Lopez v. Martinez

ISABEL GALVEZ LOPEZ v. STEVEN MARTINEZ

No. 760

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

June 18, 2020

Circuit Court for Anne Arundel County

Case No. C-02-FM-15-004500

UNREPORTED

Meredith, Reed, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

Opinion by Meredith, 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 November 22, 2016, the Circuit Court for Anne Arundel County granted Isabel Galvez Lopez ("Lopez"), appellant, and Steven Martinez ("Martinez"), appellee, a judgment of absolute divorce. In the divorce decree, the court awarded Lopez "a marital share of Steven Martinez's U.S. Military Pension on an if, as and when basis, according to the Bangs formula"—see Bangs v. Bangs, 59 Md. App. 350, 356 (1984)—and "pre-retirement survivor benefits, at her election and sole expense, if available to her within the time requirements of the plan administrator for such election[.]" Lopez has since sought to amend the decree by asking the circuit court to compel Martinez to elect "former spouse coverage" under the Survivor Benefit Plan, which is codified at 10 U.S.C. §§ 1447-55, and to explicitly provide that she could make a "deemed election request" directly to the Defense Finance Accounting Service ("DFAS"), pursuant to 10 U.S.C. § 1450(f)(3)(C), in the event that Martinez fails or refuses to make such an election in the first instance. Indeed, Lopez has filed not only an in banc appeal seeking that benefit, but has also filed numerous motions seeking benefits under the Survivor Benefit Plan she contends would pertain to Martinez's retirement from the United States Navy. Upon remand from the in banc appeal, the circuit court has not only denied her any access to a Survivor Benefit Plan, but has also substituted for the share of Martinez's pension "according to the Bangs formula" an award of a portion of Martinez's pension pursuant to a federal statute that applies "when . . . a divorce occurs after December 23, 2016." See Fulgium v. Fulgium, 240 Md. App. 269, 288 (2019) (applying the National Defense Authorization Act (NDAA) Fiscal Year (FY) 2017 ("NDAA 17")).

QUESTIONS PRESENTED

The questions presented by Lopez are:

I. Whether the circuit court abused its discretion in declining to implement survivor benefit plan language at the direction of the in banc panel?

II. Whether the circuit court erred in its calculations and ordered timing of Husband's military pension division payments to Wife pursuant to the NDAA 17.

A. Whether the circuit court erred as a matter of law in determining that the National Defense Authorization Act Fiscal Year 2017 applied?

B. Whether the circuit court erred in its calculation of a [sic] military pension division payments in accordance with the National Defense Authorization Act Fiscal Year 2017?

C. Whether the circuit court erred as a matter of law in fixing the payable amount of the military pension division payments without cost-of-living adjustments?

D. Whether the circuit court abused its discretion in delaying military pension division payments to Wife until Husband has retired from the Reserves and is receiving his full military retired pay?

Martinez filed a cross-appeal, which this Court ruled, by order dated November 1, 2019, was timely only with respect to the July 23, 2019 order entered by the Circuit Court for Anne Arundel County denying Martinez's July 2, 2019 Motion to Strike, or in the Alternative, Dismiss Defendant's Notice of Appeal. To the extent he addressed that issue, we affirm the ruling of the circuit court, and, pursuant to this Court's order dated November 1, 2019, we will not consider the other arguments made in his cross-appeal, and we will grant Lopez's motion to strike.

With respect to the issues raised by Lopez, we first address Lopez's claims related to the Survivor Benefit Plan and conclude there was no timely appeal taken after the circuit court entered its amended judgment of divorce denying that claim on August 30, 2018. Similarly, with respect to her contention that the circuit court erred in ruling, upon remand from the in banc appeal, that the award of a marital share of Martinez's pension benefit was subject to application of the NDAA 17, we conclude that she did not timely appeal from the circuit court's decision to substitute the NDAA 17 provisions for computation based upon the Bangs formula in the amended judgment of divorce entered on August 30, 2018. We shall affirm in part the judgment of the circuit court, but conclude that a remand is necessary to address certain aspects of the court's computation of the marital share of the pension benefit pursuant to the NDAA 17.

