Russell v. Russell

Weant, J., delivered the opinion of the Court. By decree dated 26 August 1980 the appellant Marion A. Russell was granted a divorce a vinculo matrimonii from the appellee James T. Russell, Sr., reserving "the issue of monetary award of the marital property.” On 24 November 1980 the Circuit Court for St. Mary’s County held a hearing to set a monetary award concerning marital property, specifically Mr. Russell’s pension rights. By decree dated 29 December 1980 the court declared that Mr. Russell’s pension rights were not marital property and hence not subject to award and disposition under section 3-6A-05 of the Courts and Judicial Proceedings Article of the Maryland Annotated Code. The court further ordered the sum of $50.00 per week alimony as permanent alimony.

Mrs. Russell appeals from the award of alimony and the determination that Mr. Russell’s pension is not marital property. The marital property issue is discussed in the case of Ohm v. Ohm, 49 Md. App. 392 , 431 A.2d 1371 (1980). In that case, Judge Thompson, writing for this Court, held that "thé right to receive retirement benefits under a private or public employees[’] pension plan, whether or not vested, matured, or contributory, is property and that, if acquired during the marriage, it constitutes marital property within the meaning of § 3-6A-01 (e).” Id. at 399, 431 A.2d at 1375 . Accordingly, we would ordinarily hold that Mr. Russell’s pension is marital property.

However, in spite of his prior acquiescence, the appellee raises the argument that the parties improperly attempted to confer subject matter jurisdiction on the circuit court by agreeing that the time in which the court would determine which property was marital property would be extended beyond 90 days after the divorce decree. At issue is the following language of section 3-6A-05 (a): In granting an absolute divorce or annulment, or ¹⁸⁷ at any time within 90 days thereafter, if in its decree granting the divorce or annulment, the court has expressly reserved the power to do so, the court shall determine which property is marital property if the division of property is at issue. [Emphasis added]. The question then arises as to whether or not the court had jurisdiction to make any determination concerning marital property. It is perfectly obvious that had the trial