Mills v. Mills

DAVIS, Judge. Appellant, Cadman Mills, appeals from an Amended Order entered by the Circuit Court for Montgomery County (Scrivener, J.) on October 25, 2006 and the denial, on December 4, 2006, of appellant’s Motion to Vacate. This appeal arises out of an Amended Order regarding appellant’s retirement benefits with The World Bank. Appellant and appellee, Maimouna Mills; entered into a settlement agreement during their divorce proceeding on August 10, 2004 and placed the terms of their agreement on the record before the Circuit Court for Montgomery County (Ryan, J. presiding).

The parties agreed, inter alia, to divide equally their “two retirement accounts.” The parties further agreed that counsel would prepare appropriate Qualified Domestic Relations Orders (QDRO) to divide the accounts. On August 16, 2004, a written Judgment of Absolute Divorce was entered. The terms of the parties’ settlement agreement were incorporated but not merged into the Judgment of Absolute Divorce. The judgment also reserved jurisdiction to modify any qualified pension order(s) necessary to carry out the terms of the parties agreement.

After appellant opposed appellee’s Motion For Enforcement of Judgment of Absolute Divorce and For Appropriate Relief (First Motion) on the basis that appellee had failed to provide information regarding her retirement assets, the court entered an Order (Original Order) submitted by appellee. Appellant again opposed appellee’s Second Motion for Enforcement of Judgment of Absolute Divorce and For Appropriate Relief (Second Motion), maintaining that the Plan Administrator from The World Bank notified her that the submitted Original Order needed to be amended in order to be accepted as a QDRO by The World Bank. After a hearing was held, the Circuit Court for Montgomery County entered an Amended Order over appellant’s objections. Appellant filed his Notice of Appeal from the Amended Order on October 25, 2006.

Contemporaneously on that day, appellee received documentation that The World Bank was ⁷³¹ prepared to honor the Original Order. Subsequently, appellant filed a Motion to Vacate the Amended Order, which was later denied on December 4, 2006. On December 13, 2006, appellant filed his Notice of Appeal from the denial of the Motion to Vacate. We have consolidated the two appeals to address the following issues, which we have rephrased as follows: 1 1.

Did the trial court err when it exercised its revisory power to enter the Amended Order? 2. Did the trial court err when it denied appellant’s Motion to Vacate the Amended Order? We answer both questions presented in the negative and, accordingly, affirm the judgment of the trial judge. FACTUAL BACKGROUND Appellant and appellee married on December 28, 1985, in Dakar, Senegal.

One child, Sara Mills, was born of the union on September 4, 1989. Appellant filed a divorce action in the Circuit Court for Montgomery County on May 22, 2003. Appellee filed her counterclaim on November 20, 2003. On August 10, 2004, the parties appeared in the circuit court for trial.

Prior thereto, they reached a settlement agreement and placed the terms of the agreement on the record. The parties agreed to split appellant’s “retirement account with the World Bank” and appellee’s “[tjhrift savings account so that each party has 50 percent.” It was agreed that counsel would prepare the appropriate QDROs to divide the account. On ⁷³² August 16, 2004, a Judgment of Absolute Divorce granting the divorce and incorporating the parties’ settlement agreement was entered. The Judgment also reserved “jurisdiction to receive, enter, alter, amend and/or modify any qualified pension order(s) which may be necessary to carry out the terms and provisions of the parties* agreement.” Following the entry of judgment, appellee drafted an order for the division of appellant’s pension benefits with The World Bank.

Appellant, however, refused to sign the order. Subsequently, appellee filed her First Motion on February 15, 2005, along with the proposed order. Appellant responded in his First Opposition that appellee was also a participant in a defined benefit plan in addition to her thrift savings account. A hearing was held and, on September 15, 2005, the court denied appellant’s request to share in appellee’s defined benefit retirement pursuant to Md. Rule 2-535 and explained that appellant had only thirty days after the entry of a judgment to seek its modification.