FACTUAL AND PROCEDURAL BACKGROUND

When the parties married on February 9, 2011, Martinez was enlisted in the United States Navy and eligible for retirement on December 31, 2018. After nearly six years of marriage, the parties were granted a judgment of absolute divorce by the Circuit Court for Anne Arundel County on November 22, 2016. Pertinent to this appeal, the judgment of absolute divorce, filed on November 22, 2016, stated in part:

This matter came before the Court on the Amended Complaint for Absolute Divorce and Amended Counter-Complaint for Absolute Divorce, and testimony having been taken and heard, and for the reasons stated by the Court on the record, having found that the grounds of a 12-month voluntary separation having been sufficiently proven, it is thereupon:

ORDERED, that Steven Martinez and Isabel Galvez are granted an absolute divorce, and it is further,ORDERED, that Isabel Galvez Lopez is awarded a marital share of Steven Martinez's U.S. Military Pension on an if, as and when basis, according to the Bangs formula. Further, Isabel Galvez Lopez is awarded pre-retirement survivor benefits, at her election and sole expense, if available to her within the time requirements of the plan administrator for such election; and it is further,

ORDERED, that the court reserves jurisdiction to pass or amend qualified pension orders, such initial order for the military pension to be submitted to the Court by Defendant's [i.e., Lopez's] counsel within 30 days of this Order, and it is further,

ORDERED, that the Defendant's request for alimony, both rehabilitative and indefinite, is denied, and it is further,

ORDERED, that Steven Martinez shall pay to Isabel Galvez Lopez the sum of $5,000.00, payable in full on or before December 31, 2016, as a monetary award to adjust the equities in the marital property. . . .; and it is further,

ORDERED, that all other requests for relief, including attorney fees, shall be denied; . . . .

As reflected in the above quoted excerpt, although the November 22, 2016 judgment stated that Lopez was "awarded pre-retirement survivor benefits, at her election and sole expense, if available to her," the judgment of absolute divorce made no explicit reference to, or award of former spouse coverage under, the Survivor Benefit Plan, codified at 10 U.S.C. §§ 1447-55.

On December 1, 2016, Lopez filed a motion to alter or amend the judgment of absolute divorce. Lopez asked the court to, among other things, amend the order to include language she proposed expressly providing:

Isabel Maria Galvez Lopez shall also be awarded former spouse coverage under the Survivor Benefit Plan, with a base amount to be determined bythe former spouse. This is a "deemed election" under 10 U.S.C. § 1450(f)(3)(C). [Lopez] shall reimburse [Martinez] the Survivor Benefit Plan premium, which shall be deducted by DFAS from the service member's disposable retired pay in accordance with the Survivor Benefit Plan.

Lopez pointed out in her motion that the Survivor Benefit Plan does not allow for "pre-retirement benefits" as the court had "awarded" her in its November 22 order. In Martinez's opposition to the motion to alter or amend, he did not seek to have the marital portion of the pension be calculated on a basis other than the Bangs formula; nor did he oppose permitting Lopez to seek coverage under the Survivor Benefits Plan so long as she paid the premium. Instead, he observed in his opposition that the trial judge had "stated in his decision that [Martinez's] counsel shall work with [Lopez's] counsel to determine the exact language necessary for the distribution of [Martinez's] military pension pursuant to the Bangs formula and for [Lopez's] SBP coverage, and submit the proposed order to the Court within thirty (30) days."

The circuit court denied Lopez's motion to alter or amend the judgment of absolute divorce on January 10, 2017.

On February 2, 2017, Lopez filed a request for in banc review of the circuit court's denial of her December 1 motion to alter or amend the judgment of absolute divorce. In her memorandum of law, Lopez argued that the language in the judgment of absolute divorce providing for "pre-retirement survivor benefits, at her election and sole expense" was inconsistent with the Survivor Benefit Plan, and was "unenforceable as presently written." She further asserted that preventing her from claiming "post-retirementsurvivor benefits" "would be solely punitive" and "would be unjust and inequitable[.]" She also argued to the in banc panel that the trial court had erred in refusing to award her rehabilitative alimony for one year and attorney fees.

On July 22, 2018, the in banc panel ordered that the judgment of divorce was "affirmed-in-part" and remanded-in-part "for further findings as they relate to Plaintiff's U.S. Military Pension." In its written opinion, the panel noted that there were only two issues alleged to be in error: "(1) Whether the language within the Judgment of Absolute Divorce relating to the military pension survivor benefits is unenforceable as presently constituted? (2) Whether the court erred in denying alimony and attorney's fees to Defen...