Evelyn Saldana Woodson, appellant, challenges a judgment resolving disputed property issues in her divorce from appellee
We find merit in Woodson's first, second, third, and sixth assignments of error. In the divorce action, we shall vacate the order resolving disputed property issues and remand for reconsideration of the marital property issues arising from Woodson's military reserve retirement benefits, Crawford credits, and Woodson's civil service pension. We shall affirm the contempt finding, but vacate the attorney's fee award in the contempt order, and remand for further proceedings on that matter.
FACTS AND LEGAL PROCEEDINGS
Woodson and Saldana were married on August 6, 1983, separated on June 20, 2001, and divorced on March 25, 2003. The couple has two children, Moses P. Saldana, III and Sara Saldana, both of whom were still minors at the time of the divorce.
Both Woodson and Saldana served in the military. Throughout the marriage, and until he retired effective October 31, 2004, Saldana was an active duty Marine Corps officer. Following active duty that ended in 1982 before the marriage, Woodson was on reserve military duty. After the separation, she became a civil service employee at the Pentagon.
The parties resolved custody, visitation, and some property issues consensually. During the litigation, the Circuit Court for St. Mary's County found Woodson in contempt of an order requiring her to stay away from Saldana's residence, which was the former marital home; the court ordered Woodson to pay Saldana's attorney's fees in connection with that contempt order.
Military Reserve Retirement Benefits
Woodson complains that the trial court did not correctly calculate the marital portion of her military reserve retirement benefits. During her military reserve career, Woodson accrued a total of 4,257 "points" toward retirement benefits. These retirement points may be awarded for a reservist's activities, and therefore do not necessarily accrue based solely on the length of active or reserve duty service. See 10 U.S.C.A. § 12731 et seq.; Marshal S. Willick, Military Reserve Retirement Benefits in Divorce: A Lawyer's Guide to Valuation and Distribution 43-45 (ABA Section on Family Law); In re Marriage of Poppe, 97 Cal.App.3d 1, 158 Cal.Rptr. 500, 502-03 (1979). Reservists must accrue at least 50 "retirement points" in a calendar year to have that year qualify toward retirement. See 10 U.S.C.A. § 12732(a)(2). In turn, reservists must accumulate 20 years of service, and must be at least 60, to be eligible for retirement pay.
In this respect, the retirement points accrual system for military reservists reflects more than merely time served. One commentator has observed, for example:
Willick, supra, at 44.
Because the court has jurisdiction over marital property that the parties have not divided by consensus, including retirement benefits earned during the marriage, it must calculate what portion, if any, of a military spouse's retirement benefits is marital. See Bangs v. Bangs, 59 Md.App. 350, 367-68, 475 A.2d 1214 (1984). After determining that Woodson was married 235 months and employed as a reservist for 198 of those months, the trial court determined Saldana's portion of her military retirement pay benefit using a "time formula" as follows: "½ (198/234) = 42.3%."
Woodson argues that the court should have used the retirement points she earned during the marriage as the variable in the formula, rather than the months of reserve duty she served during the marriage. To illustrate the financial significance of using such retirement points to calculate the marital portion of her military reserve retirement benefits, Woodson cites the following example from an American Bar Association, Section on Family Law treatise on valuing and distributing military retirement benefits in a divorce:
Willick, supra, at 46 n. 30.
Woodson argues that the trial court's use of a time formula resulted in a similarly inflated apportionment, increasing Saldana's share of her retirement pay by 6.2%,
Months (per Bangs) Points (for reservists) Total earned235 months 4257 retirement points Earned during marriage198 months 3098 retirement points Formula used to calculate198 ÷ 234 = 3098 ÷ 4257 = marital portion84.6% 72.77% Saldana's ½ share42.3% 36.4%
An interest in a military retirement pension is marital property to the extent it was earned during the marriage. See Deering, 292 Md. at 129-30, 437 A.2d 883. It is therefore subject to distribution under Md.Code (1984, 2004 Repl.Vol.), section 8-205 of the Family Law Article (FL).
