Martinez v. Lopez

1

STEVEN MARTINEZ v. ISABEL GALVEZ LOPEZ

No. 835-2021

Court of Special Appeals of Maryland ^[*]

April 7, 2023

Circuit Court for Anne Arundel County Case No C-02-FM-15-004500

Reed Zic, Meredith, Timothy E. (Senior Judge, Specially Assigned) JJ.

OPINION ^[*]

Meredith, J.

This case, before us for the second time, concerns the calculation of a former spouse's share of a United States military pension. On November 22, 2016, the Circuit Court for Anne Arundel County granted the parties-Steven Martinez, appellee and cross appellant, and Isabel Galvez Lopez, appellant and cross appellee-an absolute divorce. Among other rulings, the court awarded Lopez a marital share of Martinez's military pension. Years of litigation followed, but it is not necessary to provide that history here because the pertinent facts and procedural background were set forth in detail in our prior unreported opinion, Lopez v. Martinez, No. 760, Sept. Term 2019 (filed June 18, 2020), 2020 WL 3318309, cert. denied, 471 Md. 122 (2020) (hereafter referred to as "Lopez").^[1]After considering that appeal, we remanded the case to the circuit court for further proceedings relative to the computation of the amount of retirement benefit Martinez is required to pay to Lopez.

On remand, after soliciting further briefing from the parties and conducting a hearing, the circuit court issued an amended order in which it ordered Martinez to pay Lopez a portion of his retirement benefits at the rate of $222.85 per month.

Both parties filed motions to alter or amend the court's ruling. After both motions were denied, Lopez filed a notice of appeal, and thereafter, Martinez also filed a notice of appeal. See Maryland Rule 8-202(e) ("If one party files a timely notice of appeal, any other party may file a notice of appeal within ten days after the date on which the first notice of appeal was filed or within any longer time otherwise allowed by this Rule.").

ISSUES PRESENTED

In this appeal, both parties are proceeding in proper person, and each filed an informal brief pursuant to Maryland Rule 8-502(a)(9).

In Lopez's informal brief, she presents the following eight issues:

I. Whether the circuit court erred in making a NDAA 2017 retired pay award calculation;

II. Whether the circuit court erred or abused its discretion on establishing an effective date of divorce of November 22, 2016 and a High 36 as of November 16, 2016 to effectuate an accurate NDAA 2017 calculation;

III. Whether the circuit court erred on establishing that the retired pay base is $1,382.29 and erred on using a reduced retired pay multiplier;

IV. Whether the circuit court erred or abused its discretion on not adding properly the COLAs (Cost of Living Adjustments) Lopez is entitled to by federal law;

V. Whether the circuit court erred or abused its discretion by acting with favoritism and preference towards Martinez by establishing unreasonable conditions and putting untenable financial burden on Lopez in order to start receiving her pension share payments;

VI. Whether the circuit court erred and/or abused its discretion by ordering again Lopez bear the sole cost and expense of preparation of a Qualified pension order;

VII. Whether the circuit court erred or abused its discretion by avoiding to state with clarity and specification the proper wording required to make the military pension order, qualified; and,

VIII. Whether the circuit court and the Court of Special Appeals erred and/or abused its discretion by considering the SBP (Survivor's Benefit Plan) award can just be excluded, going contrary to the law of the In Banc review opinion, blatantly ignoring an order of a superior hierarchy.

In Martinez's informal brief, he presents the following three issues:

I. Whether the circuit court erred by not using its discretion pursuant to the Court of Special Appeals' unreported opinion on remand to make necessary findings, clarify any discrepancies for the record, reconsideration of award, and revision as may be necessary;

II. Whether the circuit court erred in issuing an unenforceable order and in denying Martinez's motion to alter or amend;

III. Whether the circuit court erred in determining entitlement and calculations when granting military pension division payments.

For the reasons set forth herein, after correcting the amount of Lopez's monthly share in Martinez's military pension benefit to $211.09, we shall affirm the judgment of the circuit court.

