Musket, M. v. Musket, K. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MATTHEW MUSKET : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KELLY J. MUSKET : No. 1324 MDA 2019
Appeal from the Order Entered May 23, 2019
In the Court of Common Pleas of Berks County Civil Division at No(s):
15-18475
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 15, 2020
Appellant Matthew Musket (“Husband”) appeals from the Order entered
in the Court of Common Pleas of Berks County on May 23, 2019, made final
for purposes of appeal by the Order entered on July 15, 2019, in accordance
with Pa.R.A.P. 341(c), denying Husband’s Exceptions to the Master’s Report
and Recommendation for Equitable Distribution which, inter alia, deferred
valuation and distribution of Kelly J. Musket’s (“Wife”) Pennsylvania State
Employees’ Retirement System (“PSERS”) pension. We affirm.
The trial court set forth the relevant facts and procedural history herein
as follows:
The parties in the above-captioned divorce, [Husband] and
[Wife] were married on June 26, 2006. Husband initiated divorce
proceedings on September 23, 2015. This appeal arises out of this
[c]ourt's order of July 15, 2019, designating our order of May 23,
____________________________________________
* Former Justice specially assigned to the Superior Court.
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2019, denying Husband's Exceptions, a Final Order for the
purposes of an appeal pursuant to Pa R.A.P. No. 341(c).
Procedural History
The parties appeared before the Divorce Hearing Master, Jill
Gehman Koestel, on December 5, 2018 and December 27, 2018.
The Master's Report and Recommendation was filed on February
12, 2019. [Husband] filed Exceptions to the Master's Report
alleging the Master erred by: (1) failing to make a finding of value
of Wife's [PSERS] pension, (2) failing to apply an immediate offset
valuation to [Wife’s] PSERS pension, (3) failing to protect
[Husband] against [Wife’s] decease or disability prior to
retirement by requiring [Husband] be designated as the
beneficiary of [Wife]'s PSERS pension death benefit ([Husband's]
Statement of Matters, ¶ 13 - 15).
We considered the above issues, and, following argument
on [Husband’s] Exceptions and a review of the transcript of the
Divorce Master Hearings and all other pleadings, entered an order
denying all of [Husband’s] Exceptions, having found that the
Master committed no error of law or fact.
Trial Court Opinion, filed 10/9/19, at 1-2.
Husband filed a timely notice of appeal on August 12, 2019. On August
27, 2019, Husband filed his concise statement of matters complained of on
appeal which spans four pages and contains fifteen, separately enumerated
paragraphs, some of which contain multiple subparts. The trial court filed its
Opinion pursuant to Pa.R.A.P. 1925(a) on October 9, 2019.
Before we consider the merits of Appellant’s questions presented on
appeal, we first must determine whether he has preserved them for appellate
review. This Court explained in Riley v. Foley, 783 A.2d 807, 813 (Pa.Super.
2001), that Pa.R.A.P. 1925 is a crucial component of the appellate process
because it allows the trial court to identify and focus on those issues the
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parties plan to raise on appeal. We further determined that “a Concise
Statement which is too vague to allow the court to identify the issues raised
on appeal is the functional equivalent to no Concise Statement at all.”
Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super. 2001).
“Even if the trial court correctly guesses the issues Appellant[] raise[s] on
appeal and writes an opinion pursuant to that supposition the issues are still
waived.” Kanter v. Epstein, 866 A.2d 394, 400 (Pa.Super. 2004) (citation
omitted, appeal denied, 584 Pa. 678, 880 A.2d 1239 (2005), cert. denied,
Spector, Gadon & Rosen, P.C. v. Kanter, 546 U.S. 1092, 126 S.Ct. 1048,
163 L.Ed.2d 858 (2006).
We also have stated that:
When a court has to guess what issues an appellant is appealing,
that is not enough for meaningful review. When an appellant fails
adequately to identify in a concise manner the issues sought to be
pursued on appeal, the trial court is impeded in its preparation of
a legal analysis which is pertinent to those issues.
In other words, a Concise Statement which is too vague to
allow the court to identify the issues raised on appeal is the
functional equivalent of no Concise Statement at all. While
[Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)]
and its progeny have generally involved situations where an
appellant completely fails to mention an issue in his Concise
Statement, for the reasons set forth above we conclude that Lord
should also apply to Concise Statements which are so vague as to
prevent the court from identifying the issue to be raised on
appeal....
Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa.Super. 2006) (quoting
Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super. 2001)).
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This Court similarly has found waiver applicable to voluminous concise
statements. As indicated in Tucker v. R.M. Tours, 939 A.2d 343, 346
(Pa.Super. 2007):
Our law makes it clear that Pa.R.A.P. 1925(b) is not satisfied
by simply filing any statement. Rather, the statement must be
“concise” and coherent as to permit the trial court to understand
the specific issues being raised on appeal. Specifically, this Court
has held that when appellants raise an “outrageous” number of
issues in their 1925(b) statement, the appellants have
“deliberately circumvented the meaning and purpose of Rule
1925(b) and ha[ve] thereby effectively precluded appellate review
of the issues [they] now seek to raise.” Kanter, 866 A.2d at 401.
We have further noted that such “voluminous” statements do not
identify the issues that appellants actually intend to raise on
appeal because the briefing limitations contained in Pa.R.A.P.
2116(a) makes the raising of so many issues impossible. Id.“Further, this type of extravagant 1925(b) statement makes it all
but impossible for the trial court to provide a comprehensive
analysis of the issues.” Jones v. Jones, 878 A.2d 86, 90
(Pa.Super. 2005).
In the matter sub judice, the trial court indicated in its Rule 1925(a)
Opinion that while at first blush Husband’s concise statement appeared to
assert fifteen separate claims, the allegations of error “revolve around a single
asset, [Husband’s] interest in the PSERS pension, and relate to the valuation
and distribution of that pension.” Trial Court Opinion, filed October 9, 2019,
at 2. The same can be said for the issues presented in Husband’s appellate
brief. Thus, in light of the fact that the trial court was able to conduct a
meaningful review of the issues Husband sought to raise, and Husband raises
essentially those same issues for this Court’s consideration, we decline to find
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Husband’s issues waived for filing a deficient concise statement and proceed
to consider the merits of the following three claims he presents for our review:
I. DID THE MASTER ERR IN FAILING AND REFUSING TO FIND
A VALUE AS TO [WIFE’S] PUBLIC-SCHOOL EMPLOYEES
RETIREMENT SYSTEM (PSERS) BENEFIT AND DID THE LOWER
COURT ERR IN DENYING [HUSBAND’S] EXCEPTIONS THERETO?
II. DID THE MASTER ERR IN FAILING AND REFUSING TO
RECOMMEND AN IMMEDIATE OFFSET OF THE MARITAL PORTION
OF [WIFE’s] PSERS BENEFIT AGAINST OTHER MARITAL ASSETS
RATHER THAN A DEFERRED DISTRIBUTION THEREOF AND DID
THE LOWER COURT ERR IN DENYING [HUSBAND’S] EXCEPTIONS
THERETO?
III. DID THE MASTER ERR IN FAILING TO RECOMMEND A DECREE
WHICH WOULD PROTECT [HUSBAND’S] RIGHTS IN REGARD TO
[WIFE’S] PSERS BENEFITS IN THE EVENT OF DEATH OR
DISABILITY AND DID THE LOWER COURT ERR IN DENYING
[HUSBAND’S] EXCEPTIONS THERETO?
Brief of Appellant at vi. As Husband’s first two issues are interrelated, we will
consider them together. In doing so, we are mindful of this Court’s well-
settled role in reviewing equitable distribution awards:
Our standard of review in assessing the propriety of a marital
property distribution is whether the trial court abused its
discretion by a misapplication of the law or failure to follow proper
legal procedure. An abuse of discretion is not found lightly, but
only upon a showing of clear and convincing evidence.
McCoy v. McCoy, 888 A.2d 906, 908 (Pa.Super. 2005) (internal quotations
and citation omitted). We have further stated:
This Court will not find an “abuse of discretion” unless the
law has been overridden or misapplied or the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence in the certified record.
In determining the propriety of an equitable distribution award,
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courts must consider the distribution scheme as a whole. We
measure the circumstances of the case against the objective of
effectuating economic justice between the parties and achieving a
just determination of their property rights.
Moreover, it is within the province of the trial court to weigh
the evidence and decide credibility and this Court will not reverse
those determinations so long as they are supported by the
evidence. We are also aware that a master's report and
recommendation, although only advisory, is to be given the fullest
consideration, particularly on the question of credibility of
witnesses, because the master has the opportunity to observe and
assess the behavior and demeanor of the parties.
