Geckle v. Folderauer

MICHELE J. GECKLE v. DAVID FOLDERAUER, SR.

No. 2239

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

March 31, 2017

UNREPORTED

Woodward, Kehoe, Leahy, JJ.

Opinion by Woodward, J.

* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

On December 9, 2014, the Circuit Court for Carroll County entered a Memorandum Opinion and Order interpreting the Marital Settlement Agreement ("MSA") between David Folderauer, appellee, and Michele Geckle,¹ appellant, to require that upon Folderauer's retirement, he select one of the retirement allowance options available under his Baltimore County Retirement Plan and name Geckle as the designated beneficiary. In this timely appeal, Geckle presents two questions for our review, which we have rephrased as follows:²

1. Did the trial court err in interpreting the MSA to allow Folderauer to select Geckle's survivor benefit?

2. Did the trial court err in ordering Folderauer to select the survivor benefit option for Geckle at the time of his retirement?

For the reasons that follow, we shall vacate the judgment of the circuit court and remand the case for further proceedings.

BACKGROUND

Folderauer and Geckle were married on December 31, 1998, and two children were born during their marriage. On or about April 8, 2007, the parties separated and beganliving separate and apart with the purpose and intent of ending their marriage.

On January 30, 2009, the parties executed the MSA, which stated, in relevant part:

It is the mutual desire of the parties in this Agreement to formalize their voluntary separation and to settle all questions of maintenance and support, alimony, counsel fees, their respective rights in the property or estate of the other, and in property owned by them jointly or as tenants by the entireties, and in martial property, and in all matters of every kind and character arising from their marital relationship.

* * *

The parties mutually agree that in entering into this Agreement, each party signs this agreement freely and voluntarily for the purpose and with the intent of fully settling and determining all of their respective rights and obligations growing out of or incident to their marriage.

(Emphasis added).

Pertinent to this appeal is the following provision of the MSA, which outlines Geckle's rights in Folderauer's retirement plans:

Husband [Folderauer] is a participant in Baltimore County Retirement System ("Pension") and a 457(b) plan. Wife [Geckle] waives her interest in Husband's Baltimore County Retirement Plan ("Pension") except Husband shall assign to Wife the survivor benefits of the Baltimore County Retirement Plan ("Pension"), the costs of which shall be solely born by Husband. Husband shall assign to Wife all his interest in the 457(b) plan and shall name Wife as beneficiary until the plan is transferred in her name.

Wife's interests shall be transferred by an Order which meets the requirements of a Qualified Domestic Relations Order, as defined in Section 414(p) of the Internal Revenue Code of 1986, as amended, and the Retirement Equity Act of 1984, Pub. L. No. 98-397. Each party shall execute such documents and perform such acts as may be necessary to effectuate the purposes of this Paragraph, including, but not limited to, the execution of such documents and performances of such acts as may be required to have the terms ofthis Paragraph incorporated in a QDRO, as that term is defined in the Internal Revenue Code.

The parties agree that the proposed QDRO shall contain a statement that jurisdiction over the parties and the subject matter is expressly reserved for the limited purpose of amending the Judgment to cause it to meet the definition of a QDRO, in the event the Judgment is determined by the Plan Administrator or a court of competent jurisdiction not to meet that definition.³

(Emphasis added). On February 2, 2009, the court entered a judgment of absolute divorce and incorporated, but did not merge, the MSA.

Prior to submitting any QDROs concerning survivor benefits to the trial court, Geckle sent a proposed QDRO to the Baltimore County Government. Kimberly Vazquez, Benefit Specialist, reviewed the proposed QDRO, which required the survivor benefit "be paid for the life of" Geckle, and preliminarily approved it. Vazquez also stated that "[u]pon [r]etirement, [ ] Folderauer must elect one of the survivor benefit options naming [Geckle] as the surviving beneficiary."

