Mark Lawrence JOHNSON, Petitioner and Appellant, v. Elizabeth Ann JOHNSON nka Elizabeth Ann Zoric, Respondent and Appellee.
No. 20100705-CA.
Court of Appeals of Utah.
Jan. 26, 2012.
2012 UT App 22
Bryce M. Froerer, Ogden, for Appellee.
Before Judges VOROS, DAVIS, and CHRISTIANSEN.
OPINION
VOROS, Associate Presiding Judge:
¶ 1 This appeal involves the allocation of the military retirement benefit of an employee spouse pursuant to a 1984 divorce decree. Mark Lawrence Johnson, a retiree from the United States Air Force, seeks review of the amount of his military retirement the trial court awarded to his ex-wife, Elizabeth Ann Zoric. We affirm in part, reverse in part, and remand for further proceedings.
BACKGROUND
¶ 2 Johnson and Zoric were married from 1974 to 1984.1 They had two children together. During the marriage, Johnson accrued approximately ten years of service in the United States Air Force. At the time of the divorce, Johnson was a Staff Sergeant at a pay grade of E-5. In the divorce decree, the trial court awarded Zoric one-half of ten years of Johnson‘s military retirement. Because Johnson‘s retirement had yet to vest, the trial court did not determine a specific amount owed to Zoric.
¶ 3 In 1998, Zoric made an attempt to claim her portion of Johnson‘s retirement; however, the retirement office denied her application on the ground that the court order she submitted lacked specificity. Thereafter, Zoric allegedly made statements to the parties’ adult son to the effect that she was not intending to seek her portion of Johnson‘s retirement. According to Johnson, the son conveyed those statements to Johnson and, as a result, he “made substantial changes in his life financially.”
¶ 4 In 1999, Johnson retired and began receiving military retirement benefits. At that time he was a Master Sergeant at a pay grade of E-7. His military pension was thus calculated based on a pay grade of E-7. In September 2000, Johnson received a veteran‘s disability award for various ailments that arose after the divorce. Johnson‘s final retirement benefit was reduced by amounts Johnson received under that award.
¶ 5 Zoric next attempted to secure her portion of Johnson‘s military retirement in October 2008, when she filed a Qualified Domestic Relations Order (QDRO).2 In keeping with the 1984 divorce decree, the trial court awarded Zoric a share of Johnson‘s actual monthly military retirement benefit. The court calculated her share based on Johnson‘s actual retirement benefit, which was based on Johnson‘s salary at the time of retirement, less the disability reduction. The trial court also calculated Zoric‘s share based on Johnson‘s gross monthly retirement benefit without first deducting federal, state, and local taxes. However, the trial court determined that the doctrine of laches barred Zoric from recovering her share of any retirement benefits paid before she filed the QDRO.
ISSUES AND STANDARDS OF REVIEW
¶ 6 Johnson first contends that the trial court erred by calculating Zoric‘s share of the retirement benefit using his pay grade at the time of retirement instead of his pay grade at the time of divorce. “A trial court has considerable discretion considering property [division] in a divorce proceeding, thus
¶ 7 Johnson next contends that the trial court erred by calculating Zoric‘s share of the retirement benefit based on his gross retirement pay rather than first deducting federal and state taxes. This contention presents a question of law, which we review for correctness. See Maxwell v. Maxwell, 796 P.2d 403, 404 (Utah Ct.App.1990).
¶ 8 Johnson next contends that Zoric‘s claim is barred by the applicable statute of limitations. The application of a statute of limitations is a question of law, reviewed for correctness. See Nolan v. Hoopiiaina (In re Hoopiiaina Trust), 2006 UT 53, ¶ 19, 144 P.3d 1129.