Carney v. Carney, 167 A.3d 127, 131 (Pa.Super. 2017) (citations omitted).
Wife’s PSERS account is a defined benefit pension plan. Section 3501(c)
of the Divorce Code speaks to the calculations that must be made when
valuing a defined benefit retirement plan for purposes of equitable distribution
according to either an immediate offset or a deferred distribution method:
(c) Defined benefit retirement plans.--Notwithstanding
subsections (a), (a.1) and (b):
(1) In the case of the marital portion of a defined benefit
retirement plan being distributed by means of a deferred
distribution, the defined benefit plan shall be allocated between
its marital and nonmarital portions solely by use of a coverture
fraction. The denominator of the coverture fraction shall be the
number of months the employee spouse worked to earn the total
benefit and the numerator shall be the number of such months
during which the parties were married and not finally separated.
The benefit to which the coverture fraction is applied shall include
all postseparation enhancements except for enhancements arising
from postseparation monetary contributions made by the
employee spouse, including the gain or loss on such contributions.
(2) In the case of the marital portion of a defined benefit
retirement plan being distributed by means of an immediate
offset, the defined benefit plan shall be allocated between its
marital and nonmarital portions solely by use of a coverture
fraction. The denominator of the coverture fraction shall be the
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number of months the employee spouse worked to earn the
accrued benefit as of a date as close to the time of trial as
reasonably possible and the numerator shall be the number of
such months during which the parties were married and not finally
separated. The benefit to which the coverture fraction is applied
shall include all postseparation enhancements up to a date as
close to the time of trial as reasonably possible except for
enhancements arising from postseparation monetary
contributions made by the employee spouse, including the gain or
loss on such contributions.
23 Pa.C.S.A. §§ 3501 (c)(1), (2).
This Court has observed:
The first method, “immediate offset,” awards a percentage of the
marital portion of the value of the pension to the party earning it,
and offsets the marital value of this pension with other marital
assets at equitable distribution. This method is preferred where
the estate has sufficient assets to offset the pension, because it
does not require the court to retain jurisdiction indefinitely. The
second method, “deferred distribution,” generally requires the
court to retain jurisdiction until the pension is collected, at which
point the pension is divided according to the court's order. This
method is more practical where the parties lack sufficient assets
to offset the marital value of the pension.
We have recognized that neither distribution scheme will be
appropriate to all cases. Rather, the trial court must balance the
advantages and disadvantages of each method according to the
facts of the case before it in order to determine which method
would best effectuate economic justice between the parties.
Conner v. Conner, 217 A.3d 307, 312 (Pa.Super. 2019) citations omitted.
In the matter sub judice, Husband first avers the trial court erred in
accepting and approving the Master’s alleged failure and refusal to set a
present value for Wife’s PSERS pension. Husband posits such failure
constituted a derogation of the Master’s duty and an abuse of her discretion.
Brief of Appellant at xiii, 4. Husband states the Master refused to do so in
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light of her “unwillingness to contradict her preconceived notions as to the
valuation of such benefits.” Brief of Appellant at xiii.
In support of his position, Husband points to the Master’s erroneous
view at the hearings on December 5, 2018, December 27, 2018, that the value
of the PSERS Benefit for purposes of equitable distribution was the accrued
death benefit as set forth in the annual PSERS Statement issued on June 30
of each year, despite the parties’ experts’ explanations to the contrary. Id.
at 4.1 Husband also asks this Court to disregard the testimony and
calculations of Wife’s expert “as it is based upon at least a triad of erroneous
assumptions” and “supplant the nonfinding of the Lower Court with [our] own
finding of value as requested.” Id. at 5-7, 11. Specifically, Husband urges
this Court to make a finding as to the present value of Wife’s PSERS pension
by choosing one of the several calculations provided by Husband’s expert. Id.
at 9-10.
Husband next maintains the trial court erred and abused its discretion
in failing to order an immediate offset of the marital portion of Wife’s PSERS
benefit against other marital assets. Husband reasons that the immediate
offset method historically has been the preferred method of distributing a
Defined Benefit Pension Plan, although he believes the Master revealed a
predisposition in this matter to the contrary. Id at 12-15. Husband also
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1 As Husband notes, the Master eventually acknowledged her error. Id. at 4.
(citing N.T. Divorce Hearing 15/5/18-12/27/18 at 65-66).
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points to numerous factors that he deems command an immediate offset of
Wife’s defined benefit to effect economic justice. Id. at 16-18.
