NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-905
ROBYN B. WATERMAN
vs.
RONALD J. WATERMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Ronald J. Waterman (husband), the former spouse of Robyn B.
Waterman (wife), principally appeals from a July 2022 judgment,
issued by a Probate and Family Court judge, that adjudicated the
wife's complaint for contempt alleging that the husband violated
the judgment of divorce nisi (divorce judgment) by failing to
satisfy his obligations related to certain military benefits.
Though the judge ultimately found the husband not guilty of
contempt, the judge entered a military qualifying court order
(MQCO) requiring the husband to pay to the wife fifty percent of
his disposable military retired pay that accrued during the
marriage. The husband appeals from the July 2022 judgment, and
from the judge's orders allowing the wife's motion for attorney's fees and denying the husband's postjudgment motions
to amend the July 2022 judgment. We vacate so much of the
judgment as amended the MQCO to include an incorrect marital
coverture period for the husband's military pension, and remand
the case for the limited purpose of entering a modified judgment
and MQCO setting forth the correct marital coverture period. We
affirm the judgment as so modified, and we also affirm the
orders allowing the wife's motion for attorney's fees and
denying the husband's postjudgment motions.
Background. The parties were married for nearly fifteen
years, from August 1984 until June 1999, during which time the
husband served in the military for almost eight years. The
parties executed a separation agreement in 1999, which was
incorporated into and merged with the divorce judgment. In the
agreement, both parties waived alimony "at the present time,"
without waiving the "right to seek alimony in the future."1 The
agreement provided that military separation pay, which the
husband was then receiving under a voluntary separation
incentive (VSI) program, would be divided between the parties,
with one-third being paid to the wife as lump sum child support
1 The parties signed the separation agreement more than a decade before the Alimony Reform Act, St. 2011, c. 124 (eff. March 1, 2012).
2 until the children's emancipation. As to the husband's pension,
the agreement provided as follows (pension clause):
"To the extent that the [h]usband is entitled to any military or other pension up to the date of this agreement, the [w]ife shall be entitled to receive 50% thereof via appropriate Q[ualified] D[omestic] R[elations] O[rder] or other order. The [h]usband shall have an affirmative obligation to immediately report the existence and status of any such pension rights to the [w]ife as soon as he becomes aware of same."
In 2022, in furtherance of the pension clause, the wife
arranged for an attorney to draft the MQCO, which provided that
the wife would receive "50% per month from the [husband]'s
disposable military retired pay." The husband refused to sign
the MQCO. The wife filed a complaint for contempt alleging that
the husband had violated the pension clause by refusing to
cooperate in the preparation of the MQCO. The husband moved to
dismiss the complaint, arguing that because he did not receive
his military pension until 2021 it was not governed by the
pension clause.
After a nonevidentiary hearing on the complaint for
contempt, the judge concluded that the pension clause was a
clear and unequivocal order requiring the husband to report his
receipt of the military pension to the wife. However, the judge
concluded that the wife had not proven by clear and convincing
evidence that the husband had violated that order by refusing to
execute the MQCO, because the pension clause did not specify a
3 time frame for its execution and the inference that the husband
was required to do so within a reasonable time was insufficient
to sustain a finding of contempt.
As to the proposed MQCO, the husband argued that it would
improperly award the wife a portion of his pension benefits that
accrued after the marriage. To address the husband's concerns,
the judge amended the MQCO so that it awarded the wife fifty
percent per month of the husband's disposable military retired
pay that "the [husband] accrued during the marriage." The
judge's amendment to the MQCO, however, contained a scrivener's
error insofar as the marital coverture period was incorrectly
stated as beginning on August 11, 1994, rather than August 11,
1984 (the latter being the correct date that the parties were
married).2 The judge rejected the husband's argument that
because the pension clause referred to any pension to which he
"is entitled . . . up to the date of th[e] [separation
a]greement," any right of the wife to a portion of his pension
was extinguished when the parties executed the agreement in
1999, and did not apply to the military pension that he received
beginning in 2021.
