Circuit Court for Prince George's County Case No.
Meredith, Graeff, Raker, Irma. S. (Senior Judge, Specially
case arises from a divorce action between Amy Fulgium,
appellant, and Christopher Fulgium, appellee. On July 31,
2017, the Circuit Court for Prince George's County issued
a Judgment of Absolute Divorce and a Constituted Pension
Order relating to Mr. Fulgium's military retirement
appeal, Ms. Fulgium challenges only the award of military
retirement benefits. In that regard, she presents five
questions for this Court's review,  which we have
consolidated and rephrased, as follows:
1. Did the circuit court err in incorrectly calculating Ms.
Fulgium's marital share of Mr. Fulgium's military
2. Did the circuit court err by not entering a constituted
pension order that awarded cost-of-living adjustments to Ms.
Fulgium's share of Mr. Fulgium's military pension?
reasons set forth below, we answer the first question in the
affirmative, and therefore, we shall vacate the judgment of
the circuit court and remand for further proceedings.
AND PROCEDURAL BACKGROUND
Fulgiums were married on July 8, 2005. No children were born
during the marriage. Mr. Fulgium has been an active duty
member of the United States Marine Corps since July 12, 1999.
30, 2017, Mr. and Ms. Fulgium entered into a Partial Marital
Settlement Agreement (the "Agreement"). The
Agreement settled all issues regarding the divorce, with the
exception of alimony, Mr. Fulgium's military pension, and
attorney's fees. The parties planned to address these
issues at a trial on the merits.
began that same day, May 30, 2017. Ms. Fulgium requested
"three years of alimony," a portion of Mr.
Fulgium's military pension, and attorney's fees. With
respect to the pension, counsel stated that the Federal
Government had changed the way pensions were dealt with by
[I]t used to be like we do with all other pensions, you have
the Bangs formula, where the number of years that . . . the
parties were married . . . over all the overall time that
employee was working for the, for the company. That's no
longer the case.
What they now decided on a Federal basis is that the bottom
number is frozen as of the time that the parties get
divorced, so even though the pension will continue to grow
for Mr. Fulgium, my client's not entitled to share in
that anymore and that's nothing that this Court decides,
it's just what the Federal law now is.
Fulgium asked that the court deny Ms. Fulgium's claims
for alimony and attorney's fees. He asked that the court
award him the "full amount of his military retired
trial, Mr. Fulgium testified that his marriage to Ms. Fulgium
first started to deteriorate in 2011, when he became aware
that she had been involved in "intimate action with
neighbors" while he was deployed. He testified that,
although Ms. Fulgium had been "extremely
responsible" when they first got married, she began
spending a lot of money over the course of the marriage, and
money he had saved was depleted.
Fulgium, who was 36 years old at the time of trial, testified
that his rank in the Marines was a "Chief Warrant
Officer 2." According to his W-2 forms for the years
2014, 2015, and 2016, he made $52, 950.60, $56, 264.45, and
$60, 195.60, respectively. Mr. Fulgium had a high school
education, and he used his GI bill, in the amount of
approximately $27, 000, to help Ms. Fulgium earn her
Fulgium, who was 31 at the time of trial, was living in
California. She testified that she received her master's
degree in 2014. It took her three years to complete the
degree, and she received 12 months' credit from the GI
Fulgium testified regarding her health during the marriage.
She had several medical conditions that required surgery, and
Mr. Fulgium helped her after the surgeries. As of the date of
trial, however, Ms. Fulgium was healthy, with no health
complications. Ms. Fulgium testified that, in 2016, her
annual earnings were $55, 582.17. Her monthly expenses were
less than her earnings.
the evidence was presented, counsel for Mr. Fulgium asked
that he receive his full share of his retired pay. Counsel
for Ms. Fulgium requested that she be awarded a share of the
pension "from the date they got married until the date
they got divorced."
27, 2017, the circuit court held a disposition hearing. The
court denied each party's request for attorney's
fees, and Ms. Fulgium's request for alimony.
respect to Mr. Fulgium's military pension, the court
discussed the "National Defense Authorization Act of
fiscal year 2017, known as [N]DAA 17," which revised
"how pension orders are written and will operate."
The court stated:
In accordance with [N]DAA 17, the hypothetical retired pay
attributable to the rank and years of service of a military
member at the time of the applicable order will be divided
rather than a percentage of the total retirement following
the service member's retirement. So the [c]ourt has used
this with regard to the pension.
The pension benefit to be divided is frozen as of the date of
the entry of this order, which will be if one of you does the
order. The only adjustment will be the cost of living
adjustment made under 10 U.S.C. Section 1401(a)(b) between
the time of the court order [and] the time of retirement.
