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April 3, 2026 Get Citation Alerts Download PDF Add Note

Campbell v. Campbell

Court of Special Appeals of Maryland

• Citations: None known
• Docket Number: 0911/23

• Judges: Meredith

• Opinion

• Authorities (27)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.4K)

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Combined Opinion

Kelly Marie Harrigan Campbell v. Kevin John Campbell, No. 911, Sept. Term, 2023.
Opinion by Meredith, J. Filed April 3, 2026.

DIVORCE – MILITARY RETIREMENT PAY – CALCULATION OF MARITAL
PROPERTY COMPONENT OF RETIRING SPOUSE’S RETIREMENT BENEFIT

In analyzing the portion of military retirement pay earned by a divorcing spouse that
constitutes marital property, a Maryland court will generally utilize a computation based
upon months of time in service for a service member who retired from active duty and will
generally utilize a computation based upon service points for a service member who retired
from reserve duty. When the military retirement benefit is the result of a combination of
both active duty and reserve service, the court may—and generally should—use a
computation based upon points to calculate the portion of the retirement pay that is marital
property.
Circuit Court for Anne Arundel County
Case No.: 02-C-08-136227

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 911

September Term, 2023

---

KELLY MARIE HARRIGAN CAMPBELL

v.

KEVIN JOHN CAMPBELL

---

Graeff,
Tang,
Meredith, Timothy E.
(Senior Judge, Specially Assigned),

JJ.

---

Opinion by Meredith, J.

---

Filed: April 3, 2026

Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2026.04.03
'00'04- 14:58:35
Gregory Hilton, Clerk
Kelly Marie Harrigan Campbell (“Wife”), appellant, was divorced from Kevin John

Campbell (“Husband”), appellee, in the Circuit Court for Anne Arundel County in 2009.

Prior to entry of the judgment of divorce, the parties had negotiated a marital settlement

agreement that addressed the division of their marital property, including, but not limited

to, Husband’s military retirement benefits. The marital settlement agreement was

incorporated, but not merged, into the Judgment of Absolute Divorce.

Approximately nine years after the parties’ divorce, Husband retired from the

military. Wife sought a court order directing the Defense Finance and Accounting Service

(“DFAS”) to pay directly to her the portion of Husband’s military retirement pay that she

was entitled to receive pursuant to the marital settlement agreement. The parties disagreed

about the portion of Husband’s military retirement benefits Wife was entitled to receive,

and they filed competing motions in the circuit court. The circuit court agreed with

Husband’s assertion that the correct computation entitled Wife to receive 15.96% of

Husband’s gross disposable military retired pay, and, on at least two separate occasions,

the court entered an order to that effect. The court also ordered Husband to pay Wife

backpay for past-due amounts.

Wife noted this appeal and presented three questions:

1. Did the circuit court err as a matter of law when it held that it did not
   

   have authority to make substantive changes to the March 3, [2022]
   order [that held Wife should receive 15.96% of Husband’s military
   retired pay]?

2. Is [Wife] entitled to a 27.3% share of [Husband’s] military pension
   

   pursuant to [f]ederal law?

3. Was the circuit court’s striking of [Wife’s] Supplemental Post
   

   Hearing Memorandum arbitrary and capricious[?]

For the reasons set forth herein, we shall affirm the judgment of the circuit court.

BACKGROUND

The parties married on May 8, 1998, and a final judgment of divorce was entered

on April 9, 2009. Prior to the judgment of divorce being entered, the parties entered into a

marital settlement agreement on September 19, 2008, wherein they agreed that a portion

of Husband’s military retirement benefits would constitute marital property that they would

divide equally, and they included the following provision in Paragraph 27 of the agreement,

stating:

The parties agree that a court of competent jurisdiction shall enter an order
which directs the Maryland Air National Guard to pay directly to Wife such
amount as is equal to fifty percent (50%) of the “marital property portion” of
Husband’s disposable retired pay. The “marital property portion” of the
monthly retired pay shall be a fraction of the total monthly retired pay,
and shall be defined as follows: the numerator shall be the total number
of points accumulated during Husband’s creditable service during the
parties’ marriage, and the denominator of which shall be the total
number of points credited to Husband for retirement purposes. Husband
shall execute such documents and perform such acts as may be necessary or
required so that Wife shall receive her share of the gross monthly retired pay
directly from the Maryland Air National Guard, including but not limited to
any forms which Husband is required to execute by the Maryland Air
National Guard in order to effectuate the terms of this Judgment of Absolute
Divorce.[1]

1
In Smith v. Smith, 266 Md. App. 106, 124-25, cert. denied, 492 Md. 430 (2025),
we noted that points are earned for military retirement purposes as follows:

To calculate military retired pay, a member of the military in active service
earns one point for each day of active service, while a reservist earns a point
for every day certain activities are conducted. See generally Department of
Defense, DoD 7000.14-R, Financial Management Regulation [hereinafter
DoD FMR, Vol. 7B, Ch. 3], Vol. 7B., Ch. 3 (Sept. 2022).
2
(Emphasis added.)

Although this provision, on its face, suggests that this computation would be

relatively simple, the arithmetic was complicated by Husband’s continued military service

after the divorce. Husband’s resumption of full-time active duty resulted in his retirement

being classified as an “active duty” retirement rather than a “reserve duty” retirement.

Husband’s military service was served partly on active duty, but the majority of his service

during this marriage was in the reserves. Husband was an active-duty service member in

the United States Air Force from May 30, 1990, through April 1, 1999. (As noted above,

the parties married on May 8, 1998, and the final judgment of divorce was entered April 9,

2009.) He served on reserve duty in the Air National Guard from September 22, 1999,

through June 20, 2013, and, therefore, was on reserve duty at the time of the parties’

divorce. Four years after the divorce, Husband resumed active-duty service with the United

States Air Force on June 21, 2013, and he remained on active-duty status until he retired

from the military on April 1, 2018.

We note that, after this appeal was filed and argued, this Court observed in Smith,

266 Md. App. at 126: “[W]hen the military retirement benefit is a result of the combination

of active and reserve component service, points are the proper method for calculating the

fraction” of the benefit that is marital property. Although that statement is consistent with

Husband’s position in this case, Wife does not agree that her share should be computed

using points, and that led to a number of hearings in the circuit court.

3
It appears the circuit court’s post-divorce involvement in the battle regarding the

proper calculation of Wife’s share of Husband’s military retirement pay was initiated on

July 19, 2019, when Wife filed a motion that included a section captioned Motion for

Appropriate Relief for Co[n]stituted Pension Order. She asserted that, pursuant to “the

parties’ divorce agreement, [Wife] is entitled to a Constituted Pension Order, awarding her

a portion of [Husband’s] retirement pay.” Although she attached the marital settlement

agreement as an exhibit, she did not quote verbatim the language of Paragraph 27 regarding

the computation of the “ʻmarital property portion’ of Husband’s disposable retired pay.”

Instead, Wife asserted in her motion: “The amount is to be computed by multiplying fifty

percent times a fraction, the numerator of which is the number of months of marriage

during [Husband’s] creditable military service divided by [Husband’s] total number of

months of creditable service as of the date of divorce [sic].”

