Zehner, J. v. Zehner, E.

J-A13039-18
2018 Pa. Super. 242
JEFFREY S. ZEHNER, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ERIKA L. ZEHNER : No. 1645 WDA 2017
Appeal from the Order Entered October 6, 2017
in the Court of Common Pleas of Allegheny County,
Civil Division at No(s): FD-11-6066-002
BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.
OPINION BY MUSMANNO, J. FILED AUGUST 31, 2018
Jeffrey S. Zehner (“Husband”) appeals from the Order directing the
modification of a qualified domestic relations order (hereinafter the “2015
QDRO”) that Husband and his ex-wife, Erika L. Zehner (“Wife”), had entered
into to effectuate the equitable distribution of Wife’s Pennsylvania State
Employees’ Retirement System (“PSERS”) pension. We affirm.
Husband and Wife married in July 1991. They separated in January
2011, shortly after which Wife filed a Divorce Complaint. Eventually, on July
29, 2014, the parties executed a Consent Order of Court for Equitable
Distribution (hereinafter the “Consent Order”).
The Consent Order sets forth the overall scheme of distribution at
Paragraph 2; providing, in relevant part, that “Husband shall receive 55% of
the non-retirement assets and Wife shall receive 45% of the non-retirement
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assets. The parties shall equally divide the marital portion[1] of their
respective retirement assets.” Consent Order, 7/29/14, ¶ 2 (emphasis and
footnote added). Concerning retirement assets, the Consent Order provides
that Husband shall retain “50% of the marital portion of” his retirement plan,
and 100% of the non-marital portion of his plan. Id. ¶ 3(g). Likewise, the
Consent Order provides that Wife shall retain “50% of the marital portion of”
her PSERS pension, and 100% of the non-marital portion of her pension. Id.
¶ 4(b). The Consent Order provides that “Husband shall receive 50% of the
marital portion of Wife’s PSERS pension … to be divided by [QDRO] prepared
by Wife’s counsel.” Id. ¶ 3(h) (emphasis added). Notably to this appeal, the
Consent Order provides that the coverture fraction pertaining to Wife’s
pension (hereinafter “Wife’s coverture fraction”) “shall be determined as
follows: the numerator shall be the Date of Marriage through the Date of
Separation; the denominator shall equal the amount of [Wife’s] service,
through the date of separation.” Id. ¶ 4(b)(3).
On January 8, 2015, the trial court entered the 2015 QDRO, which
effectuated the equitable distribution of Wife’s pension, employing Wife’s
coverture fraction contained in the Consent Order. Importantly, the
application of Wife’s coverture fraction resulted in Husband receiving 50% of
the marital portion of Wife’s pension, as well as 50% of Wife’s non-marital
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1The Consent Order does not define the terms “marital property” or “marital
portion.”
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pension monies.2 Concerning the equitable distribution of Husband’s 401-k
retirement plan, Wife received 50% of the marital portion of this asset; she
did not receive any non-marital portion. The trial court then entered a Divorce
Decree on February 13, 2015.
Approximately two years later, on February 23, 2017, Wife filed a
Petition for special relief (hereinafter “Wife’s Petition”). Therein, she asserted
that the language in the Consent Order concerning the denominator of Wife’s
coverture fraction was incorrect,3 contrary to the parties’ intent, and resulted
in an inequitable distribution of her non-marital monies. Accordingly, Wife
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2 However, the 2015 QDRO also provides that “[f]ifty percent (50%) of the
marital property component of [Wife’s] retirement benefit is to be allocated to
[Husband] for the purpose of equitable distribution of this marital asset.”
2015 QDRO Stipulation and Agreement, 1/8/15, ¶ 6(c) (emphasis added).
3 The language of Wife’s coverture fraction concerning the denominator (i.e.,
“the amount of [Wife’s] service, through the date of separation[,]” Consent
Order, 7/29/14, ¶ 4(b)(3) (emphasis added)) differs from the statutory
language concerning this component of the definition of “marital property,”
found in the Divorce Code. See 23 Pa.C.S.A. § 3501. Subsection 3501(c),
governing equitable distribution of defined benefit retirement plans (such as
Wife’s pension), provides, in relevant part, as follows:
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.
Id. § 3501(c)(1) (emphasis added); see also Hayward v. Hayward, 808
A.2d 232, 237 (Pa. Super. 2002) (stating that “[a] coverture fraction is
calculated by determining the ratio of the length of marriage to the number
of years of employment. The numerator of the fraction is the marital period
of the employee-spouse’s participation in the pension plan; the fraction
denominator is the total period of time during which the employee-spouse
accrued benefits.” (citation and emphasis omitted)).
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asked the trial court to schedule conciliation and enter an amended QDRO
containing the correct coverture fraction. Husband objected in a
Memorandum of Law ordered by the trial court. Therein, he argued that the
court could not (a) modify the Consent Order and the 2015 QDRO years after
they had become final; (b) vacate or open the parties’ final Divorce Decree;
or (c) alter the parties’ negotiated agreement, as reflected in the Consent
Order.
The trial court conducted a hearing on the matter on September 15,
2017 (hereinafter the “Hearing”). By an Order entered on October 6, 2017
(hereinafter “Petition for Relief Order”), the trial court granted Wife’s Petition
and directed the parties to execute an amended QDRO, employing the
coverture fraction set forth in 23 Pa.C.S.A. § 3501(c)(1), supra.
The Petition for Relief Order provides, in relevant part, as follows:
Husband did not dispute that [Wife’s] coverture fraction utilized
provided him with 50% of the marital portion of Wife’s pension
and 50% of her post-separation (non-marital) pension. Husband
contended that he was aware that [Wife’s] coverture fraction
awarded him a portion of Wife’s non-marital pension and that any
error made was unilateral. He further argued that th[e trial c]ourt
could not now reopen the parties’ [D]ivorce [D]ecree to modify
the Consent Order or the [2015] QDRO.
