Musick v. Musick

⁴⁹⁷ ALPERT, J. The Circuit Court for Baltimore County (Kahl, J.) entered an order directing appellant Raymond P. Musick to use the so-called Bangs 1 formula in calculating the percentage of his lump sum pension benefit payment to be paid to his former wife, appellee Doris Musick. Mr. Musick presents one question in this appeal. He asks: Whether the [circuit [ejourt erred in ordering a division of Husband’s pension benefits pursuant to the “Bangs formula” when the parties agreed that Wife’s interest in the retirement benefits would be based upon their value at the time of the divorce? Because we reject the underlying premise of appellant’s argument—that the parties agreed that Mrs. Musick’s interest in the pension would be based on the pension’s value at the time of the divorce—we answer the question in the negative and affirm the trial court’s order.

FACTS Mr. Musick began working for Bell Atlantic 2 in March of 1967. Six months later, in September of 1967, the parties were married. Mr. Musick worked for Bell Atlantic throughout the entire marriage and continued to work for the company for 18 months after the divorce. On October 2, 1996, just prior to entry of the judgment of divorce, the parties entered into a property settlement agreement.

That agreement mentioned Mr. Musick’s Bell Atlantic pension and indicated that Mrs. Musick was to “receive fifty percent (50%) of the ‘marital share’ of said benefits.” The agreement indicated that counsel for Mrs. Musick would prepare “the necessary [Qualified Domestic Relations ⁴⁹⁸ Order, or QDRO,] 3 in order to accomplish that end, and for that purpose this Honorable Court shall continue to retain jurisdiction to amend any Judgment that may be passed, for purposes of accomplishing the intent of this Agreement.” A judgment of divorce, signed by the trial judge and counsel for both parties, was entered on October 21, 1996. The divorce decree provides that the property settlement agreement “is hereby approved and made a part of and incorporated in this Judgment, but not merged therein, having the same force and effect as if fully set forth herein.” The decree further states, in pertinent part: IT IS ... ORDERED, that this is a Qualified Domestic Relations Order ... and in accordance therewith, the pension plan or program known as Bell Atlantic Savings and Security Plan, ... and all pension plan or benefits to which the Defendant Employee, RAYMOND P. MUSICK, is entitled to as of this date ... [are] to be considered as the pension benefits, which are the subject of this Order. The participant in the pension benefits and plan as hereinabove set forth is RAYMOND P. MUSICK, Defendant....

The alternative payee is the Plaintiff, DORIS MUSICK.... The Plaintiff/altemative payee’s equitable interest in said pension is hereby declared to be fifty percent (50%) of the “marital share” of said pension benefit, the marital share being that fraction of the benefit whose numerator shall be the number of months of the parties’ marriage during which ⁴⁹⁹ benefits were being accumulated, which number is 348, and whose denominator shall be the total number of months during which benefits were accumulated prior to the time when the payment of such benefits shall commence. The Plaintiff, DORIS MUSICK, shall receive fifty percent (50%) of the aforesaid marital share of any payments made from the pension of the participant ... if, as and when such payments are made. The divorce decree also provides: IT IS FURTHER ORDERED, that the court retains jurisdiction to amend this Judgment for the purpose of maintaining its qualifications as a Qualified Domestic Relations Order under the Retirement Equity Act of 1984, or any other subsequent legislation ... provided that no such amendment or the right of the Court to so amend will invalidate this Order as “Qualified” under the Retirement Act.

The parties agree that this provision requires them to execute an amended Qualified Domestic Relations Order, to be approved by the court, in order to effectuate their agreement regarding the division of Mr. Musick’s pension as set forth in the divorce decree. 4 They further agree that no such amended QDRO has been executed. At the time of the parties’ divorce on October 21, 1996, the value of Mr. Musick’s pension, if he had elected to retire at that time and to receive a lump sum payment, would have been $55,081.53. Eighteen months later, when Mr. Musick did retire from Bell Atlantic, the amount of the lump sum payment, which Mr. Musick apparently elected to receive, had increased to $254,201.15. The increase was attributable main ⁵⁰⁰ ly to Mr. Musick having completed 30 years of service to the company and to fluctuations in the stock market.

A dispute arose between the parties as to whether Mrs. Musick’s share of the pension was to be based on the value of the pension at the time of the divorce or at the time of Mr. Musick’s retirement. Counsel for Mr. Musick prepared various amended Qualified Domestic Relations Orders, each intended to facilitate payments to Mrs. Musick based on the value of the pension at the time of the divorce. Mrs. Musick refused to sign the amended orders. In April of 2000, Mrs. Musick filed a petition for contempt 5 by which she asserted that Mr. Musick was failing to cooperate in efforts to resolve the dispute over the pension. 6 She requested the court’s “assistance in bringing that matter to a conclusion.” Mr. Musick filed a counter-petition for contempt.

He alleged that Bell Atlantic would not turn over to him his pension payment because of Mrs. Musick’s “deliberate refusal to approve a Qualified Domestic Relations Order dividing [the] pension benefits.” A hearing was held on March 6, 2001. The parties agreed to withdraw their petitions for contempt but requested that the court resolve the dispute concerning the division of Mr. Musick’s pension. The case, as it proceeded, was thus in the nature of a declaratory judgment action. 7 After hearing argu ⁵⁰¹ ment and testimony, the.court determined that the “agreement and judgment entered into by the parties” unambiguously established that the parties had agreed to divide Mr. Musick’s pension using the Bangs formula. The court issued an order stating, in pertinent part, that the Plaintiff, DORIS MUSICK, is entitled to a Qualified Domestic Relations Order granting unto her her marital share of the Defendant’s pension plan which he has through Bell Atlantic, with the marital formula to be 50% of a numerator of 348 months of marriage and 373 months as a denominator representing the total number of months during which benefits were accumulated and the Plaintiff, DORIS MUSICK, shall receive the same if, as and when the payments are made....

DISCUSSION As this Court has summarized, a settlement agreement is subject to general contract law.... Particular questions must be resolved by looking first to the particular language of the agreement at issue .... If that language is clear as to its meaning, there is no room for construction and it must be presumed that the parties meant what they expressed.... The court may not rewrite terms of the contract or draw a new one when the terms of the disputed contract are clear and unambiguous, merely to avoid hardship or because one party has become dissatisfied with its provisions....

If, however, a reasonably prudent person would consider the contract susceptible to more than one reasonable interpretation, it will be deemed ambiguous.... In that case, the parties to a written contract will not be allowed to place their own interpretation on what it means or was intended to mean; the test is what a reasonable person in the position of the parties would have thought that it meant.... A contract is not ambiguous merely because the parties thereto cannot agree as to its proper interpretation. ⁵⁰² Fultz v. Shaffer, 111 Md.App. 278, 297-98 , 681 A.2d 568 (1996) (citations omitted). See also Painewebber, Inc. v. East, 363 Md. 408, 413-15 , 768 A.2d 1029 (2001); Goldberg v. Goldberg, 290 Md. 204, 212 , 428 A.2d 469 (1981).

Mr. Musick points out