Wife’s motion of July 19, 2019, further asserted:

The duration of the marriage in relation to the time [Husband] performed
creditable [service] for retirement pay is 10 years and 10 months, one
hundred and thirty months total. The total amount of [Husband’s] active duty
service performed was twenty years and nine days or a total of two hundred
and forty months. Therefore, the fraction used in the calculation is 130/240.
Which means the parties were married 54.17 percent of [Husband’s]
performed active duty creditable service. Multiplying this by fifty percent
equals 27 percent of [Husband’s] retired pay which should be awarded to
[Wife] in a Constituted Pension Order.

On August 27, 2019, Husband filed an answer to Wife’s July 19, 2019 motion, and

Husband expressed his disagreement with “the manner in which [Wife] has recited the

extent of her entitlement to those [military retirement] benefits.” Husband noted that he

had filed his own motion on August 15, 2019, requesting that the court enter an order

4
computing Wife’s share based on points. In Husband’s motion filed August 15, 2019, he

asserted:

b- That [Husband] entered military service on May 30, 1990.

c- That [Husband] retired from the military services on March 31,
2018. . . .

d- That during [Husband’s] time in the military, he earned 8369
points.

e- That the parties were divorced from one another on April 3,
2009.

f- That, during the time of the marriage, [Husband] earned 2672
points.

g- That [Wife], pursuant to the [Marital Settlement Agreement
dated September 19, 2008,] was entitled to a marital award which was equal
to 50% of the percentage of a fraction, the numerator of which were the
points earned by [Husband] during the marriage and the denominator of
which were the total number of points earned during the time that [Husband
served] in the military times the amount of [Husband’s] military retirement
pay at the time of the divorce.

When converted to a percentage, the fraction produced by dividing 2672 by 8369 is

31.927%, and one-half of that percentage is 15.96%. Husband’s motion filed August 15,

2019, asked the court to enter his proposed Order for Division of Military Retirement Pay

directing DFAS to pay Wife 15.96% of Husband’s disposable military retired pay. In

support of this motion, Husband filed a copy of the marital settlement agreement, a

proposed order for dividing his military benefits, a document summarizing his service

history and points awarded for his service, and a letter from the Department of the Air

Force.

5
Litigation skirmishes ensued, including discovery, disputes about discovery,

miscellaneous motions and mediation, as well as dealing with the scheduling issues created

by the COVID pandemic. Eventually, the circuit court scheduled the competing motions

relative to the military retirement pay for an evidentiary hearing on the merits to be

conducted on November 18 and 19, 2021. At those hearings, Wife urged the court to

consider two issues: modification of child support payments, and issuance of a “constituted

pension order” addressing division of Husband’s military retirement pay.

With respect to the retirement pay, Wife asserted that the language in the marital

settlement agreement regarding a fraction based upon Husband’s points should not apply

because Husband had retired from the military while serving on active duty. Representing

herself at the hearing, Wife argued that her position was supported by Marquis v. Marquis,

175 Md. App. 734 (2007). In Marquis, this Court observed that a constituted pension order

(sometimes referred to as a “CPO”) is similar to a Qualified Domestic Relations Order

(sometimes referred to as a “QDRO”), but a CPO is “applicable to military retirement pay.”

Id. at 739 n.1.

Wife further argued, at one point during the hearing, that the division of Husband’s

military retirement pay was governed by Paragraph 26 of the marital settlement agreement

rather than Paragraph 27. Her theory was that Paragraph 27 referred to the Maryland Air

National Guard whereas Husband’s retirement pay was based upon twenty years and nine

days of service in the United States Air Force. Wife’s contention (at that point) was that

Paragraph 27 only “pertains to a National Guard pension.” When the court said to Wife, “I

6
understand your position is that it is no longer a National Guard pension because it is now

some active-duty pension is your argument[,]” Wife answered yes.

Husband responded, through counsel, that, unlike the Marquis case, Wife and

Husband in this case expressly agreed to the computation of the marital property portion

of Husband’s military retirement pay by dividing the points he earned during their marriage

by the points Husband earned over the course of his entire service in the military prior to

retirement. We see nothing in Marquis that precludes the use of points to compute the

marital property portion of a spouse’s military retirement pay.

Husband further pointed out to the court that, if the fraction was to be computed

using only his twenty years and nine days of active-duty service as the denominator, the

pertinent active-duty time served during his marriage to Wife was only five years, seven

months and sixteen days. In his view, if the denominator was 240 months, the correct

numerator to use would be sixty-eight months, which would yield a marital property

fraction of 28.3%, and Wife’s one-half share of that would be 14.2% of the military retired

pay. But his primary argument was that the court should utilize the formula that the parties

had agreed to in their marital settlement agreement—which had been incorporated into the

judgment of divorce—and the percentage should be calculated using his points for the

entirety of his military service in the Maryland Air National Guard and the United States

Air Force.

At the conclusion of the two-day hearing, the court orally advised the parties of

rulings that would guide the court in framing an order regarding Wife’s share of Husband’s

military retirement benefits. The court recognized that Wife wanted the court to sign an

7
order that would be reflective of her position that the computation of the marital share

should be done using months of service instead of service points, and that Wife also

asserted that the computation should be done pursuant to Paragraph 26 of the marital

settlement agreement (regarding a civil federal pension) rather than Paragraph 27

(regarding military service). But the court was not persuaded by Wife’s arguments and

explained that, in the marital settlement agreement dated September 19, 2008,

the parties reached an agreement on how to deal with [Husband’s] retirement,
and both paragraphs that are pertinent in this case are paragraphs 26 and 27.

There is little argument on the parties’ part with regards to the actual
figures. We have the date [Husband] began in the military; everyone is in
agreement. The date of the marriage; everyone is in agreement. The date of
the divorce; everybody is in agreement. And the date of his retirement;
everybody is in agreement. Everybody is in agreement as to the points with
– and how they are attributed because there was documentation submitted to
the [c]ourt.

---

[Wife’s] argument is . . . that because he retired . . . from the Air Force, it
transitions this into a federal retirement and makes it into a federal employee
retirement, a FERS, which is then controlled by . . . paragraph 26 . . . . And
[Husband’s] argument is that . . . it is still military [retirement,] and it is
controlled by paragraph 27.

---

I do not see any evidence that has been presented to the [c]ourt that this
retirement is no longer a military retirement and should be in any way
converted to a Federal Employees Retirement System, a FERS.

And . . . the [c]ourt is going to find that paragraph 27 controls. I have
read the case law that was submitted by [Wife], and I do not think that that
mandates that the [c]ourt apply a Bangs formula. [See Bangs v. Bangs, 59
Md. App. 350, 356 (1984).]

---

8
So the [c]ourt’s ruling is that the constituted pension order . . . with
regards to [Husband’s] retirement should be in accordance with paragraph
27, and it should be done by points as opposed to by years or time.

The court agreed specifically with Husband’s contention that Wife’s share of his

military retirement pay would be 15.96% of the gross disposable pay, and the court directed

Husband’s counsel to submit an order consistent with those rulings.

