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Fulgium v. Fulgium

Court of Special Appeals of Maryland

February 27, 2019


          Circuit Court for Prince George's County Case No. CAD16-32242

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


          Graeff, J.

         This 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 benefits.

         On appeal, Ms. Fulgium challenges only the award of military retirement benefits. In that regard, she presents five questions for this Court's review, [1] 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 pension?
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?

         For the 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.


         The 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.

         On May 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.

         Trial 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 the military:

[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.

         Mr. 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 pay."

         At 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.

         Mr. 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 master's degree.

         Ms. 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 bill.

         Ms. 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.

         After 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."

         On June 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.

         With 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.

         In 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, 000-and-some-odd dollars.
[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 it.
[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 15 percent.
[COUNSEL]: Right.
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 incorrect.
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.

         The 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."

         After 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.

         On July 31, 2017, the court issued the Constituted Pension Order, [2] which stated, in pertinent part, as follows:

4. This Order is intended to qualify under the Uniformed Services
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 ...

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