In this instance, however, we are lacking more than a "detailed check list of the statutory factors." Despite the court's statement at the outset of its opinion that "[a] detailed description of the court's reasoning on the status and value of [this] property follows," there simply is nothing in that opinion or the corresponding order to indicate that the trial court considered the statutory factors. Neither document refers to any of the factors in connection with the distribution of retirement benefits — or, for that matter, any other marital property. Indeed, we do not even find a citation to FL section 8-205(b) in the court's discussion of either applicable law or factual issues.
This silence, when viewed in conjunction with the court's statements that Saldana "is entitled to" half of the marital portion of Woodson's retirement benefits, creates an intolerable possibility that the statutory factors were not considered because the court believed that it was
In determining what portion of Woodson's military reserve retirement benefit is marital property, the court must consider all relevant evidence, including, we think, evidence presented by Woodson that her retirement benefits are premised on retirement points that accrue on the basis of factors other than the length of her military reserve service.
We agree that, when a reservist's retirement pay is not strictly a function of the length of military service, the appropriate formula is retirement points earned during the marriage divided by the total retirement points earned. The fractional equation used to determine the marital portion of military reserve retirement pay must use the same unit of measurement in both the numerator and the denominator. Because military reserve retirement pay is earned on the basis of points rather than time, both variables in the formula used to apportion that pay logically should also be points. See Poppe, 158 Cal.Rptr. at 503-04.
On remand, the circuit court must consider the evidence that Woodson earned
The trial court awarded Saldana $15,756.18 in Crawford credits
Saldana asks us to affirm the award of Crawford credits because "the fact that money came from a housing allowance rather than a salary does not change the fact that it was compensation for services rendered that was, in turn, used to pay the mortgage, taxes, insurance, etc." Moreover, after the December 2, 2002 consent order granting child custody to Woodson, his housing allowance rate was reduced to "Single without Dependents."
For the same reasons we discussed in Part I with respect to military retirement benefits, we also are persuaded by Woodson's contention that the court did not consider equitable factors in awarding Saldana Crawford credits. The order states:
An award of Crawford credits, however, is discretionary, so that it cannot be said that "the spouse who pays mortgage and other carrying charges that preserve the property is entitled to" receive such credits in all cases. See Keys v. Keys, 93 Md.App. 677, 681, 614 A.2d 975 (1992); see also Kline v. Kline, 85 Md.App. 28, 48-49, 581 A.2d 1300 (1990), ("the reason contribution is not mandatory between spouses at the time of divorce is that contribution
Here, the opinion and order are both phrased in the "entitlement" terms. The trial court's conclusion that Saldana "is entitled to [Crawford] credit," in light of its failure to discuss any of the specific equitable factors argued by Woodson, indicates that the court may have incorrectly believed that it was obligated to make such an award to Saldana. On remand, the court must determine whether and to what extent Crawford credits are warranted, in a manner that permits appellate review.
Civil Service Pension
In October 2001, following her separation from Saldana, Woodson became employed in a federal job that qualifies for civil service pension benefits. She continued in that position through the date of divorce, accruing a total of 17 months of civil service during the marriage. The trial court awarded Saldana one half of that marital property on an "if, as, and when basis," because Woodson's total number of months of civil service is unknown. See Pleasant v. Pleasant, 97 Md.App. 711, 632 A.2d 202 (1993); Hoffman v. Hoffman, 93 Md.App. 704, 719, 614 A.2d 988 (1992); Bangs v. Bangs, 59 Md.App. 350, 475 A.2d 1214 (1984).
Woodson challenges that order, arguing that the trial court abused its discretion in awarding Saldana half of the civil service pension that she earned as a result of her return to work after the separation. In her view, the court failed to give the heavy weight due under FL section 8-205(b)(8) to
In Alston v. Alston, 331 Md. 496, 507, 629 A.2d 70 (1993), the Court of Appeals held that the trial court erred in failing to give this factor "considerable weight" in distributing the value of a lotto ticket that the husband purchased after separation:
Cf. Skrabak v. Skrabak, 108 Md.App. 633, 655, 673 A.2d 732 (trial court gave appropriately heavy weight to how and when husband acquired pension plan for medical practice established after separation), cert. denied, 342 Md. 584, 678 A.2d 1048 (1996).