The court signed an order on December 10, 2021, docketed December 14, 2021,

finding that “the ‘marital portion’ of Husband’s disposable retired pay is calculated as

follows: number of ‘points’ accumulated for Husband’s service during marriage divided

by the number of ‘points’ accumulated by Husband for [his] total service upon

retirement[.]” The order included a statement that the court “FOUND that the number of

points accumulated during the parties’ marriage is 2,672 and the number of points

accumulated for Husband’s total service is 8,369.” The court therefore found that “the

marital portion of [Husband’s] disposable retired pay is 31.93%[,]” and the court granted

Wife “a 15.96% share of [Husband’s] retirement pay” “commencing on April 1, 2018, the

date of Husband’s retirement[.]”

On February 2, 2022, Husband’s counsel filed a motion asking the court to accept

the proposed military retired pay division order counsel submitted, explaining that the

parties were at an impasse with respect to approval of the terms that should be included in

that order. On February 17, 2022, Wife, through counsel, filed a response objecting to

certain language in the draft order submitted by Husband’s counsel, and Wife asked the

court to sign the alternative pay division order submitted by Wife.

9
On March 3, 2022, the circuit court entered a Military Retired Pay Division Order,

consistent with the terms of the circuit court’s December 14, 2021 order. Paragraph 1 of

the March 3, 2022 order provided:

Defendant (Former Spouse) [Wife] is awarded 15.96% of Plaintiff’s
(Member’s) [Husband’s] gross disposable military retired pay, without any
deductions for survivor benefits or other deductions. The marital property
portion of the monthly gross disposable military retired pay shall be: 50%
times a fraction – the numerator shall be the total number of points
accumulated during the member’s creditable military service during the
marriage (2672 points); the denominator shall be the member’s total number
of points accumulated during the member’s creditable military service for
retirement purposes (8369 points). This fraction shall be multiplied times the
amount of the member’s gross disposable military retired pay, including any
applicable cost of living increases.

Paragraph 6 of the March 3, 2022 order stated:

This Order is a final judgment. The [c]ourt retains jurisdiction to enter
additional orders and to amend this Order for the purpose of acceptance by
the military, to effectuate the terms of the parties’ Judgment of Absolute
Divorce and to settle any and all disputes between the parties relative to the
benefits provided in this Order. Any such order may be entered nunc pro
tunc, if appropriate.

Neither party noted an appeal within thirty days after entry of either the order

entered December 14, 2021, or the Military Retired Pay Division Order entered on March

3, 2022.

Instead, it appears that Wife submitted the March 3, 2022 Military Retired Pay

Division Order to DFAS with an application for payment of benefits. By letter dated March

21, 2022, DFAS notified the parties that the direct payment of a portion of Husband’s

benefits to Wife was not approved for the following reasons:

The Military Retired Pay Division Order must be certified by the Clerk of
the Court.

10
Per Volume 7B, Chapter 29, Paragraph 290607 B [of the Department of
Defense Financial Management Regulations]:

If the court order requires the designated agent to supply the
denominator of a marital or coverture fraction, and the member qualifies for
an active duty (i.e., regular service) retirement, the formula award must be
expressed in terms of whole months. The numerator of the formula fraction
is the number of months of marriage during military service. This number
must specifically be provided in the court order. The denominator of the
formula is the member’s total number of months of creditable military
service. The designated agent will provide the denominator if needed to
compute the formula. Any days or partial months of service will not be
considered. [sic] If the award is expressed in terms of years instead of
months.

Please submit a clarifying order which contains the formula in terms
of months of service since the member retired as active duty.

Husband’s counsel then submitted to DFAS a certified copy of the March 3, 2022

order, and a certified copy of the December 14, 2021 order. DFAS again declined to process

the order for direct payment and sent Wife a letter dated June 2, 2022. This letter omitted

the reference to Paragraph 290607 B of the Department of Defense Financial Management

Regulations (“DoD 7000.14-R”) and did not cite any other regulation, but advised:

Your application cannot be approved for the following reason(s):

The court order provides for a division of retired/retainer pay by
means of a formula wherein the numerator (length of marriage in months
during the marriage) is not specified in months. Member is an active duty
retiree, therefore the formula must be in months. You must obtain a
certified copy of a clarifying order awarding either a fixed amount, a
percentage of the member’s retired/retainer pay, or which provides a
formula wherein the only missing element is the denominator (member’s
years of service in in months).

You may want to submit a clarifying order with just the
percentage since there seems to be a problem creating a formula with

11
MONTHS of service which is required by USFSPA since the member is
retired as Active.

(Emphasis added.) The letter also included this caveat: “[P]lease note that . . . we cannot

provide legal guidance in pursuing your case.”2

On June 22, 2022, Wife moved for entry of a new Order for Military Pension Back

Pay and Monthly Payments. The motion recounted the receipt of the two rejection letters

from DFAS and attached a report from a consultant who opined that Wife’s fractional share

of Husband’s retirement pay should be 27.3% based on the consultant’s calculation using

months instead of points.

In response, on July 8, 2022, Husband filed an opposition contesting the opinion of

Wife’s consultant, and pointing out that the June 2, 2022 letter from DFAS had suggested

submitting “a clarifying order with just the percentage[.]” Husband also filed a Counter-

Motion for Entry of Amended Military Retired Pay Division Order that removed the

2
We note that this letter’s statement that the court’s clarifying order must award
either a fixed amount or “a percentage of the member’s retired/retained pay” was consistent
with DoD 7000.14-R 290601.D, which at that time stated: “If the order contains a retired
pay award, that award must be expressed as a fixed dollar amount or as a percentage of
disposable retired pay.” The third option mentioned in the letter—referring to an award
based on a “formula”—was consistent with DoD 7000.14-R 290601.F, which at that time
stated:

If the former spouse and the member were divorced before the member
became entitled to receive military retired pay, the retired pay award may be
expressed as a formula or hypothetical retired pay award in accordance with
paragraphs 290607 and 290608. Since the computation of formula and
hypothetical retired pay awards result in a percentage, they are considered a
type of percentage award, and would automatically receive a proportionate
share of the member’s retired pay COLAs.
12
reference to the calculation of Husband’s military service based on points and provided

only for the payment of 15.96% of Husband’s retired pay to Wife.

On July 25, 2022, Wife filed an opposition to Husband’s Counter-Motion for Entry

of Amended Military Retired Pay Division Order, and Wife requested a hearing. The circuit

court scheduled a “complex motions” hearing for December 19, 2022.

On December 19, 2022, the circuit court conducted a hearing on the parties’

competing motions. At the hearing, Wife’s counsel argued that Department of Defense

regulations mandate that the marital share of a service member’s retired pay be computed

using a fraction that utilizes months of marriage as the numerator, and number of months

of military service as the denominator, asserting: “[Husband] is retired active duty. And

for active duty you need to do a calculation in months.” “[Husband is] going to contend

that you have to enforce the marital settlement agreement, that there is no choice. But it is

wrong, the Government is not going to process this unless it is done using months.” Wife’s

counsel further explained:

[I]f Your Honor looks at [DoD Regulation] 290607(b) the numerator of the
formula fraction is the number of months of marriage during the military
service.

---

The law says you use the amount of time they were married. That is how it
works. That is the numerator.

---

If you use the right numerator, you are going to [come] up with 131 over 240
and we are going to be fine.