2 The judge's amendment to the MQCO referred to the marital coverture period as "8/11/94 to 6/16/99" (emphasis added). According to the complaint for divorce and divorce judgment, the parties were married on August 11, 1984.
4 The judge ruled that, although the husband was not guilty
of contempt, it was "only equitable" to award the wife her
attorney's fees because she "made several attempts to resolve
this matter prior to filing a [c]omplaint," and the husband
"refused to engage in any meaningful conversation with
counsel . . . regarding his issues with the language of the
MQCO." Judgment entered incorporating the MQCO as amended by
the judge (including the aforementioned scrivener's error with
respect to the parties' wedding date).
The husband moved to alter or amend the judgment, Mass. R.
Dom. Rel. P. 59 (e), and to amend the judge's findings, Mass. R.
Dom. Rel. P. 52 (b). He argued that he never would have signed
the separation agreement had he understood the meaning of the
pension clause, and because the wife had already received a
portion of his VSI benefit she should not also be entitled to a
portion of his military pension benefit. The judge denied the
motions to amend the judgment. The present appeal by the
husband followed.
Discussion. 1. Interpretation of pension clause. The
husband argues that the judge erred in interpreting the pension
clause to require the husband to pay the wife half of his
disposable retired pay accrued during the marriage. We review
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-905
ROBYN B. WATERMAN
vs.
RONALD J. WATERMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Ronald J. Waterman (husband), the former spouse of Robyn B.
Waterman (wife), principally appeals from a July 2022 judgment,
issued by a Probate and Family Court judge, that adjudicated the
wife's complaint for contempt alleging that the husband violated
the judgment of divorce nisi (divorce judgment) by failing to
satisfy his obligations related to certain military benefits.
Though the judge ultimately found the husband not guilty of
contempt, the judge entered a military qualifying court order
(MQCO) requiring the husband to pay to the wife fifty percent of
his disposable military retired pay that accrued during the
marriage. The husband appeals from the July 2022 judgment, and
from the judge's orders allowing the wife's motion for attorney's fees and denying the husband's postjudgment motions
to amend the July 2022 judgment. We vacate so much of the
judgment as amended the MQCO to include an incorrect marital
coverture period for the husband's military pension, and remand
the case for the limited purpose of entering a modified judgment
and MQCO setting forth the correct marital coverture period. We
affirm the judgment as so modified, and we also affirm the
orders allowing the wife's motion for attorney's fees and
denying the husband's postjudgment motions.
Background. The parties were married for nearly fifteen
years, from August 1984 until June 1999, during which time the
husband served in the military for almost eight years. The
parties executed a separation agreement in 1999, which was
incorporated into and merged with the divorce judgment. In the
agreement, both parties waived alimony "at the present time,"
without waiving the "right to seek alimony in the future."1 The
agreement provided that military separation pay, which the
husband was then receiving under a voluntary separation
incentive (VSI) program, would be divided between the parties,
with one-third being paid to the wife as lump sum child support
1 The parties signed the separation agreement more than a decade before the Alimony Reform Act, St. 2011, c. 124 (eff. March 1, 2012).
2 until the children's emancipation. As to the husband's pension,
the agreement provided as follows (pension clause):
"To the extent that the [h]usband is entitled to any military or other pension up to the date of this agreement, the [w]ife shall be entitled to receive 50% thereof via appropriate Q[ualified] D[omestic] R[elations] O[rder] or other order. The [h]usband shall have an affirmative obligation to immediately report the existence and status of any such pension rights to the [w]ife as soon as he becomes aware of same."
In 2022, in furtherance of the pension clause, the wife
arranged for an attorney to draft the MQCO, which provided that
the wife would receive "50% per month from the [husband]'s
disposable military retired pay." The husband refused to sign
the MQCO. The wife filed a complaint for contempt alleging that
the husband had violated the pension clause by refusing to
cooperate in the preparation of the MQCO. The husband moved to
dismiss the complaint, arguing that because he did not receive
his military pension until 2021 it was not governed by the
pension clause.
