203 A.3d 33
Md. Ct. Spec. App.2019Background
- Amy and Christopher Fulgium divorced by judgment entered July 2017; parties reserved dispute over Christopher’s active-duty Marine Corps retirement pay.
- They were married ~12 years of Christopher’s ~18 years of service; Christopher had not retired at time of divorce.
- Trial court attempted to compute a hypothetical retired-pay award under the 2017 NDAA amendments to 10 U.S.C. § 1408 and DoD regulations, found the high‑3 as ~$56,536 and creditable service ≈ 17.9–18 years.
- The court orally awarded Amy “15% of disposable retired pay” (intending 50% of the marital portion) but its arithmetic and explanation were inconsistent and likely incorrect.
- The circuit court issued a Constituted Pension Order directing 15% of disposable retired pay and permitted DFAS direct payment; Amy moved to alter and lost.
- On appeal the Court of Special Appeals held federal law (USFSPA as amended by NDAA‑17) governs valuation (freezes benefit at divorce date), found the trial court’s calculations unclear/incorrect, vacated and remanded for recalculation and clearer findings.
Issues
| Issue | Plaintiff's Argument (Fulgium) | Defendant's Argument (Fulgium) | Held |
|---|---|---|---|
| Proper valuation method for military pension after NDAA‑17 | Amy: court should use Bangs “if, as, and when” (marital fraction × 50% × retirement benefit) and not freeze denominator at divorce | Christopher: federal law controls and court properly applied federal rules to limit/divide retired pay | Held: NDAA‑17/§1408(a)(4)(B) governs when divorce precedes retirement; federal statute/regulations freeze benefit at divorce date and preempt inconsistent state law |
| Whether trial court correctly applied the frozen (divorce‑date) calculation | Amy: court miscalculated marital fraction and improperly used 3‑year average in the percentage step | Christopher: trial court applied federal law correctly; trial court has discretion to award less than 50% of marital portion | Held: court correctly used high‑3 for hypothetical base but its final arithmetic and explanation of the percentage awarded (15%) was unclear/incorrect; remand required for correct computation and explicit findings |
| Whether Bangs formula remains mandatory post‑NDAA‑17 | Amy: Bangs remains the applicable Maryland method | Christopher: federal amendments displace state formula to the extent inconsistent | Held: To the extent Bangs conflicts with USFSPA/NDAA‑17 valuation (freezing variables at divorce), federal law preempts state law; state courts still have discretion whether/how to divide disposable retired pay |
| Entitlement to COLA on awarded share and form of order (direct pay) | Amy: court orally granted COLAs but did not include them in order | Christopher: (not argued heavily) court’s order governs direct payment limits | Held: DoD regs provide that percentage awards automatically receive proportionate COLAs; court should make clear award form and COLA treatment on remand |
Key Cases Cited
- McCarty v. McCarty, 453 U.S. 210 (Sup. Ct.) (federal law preempted state division of military retirement prior to USFSPA)
- Hisquierdo v. Hisquierdo, 439 U.S. 572 (Sup. Ct.) (limitations on treating federal retirement/disability entitlements as divisible by state law)
- Mansell v. Mansell, 490 U.S. 581 (Sup. Ct.) (USFSPA excludes disability‑waived retired pay from state division; limits on direct government payments)
- Howell v. Howell, 137 S. Ct. 1400 (Sup. Ct.) (USFSPA grants states authority to treat disposable retired pay as divisible but within federal limits)
- Andresen v. Andresen, 317 Md. 380 (Md. 1989) (discussing USFSPA’s purpose to restore state court authority over non‑disability retired pay)
- Bangs v. Bangs, 59 Md. App. 350 (Md. Ct. Spec. App.) (approved Maryland’s “if, as, and when” Bangs formula for pension division)
- Dziamko v. Chuhaj, 193 Md. App. 98 (Md. Ct. Spec. App.) (describing valuation options for pensions and Maryland statutory default)