13
At that point, counsel for Husband interjected: “[Husband] didn’t get credit for 131

months toward his military retirement during the marriage. He got credit for 67. So why

should [Wife] get credit for more [months] than him?” (Emphasis added.) Wife’s counsel

replied: “[T]he answer, Your Honor is in the regulations that I gave you.”

In support of Wife’s argument that the court could not use points to compute Wife’s

share of this particular marital property, Wife presented expert testimony from retired

Major General James V. Young, Jr., a consultant. General Young testified that he had

thirty-six years of service in the Army, and that, for a major portion of that time, his position

was “what we would think of as the Chief Human Resource Officer of the Army

Reserve[,]” dealing with issues such as human resources, pay, benefits and retirement. The

court recognized him “as an expert in pension formation.”

Asked to explain the difference between an active-duty retirement and a retirement

from reserve military duty, General Young said:

[T]here are essentially two different systems. DFAS is the adjudicating
authority for both systems. And . . . if [Husband] had retired as a reservist,
then it would have been appropriate to use points. However[,] he retired with
an active duty retirement. . . .

And so when that happens . . . you are . . . forced to use a different
system. . . . So it is . . . the total months that you were married while you were
in service divided by . . . the total month[s] of your active duty service.[3]

3
General Young also opined that the parties satisfied the “10-10 rule” that qualified
them to have DFAS make direct payments to Wife. See Fulgium v. Fulgium, 240 Md. App.
269, 283 (2019) (“One of the limitations on direct payment is that it is available only when
the service member performed ten or more years of creditable military service while
married to his or her spouse. 10 U.S.C. § 1408 (d)(2). See Mansell [v. Mansell, 490 U.S.
581, 585 (1989)]. Accord Dziamko v. Chuhaj, 193 Md. App. 98, 119 (2010).”); see
(continued…)
14
On cross-examination, General Young conceded that, even though Husband’s

retirement was properly calculated using a denominator of 240 months, “he was in service

for 27 total years[,]” which would equate to 324 months. When asked if all twenty-seven

years were for “creditable service,” General Young testified: “they are, actually.”

Husband’s counsel pressed this apparent discrepancy further and the following exchange

occurred:

Q [by Husband’s counsel:] So just for example, if [Wife] received 10
years as a numerator over [a denominator of] 28 years, she would have 17.8
percent.[4] Here[,] you are trying to argue in this other formulated realm that
she should have 27 percent. So you are arguing that [she] should have 10
percent more . . . without [Husband] having part active and part resolution
[sic] and part not doing military at all than if he had been enlisted the entire
time. How does that make any sense?

A I don’t think he was ever enlisted. . . . I am not trying to be
evasive, I don’t quite understand the question.

When Husband’s counsel asked General Young to examine one DoD form—which

was a form that not only included space for a formula based upon months but also provided

alternative spaces for stating a “fixed amount award” or a “percentage award”—the witness

replied: “Well, then I guess it would contradict of [sic] what the two letters at DFAS had

sent.”

Husband’s counsel argued to the court that, if the calculation had to be performed

using full months of creditable service, that would explain why the military had used only

also Smith, 266 Md. App. at 116 (“DFAS does not distribute payments directly to former
spouses of marriages that, like in this case, lasted less than ten years.”).
4
The arithmetic seems to be: 10 ÷ 28 = 35.7%. One-half of 35.7% is 17.8%
15
twenty years for the denominator rather than the full span of Husband’s twenty-seven years

in the military. But, if the computation was going to consider only the 240 full months of

service as the denominator, then the portion of that time allocated to the marriage should

be only five years and seven months (i.e., a numerator sixty-seven months), and that

arithmetic would result in Wife’s share being lower than it would be using points as agreed

in the marital settlement agreement.5

As the hearing was drawing to a close, Wife’s counsel reiterated his contention that

the applicable regulations supported his expert’s opinion and counsel’s argument that

Wife’s correct share was one-half of the fraction produced by dividing 131 months by 240

months. He stated: “I am not basing this on common sense, I am not basing it on forms. I

encourage Your Honor to look at sections 290211(a), 290607, 290607(a), (b) and (d),

29070 sic; probably 290701 and (c) and 10 U.S.C. Section 1408 (a)(4).” The list did

not include 290601.D, quoted above.

Wife’s appellate issue about the circuit court striking her post-hearing submission

arose because of some disputes during this hearing regarding exhibits. During the hearing,

when Husband’s counsel raised a question about certain documents that were offered as

exhibits with respect to Wife’s claim for back pay, the circuit court said that the proffered

exhibits would be “marked as ID only[,]” and “I will give you both an opportunity . . . to

5
One of the documents Husband submitted in support of his Counter-Motion for an
amended division order was a letter dated June 29, 2018, which he had obtained from a
“Retirements Specialist” for the Department of the Air Force, who stated: “As of 1 Apr 18,
you have 20 years, 0 months and 9 days of service toward active duty retired pay. For the
period of your marriage, 8 May 98 to 3 Apr 09, the date of divorce, you earned 5 years, 7
months and 16 days of service toward active duty retired pay.”
16
get a calculation with supporting documentation. Submit them within . . . ten days.” At the

conclusion of the hearing, the court made plain that the additional post-hearing submissions

of documentation were to be related only to “the back pay.”

Husband and Wife both submitted post-hearing memoranda. Wife also filed a

supplemental post-hearing memorandum that included an addendum to Wife’s expert

witness’s analysis. Husband filed a motion to strike Wife’s supplemental post-hearing

memorandum as being beyond the scope of what was left open for supplementation, and

the court granted Husband’s motion to strike that supplemental post-hearing submission.

On March 31, 2023, the court convened a virtual hearing to announce its oral ruling

on the record. The court summarized the orders that had been entered (by a different judge)

on December 14, 2021, and March 3, 2022. The circuit court observed that neither party

had appealed either the divorce judgment (entered April 9, 2009), the December 14, 2021

order (that had held Wife’s share of Husband’s military retired pay was 15.96%), or the

March 3, 2022 Military Retired Pay Division Order (that had reiterated that Wife was

awarded 15.96% of Husband’s gross disposable military retired pay, and had stated, “This

Order is a final judgment.”). The court said that, because no timely appeal was taken after

entry of the March 3, 2022 order, “the substantive provisions to that order stand.”

But, in exercising the limited continuing jurisdiction that had been retained “for the

purpose of acceptance by the military, to effectuate the terms of the parties’ Judgment of

Absolute Divorce[,]” the court observed that the June 2, 2022 letter from DFAS had

suggested submitting a clarifying order with just the percentage, and Husband’s counsel

had “argue[d] that [the] military retired pay division order should be amended by the

17
removal of the language that relates to points and leaving only the percentage share.” The

court determined that such an amendment was “most appropriate because it is reflective of

the parties’ agreement and the relevant court orders.”

On June 6, 2023, the circuit court entered an Amended Military Retired Pay

Division Order that provided in pertinent part:

[Wife] is awarded 15.96% of [Husband’s] military gross disposable military
retired pay, without any deductions for survivor benefits or other deductions.
As of November 2022, [Husband’s] current military retired pay was
$6,844.00. As of the date of divorce, April 9, 2009, [Husband’s] retired base
pay (high 3) was $6,916.37, his rank was Lt. Col. (O-5), and [Husband] had
13.5 years of creditable service for retirement.