¶ 9 Finally, Johnson contends that Zoric‘s claim is barred by the common law doctrines of estoppel, waiver, and laches. These issues present mixed questions of law and fact. See United Park City Mines Co. v. Stichting Mayflower Mountain Fonds, 2006 UT 35, ¶ 21, 140 P.3d 1200; Nunley v. Westates Casing Servs., Inc., 1999 UT 100, ¶ 31, 989 P.2d 1077; Anderson v. Doms, 1999 UT App 207, ¶ 8, 984 P.2d 392. We review the trial court‘s legal conclusions for correctness and its factual findings for clear error. See United Park City Mines Co., 2006 UT 35, ¶ 21, 140 P.3d 1200; Nunley, 1999 UT 100, ¶ 31, 989 P.2d 1077; Anderson, 1999 UT App 207, ¶ 8, 984 P.2d 392.
ANALYSIS
I. Retirement Calculation: Pay Grade
¶ 10 Johnson contends that the trial court erred in calculating Zoric‘s share of his retirement benefit based on Johnson‘s pay grade at the time of retirement rather than his pay grade at the time of the divorce.
¶ 11 An employee spouse‘s retirement benefits are subject to equitable distribution in a divorce proceeding, provided that the benefits “accrued in whole or in part during the marriage.” Woodward v. Woodward, 656 P.2d 431, 433 (Utah 1982). Where the benefits accrued in part during the marriage, the nonemployee spouse‘s share is calculated using what is commonly known as the time rule formula. See In re Marriage of Hunt, 909 P.2d 525, 531 (Colo.1995). The time rule formula employs a “marital fraction” to calculate the nonemployee spouse‘s interest in the employee spouse‘s pension benefit:
The marital fraction consists of the numerator[,] which is the number of years (or months if more accurate) that the employee spouse has earned towards the pension during the marriage, over the denominator, which is the number of years (or months if more accurate) of total service towards the pension. The marital fraction is multiplied times the monthly benefit and divided in half (in order to divide the marital portion of the pension benefits).
Id.
¶ 12 Utah‘s version of the time rule formula was explained in Woodward v. Woodward, 656 P.2d 431 (Utah 1982). In Woodward, the husband accrued fifteen years towards his government pension during the parties’ marriage, but the parties divorced before the husband‘s pension had fully vested. See id. at 431-32. The husband needed to work thirty years to qualify for a government contribution to his pension, which would be made at the time the husband retired, at least fifteen years after the divorce. See id. at 432. The issue was whether the amount of the husband‘s pension that would be contributed by the government at his retirement was a marital asset and thus apportionable by the trial court at the time of the divorce. See id. at 431-32. Much like the argument advanced by Johnson in the instant case, the husband in Woodward argued that the wife had no right to the amount of his pension that would be contributed by the government because that amount was contingent upon his continued government employment after the divorce. See id. at 432.
¶ 14 Here, the trial court applied the Woodward formula without elaboration. It divided the number of years of the marriage (ten) by the number of years of the husband‘s employment (twenty-four) and multiplied the quotient by the wife‘s share (one-half), yielding a percentage of 20.8%. Thus far the parties agree.3 They part company on the question of what benefit amount this percentage should be applied to. The trial court applied it to Johnson‘s actual monthly retirement benefit, which is based on his pay grade at retirement, E-7.
¶ 15 Johnson maintains that Zoric‘s share should be calculated by using his pay grade at the time of the divorce, E-5. Johnson argues that using his pay grade at the time of retirement allows Zoric to unjustly reap the benefits of rank advancements that he achieved—without her help—after the parties’ divorce. Zoric responds that Johnson seeks the benefits of his post-divorce years of service without the burdens. While Johnson‘s years of service after the divorce allowed him to increase his pay grade and thus his retirement benefit, they also diluted Zoric‘s share from 50% to 20.8%. Thus, she reasons, if her portion of his retirement benefit is calculated based on his pay grade at the time of the divorce, it should likewise be calculated based on her spouse‘s share at the time of the divorce (50%). Similarly, Zoric argues that if Johnson alone enjoys the benefit of post-divorce pay grade increases, he alone should bear the burden of the deduction based on his post-divorce disability.