On September 21, 2005, another motions hearing was held. The parties made one modification of the previously submitted, but un-executed order. The parties agreed to change appellee’s share in appellant’s pension from fifty percent to forty-one percent. The agreement was then placed on the record and, on September 29, 2005, the court entered the Original Order which retain[ed] continuing jurisdiction over the parties to this proceeding and continuing jurisdiction (i) to modify this Order as necessary to insure that it is an order acceptable by the Plan; (ii) to settle any and all disputes between the parties relative to the benefits provided in this Order; and (iii) to enter such orders nunc pro tunc as may be required to carry out the intention of the parties as expressed herein and in the aforesaid agreement of the parties.

Approximately one month after the Original Order was entered on November 30, 2005, Alan Siff, legal counsel for the Pension Administrator for The World Bank Retirement Plan, sent an e-mail to appellee’s counsel stating that “there are a ⁷³³ number of open questions presented by the [Original] Order.” The Original Order was not rejected by the Plan Administrator; instead, questions were posed in an attempt to clarify the Original Order. Subsequently, appellee’s attorneys drafted an Amended Order and submitted a copy to Siff to ascertain whether the language of the Amended Order was clear and acceptable to the Plan Administrator. Upon Siffs review, appellee submitted a comparison copy of the Amended Order and the Original Order to the court on April 5, 2006, along with her Second Motion that related the following: On the 30th day of November, 2005, the Plan Administrator from the World Bank notified [appellee’s counsel] that the submitted Pension Order needed to be amended in order to be accepted as a QDRO by the World Bank. Appellant responded by filing an Amended Opposition to appellee’s Second Motion, asserting that the Amended Order included terms and provisions not agreed to by the parties in August of 2004 and that it exceeded the scope of the Original Order.

Appellant attached to his Amended Opposition a document from The World Bank, which provided, “The normal QUADRO rules under U.S. law do not apply.” Pursuant to a hearing held on September 1, 2006, the circuit court, in an oral opinion, granted appellee’s Second Motion. On September 26, 2006, the court entered the Amended Order and appellant filed a Motion to Vacate. Four days after the Amended Order was entered, on September 30, 2006, appellant retired from The World Bank after electing to commute one-third of his pension and failing to elect the lump sum survivor benefit on behalf of appellee. His employer at the time had not received notice of the entry of the Amended Order.

Prior to The World Bank’s receipt of the Amended Order, the Pension Administration Division sent correspondence dated October 4, 2006 to appellee, notifying her of appellant’s retirement and informing her of her monthly payments from appellant’s pension pursuant to the Original Order and not the Amended Order. The letter provides, in pertinent part: ⁷³⁴ The purpose of this letter is to inform you that [appellant] retired from The World Bank on September 30, 2006. In accordance with the Court Order issued by the Circuit Court for Montgomery County, Maryland on September 29, 2005, spousal support of 41% of [appellant’s] monthly benefit is payable directly to you from the World Bank Staff Retirement Plan (the Plan). The monthly payment, to the extent authorized, became effective October 1, 2006 and is due at the end of each month.

On October 24, 2006, appellee filed a Motion for the Enforcement of Amended Order, Specific Performance and Other Relief claiming that appellant failed to satisfy his obligations to appellee under the Amended Order and to make the proper elections for his pension benefits when he retired. Appellant filed his Response to the Motion, but before appellee’s Motion for the Enforcement of Amended Order was ruled upon, appellant remarried. As a result, the court found that appellee’s Motion regarding survivor benefits was moot leaving only the issue of commutation pay disputed. 2 On December 4, 2006, appellant’s Motion to Vacate was denied. STANDARD OF REVIEW We review the findings of a case tried without a jury “on both the law and the evidence.” Md. Rule 8-131(c).

We will not overturn the judgment of the trial court on the evidence absent clearly erroneous fact finding and “will give due regard to the trial court’s opportunity to judge the credibility of the witnesses.” Id. We limit our task to a determination of whether substantial evidence exists in the record to support the trial court’s finding. L.W. Wolfe Enters., Inc. v. Md. Nat’l Golf, 165 Md.App. 339, 343 , 885 A.2d 826 (2005). Thus, we must “consider evidence produced at the ⁷³⁵ trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous and cannot be disturbed.” Id.