Wife noted this appeal on July 5, 2023.

At oral argument before this Court, Husband’s counsel represented that DFAS had

accepted the June 6, 2023 Amended Military Retired Pay Division Order for processing.

In rebuttal, Wife’s counsel denied having been advised that DFAS had accepted the order.

The Court permitted the parties to submit supplemental documentation, including the

marital settlement agreement, and the 2009 version of DoD 7000.14-R, which Wife

included in her supplemental submission. Wife’s supplemental submission asserted that

she had never agreed that her share of Husband’s retirement benefits is 15.96%, and further

represented that, to the best of her knowledge, “DFAS has still not accepted the order.”

Husband’s supplemental submission filed on May 22, 2024, included a document

that appears to be a letter from DFAS to Husband dated June 27, 2023, stating in pertinent

part: “Based on the Amended Military Retired Pay Division Order [Wife] is awarded

15.96% of your disposable retired pay.” The DFAS letter dated June 27, 2023, indicated

18
that, “[i]n accordance with the court order, direct payments to [Wife] should tentatively

commence Aug 2023, with the first payment issued on the first of Sep 2023.” Husband

submitted an email dated July 5, 2023, indicating that his counsel had forwarded the DFAS

letter of June 27, 2023, to Wife’s counsel. Husband also included documentation showing

certain payments Husband had made to Wife directly.

MOTION TO PARTIALLY STRIKE NOTICE OF APPEAL6

Wife’s notice of appeal, filed July 5, 2023, stated that she was appealing: “the

[c]ircuit [c]ourt’s final order of June 6, 2023, and all interlocutory orders, including those

entered on April 3, 2023, and May 8, 2023[,] regarding: (1) [Wife’s] Motion for Pension

Back Pay and Monthly Payments; and (2) [Wife’s] Motion for Entry of Substitute Military

Retired Pay Division Order.” Prior to briefing, Husband moved to partially strike Wife’s

notice of appeal, and Wife opposed the motion. This Court denied the motion without

prejudice to Husband’s renewal of the motion in his brief.

In his brief, Husband renews his motion to strike Wife’s notice of appeal as to the

orders entered by the circuit court prior to June 6, 2023. He argues that Wife’s appeal of

the orders entered on April 3, 2023, and May 8, 2023, should be stricken as untimely

because those orders were final orders which Wife failed to appeal within thirty days

following the entry of the orders, as required by Md. Rule 8-202(a). We decline to grant

6
In his brief, Husband requests that this Court consider his “Motion to Dismiss the
Appeal” that was previously filed in this case, but there is no record of a “Motion to
Dismiss” this appeal. But this Court did previously deny without prejudice Husband’s
“Motion to Partially Strike the Appellant’s Notice of Appeal Filed on July 5, 2023” and we
shall address the merits of that motion.
19
the motion to partially strike the notice of appeal.

Generally, a litigant may appeal only from a “final judgment.” URS Corp. v. Fort

Myer Constr. Corp., 452 Md. 48, 65 (2017); Md. Code, Courts and Judicial Proceedings

Article § 12-301. A judgment is final “only when the trial court intends an ‘unqualified,

final disposition of the matter of the controversy’ that completely adjudicates all claims

against all parties in the suit, and only when the trial court has followed certain procedural

steps when entering a judgment in the record.” URS Corp., 452 Md. at 65 (quoting

Waterkeeper All., Inc. v. Md. Dep’t of Agric., 439 Md. 262, 278 (2014)); accord Rohrbeck

v. Rohrbeck, 318 Md. 28, 43-44 (1989); see also Md. Rules 2-601–2-602.

In this case, the circuit court entered three written orders intended to memorialize

and effectuate the oral rulings placed on the record on March 31, 2023: (1) on April 3,

2023, the signed hearing sheet from March 31, 2023 was entered as an order; (2) on May

8, 2023, the circuit court entered an order awarding Wife back pay of Husband’s military

benefits; and (3) on June 6, 2023, the circuit court entered the Amended Military Retired

Pay Division Order.

The April 3, 2023 signed hearing sheet and May 8, 2023 back pay order were not

final judgments because neither order adjudicated all claims of all parties. Because the

circuit court announced at the hearing on March 31, 2023, that it intended to issue a written

Amended Military Retired Pay Order, the circuit court’s orders entered on April 3 and May

8 could not have been final judgments in the case until the Amended Military Retired Pay

Order was entered in accordance with Md. Rule 2-601. See Jenkins v. Jenkins, 112 Md.

App. 390, 402 (1996) (where a circuit court intends that a QDRO or Constituted Pension

20
Order be integral to the final judgment, the judgment is not appealable until the circuit

court enters the QDRO); Rohrbeck, 318 Md. at 44 (holding that the circuit court’s judgment

was final only when the QDRO, “the last unresolved claim in the action[,]” was

completed).

Wife’s appeal, filed within thirty days after the June 6, 2023 entry of the Amended

Military Retired Pay Order, was timely as to that order and the interlocutory orders that led

to the entry of that order. Accordingly, we deny Husband’s motion to partially strike Wife’s

notice of appeal.

STANDARD OF REVIEW

We review rulings made by a circuit court sitting without a jury “on both the law

and the evidence.” Md. Rule 8-131(c). We “will not set aside the judgment of the trial court

on the evidence unless clearly erroneous,” and we “will give due regard to the opportunity

of the trial court to judge the credibility of the witnesses.” Id.

“‘When a trial court decides legal questions or makes legal conclusions based on its

factual findings, we review these determinations without deference to the trial court.’”

Plank v. Cherneski, 469 Md. 548, 569 (2020) (quoting MAS Assocs., LLC v. Korotki, 465

Md. 457, 475 (2019)).

“Neither [Md. Code, Family Law Article] § 8-205 [n]or 10 U.S.C. § 1408 mandates

any division of a military pension. Whether to award retirement funds, and if so, how

to allocate them, is within the discretion of the trial court.” Fulgium, 240 Md. App. at

288 (emphasis added) (citing Long v. Long, 129 Md. App. 554, 574 (2000)).

21
As this Court observed in a recent case addressing issues relative to the division of

military retired pay between former spouses:

In an action tried without a jury, this Court reviews the case on both the law
and the evidence and may set aside the judgment of the trial court on the
evidence where the finding is clearly erroneous. Maryland Rule 8-131(c).
The trial court’s interpretation and application of the law are reviewed as to
whether the court’s conclusions are “legally correct.” Schisler v. State, 394
Md. 519, 535 (2006). A trial court “has broad discretion ‘when determining
the proper allocation of retirement benefits between the parties.’” Bangs, 59
Md. App. at 367 (citing Deering v. Deering, 292 Md. 115, 130 (1981)). The
decision of the trial court is subject to reversal where its discretion has been
abused. North v. North, 102 Md. App. 1, 13-14 (1994).