BACKGROUND

A. Previous appeal

In our previous consideration of this case, we noted that several of the issues (that include some that the parties again contest in this appeal) had been resolved by rulings as to which no timely appeal had been taken. The parties were married on February 9, 2011, and a judgment of absolute divorce was entered by the Circuit Court for Anne Arundel County on November 22, 2016. For the entire five years and nine months they were married, Martinez served in the Navy on active duty. The trial judge found that Martinez elected to receive a career status bonus under 37 U.S.C. § 354, that he had received a bonus of $30,000, and that the net amount received "was spent for reasonable living and marital expenses during the course of the marriage." Lopez, at 26 n.3. Although the date of the the enactment of the National Defense Authorization Act for Fiscal Year 2017 ("NDAA 2017") on December 23, 2016 was arguably inapplicable, Lopez did not file a timely appeal when the circuit court ordered that the NDAA 2017 was controlling; consequently, we held that that ruling is not subject to further relitigating. Lopez, at 23-24. The circuit court rejected Martinez's argument that the court should award Lopez less than 50% of the marital portion of his retirement benefit. And the circuit court also rejected Lopez's argument that Martinez should be compelled to elect "former spouse coverage" for her under the Survivor Benefit Plan. Both parties conceded that, if NDAA 2017 applied, the method for calculating Lopez's share of Martinez's pension was the career status bonus/reduction ("CSB/Redux") formula set forth in 10 U.S.C. § 1409(a) and (b).^[2] Pursuant to the analysis set forth in Fulgium v. Fulgium, 240 Md.App. 269 (2019), we remanded the case for the circuit court to apply the formulas mandated by the NDAA 2017, and we pointed to certain variables the court would need to clarify in the course of applying the formulas. Lopez, at 24-30.

In addition, we commented on Lopez's contention that the circuit court should have accounted for annual cost of living adjustments ("COLAs"). As guidance to the circuit court, we examined a Department of Defense Financial Management Regulation that suggested that COLA adjustments would be determined by the Department of Defense without regard to whether a court issued a retired pay award as a fixed dollar amount or as a percentage of disposable retired pay. Id. at 30. Relying on a statement in the regulation that provided, "[i]n an NDAA applicable case, COLAs will be added to the disposable income calculation on all awards regardless of what the court order states," we concluded that the circuit court "need not expressly address COLAs in an NDAA applicable case[,]" and that the circuit court did not err in declining "to provide for COLAs in its order" awarding Lopez's share of Martinez's retired pay award. Id. at 31-32.^[3]

Finally, we recognized that there was information in the record to suggest that Martinez had transferred to the Fleet Reserve effective December 29, 2018, after the date of the divorce, and that he had begun receiving retired pay in the amount of $1,954.00/month in January 2019. Id. at 32. The circuit court, however, had not made any findings "about the date of Martinez's transfer to the Fleet Reserve and his receipt of retirement pay[.]" Id. Nevertheless, the circuit court ordered that Lopez's award would begin when Martinez retired from the Reserves and was receiving his full military retired pay. Id. We stated that "[a]s far as we can see, the applicable regulations do not distinguish between 'full military pay' and partial retirement payments." Id. We noted that Department of Defense regulations appeared to permit a retiree's former spouse to apply for payments any time after the court has issued a court order enforceable under the Uniformed Services Former Spouses' Protection Act ("USFSPA"). Id. We also noted that, according to the Department of Defense regulations we cited, a former spouse may submit an application to the Defense Finance Accounting Service ("DFAS") for former spouse payments from retired pay even before the service member begins to receive his or her retired pay. For those reasons, we concluded that the circuit court should not have included language in its order delaying Lopez's award until Martinez retired from the Reserves and was receiving his full military retired pay. Id. at 32-33.^[4]

We also noted that certain variables needed to calculate Lopez's award were "not expressly addressed by the court" including the duration of the parties' marriage, the percentage of Martinez's pay that was awarded to Lopez Martinez's years of creditable service, his retired base pay amount, and his retirement date. Id. at 25. We suggested that on remand the court may find it appropriate to use the CSB/Redux formula set forth in 10 U.S.C. § 1409(a) and (b), and we provided an example of how the formula might be used, "subject to modification corresponding to the circuit court's findings with respect to the variables" we had mentioned. Id. at 27. We remanded the case because we were unable to discern from the record the calculations used by the circuit court to arrive at the award it had made. Id. at 25-26. We stated: "Because we are unable to...