¶ 16 The approach advocated by Johnson is sometimes referred to as the “bright line” rule.4 Cases applying this rule “equate post-dissolution pension benefit enhancements with post-dissolution earnings.” In re Marriage of Hunt, 909 P.2d 525, 533 (Colo.1995). A number of jurisdictions have applied this rule and held that the employee‘s salary at the time of the divorce should be used in calculating the spouse‘s share of a pension benefit. See, e.g., Armstrong v. Armstrong, 34 S.W.3d 83, 87 n. 4 (Ky.Ct.App.2000) (collecting cases).
¶ 17 The approach advocated by Zoric is sometimes referred to as the “marital foundation” theory. This approach treats post-divorce benefit enhancements as marital property. See Hunt, 909 P.2d at 532. Courts employing this method maintain that post-divorce rank enhancements are often attainable only due to the “foundation work and efforts undertaken during the marriage.” See id. at 533-34 (gathering cases);
¶ 18 Like the “marital foundation” approach, the Woodward formula applies the marital fraction to the employee spouse‘s actual “retirement benefits.” Woodward, 656 P.2d at 433-34. Woodward never suggests that the marital fraction should instead be applied to a hypothetical figure based on what the employee spouse‘s retirement benefit would have been had he received no salary increases after the date of the divorce. To do so would add a significant step to the Woodward formula.
¶ 19 Moreover, as noted above, the Woodward court stated that because the husband “must work for a total of thirty years, his pension benefits, including any contribution by the government, are as dependent on the first fifteen years as the last fifteen.” Id. This statement is consistent with the underlying rationale of the “marital foundation” theory, but inconsistent with the underlying rationale of the “bright line” theory advocated by Johnson.
¶ 20 The trial court here merely applied the Woodward formula as written, without taking the additional step that Johnson urges, but that Woodward itself never mentions. The trial court thus acted well within its discretion.
II. Retirement Calculation: Net Benefit
¶ 21 Johnson next challenges the trial court‘s ruling that Zoric‘s share of the retirement benefit should be calculated “prior to the deduction of any taxes.” Johnson contends that “federal and state taxes should be removed from [his] disposable retired pay before any allocation is determined.” We agree.
¶ 22 This court addressed this issue in Maxwell v. Maxwell, 796 P.2d 403 (Utah Ct.App.1990). In Maxwell, we noted that the United States Former Spouses Protection Act,
¶ 23 Accordingly, we reverse the ruling of the trial court on this issue and remand for the court to recalculate Zoric‘s portion of the retirement benefit using Johnson‘s “gross retirement pay less authorized deductions, including amounts properly deducted for federal, state, or local taxes.” Id. (citing
III. Statute of Limitations
¶ 24 Johnson next contends that Zoric‘s claim to a share of his pension benefits is barred by the statute of limitations. As stated above, the trial court awarded Zoric no portion of the retirement benefits paid before
¶ 25 Johnson contends that Zoric‘s claim is wholly barred by the applicable statute of limitations. He relies on
¶ 26 Johnson‘s argument is foreclosed by Seeley v. Park, 532 P.2d 684 (Utah 1975). The question before the court in Seeley was “whether or not the statute of limitation applies to past due unpaid installments under a divorce decree.” Id. at 684. The court held that “[i]nstallments under a decree of divorce for alimony or support of minor children become final judgments as soon as they are due and cannot thereafter be modified.” Id. Accordingly, “the statute begins to run against the judgment from the time fixed for the payment of each installment for the part then payable.” Id. at 685 (quoting Simmons v. Simmons, 67 S.D. 145, 290 N.W. 319, 320 (1940)).
¶ 27 Although Seeley did not expressly address pension benefits, we see no reason—and Johnson suggests none—why it should not apply to them. Moreover, exempting retirement benefits from Seeley‘s rule could result in an unacceptable anomaly in cases such as this. If the limitations period had begun to run upon entry of the decree, it would have expired on Zoric‘s retirement benefits claim before Johnson missed his first payment. Such an outcome would be troublesome at the very least. See Berry v. Beech Aircraft Corp., 717 P.2d 670, 682-86 (Utah 1985) (invalidating a statute under
¶ 28 Accordingly, we conclude that the trial court did not err in rejecting Johnson‘s argument that the limitations period should run from the date of the decree.