Woodson contends that both the "how" and "when" factors weigh 100 percent in her favor because she earned the civil service pension benefits through her post-separation employment. In her view, the court's failure to consider that undisputed fact constitutes a failure to exercise discretion, which "is, itself, an abuse of discretion." See G.E. Capital Mortgage Servs., Inc. v. Edwards, 144 Md.App. 449, 455, 798 A.2d 1187 (2002).
As we concluded above, we are unable to say that the trial court considered any of the section 8-205(b) factors in its decision, including the eighth "how and when" factor. On remand, the court should explain its decision in a manner that indicates the exercise of such discretion.
"Dissipation may be found where one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown." Sharp v. Sharp, 58 Md.App. 386, 401, 473 A.2d 499, cert. denied, 300 Md. 795, 481 A.2d 240 (1984). Woodson requested reimbursement for Saldana's expenses in taking trips to San Antonio, Austin, and Jamaica with two different women, during the marriage. She contends that the trial court erred in failing to determine whether Saldana dissipated these marital funds by using them to pay for the vacations during the time the marriage was breaking down. At trial, she sought reimbursement for $2,283.13 in such expenses, although she admits that "the word dissipation' was not used" in her trial memorandum, so that "perhaps understandably," the trial court responded, with respect to Saldana's "trips," that "[e]xpenses associated with travel ... are not property."
We agree with Saldana that Woodson waived any dissipation claim she may have had by failing to assert it in the trial court. The burden of persuading the trial court that there was dissipation of marital assets is on the party alleging dissipation. See Solomon v. Solomon, 383 Md. 176, 202, 857 A.2d 1109 (2004). Having failed to articulate her dissipation theory in connection with these particular expenses, Woodson cannot now complain that the trial court failed to address it.
During the time the divorce action was pending between December 2001 through May 29, 2003, Saldana moved for six contempt orders against Woodson. Most of the motions related to visitation issues. The fourth motion, however, concerned Woodson's alleged entry into Saldana's residence in violation of a March 5, 2003 protective order "that the parties shall not enter the residence of each other."
Saldana, who resided in the former marital home, alleged that on April 6, 2003, as well as "on at least four prior occasions since ... June 30, 2001, [Woodson] broke into Saldana's home." According to Saldana, on the 6th, a number of items disappeared while he was away from the home. Neighbors saw Woodson and her friend David Woodson "removing personal property from the home ... and loading it into David Woodson's truck." They removed items included items from the inside of the house and from the garage.
A May 29, 2003 hearing was held on all contempt motions. Saldana called Woodson as a witness. She admitted going to the home on April 6, but claimed that she unsuccessfully tried to notify Saldana between March 31 and April 6 that she planned to do so. Woodson testified that, while at the home, she and her fiance' David Woodson removed various items of
On cross-examination by her own counsel, Woodson insisted that she did not enter the house and that she did not take anything that belonged to either Saldana or herself. She explained, however, that she did take a push mower "[t]o sweep my... residence where I live now" [sic], as well as curtain rods and a folding card table set.
Saldana also testified at the contempt hearing. He claimed that property was missing from both the garage and inside the house. Among the items taken out of the house was a card table he was using as a dining room table; "pictures from the wall;" and the shower curtain, rod, and hooks from Sara's bathroom. Saldana also recounted, in support of his sixth motion for contempt, that on April 26, Woodson came to his house and took the family dog.
After Saldana rested his case, the court addressed counsel for Woodson: "[D]o you have anyone besides Mrs. Saldana? Okay. Would anybody think it's a good idea for me to talk to the children at this point and then we can continue with that?" Following a discussion regarding the format of that conversation, the court heard from the two Saldana children and their counsel in camera.
Returning to the bench, the court noted that "we're not finished with the case yet so — we're going to have to reschedule it to come back, but I don't want to leave everything just hanging wide open[.]" The court proceeded to address the children and their counsel regarding visitation issues. When the children left the courtroom, the court addressed the parties and counsel:
Stating that it was "reserv[ing] on the issue of whether you're in contempt concerning the visitation[,]" the judge asked whether "there is anything else that I need to do right now[.]" Saldana's counsel then offered to submit "an Order on those fees that you just ordered[.]" The court replied, "Sure, that'd be fine[,]" then solicited any comments from Woodson's counsel, whose only reply related to "put[ting] in a clause ... that says the parties can communicate .... with each other" regarding the children.