Both parties presented expert testimony at the Master’s Hearing.
Husband’s expert, Jonathan D. Cramer, is a licensed actuary who has testified
in Berks County, among others, regarding the issue of valuation of pension
benefits, including PSERS. Wife’s expert, William Ehrich, Esquire, is an
attorney whose practice focuses on the preparation of ADRO's, DRO's, and
QDRO's for the purposes of distributing pension benefits. The parties
stipulated that both Mr. Cramer and Mr. Ehrich were “expert[s] in regard to
pension evaluations.” N.T. Divorce Hearing, 12/5/18-12/27-18, at 6.
As the trial court noted, the Master found a significant discrepancy of an
amount nearly $100,000.00 among the numerous, final valuations presented
by each expert. These valuations differed based on whether each expert used
a retirement age for Wife of 58.1 or 62, as well as other variables, such as the
applicable interest rate. Trial Court Opinion, 10/9/19, at 2-3. In finding no
error of law or fact in the Master’s determination that a deferred distribution
of the marital portion of Wife’s PSERS pension would be the most equitable
solution, the trial court found the Master had clearly articulated the factors
and explained the weight she afforded to each in her recommendation as
follows:
Both experts were knowledgeable in regard to the PSERS pension
but approached their valuations using very different interest rates
causing huge differences in the valuations. Mr. Cramer assumed
an effective 2.84 discount rate in determining his valuation and
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Mr. Ehrich assumed an effective 4.55 discount rate. Mr. Cramer,
within the report of his second explanatory letter and on the stand,
and Mr. Ehrich, on the stand, agreed that the difference between
their two reports was attributable to the different discount rates
they employed. Both experts justified the use of their discount
rates by referring to tables used by two different entities. Mr.
Cramer used the PBGC annuity valuation interests, and Mr. Ehrich
uses the most recent Variable Premium Rates together with PBGC
2018 mortality tables. Neither expert succeeded in convincing me
that their method of valuation was more valid than the other
method used.
Mr. Myers provided a Memorandum of Law regarding the
policy reasons for applying immediate offset over deferred
distribution. Although the immediate offset method has been
preferred, at least from cases dating more than 25 years ago, the
most recent amendment to the divorce code reflected in 23
Pa.C.S.A section 3501 (c) sets forth specific instruction for
distribution of a defined benefit plan for both immediate offset and
deferred distribution without expressing any preference for which
distribution method is used. The focus should remain on Section
3502's charge to equitably divide the marital property.
In this matter, there is a huge discrepancy between the
valuations of each expert based on whether they used a
retirement age of Wife of 58.1 or 62. Wife gave no indication as
to when she was planning to retire. If I choose a valuation using
a retirement date of 58.1 and Wife continues to teach until she is
62, then I have seriously compromised Wife's economic parity in
this divorce. If I use a retirement age of 62 and Wife retires at her
earliest retirement age of 58.1, I have seriously compromised
Husband's economic parity in this matter. Examining the experts'
reports with the experts using the common valuation date based
on Wife's 2017 PSERS statement and assuming a retirement at
age 58.1, as is used in the PSERS statement to determine its
present value of $299,938 (including both marital and non-marital
portions), the marital value determined by Mr. Cramer and Mr.
Ehrich differ by almost $100,000. This is not a situation in which
averaging the two values is practical or valid as frequently occurs
with real estate valuations. This is a situation in which the fact
finder must decide who is right and who is wrong. Considering the
validity of both valuation methods, it is impossible to arbitrarily
pick one of the values. It is just not equitable to do that.
In addition, Husband's expert provided valuations using
every different statement with which he was provided, in addition
to providing a valuation using the current monthly retirement
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benefit from 2017 and 2018, giving me at least 9 different
valuations from that expert alone. It would be arbitrary to simply
choose one of Mr. Cramer's values to distribute the pension to
Wife. Mr. Myers advocates for the use of one of the three 2018
statement valuations as being closer to the date of distribution.
However, that still requires me to determine whether Wife will
retire at age 62 or 58.1 or using the valuation of her current
pension amount as if she was no longer employed in 2018 when
the parties actually separated in 2015. Husband's expert did not
provide a valuation of the pension as if Wife discontinued
employment as of the date of separation in 2015.
