B) of paragraph (4).[ 3 ] (Emphasis added.) We do not agree with Husband that Ms. Widmann’s statement regarding § 1408 was false or misleading. Ms. Wid ⁷⁴⁸ mann testified that an order that “does not limit the amounts paid to disposable retired pay is an acceptable order[.]” That statement does not contradict section (e)(5), which provides that an order directing the payment of an amount exceeding disposable retired pay “shall not be considered to be irregular on its face solely for that reason.” Wife agrees that “the military, pursuant to statute and regulation, will not pay a former spouse directly more than 50% of disposable retired pay pursuant to Court Order.” The regulations, however, do not prohibit a military member from directly making payments that exceed 50 percent of disposable retired pay. See 10 U.S.C. § 1408 (e)(6) (“Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments required by a court order on the grounds that payments made out of disposable retired pay under this section have been made in the maxi ⁷⁴⁹ mum amount permitted under paragraph (1) or subparagraph (B) of paragraph (4).”). Husband also takes issue with Ms. Widmann’s contention that the CPO proposed by Wife contains all language required by federal regulation.

He argues that the order violates federal regulation because it does not “provide specifically for payment of a fixed amount expressed in U.S. dollars or payment as a percentage or a fraction of disposable retired pay.” At the hearing, Ms. Widmann testified that “it is infrequent that an award [of military retirement benefits to a former spouse] is stated as a fixed dollar amount.” She stated: “The more common method of expressing the former spouse’s award is in the percentage of the member’s disposable retired pay.” When asked how the amount of Wife’s award was stated in the proposed CPO, Ms. Widmann responded, “It’s divided as a percentage ... because it’s one half a fraction, the numerator being one ninety seven over the denominator being the total months served. So its essentially a percentage award.” Husband has not convinced us that Ms. Widmann’s testimony was false or that the proposed CPO fails to contain all the language required by federal regulation. 4 As for Husband’s claim that the court erred in accepting the master’s report and recommendations because the master relied “solely on expert testimony,” nothing in the record supports Husband’s assertion. The master heard testimony not only from Wife’s expert, Ms. Widmann, but also from Husband and Wife. The master’s report and recommendations do not indicate that he relied on expert testimony only and failed to consider other testimony and evidence offered by the parties.

Husband also argues that the court erred in accepting the master’s recommendations because the master erroneously ⁷⁵⁰ refused to admit two defense exhibits into evidence. He contends that the exhibits show that he acted in good faith and cooperated with the drafting of a CPO. Both exhibits, which were letters from Husband’s counsel to Wife’s counsel, set forth Husband’s requested changes to Wife’s proposed CPO. The first letter, dated July 1, 2005, detailed several specific changes to the proposed CPO.

The second letter, dated November 29, 2005, requested only the change of the word “before” to “after” in Paragraph 5B of the proposed CPO. Counsel for Wife objected to the admission of the July 1, 2005 letter on the ground that it was not relevant. The master sustained the objection, but asked Husband to testify about the information contained in the letter. Husband testified: [F]rom the first time my attorney has — was notified by [Wife] about the — trying to draft a constituted military pension order, there’s been numerous communications back and forth between attorneys---- The attorneys have worked diligently trying to come up with language that both parties would accept.

Regarding the November 29, 2005 letter, the master heard extensive evidence on Husband’s request to change the word “before” to “after” in Paragraph 5B of the proposed CPO. The master received into evidence Defense Exhibit 2, a letter dated November 30, 2005, that was substantially similar to the November 29, 2005 letter. Both letters were addressed from Husband’s counsel to Wife’s counsel, and both letters set forth Husband’s request to change the word “before” to “after.” Wife’s expert witness, Ms. Widmann, testified that, in the November 30, 2005 letter, counsel for Husband requested “to change the word before to the word after[.]” And Husband testified that he “agreed to give on every single thing requested in the pension order with the exception of one word.” Because the master heard evidence on the contents of the July 1, 2005 and November 29, 2005 letters, Husband has not persuaded us that the master’s refusal to admit the two exhibits into evidence, prejudiced him and thereby created ⁷⁵¹ error requiring reversal of the order of contempt. See Crane v. Dunn, 382 Md.