Review of the modification of a final judgment is subject to the
provisions of Maryland Rule 2-535. Pelletier v. Burson, 213 Md. App. 284,
290 (2013). In pertinent part, Maryland Rule 2-535(a) provides: “On motion
of any party filed within 30 days after entry of judgment, the court may
exercise revisory power and control over the judgment[.]” Id. at 290. Further,
Maryland Rule 2-535(b) provides that “[o]n motion of any party filed at any
time, the court may exercise revisory power and control over the judgment
in case of fraud, mistake, or irregularity.”

Smith, 266 Md. App. at 116-17.

DISCUSSION

I. The Circuit Court’s Adherence to the Orders it Entered on December 14,
2021, and March 3, 2022

Wife’s first question takes issue with a statement the circuit court made while

delivering an oral ruling at the March 31, 2023 hearing that eventually led to the entry of

the Amended Military Retired Pay Order on June 6, 2023. In the oral ruling, the judge

summarized the procedural history of the case up to that point and observed that the court

had entered two previous judgments addressing the division of Husband’s military

retirement pay, one on December 14, 2021, and a second one on March 3, 2022. In each of

22
those previous orders, the circuit court had concluded that Wife was entitled to 15.96% of

Husband’s military retirement pay. In announcing the court’s oral ruling on March 31,

2023, the court pointed out that the order entered on March 3, 2022, stated expressly that

it was a “final judgment,” but that the court would

retain[] jurisdiction to enter additional orders and to amend this [March 3,
2022] Order for the purpose of acceptance by the military, to effectuate the
terms of the parties’ Judgment of Absolute Divorce and to settle any and all
disputes between the parties relative to the benefits provided in this Order.

In the oral ruling on March 31, 2023, which led to the order that is the target of this appeal,

the court focused on the limited scope of its retained jurisdiction and stated: “this [c]ourt

does not have the authority to make the req[ue]sted substantive changes to the military

retired pay division order. . . . As a result the substantive provisions to that order stand.”

Wife asserts that this statement of law was an error that warrants reversal and remand.

Husband responds that the circuit court properly found that it did not have authority

to substantively modify the March 3, 2022 order because that order was a final judgment.

He further argues that Wife’s attempt to revise the March 3, 2022 order and relitigate the

issues previously decided by the circuit court was barred by res judicata.

We disagree with Wife’s claim of error for two reasons. First, the circuit court

correctly anticipated this Court’s ruling in Smith, 266 Md. App. at 121, wherein we held

that, in the absence of fraud, mistake or irregularity, a court has limited authority under

Maryland Rule 2-535 to exercise revisory power over a judgment more than thirty days

after the judgment was entered. Consequently, the judge who was asked in this case to

modify a judgment that had been entered more than thirty days before the motion seeking

23
revision was filed was appropriately circumspect about the court’s authority to make the

requested substantive modification.

Second, as we observed in Smith, even though the court’s previously-entered

judgment included a provision that retained jurisdiction to modify the order to make it

acceptable under the Uniformed Former Spouses’ Protection Act, that sort of provision

does not authorize revision of a final judgment if the prior order does not need to be

modified in order to comply with the “DFAS requirements for distribution of the spousal

share[.]” Id. at 122-23.7

Here, the circuit court concluded that the order for payment of Wife’s share by

DFAS did not require the substantive modification sought by Wife, and consequently, the

substantive provisions of the March 3, 2022 order should stand.

The court explained:

This . . . [c]ourt only retained jurisdiction to effectuate the terms of
the settlement agreement which awards [Wife] 15.96 percent of the pension.
The provision of the order to settle any and all disputes between the parties
relative to the benefits provided in this order does not reopen the door to re-
litigate issues that have already been resolved by this [c]ourt.

7
“[W]hile a trial court is not prohibited from amending orders to effectuate the
intent of the parties, consistent with the terms of the settlement agreement, the court is not
permitted to change the terms of an agreement reached by the parties.” Mills v. Mills, 178
Md. App. 728, 739 (2008) (citing Long v. State, 371 Md. 72, 89 (2002) (holding that the
court erred in entering a modified consent order which undermined and materially altered
the terms of the parties’ agreement); Eller v. Bolton, 168 Md. App. 96, 101 (2006) (holding
that the circuit court retained jurisdiction to revise the QDRO regarding wife’s award of
husband’s pension plan pursuant to the terms of the consent order). Cf. Dziamko, 193 Md.
App. at 107 (“When the parties consent to certain terms and those terms are not fulfilled
by subsequent court orders, an appeal may be heard.”).
24
For the reasons set forth more fully in the next section of this opinion, we agree with

that conclusion, and perceive no error of law in the circuit court’s statement that it did not

have authority to make the amendments requested by Wife.

II. The Circuit Court Did Not Err in Awarding Wife 15.96% of Husband’s
Military Retirement Benefits

Wife contends that the circuit court erred in awarding her just 15.96% of Husband’s

military retirement benefits and back pay. Wife asserts that federal law mandated that the

circuit court calculate Wife’s share of Husband’s military retirement benefits by using a

formula based on “months” rather than “points.” Had the circuit court calculated Wife’s

share of Husband’s retirement pay on the basis of months, she contends, she would have

been awarded 27.3% of Husband’s gross retired military pay and back pay.

Husband counters that the circuit court’s award of 15.96% of his gross disposable

military retired pay was consistent with the parties’ marital settlement agreement in which

they agreed to calculate the marital property portion of his military retirement pay using

the “points” system that is applicable to reserve military service, and that was correct

despite the unanticipated development that the gross dollar amount of his total retirement

pay was based upon the total months of his active duty service. Husband further asserts

that the Amended Military Retirement Pay Division Order does not violate federal law, but

rather, satisfies Department of Defense Finance Management Regulations and DFAS’s

suggestion that the parties could submit an order setting forth Wife’s award in the form of

a percentage of his total gross retirement pay to avoid the apparent confusion that would

be caused by the use of a formula in the pay order.

25
Military retirement pay is a federal benefit that, similar to a pension, provides a

monthly annuity for life following a service member’s retirement. Fulgium, 240 Md. App.

at 278-79; Dziamko, 193 Md. App. at 116. The requirements and structure of the reserve

program are set out in 10 U.S.C. §§ 12731 to 12741; and the requirements for active-duty

or “regular” retirement are set forth in 10 U.S.C. §§ 1401 to 1414. One of the complicating

factors in this case is that Husband’s military service during his marriage to Wife was in

the reserves for all but eleven months of the marriage, and, if he had retired on or soon after

the date of their divorce, his retirement pay would have been determined under the reserve

program. But, because he returned to active duty after the divorce and was serving on active

duty as of the date of retirement, his retirement pay was determined under the active-duty

program.

Nevertheless, the issue in this case is not a dispute regarding the total amount of

Husband’s entitlement to retirement pay. Instead, the dispute in this case is about how to

calculate the fraction of Husband’s total retirement pay the parties agreed would be marital

property, one-half of which would be paid to Wife. Husband’s position is that that fraction

is spelled out in Paragraph 27 of their marital settlement agreement that was incorporated

into the judgment of divorce. Wife’s position is that federal law precludes the use of the

computation she agreed to at the time of the divorce. Like the circuit court, we are not

persuaded that federal law prohibits enforcement of the computation set forth in the parties’

marital settlement agreement.