In practice, this number is gathered by the highest 3 years
of continuous pay. That's often the most 3 recent years.
This element must be multiplied with the retired pay
multiplier, which is 2.5 times of credi[table] service at the
time of the order.
Here, Mr. Fulgium submitted his W-2 statements for 2014,
2015, and 2016, tax forms reflecting annual compensation of
$52, 950.60, $56, 463.95, and $60, 195.60 respectively.
Therefore, on average, Mr. Fulgium earned $56, 536.72 over
the past 3 years. He has been enlisted in the Marine Corps
for 215 months, which equals 17.9 years, resulting in a
retired pay multiplier of 0.448. The 17.9 years credited
times 2.5 percent when this amount is multiplied by the
highest three, the resulting gross pay amount is $25, 300.18.
Thus using the formula under [N]DAA 17, which was passed
December of 2016[, ] [Ms.] Fulgium shall be awarded 15
percent of disposable military retired pay Mr. Fulgium would
have received, had the member retired with retired base high
of $56, 536.72, as of today, June 27, 2017.
So as of today-well, this number has to be adjusted because
the order is not ready today. I need to redo this,
recalculate this, but as of today's date, Mr.
Fulgium's retired base pay is $56, 536.72 following 17
years, 19 [sic] months of credible service. That, to date,
Mr. Fulgium's annual payout in accordance with that 215
months of service is at an annual rate of $25, 300.18. [Ms.]
Fulgium should be awarded marital portion of pension as had
accrued on the date of this order using that formula.
response to the circuit court's oral ruling, counsel for
Ms. Fulgium asked the court to clarify whether it awarded Ms.
Fulgium 50% of Mr. Fulgium's disposable military pay or
15%. The following colloquy between the court and counsel for
Ms. Fulgium ensued:
THE COURT: Fifteen. I did that because of the number. When
you take the number, when I multiplied, it came out to be
$16, 000; and 50 percent of that 16, which is the 12 years
they were married, the 50 percent of the 16 is $8, 000. That
$8, 000 is 15 percent of the $25, 000. That makes sense.
[COUNSEL]: It didn't, to me.
THE COURT: When you figure it out using the formula, it is
different. But when I figured out the formula, by using the
formula I did, I came up with a number that was $16,
[COUNSEL]: Which was what?
THE COURT: Which was based on his years of service while they
were married. And 50 percent of that $16, 000, which would be
her pension, 50 percent of that would be $8, 000. The $8, 000
then from the $25, 300.18 -- I'm sorry. The 15 percent of
that is $8, 000. So that's why I said 15 percent of that
$25, 000 number. That might have been a convoluted way to say
[COUNSEL]: Off the top of my head, wouldn't $8, 000 - if
you use 25, wouldn't that be roughly a third?
THE COURT: No. It's 50 percent of the 16. The 25, 000 is
THE COURT: Oh, you're saying a third. 32 percent? I think
you're right. I think I did that wrong.
[COUNSEL]: It would seem to me that -
THE COURT: I think you're right. That number is
The goal is [Ms.] Fulgium will be awarded 15 percent of
disposable military retired pay, [that] Mr. Fulgium would
have received, had he retired with a retired base high of
$56, 536.72 with his 17 years and 9 months of creditable
service as of today's date.
circuit court explained that the 15% was 50% of the 11.11
years they were married, which was $16, 000, and 50% of that
"is 8." The court stated that it would order
"that [Ms.] Fulgium shall be granted the marital portion
of Mr. Fulgium's military pension in accordance with the
National Defense Authorization Act of 2017," and it
requested that counsel "draft the appropriate military
divorce order in accordance with the National Defense
Authorization Act of 2017, for the division of Mr.
Fulgium's military pension." With respect to Ms.
Fulgium's entitlement to cost-of-living adjustments
("COLAs") for her share of Mr. Fulgium's
military pension, the court stated that it believed that Ms.
Fulgium was entitled to COLA, but "[i]t's whatever
the law says."
the circuit court's oral ruling, the parties could not
agree on the terms for the order dividing military retirement
pay. The circuit court requested that each party submit a
proposed order for the court's review.
31, 2017, the court issued the Constituted Pension Order,
which stated, in pertinent part, as follows:
4. This Order is intended to qualify under the Uniformed
Former Spouses Protection Act (USFSPA), 10 U.S.C. Sec. 1408
et seq., as amended by the National Defense
Authorization Act of 2017 (NDAA), with all provisions to be
interpreted in light of USFSPA, as amended.
* * *
6. (a) The Former Spouse is awarded 15% of the disposable
military retired ...