After a nonevidentiary hearing on the complaint for
contempt, the judge concluded that the pension clause was a
clear and unequivocal order requiring the husband to report his
receipt of the military pension to the wife. However, the judge
concluded that the wife had not proven by clear and convincing
evidence that the husband had violated that order by refusing to
execute the MQCO, because the pension clause did not specify a
3 time frame for its execution and the inference that the husband
was required to do so within a reasonable time was insufficient
to sustain a finding of contempt.
As to the proposed MQCO, the husband argued that it would
improperly award the wife a portion of his pension benefits that
accrued after the marriage. To address the husband's concerns,
the judge amended the MQCO so that it awarded the wife fifty
percent per month of the husband's disposable military retired
pay that "the [husband] accrued during the marriage." The
judge's amendment to the MQCO, however, contained a scrivener's
error insofar as the marital coverture period was incorrectly
stated as beginning on August 11, 1994, rather than August 11,
1984 (the latter being the correct date that the parties were
married).2 The judge rejected the husband's argument that
because the pension clause referred to any pension to which he
"is entitled . . . up to the date of th[e] [separation
a]greement," any right of the wife to a portion of his pension
was extinguished when the parties executed the agreement in
1999, and did not apply to the military pension that he received
beginning in 2021.
2 The judge's amendment to the MQCO referred to the marital coverture period as "8/11/94 to 6/16/99" (emphasis added). According to the complaint for divorce and divorce judgment, the parties were married on August 11, 1984.
4 The judge ruled that, although the husband was not guilty
of contempt, it was "only equitable" to award the wife her
attorney's fees because she "made several attempts to resolve
this matter prior to filing a [c]omplaint," and the husband
"refused to engage in any meaningful conversation with
counsel . . . regarding his issues with the language of the
MQCO." Judgment entered incorporating the MQCO as amended by
the judge (including the aforementioned scrivener's error with
respect to the parties' wedding date).
The husband moved to alter or amend the judgment, Mass. R.
Dom. Rel. P. 59 (e), and to amend the judge's findings, Mass. R.
Dom. Rel. P. 52 (b). He argued that he never would have signed
the separation agreement had he understood the meaning of the
pension clause, and because the wife had already received a
portion of his VSI benefit she should not also be entitled to a
portion of his military pension benefit. The judge denied the
motions to amend the judgment. The present appeal by the
husband followed.
Discussion. 1. Interpretation of pension clause. The
husband argues that the judge erred in interpreting the pension
clause to require the husband to pay the wife half of his
disposable retired pay accrued during the marriage. We review
de novo the judge's rulings of law, including her interpretation
5 of the parties' separation agreement. See Tompkins v. Tompkins,
65 Mass. App. Ct. 487, 494 (2006).
In 1982, Congress enacted the Uniformed Services Former
Spouses' Protection Act (USFSPA), 10 U.S.C. § 1408. In 10
U.S.C. § 1408(c)(1), the USFSPA provides that military pensions
may be divisible under state divorce law in the same manner as
other marital assets to the extent that what is divided is
"disposable retired pay" as defined in 10 U.S.C. § 1408(a)(4).
See Mansell v. Mansell, 490 U.S. 581, 588-589 (1989). See also
Howell v. Howell, 581 U.S. 214, 215-216 (2017). A state
comports with the USFSPA by treating as divisible marital
property "disposable retired pay earned for service during
marriage." Casey v. Casey, 79 Mass. App. Ct. 623, 628 (2011),
quoting Adkins v. Rumsfeld, 464 F.3d 456, 461 (4th Cir. 2006).