(citations omitted). Furthermore, it must be determined that the trial court’s conclusions were based on sound legal principles and factual findings. We must conclude that the trial court abused its discretion. Elza v. Elza, 300 Md. 51, 56 , 475 A.2d 1180 (1984).

Therefore, we shall review the legal questions presented at bar using the clearly erroneous standard of review. LEGAL ANALYSIS Appellant initially contends that the circuit court*s entry of the Amended Order was an improper exercise of its jurisdiction under the Judgment for Absolute Divorce and the Original Order. He asserts that the trial court’s error is twofold, claiming that there was no justifiable basis for the trial court’s entry of the Amended Order and that the Amended Order fails to accurately reflect the terms of the parties’ settlement agreement regarding retirement benefits. Appellee responds that the trial court had jurisdiction to amend the Original Order because the court expressly reserved jurisdiction to do so and the Amended Order accurately reflects the intent of the parties.

We agree with appellee and will begin our discussion with consideration of the trial court’s jurisdiction to enter the Amended Order. Approximately one month after the Original Order was entered, Siff, legal counsel for the Pension Administrator for The World Bank Retirement Plan, sent an e-mail to appellee’s counsel stating that “there are a number of open questions presented by the [Original] Order.” Siff expressed concerns, most notably that the Original Order did not address what happens if appellant were to elect to commute up to a third of his pension as permitted by the Plan. Consequently, appellee filed her Second Motion. As noted, in it, she asserted that the Plan Administrator from The World Bank had notified appellee’s counsel on November 30, 2005, “that the submitted ⁷³⁶ Pension Order needed to be amended in order to be accepted as a QDRO by [T]he World Bank.” The correspondence, however, did not state that the Original Order must be amended in order to be accepted as a QDRO by The World Bank, but instead pointed out that it left open a number of questions.

Moreover, The World Bank Staff Retirement Plan materials expressly provide that the “normal QUADRO rules under U.S. law do not apply.” Despite these facts, it was not unreasonable for appellee to make the requested clarifications via minor amendments to the Original Order thereby assisting with the efficient enforcement of the Order. During the motions hearing regarding the proposed Amended Order, appellee’s counsel stated, “All I’m trying to do is get some technical amendments added to the original pension order, for ease of enforcement by the World Bank. That’s all I’m trying to do.” In Rohrbeck v. Rohrbeck, 318 Md. 28 , 566 A.2d 767 (1989), the Court of Appeals recognized the use of appropriate pension orders as an enforcement tool. The Court held that “we therefore expressly recognize the ability of a party otherwise entitled to a QDRO to obtain one as an aid to enforcing a previously entered judgment.” Id. at 43 , 566 A.2d 767 .

The Court’s holding supports the proposition that a pension order may be entered after the underlying judgment if a pension order is being used as an enforcement tool and not as collateral to a judgment. Id. It became necessary for appellee to remedy the number of open questions presented by the Original Order and to enforce the parties’ agreement that appellee would receive forty-one percent of appellant’s pension. If appellant were to elect—as he did ultimately—to commute one-third of his pension amount, appellee’s monthly pension benefit would be significantly reduced.

Consequently, the trial court properly relied on its reservation of jurisdiction to amend the Original Order to ensure that the intent of the parties and the Judgment of Absolute Divorce was enforced. ⁷³⁷ Thus, relying on its reservation of jurisdiction as set forth in the Original Order, rather than Md. Rule 2-535, 3 the trial court had continuing jurisdiction over the parties to this proceeding and continuing jurisdiction (i) to modify this Order as necessary to insure that it is an order acceptable by the Plan; (ii) to settle any and all disputes between the parties relative to the benefits provided in this Order; and (iii) to enter such orders nunc pro tunc as may be required to carry out the intention of the parties as expressed herein and in the aforesaid agreement of the parties. The trial court retained jurisdiction to settle any