As I said during the first meeting with these parties, the
amount of variables in these valuation processes leads me to
believe that the fairest way to distribute Wife's PSERS pension is
to divide the marital portion by QDRO. I still believe this to be
true. I gave the parties an opportunity to agree on a value by
stating that I believed that PSERS was the entity with the surest
knowledge of what the plan had accumulated for Wife. Husband
would not agree. I did state my experience with PSERS plans
during this process, but my decision in this matter has nothing to
do with knowledge of these plans outside of the evidence
presented in this case. This process is to secure equitable
treatment of both parties as stated in section 3502. Nothing could
be more equitable and could assure economic parity to these
parties than the division of the marital portion of Wife's PSERS
equally to both parties. That allows Wife to make the decision as
to when she retires at the time such a decision should be made
rather than projecting that decision onto Wife when she is only 41
years old today. It also requires the parties to share the risks
inherently involved in the collection of a pension, especially one
such as this which is underfunded as stated by Mr. Cramer during
his testimony. Without the parties agreeing to a value of this
PSERS plan, I do not have the evidence or personal resources to
arbitrarily choose one of the many valuations presented to me to
apply an immediate offset, particularly considering the great
disparity between the expert opinions. Consequently, my
recommendation for distribution of property will include the equal
division of the marital portion of Wife's PSERS pension.
Master’s Report and Recommendation for Equitable Distribution, 2/19/19, at
6-9.
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The Master determined, and the trial court agreed, that rather than
engage in speculation as to what Wife’s retirement age will be and as to which
one of each expert’s multiple calculations represents a correct immediate
offset valuation, a division of the marital portion of the PSERS pension by
QDRO would be the most equitable resolution.
Similarly, in vacating the trial court’s decision to use the immediate
offset method to distribute the husband's Civil Service Retirement System
pension and at the same time retain jurisdiction to allow the pension to be
revalued in event husband retired before age 65, this Court observed:
[E]ach party introduced expert testimony analyzing the present
value of the pensions of both Husband and Wife. Wife's federal
civil service retirement pension was valued at $5,478 and is not
at issue. The conclusions of the experts with regard to the value
of Husband's pension, however, varied significantly, depending
upon retirement age, the discount rate and other variables
utilized. The trial court, itself, remarked that the valuations placed
upon Husband's pension ranged from “a low of $24,205 to a high
of $170,348.78.” Opinion, dated July 11, 1991, at 3. The trial
court commented that:
The protracted proceedings in this case have served to
underscore the less than scientific ability of experts to
reach a fair valuation of a fully vested, but not matured,
defined benefit pension.
Opinion, dated 7/11/91 at 5.
From this comment and the testimony of the pension
experts, we fail to understand how the trial court, with equity,
could have used the immediate offset method in distributing
Husband's pension in the present case. The trial court has, in
essence, utilized a present value to order a deferred payment. We
have held such determinations to be an abuse of discretion in the
past. Here, we are likewise constrained to find that a formula for
the distribution of marital assets utilizing the deferred distribution
method where the marital asset offset is based on present value
is inappropriate.
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Elhajj v. Elhajj, 605 A.2d 1268, 1270 (Pa.Super. 1992) (citations omitted).
In the same vein, the Conner Court employed the following rationale
in support of its finding that the trial court had abused its discretion by
adopting a present value for the husband’s judicial income, a retirement
annuity:
Likewise, the soundness of the trial court's valuation is speculative
at best due to the lack of evidence supporting the court's arbitrary
determination that Husband would retire at age 65. There is
ample empirical and statistical evidence to justify the conclusion
that all workers do not retire at the same age. A variety of factors
impact on an individuals [sic] selection of a retirement age. In the
great majority of qualified defined benefit plans the participant is
given an option to retire within a range of dates. The breadth of
this range is from the date an individual becomes vested and
decides to opt for a vested deferred retirement benefit ... to the
date an individual is required to terminate employment as a result
of demonstrable physical or mental incapacity to perform ....
Because of the actual range of retirement options available to the
employed spouse, evaluators who assume that all workers retire
at the same age or point are to be viewed with skepticism.
Conner v. Conner, 217 A.3d 301, 313–14 (Pa.Super. 2019) (citation
omitted) (brackets in original).
Husband’s assertions to the contrary, the Master and, subsequently, the
trial court, did not contravene the purpose of the Divorce Code by “refusing”
to make an immediate offset valuation of Wife’s PSERS benefit. Rather, upon
hearing the expert testimony and reviewing their numerous valuations, the
Master determined that a deferred distribution of the marital portion of Wife’s
PSERS pension would be the most equitable method in light of the
circumstances presented herein. Following its review, the trial court agreed.