Since the enactment of the USFSPA, "nearly every state has
elected to treat military retired pay as divisible marital
property" (citation omitted). Casey, supra. Massachusetts has
done so pursuant to G. L. c. 208, § 34, which includes "military
retirement benefits" among those assets that are subject to
equitable division during a divorce. See Casey, supra at 628-
629. By entering the MQCO to effectuate the pension clause, the
6 judge divided the husband's disposable retired pay as permitted
by the USFSPA.3
The husband argues that the judge erred in interpreting the
language of the pension clause that states, "[t]o the extent
that the [h]usband is entitled to any military or other pension
up to the date of this agreement the [w]ife shall be entitled to
receive 50% thereof" (emphases added). He contends that the
verb "is entitled," in the present tense, and the phrase "up to
the date of" collectively mean that the pension clause applied
to benefits which he was entitled to receive as of the date of
the separation agreement, June 16, 1999, and not, as the judge
interpreted it, pension benefits that he had accrued as of that
date. We are not persuaded. See McMahon v. McMahon, 31 Mass.
App. Ct. 504, 508-509 (1991) (at time of divorce, husband was in
Air Force; judge properly awarded wife percentage of retirement
pay which husband began receiving after divorce).
The judge interpreted the pension clause to mean that the
husband's future interest in any military pension he accrued
during the marriage would be shared with the wife. The language
To the extent that the husband argues that the judge 3
should have allowed his motion for judicial notice of the USFSPA, rather than taking no action on the motion, we conclude, assuming without deciding, that even if the husband is correct, he was not prejudiced. As we explained, the judge's interpretation of the pension clause and entry of the MQCO comported with the USFSPA.
7 of the pension clause supported that interpretation, because it
directed that the wife would receive her share of the husband's
military pension "via appropriate QDRO or other order." The
MQCO is "[an]other order" similar to a QDRO, which is a court
order dividing a spouse's interest in a pension. See Early v.
Early, 413 Mass. 720, 722 n.3 (1992).
The husband contends that because he was not entitled to
receive his military pension until he completed twenty years of
service in 2021, it did not meet the definition of a pension to
which he "is entitled" as of 1999, as defined in the pension
clause. Whether or not the husband's pension was in pay status
at the time of the divorce was not significant. See Casey, 79
Mass. App. Ct. at 632. As of the divorce, the husband was
entitled to a property interest in so much of the military
pension as he had accrued up to that date, even if he did not
vest in or begin collecting it until after the marriage. See
Brower v. Brower, 61 Mass. App. Ct. 216, 218-220 (2004)
(rejecting husband's argument that wife not entitled to portion
of his public pension accrued during marriage, where it was
computed based on his three highest years of service that did
not occur until after marriage). If the husband's
interpretation of the pension clause were correct, then it would
pertain to an asset that did not exist when the parties signed
the separation agreement, not even as a contingent or possible
8 future property interest. We will not interpret the pension
clause to be meaningless. See Duval v. Duval, 101 Mass. App.
Ct. 752, 760 (2022) ("every word and phrase of a contract
should, if possible, be given meaning, and . . . none should be
treated as surplusage if any other construction is rationally
possible" [citation omitted]). We agree with the judge's
interpretation of the pension clause.
The husband makes assertions about the circumstances of his
signing the separation agreement and his discussions with the
wife's lawyer in 1999 about the pension clause, contending that
the separation agreement "never contemplated division of any
future pensions." "To the extent that [the husband]'s
unhappiness with the [MQCO] may be seen as a claim that it does
not accurately reflect his understanding of the agreement, or
that it is unfair, his claim comes too late." Tompkins, 65
Mass. App. Ct. at 496.
In the separation agreement, the wife agreed to forego
present alimony. Cf. Casey, 79 Mass. App. Ct. at 629, 632
(division of marital assets inequitable to wife, where judge
treated husband's Air Force pension as income rather than
divisible asset, and did not award wife alimony). The wife also
took the chance, based on variables that could not be determined
in advance, that she would receive a portion of the husband's
military pension. Cf. Brower, 61 Mass. App. Ct. at 219 (value
9 of husband's pension depended on "variables that could not be
determined in advance"; he "could retire in a day, a year, or a
decade"). In those circumstances, the wife is entitled to the
benefit of her bargain as incorporated into the divorce
judgment.