The Uniformed Services Former Spouse Protection Act (“USFSPA”), 10 U.S.C. §

1408, was passed by Congress in 1982, and “authorizes state courts to treat ‘disposable

26
retired or retainer pay”’ as marital property. Mansell, 490 U.S. at 584 (quoting 10 U.S.C.

§ 1408 (c)(1)). Describing the legislative history of the USFSPA in Smith, this Court stated:

The twofold purpose of the USFSPA is to authorize states to distribute
military retired pay to spouses and former spouses and to provide a
mechanism for the DoD to enforce these payment orders. Under the
regulations, disposable retired pay is a federal entitlement that is defined
under 10 U.S.C. § 1408 (a)(4) as “the total monthly retired pay to which a
member is entitled less [certain] amounts.”

The legislative history of the USFSPA includes a description of the
legislative intent of the act:

The provision is intended to remove the federal preemption
found to exist by the United States Supreme Court and permit
State and other courts of competent jurisdiction to apply
pertinent State or other laws in determining whether military
retired or retainer pay should be divisible. Nothing in this
provision requires any division; it leaves that issue up to
the courts applying community property, equitable
distribution or other principles of marital property
determination and distribution.

S. Rep. No. 97-502, at 1611, July 22, 1982; Fulgium v. Fulgium, 240 Md.
App. 269, 279-80 (2019).

Smith, 266 Md. App. at 123-24 (emphasis added).8

While the USFSPA grants states the authority to divide disposable retired pay as a

marital asset, it does limit the fractional share that can be paid to a former spouse by DFAS

8
We also noted in Smith, 266 Md. App. at 124 n.9, that the National Defense
Authorization Act (“NDAA”) for the Fiscal Year 2017 adopted new rules applicable to
judgments of divorce entered on or after December 23, 2016. The new rules have the effect
of freezing the marital property calculation as of the date of divorce. “The intent of the
amendment was to prevent overcompensation to former spouses especially for
achievements earned by their former spouse following separation.” Id. (citing Fulgium,
240 Md. App. at 281). Because the date of the judgment of divorce in this case predated
December 23, 2016, the NDAA 2017 rules do not apply.
27
pursuant to a court order to 50% of the member’s disposable retired pay. 10 U.S.C. §

1408 (e)(1). But that limit has no application to the dispute in this case.

The Department of Defense Financial Management Regulations 7000.14-R,

Chapter 29 (“DoD 7000.14-R”), implement the USFSPA. As noted above, DoD 7000.14-

R sets forth the required contents of a court order awarding military retirement pay as

follows:

1. Contents of Court Order[9]

---

D. If the order contains a retired pay award, that award must be
expressed as a fixed dollar amount or as a percentage of disposable
retired pay.

---

F. If the former spouse and the member were divorced before the
member became entitled to receive military retired pay, the retired pay award
may be expressed as a formula or hypothetical retired pay award in
accordance with paragraphs 290607 and 290608. Since the computation
of formula and hypothetical retired pay awards result in a percentage, they
are considered a type of percentage award, and would automatically receive
a proportionate share of the member’s retired pay COLAs.

---

1. Acceptable Formula Awards

9
Although DoD 7000.14-R has undergone formatting and organizational changes
since 2009, including revisions from paragraph numbering (i.e., ¶ 290601) to a decimal
format (i.e., § 6.1), the substantive requirements governing military retired pay division
orders at issue in this case, specifically the requirement that the order be regular on its face
and express the award as a fixed dollar amount or percentage, were materially unchanged
from the 2009 version to the 2023 version of DoD 7000.14-R 6.1 et seq.

28
A. If the former spouse’s award is expressed in terms of a formula,
all the variables needed to calculate the formula must be included in the court
order, with the exception of a member’s total number of months of creditable
service or total number of Reserve retirement points, which the designated
agent will provide in accordance with subparagraphs 290607.B and C.

(Emphasis added.)

The language in DoD 7000.14-R 290601 tracks the definition of the required

contents of a court order for division of retirement pay set forth in 10 U.S.C. § 1408

(a)(2)(C), which provides:

(2) The term “court order” means a final decree of divorce . . . or approved
property settlement incident to such a decree (including a final decree . . .
incident to such previously issued decree), . . . which—

---

(C) in the case of a division of property, specifically provides for the
payment of an amount, expressed in dollars or as a percentage of
disposable retired pay, from the disposable retired pay of a member
to the spouse or former spouse of that member.

10 U.S.C. § 1408 (a)(2)(C) (emphasis added).

Wife did not address DoD 7000.14-R 290601 in her brief, but she contends that the

calculation of her share of Husband’s retirement pay must be based upon the definition of

a “formula award” set forth in DoD 7000.14-R 290211, which provides:

1. Formula Award[10]

A formula award computes a former spouse’s property interest in a
military member’s retired pay based on the relationship of the length of the
parties’ marriage during the member’s creditable service (numerator) to the
member’s total service that is creditable toward retirement (denominator). A

10
It should not be overlooked that all of the regulations that begin with the digits
2902 fall under the subsection of DoD 7000.14-R general heading “2902
DEFINITIONS[.]”
29
formula award is stated as a marital fraction in which the numerator and
denominator are multiplied by a given percentage.

A. For members qualifying for an active duty (i.e., regular service)
retirement, the numerator is the number of months the parties were married
while the member was performing creditable military service and the
denominator is the number of months of the member’s total creditable
military service. The elements must be expressed in terms of whole months.
The former spouse’s award is usually calculated by multiplying the marital
fraction by one-half or 50 percent, or any other given percentage amount. See
paragraph 290607 for acceptable active duty formula award language.

B. For members qualifying for a Reserve (i.e., non-regular service)
retirement, the numerator is the number of Reserve retirement points earned
during the parties’ marriage, and the denominator is the member’s total
number of Reserve retirement points. The elements must be expressed in
terms of Reserve retirement points. The former spouse’s award is usually
calculated by multiplying the marital fraction by one-half or 50 percent, or
any other given percentage amount. See subparagraph 290607.B for
acceptable Reserve formula award language.

Although DoD 7000.14-R 290211 provides details about what information the

parties and court order must provide DFAS if the former spouse’s marital share is being

expressed as a formula in the state court’s order for payment, DoD 7000.14-R 290601.D

(quoted above) indicates that the pay award may be “expressed . . . as a percentage of

disposable retired pay.” Our reading of the regulations is that the circuit court had the

option, but was not required, to express Wife’s award as a formula. The circuit court’s

decision, therefore, to express Wife’s award of a share of Husband’s retired pay as a

percentage did not violate DoD 7000.14-R 290211 or 290601.

Although the DoD regulations permit an award to be expressed as a percentage, the

regulations do not specify whether, in deciding what that percentage will be, the state court

must use months or points or some combination to calculate how much a spouse’s marital

30
share of a service member’s retired pay should be where, as here, the service member

earned retired military pay through a combination of active and reserve duty. In Smith, we

addressed the preference of many courts for using points rather than months in such

situations:

Many members of the United States military serve on both active duty
and as a reservist during their career. When there is a transition of service, it
is critical to account for the change in how each form of the member’s service
is credited toward their retirement. One legal commentator has observed that:

Use of a simple years of service computation rather than
recognition of the point system will, in some situations lead to
inequitable conclusions. The greatest potential for distortion of
the marital share of the benefit occurs in situations where the
member of the military retirement system switches from
regular component to reserve component service.