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Husband essentially asks this Court to reweigh the testimony and
calculations of the experts and give credence to that of Mr. Cramer in
assigning a present day value for the immediate offset of the marital portion
of Wife’s PSERS pension. However, the trial court, as finder of fact, was “free
to believe all, part, or none of the evidence,” and this Court will not disturb
the trial court's credibility determinations. Lee v. Lee, 978 A.2d 380, 382 (Pa.
Super. 2009). Mindful of the trial court’s wide discretion to value assets for
purposes of equitable distribution and this Court’s highly deferential standard
of review, we find no error in the trial court’s decision to adopt the Master’s
reasoning that the deferred distribution method would best effect economic
justice between Husband and Wife.
Finally, Husband argues the following language in the May 23, 2019,
Order fails to protect his interest in Wife’s PSERS pension in the event of her
decease or disability, in light of the fact that a PSERS Account Statement
provides information for a participant relative to the appointment of a
beneficiary: “The QDRO[2] shall provide that Husband is to continue to collect
his portion in the event of the death of Wife, if the plan so allows.” Brief of
Appellant at 18-20. Husband baldly posits the Order should require that Wife
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2 “A QDRO is an order which creates or recognizes the rights of an alternate
payee to receive all or a portion of the benefits payable to a participant under
[a pension] plan.” Getty v. Getty, 221 A.3d 192, 195 n.4 (Pa.Super. 2019)
(citation omitted).
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designate him to be the beneficiary of the death and/or disability benefit of
the PSERS pension. Id. at 21.
While this Court is not bound by the holdings of our colleagues in the
Commonwealth Court, our settled precedent permits us to turn to those
decisions for guidance when appropriate and cite to this authority where it is
persuasive. Commonwealth v. Hunt, 220 A.3d 582, 591 (Pa.Super. 2019).
In Kirsop v. Pub. Sch. Employes' Ret. Bd., 747 A.2d 966, 967 (Pa.Commw.
2000), the Commonwealth Court considered an appeal from an order of the
Public School Employees' Retirement Board which held that a former spouse
was not entitled to 100% of the proceeds from the retirement account of her
deceased former husband but rather was limited to 50% of the death benefits
pursuant to a marital settlement agreement and an unexecuted QDRO.
Following husband’s death, former wife received notification from PSERS of its
intention to pay her 100% of his death benefits in accordance with the
nomination of benefits form; however, after learning that the parties had been
divorced and of the existence of the marital settlement agreement, PSERS
requested copies of the divorce decree, the agreement, and the unsigned
QDRO. Thereafter, former wife was informed that she was entitled to just
50% of the marital portion of the retirement benefits as specified in the marital
settlement agreement and incorporated into the divorce decree. PSERS
concluded that these documents were “a clear written indication of the
decedent's desire to change the terms of the beneficiary designation.... [and
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that PSERS] is required to apportion the death benefit in accordance with the
Court Order.” Id.The Court stated its displeasure with former wife for failing to perform
her duty under the marital settlement agreement and called her attempt to
use that failure as the basis for her argument she is entitled to 100% of the
benefits “disingenuous.” The Court further noted that if former wife had failed
to finalize the QDRO and former husband had filed a new beneficiary form
naming the couple's two children as the beneficiaries to her exclusion, she
would be arguing that the QDRO and the settlement agreement show the
intent of the parties that she was entitled to 50% of the marital share of the
PSERS benefits. Id. at 970-71, n. 6. The Court highlighted, id. at 970, that
Section 3323(d) of the divorce code which provides:
(d) Substitution for deceased party.--If one of the parties dies
after the decree of divorce has been entered, but prior to the final
determination in such proceeding of the property rights and
interests of the parties under this part, the personal
representative of the deceased party shall be substituted as a
party as provided by law and the action shall proceed.
23 Pa.C.S.A. § 3323(d).
As the foregoing illustrates, PSERS is bound to enforce a QDRO that
works as an attachment order of one’s pension fund pursuant to the Divorce
Code even where that QDRO has not been properly executed. Herein, the
QDRO shall provide that Husband is to collect his portion of Wife’s PSERS
benefit in the event of her death. PSERS will be bound to enforce this provision
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of the Order; therefore, Husband’s unsupported claim that his interest in
Wife’s pension is not protected lacks merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2020
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