On April 17, 2014, Geckle filed a line, requesting that the trial court enter a QDRO, which, however, differed from the QDRO approved by the Baltimore County Government. The new QDRO added a provision that, if Folderauer died before retiring, Geckle would be "entitled to any lump sum payments made from [Folderauer's] retirement account." Prior to receiving a response from Folderauer, the court approved and entered Geckle's proposed QDRO on April 29, 2014. On or about the same day, Folderauer filed a Motion for an Extension of Time to file a response to the QDRO. Realizing that the QDRO wasentered prematurely, the court granted Folderauer's motion and treated it as a "Motion to Revise."

On May 5, 2014, Folderauer filed a response, which, inter alia, asked the trial court to vacate and modify the QDRO, as well as requested a hearing. Folderauer informed the court that as an employee of the Baltimore County Police Department, he "is a participant of Plan A of the Baltimore County Retirement System[,]" which is set forth in Article 5, Title 1 of the Baltimore County Code ("BCC"). Section 5-1-231(a) provides for seven optional allowances pertaining to post-retirement benefits payable upon the death of a retired member as follows:

(a) In lieu of the disability or service allowances payable under the provisions of this subtitle, any member may, prior to the first retirement allowance payment normally due, elect a retirement allowance of equivalent actuarial value in one (1) of the optional forms set out below. The election of the option shall be made on a form provided for that purpose and shall be filed with the Board of Trustees. The options provide either a lump sum payment or continued payments to a beneficiary nominated by written designation duly acknowledged and filed with the Board of Trustees. Should a member die prior to the expiration of thirty (30) days after the date of filing such election or prior to thirty (30) days after retirement, the Board of Trustees shall determine whether or not such election shall be void and of no effect, and the benefits payable on the member's account shall be the same as though the member's election had not been filed and the member had died in active service. A member who has elected an optional benefit may not change such election after the first payment of the member's allowance becomes normally due, except as provided below.

(1) Option 1. If the retired member dies before receiving in annuity payments the present value of the annuity as it was at the time of retirement, the balance shall be paid to the designated beneficiary or the retired member's estate.

(2) Option 2. Upon the death of the retired member, one hundred (100) percent of the reduced retirement allowance shall be continued throughout the life of and paid to the designated beneficiary.

(3) Option 3. Upon the death of the retired member, fifty (50) percent of the reduced retirement allowance shall be continued throughout the life of and paid to the designated beneficiary.

(4) Option 4. Some other benefit or benefits shall be paid either to the retired member or a designated beneficiary, provided such other benefit, together with the reduced retirement allowance, shall be certified by the actuary to be of equivalent actuarial value to the retired member's retirement allowance and shall be approved by the Board of Trustees.

(5) Option 5. Upon the death of the retired member, one hundred (100) percent of the reduced retirement allowance shall be continued throughout the life of and paid to the designated beneficiary, with the further provision that should the retired member become divorced from the designated beneficiary or should the designated beneficiary predecease the retired member, upon notice to the Board of Trustees, the retired member's reduced retirement allowance shall thereafter increase to the amount that would be payable had no option been chosen.

(6) Option 6. Upon the death of the retired member, fifty (50) percent of the reduced retirement allowance shall be continued throughout the life of and paid to the designated beneficiary, with the further provision that should the retired member become divorced from the designated beneficiary or should the designated beneficiary predecease the retired member, upon notice to the Board of Trustees, the retired member's reduced retirement allowance shall thereafter increase to the amount that would be payable had no option been chosen.

(7) Option 7. Subject to subsection (d) of this section, an employee who has completed at least twenty-five (25) years of actual service as a sworn Baltimore County police officer, at least twenty-five (25) years of actual service as a sworn Baltimore County firefighter, or any combination of actual service as a sworn Baltimore County police officer and Baltimore County firefighter equaling twenty-five (25) years of actual service may retire with theoption of having fifty (50) percent of the retired member's retirement allowance continued throughout the life of and paid to the original beneficiary upon the retired member's death. This option shall be provided at no cost to the employee.

(Emphasis added).

Folderauer argued to the trial court that the MSA was silent as to what type of survivor benefit Geckle would receive and who was to choose the survivor benefit. Folderauer asserted that he should be allowed to choose the...