In re Marriage of Beckman, 800 P.2d 1376, 1379-80 (Colo. App. 1990)
(citing W. Troyan, “Procedures for Evaluating Retirement Entitlements
Under Non-ERISA, Retirement Systems for Marriage Dissolution Actions,”
3 J.P. McCahey, ed., Valuation & Distribution of Marital Property §
46.34(1) (1990)). Therefore, when the military retirement benefit is a
result of the combination of active and reserve component service, points
are the proper method for calculating the fraction. W. Troyan,
“Procedures for Evaluating Retirement Entitlements Under Non-ERISA,
Retirement Systems for Marriage Dissolution Actions,” 3 J.P. McCahey, ed.,
Valuation & Distribution of Marital Property § 46.34(2)(d) (1990).

266 Md. App. at 125-26 (emphasis added).

We pointed out in Smith that, for purposes of analyzing military retirement pay, the

accrual of points and the accrual of months of active-duty service can present a situation

of viewing apples and oranges because “a member of the military in active service earns

one point for each day of active service, while a reservist earns a point for every day certain

activities are conducted.” Id. at 124-25. The two measurements of service are not

31
necessarily comparable as monthly units. And it appears to be easier to convert months of

active duty service to points than it is to convert points earned for reserve duty to months.

In that regard, we observed in Smith, that the units of measurement in the fraction’s

numerator must be the same as the units of measurement in the fraction’s denominator

because “ʻ[n]othing else would yield a meaningful fraction or percentage.ʼ” Id. at 129

(quoting Heger v. Heger, 184 Md. App. 83, 109 (2009)).

In Woodson v. Saldana, 165 Md. App. 480 (2005), this Court noted that the system

of accruing points for reservists reflects a different method of valuing a reservist’s service,

instead of merely counting the amount of time served, by considering the nature of a

reservist’s activities. Id. at 490-91; see 10 U.S.C. § 12731 et seq. For example, reservists

earn points “not only for days of service, but also for performing certain drills, completing

certain education courses, and maintaining membership in certain military units.”

Woodson, 165 Md. App. at 485; see 10 U.S.C. § 12732 et seq. “Reservists must accrue at

least 50 ‘retirement points’ in a calendar year to have that year qualify toward retirement.”

Woodson, 165 Md. App. at 485; see 10 U.S.C. § 12732 (a)(2). We determined that, for

determining the marital portion of the military retirement benefit in that case, because the

“reservist’s retirement pay is not strictly a function of the length of military service, the

appropriate formula is retirement points earned during the marriage divided by the total

retirement points earned.” Woodson, 165 Md. App. at 491; accord Smith, 266 Md. App. at

126.

Courts in other jurisdictions that have considered this issue have concluded that

retirement benefits earned through a combination of active and reserve duty should be

32
calculated based on the accrual of retirement points rather than the length of service. See,

e.g., Faulkner v. Goldfuss, 46 P.3d 993, 1003 (Alaska 2002) (where wife’s National Guard

service consisted of both active and reserve duty, it was error for the trial court to determine

husband’s marital share of her retirement based on months rather than the number of points

earned); In re Marriage of Poppe, 97 Cal. App. 3d 1, 8 (1979) (explaining that “the basis

upon which the apportionment was made, years of service during the marriage before

separation compared to ‘qualifying’ years in service, bears no substantial rational

relationship to the amount of the pension” in the case of a spouse who served in both active

duty and reserve capacities); In re Marriage of Beckman, 800 P.2d 1376, 1379 (Colo. App.

1990) (stating that the calculation of benefits based strictly on years of service rather than

points for a member who accumulates both active and reserve service “will, in some

situations, lead to inequitable conclusions” (cleaned up)); In re Marriage of Hill, 986

N.W.2d 884, 889 (Iowa Ct. App. 2022) (“[W]hen a military member’s retirement pay is

not strictly a function of the length of military service, the appropriate formula . . . is

retirement points earned during the marriage divided by the total retirement points

earned.”); Bojarski v. Bojarski, 41 A.3d 544, 549 (Me. 2012) (holding that, when a spouse

earns military retirement benefits “through a combination of active and reserve duty, courts

must calculate the marital share of retirement benefits based on the accrual of retirement

points”); Hasselback v. Hasselback, 2007 Ohio 762, 2007 WL 549461, at *4 (Ohio Ct.

App. 2007) (holding that the “points” method was the appropriate method for valuing

husband’s military retirement benefits earned through a combination of reserve and active

duty); Contreras v. Contreras, 974 S.W.2d 155, 158-59 (Tex. App. 1998) (holding that it

33
was error to ignore the point system and treat husband’s reserve duty years like active duty

years in calculating wife’s portion of his retirement pay).

We agree with the state courts cited above that, when a member’s retirement pay is

earned through a combination of active and reserve duty, it is appropriate for a court to

utilize points rather than months of service to calculate a spouse’s share of the marital

property portion of a service member’s military retirement benefits.

At the time Husband and Wife divorced, the parties agreed to use Husband’s

retirement points to calculate the portion of Husband’s retired military pay Wife would

receive. The Amended Military Retired Pay Division Order enforced the terms of the

marital settlement agreement by awarding Wife a percentage of Husband’s retired military

pay based on the parties’ agreement to calculate the marital portion of his retirement pay

based on points. The Amended Military Retired Pay Division Order entered by the circuit

court also complied with the DoD regulation that stated the award could be expressed “as

a percentage of disposable retired pay,” and also complied with the June 2, 2022 DFAS

letter that suggested including a percentage of Husband’s retirement pay in a clarifying

court order. We conclude that it was neither legal error nor an abuse of discretion for the

circuit court to amend the Military Retired Pay Division Order to confirm that Wife was to

receive 15.96% of Husband’s gross disposable military retired pay

III. The Circuit Court’s Order Granting Husband’s Motion to Strike Wife’s
Post-Hearing Supplemental Memorandum

At the conclusion of the December 19, 2022 hearing, the circuit court permitted the

parties to submit additional documentation following the hearing. Husband and Wife

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submitted post-hearing memoranda. Wife then submitted a supplemental memorandum

which included a revised expert report that utilized data from Husband’s post-hearing

memorandum. Husband filed a motion to strike Wife’s supplemental memorandum, which

the court granted.

Wife argues that the circuit court “arbitrarily and capriciously” struck her

supplemental post-hearing memorandum, but she fails to provide any explanation in her

brief as to how the court’s consideration of the supplemental memorandum would have

influenced the court’s decision in this case. As we noted above, the circuit court told

counsel at the conclusion of the December 19, 2022 hearing that the parties could file post-

hearing submissions “only for the back pay” issue. Wife’s brief does not explain how her

submittal complied with that limited subject matter, and more importantly, how

consideration of the documents that were struck by the court could have altered the court’s

ruling on the issues that were raised, or could have been raised, in this appeal.

Consequently, we perceive no error.

APPELLEE’S MOTION TO PARTIALLY
STRIKE NOTICE OF APPEAL IS DENIED.

JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED.

COSTS TO BE PAID BY APPELLANT.

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