Woodson argues that "the trial court failed to give [her] the opportunity to put on her defense before announcing that she was in contempt as alleged in the Fourth Petition." Emphasizing that she was "called as an adverse witness[,]" Woodson contends that the court prematurely found her in contempt shortly after it noted that the contempt proceedings were not complete and would have to be rescheduled. "This abrupt termination and finding ... denied Woodson her right to procedural due process under the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights."
Saldana counters that Woodson had a full and fair opportunity to testify in response to questions by both his counsel and her own counsel, as well as an opportunity to present any defense she might have had to the home entry contempt allegations. The trial court heard her disclaimers and simply rejected them.
We agree with Saldana that Woodson does not have a viable due process claim in these circumstances. Her counsel did not object to the entry of a contempt order on the ground that she had additional evidence relevant to the home entry motion, even after the court invited counsels' comments on the proposed order. Notwithstanding any ambiguity in the court's remarks about future testimony and proceedings, this silence reflects Woodson's tacit agreement that she had no further defense to the home entry motion. Moreover, the record shows that Woodson unequivocally admitted violating the court order by going to Saldana's residence. Thus, Woodson did not assert any defense that could have been corroborated by another witness. For these reasons, we conclude that Woodson was not denied an
Woodson alternatively argues that the contempt ruling "lacked the requisite finding of willfulness." We again disagree. It is not necessary for the court to use this "magic word" to make such a finding. Both the testimony given by Woodson and the court's ruling made clear that Woodson's entry of the home was the result of a deliberate decision to remove items from the property, which plainly qualifies as "willful" disobedience of the stay away order, as that term is defined for contempt purposes. See, e.g., Dodson v. Dodson, 380 Md. 438, 452-53, 845 A.2d 1194 (2004)(recognizing that essence of contempt is refusal to comply with court order).
Attorney's Fees For Contempt Proceedings
At the hearing on Saldana's contempt motions, Saldana's counsel introduced into evidence a bill for $944.25 in attorney's fees "incurred for the fifth motion for contempt[.]"
Woodson complains that Saldana's fee bill did not provide an evidentiary basis for the award and that the court failed to make a finding regarding the reasonableness of such fees. Citing Rauch v. McCall, 134 Md.App. 624, 639, 761 A.2d 76 (2000), cert. denied, 362 Md. 625, 766 A.2d 148 (2001), she argues that fee awards are "not justified by a mere compilation of the hours multiplied by the fixed hourly rate of the bill." Moreover, she points out, the fee bill prepared in connection with the fifth motion for contempt related to work on the visitation issues relevant to that motion, whereas the order for contempt was premised solely on the separate home entry issue raised in the fourth motion for contempt.
Saldana agrees that the fee award is premised on a different contempt motion than the one upon which the contempt order is premised. Instead, he argues that the fee award "is fully justified" given the court's discretion in such matters and the considerable work done to prepare the motion, appear in court, and present witnesses and documentary evidence.
We agree with Woodson that the court erred in using a fee bill relating to the fifth contempt motion as the basis for a fee award relating to the separate issue raised and adjudicated in the fourth contempt motion. The bill considered by the court states that it relates to charges in connection with visitation issues and drafting the fifth motion for contempt. There was no bill, testimony, or other evidence regarding the fees and expenses with respect to the earlier home entry motion.
We cannot accept Saldana's invitation to disregard this error due to the "small amount" of the award or the nature of work for which compensation would be appropriate. The court should have considered evidence regarding only the work performed and expenses incurred on the home entry motion. There is no such evidence in the record. Appellate courts do not speculate that a trial court would have awarded the same or a greater amount if it had considered different evidence.
We shall vacate the property disposition order in the divorce action and remand for reconsideration of the marital portion of Woodson's military reserve retirement pension, Crawford credits, and the civil service pension issues. In doing so, we express no opinion as to the specific outcome of these issues, or the appropriate amount of any monetary award. In addition, we shall vacate the attorney's fee award in the contempt order and remand for redetermination of that matter.
Md.Code (1984, 2004 Repl.Vol.), section 8-205 of the Family Law Article (FL).