IV. Common Law Defenses
¶ 29 Finally, Johnson argues that the trial court erred in rejecting his common law defenses of estoppel, waiver, and laches. We decline to address the merits of these arguments because they are inadequately briefed.
¶ 30 An adequately briefed argument “contains the contentions and reasons of the appellant with respect to the issues presented, including the grounds for reviewing any issue not preserved in the trial court, with citations to the authorities, statutes, and parts of the record relied on.”
¶ 31 The section of Johnson‘s brief addressing estoppel, waiver, and laches does not satisfy the requirements of rule 24 of the Utah Rules of Appellate Procedure. Although Utah courts have thoroughly addressed these doctrines, the brief cites no Utah cases. Nor does it cite to the “parts of the record relied on” as required by rule 24. See
CONCLUSION
¶ 32 The trial court acted well within its discretion in applying the Woodward formula as written rather than adding a step to that formula not included by our supreme court. In addition, the court did not err in rejecting Johnson‘s statute of limitations argument. However, the trial court acted in violation of controlling law by calculating Zoric‘s share of Johnson‘s military retirement benefit before adjusting Johnson‘s benefit for state and federal taxes. Finally, we decline to reach the merits of Johnson‘s inadequately briefed estoppel, waiver, and laches challenges.7
¶ 33 Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
¶ 34 I CONCUR: MICHELE M. CHRISTIANSEN, Judge.
JAMES Z. DAVIS, Judge (concurring in part and dissenting in part):
¶ 35 I concur in the majority‘s opinion except as to Part I. I think the trial court should have used the salary Johnson would have been earning at the time of retirement if he had continued at the E-5 rank in calculating Zoric‘s share of the retirement benefit.
¶ 36 First, I disagree with the majority‘s assertion that the trial court‘s calculation of the benefit was subject to an abuse of discretion standard. Certainly, a trial court‘s award of retirement benefits is entitled to deference.1 See Oliekan v. Oliekan, 2006 UT App 405, ¶ 16, 147 P.3d 464. But the award itself was determined by the trial court when the parties divorced in 1984: Zoric was awarded half of the marital share of the retirement benefit, to be paid as Johnson began receiving the retirement benefit. When Zoric sought to actually obtain her share of the retirement benefits in 2008, the trial court was tasked only with determining whether the additional benefit realized as a result of Johnson‘s promotion was subject to distribution under the Woodward formula, a determination that, unlike the award itself, is not entitled to deference. Where a party has been awarded an equal share of the marital portion of the other party‘s retirement, as here, the correct calculation is a matter of law because it turns on the question of what portion of the retirement benefit constitutes marital property. See generally Poll v. Poll, 2011 UT App 307, ¶ 6, 263 P.3d 534 (explaining that the question of whether property is marital or separate is a question of law, which we review for correctness), cert. denied, No. 20110894 (Utah Jan. 17, 2012).
¶ 37 I believe that the entire difference between the E-7 retirement benefit and the E-5 retirement benefit should be considered separate property, as a matter of law, and that Zoric should not be entitled to a 20.8% share of that difference. Thus, I disagree with both the “bright line” theory and the “marital foundation” theory, see supra ¶¶ 16-17, as used in the context of this case. This is not a situation where the employee spouse received normal raises, such as cost of living and the like, while continuing in the same employment. In such a situation, I would agree with the majority that the marital foundation theory is the more appropriate
¶ 38 My approach is not equivalent to that advocated by the bright line approach, which calculates a spouse‘s share of a pension benefit using the employee‘s salary at the time of divorce, see supra ¶ 16, because I would give Zoric the benefit of increases to the retirement benefit due to normal raises in the E-5 salary—a benefit I believe she is entitled to in return for her having to wait for payment of her share of the retirement. Given that the E-5 salary at the time of Johnson‘s retirement may be easily determined,4 I would calculate Zoric‘s pension benefit as 20.8% of the benefit Johnson would have received if he had retired at the E-5 rank.5 I do not believe that this approach would unduly complicate the Woodward formula, and I think it would ultimately result in a more accurate and equitable method of dividing the marital portion of undefined retirement assets.