2. VSI benefit as equivalent to pension. The husband
argues that his VSI benefit was the functional equivalent of a
pension, and therefore it was the "military or other pension"
referred to in the pension clause. He contends that because he
already paid a portion of the VSI benefit to the wife, he should
not also be required to pay the wife a portion of his military
pension. The argument is unavailing. It would make no sense
for the separation agreement to have both the military
separation pay clause and the pension clause if both clauses
allocated the VSI benefit. See Duval, 101 Mass. App. Ct. at
760. Moreover, the agreement expressly required the husband to
pay the wife thirty-three percent of his VSI benefit as lump sum
child support (in addition to his weekly child support
payments), with the obligation terminating on the emancipation
of the parties' children. Thus, unlike the husband's military
pension (which was part of the property division), the husband's
VSI benefit was, in essence, treated as income for purposes of
child support.
10 The husband also argues that because his total monthly
retired pay is lessened to recoup the VSI benefit already paid
to him, see 10 U.S.C. § 1408(a)(4)(A), he should not be required
to pay the wife a portion of his military pension. That
recoupment is precisely why the MQCO is worded so that it
divides as marital property the husband's "disposable retired
pay," 10 U.S.C. § 1408(a)(4), and not the husband's total
monthly retired pay. See Mansell, 490 U.S. at 589. See also
Howell, 581 U.S. at 223 (divorce decree improperly "divided the
whole of [husband]'s military retirement pay"). The language of
the MQCO comports with the USFSPA.
3. Award of attorney's fees to wife. The husband argues
that because the judge did not find the husband guilty of
contempt, the judge should not have awarded attorney's fees to
the wife. In declining to find the husband in contempt, the
judge concluded that the pension clause was a clear and
unequivocal order requiring the husband to pay the wife half of
the disposable military retired pay that he accrued during the
marriage; however, it did not contain a clear and unequivocal
command as to a specific time frame in which the husband was
required to execute the MQCO. See Birchall, petitioner, 454
Mass. 837, 851-852 (2009).
Simply because the husband avoided a contempt finding did
not absolve him of paying those reasonably incurred attorney's
11 fees that the wife was required to expend to enforce the clear
and unequivocal order contained in the pension clause in the
divorce judgment. See Coppinger v. Coppinger, 57 Mass. App. Ct.
709, 714-715 (2003). See also Hennessey v. Sarkis, 54 Mass.
App. Ct. 152, 156-157 (2002). Moreover, the judge had the
authority, separate from any contempt determination, to award
either party fees in her discretion. See Cooper v. Cooper, 62
Mass. App. Ct. 130, 141, 143-144 (2004), citing G. L. c. 208,
§ 38. We therefore discern no abuse of discretion in the
judge's decision to award attorney's fees to the wife.
4. Appellate attorney's fees and costs. The husband
requests that we award him appellate attorney's fees and costs.
We decline to do so. See Freidus v. Hartwell, 80 Mass. App. Ct.
496, 504 (2011) (husband found not in contempt, attorney's fees
denied for both sides). Contrast Kelley v. Kelley, 64 Mass.
App. Ct. 733, 742-743 (2005) (wife granted attorney's fees after
husband misrepresented income and transferred assets to hide
them from wife).
Conclusion. So much of the July 29, 2022 judgment as
amended the MQCO to include a marital coverture period beginning
on August 11, 1994, is vacated, and the case is remanded for the
limited purpose of entering a modified judgment and MQCO setting
forth the correct marital coverture period beginning on August
11, 1984. As so modified, the judgment is affirmed. The order
12 dated September 9, 2022, allowing the wife's motion for
attorney's fees is affirmed. The order dated June 6, 2023,
denying the husband's postjudgment motions is affirmed.
So ordered.
By the Court (Desmond, Hand & Grant, JJ.4),
Assistant Clerk
Entered: June 17, 2024.
4 The panelists are listed in order of seniority.