[Following the H]earing …[,] [and u]pon review of the
record, including the evidence and testimony introduced at the
Hearing, and the law, the [trial c]ourt believes Wife’s Petition
should be granted. Among other reasons, the following language
in the Consent Order and [the 2015] QDRO[,] pertaining to
[Wife’s] coverture fraction to be used to determine the mar[it]al
portion of Wife’s PSERS pension[,] constitutes a fatal defect
apparent on the face of the record, permitting this [c]ourt to open
the parties’ [D]ivorce [D]ecree and modify the foregoing
[language]: “through the date of separation” (the “Defective
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Language” [– i.e., Wife’s coverture fraction]). Consent Order at
¶ [4(b)(3) (emphasis added by the trial court)]; see also
Hayward [], 808 A.2d [at] 235-36 … [(where incorrect coverture
fraction language used in the parties’ QDRO granted the wife 50%
of the husband’s entire pension (including both marital and non-
marital monies), holding that this constituted a fatal defect on the
face of the record under the circumstances, which gave the trial
court the authority to grant husband’s petition for special relief
(that he had filed nearly 6 years after the QDRO) and modify the
faulty QDRO language to comport with the parties’ consent order,
which granted wife only 50% of the marital portion of husband’s
pension)]; 23 Pa.C.S. § 3332.[4]
Simply put, the [trial c]ourt finds that the plain language of
the Consent Order was designed to divide the “marital” portions
of the parties’ assets. The Defective Language utilized to
determine [Wife’s] coverture fraction applicable to Wife’s pension
is not consistent with any reasonable attempt to calculate a
portion of property meeting any reasonable definition of “marital.”
Use of the Defective Language clearly results in an award of more
than that portion of Wife’s pension earned during the parties’
marriage. Husband acknowledges as much, and such language is
clearly not supported by the law. See 23 Pa.C.S. § 3501; see
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4 Section 3332 of the Divorce Code provides, in relevant part, that
[a] motion to open a decree of divorce or annulment may be made
only within the period limited by 42 Pa.C.S. § 5505 (relating to
modification of orders) and not thereafter. … A motion to vacate a
decree or strike a judgment alleged to be void because of … a fatal
defect apparent upon the face of the record must be made within
five years after entry of the final decree.
23 Pa.C.S.A. § 3332 (emphasis added); see also 42 Pa.C.S.A. § 5505
(providing that generally, “a court … may modify or rescind any order within
30 days after its entry, … if no appeal from such order has been taken or
allowed.”). In the instant case, Wife filed Wife’s Petition within five years of
the February 13, 2015 Divorce Decree.
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also Hayward, 808 A.2d at 237.[5]
The above conclusion finds further support from evidence
elicited during the Hearing. Both parties proposed that the marital
portions of their respective retirement accounts be equally divided
in their first and second Marital Asset and Liability Statements
([collectively, the] “MAL”).[6] This issue was agreed upon from the
beginning and[,] therefore[,] never negotiated or discussed again.
At no time did Husband propose that he receive a portion of Wife’s
non-marital pension, or that Wife’s retirement asset be treated
differently than his own. Husband’s own testimony – assuming it
is credible – reveals that even he is aware that the Defective
Language, if permitted to stand, grants him a non-marital portion
of Wife’s PSERS pension. Husband testified that marital assets
are assets accumulated during the marriage. He acknowledged
that marital assets do not include assets acquired
post[-]separation. He further acknowledged that the proposed
distribution orders and Consent Order recited, over and over, that
he was entitled to 50% of the marital portion of Wife’s pension.
Finally, he acknowledged that the Consent Order did not define
marital property. Despite this understanding, Husband testified
that the marital portion of Wife’s pension was to be defined by use
of the Defective Language. He further testified that he
researched[,] on PSERS’s website[,] the coverture fraction
applicable to Wife’s PSERS pension set forth in the proposed
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5 The trial court is citing to the following portion of the Hayward decision:
Moreover, the [] QDRO, by granting [w]ife half of [h]usband’s entire
military pension, contravenes Pennsylvania law. “The amount of
pension funds accrued during marriage is marital property and
subject to equitable distribution.” Endy [v. Endy], 603 A.2d [641,]
643 [(Pa. Super. 1992)]. Correspondingly, pension benefits accruing
prior to [the] date of marriage and after [the] date of final separation
are not subject to equitable distribution. See id. at 644.
Accordingly, by distributing portions of [h]usband’s pension that
accrued prior to the marriage and after separation, the [] QDRO does
not only violate the terms of the consent order but also violates
Pennsylvania law.
Hayward, 808 A.2d at 237.
6The trial court explained that the MAL “valued Wife’s retirement ‘less Wife’s
post-separation contributions.’” Trial Court Opinion, 1/9/18, at 3 n.1.
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[c]onsent [o]rder; and as a result of his independent research, he
understood that the proposed order awarded him a non-marital
share of Wife’s pension.
The plain language of the Consent Order[,] as well as the
other evidence introduced at the Hearing, including Husband’s
testimony, thus reveal that a fatal defect appears on the face of
the record here: the parties were to equally divide the marital
portions of their retirement assets, and the Defective Language
prevents said distribution. Accordingly, the [c]ourt grants Wife’s
[P]etition. The parties are directed to execute an amended QDRO
which utilizes a coverture fraction consistent with 23 Pa.C.S.
§ 3501.
Petition for Relief Order, 10/6/17, at 3-5 (bold emphasis in original, italicized
emphasis and footnotes added). Importantly to this appeal, the trial court did
not vacate the parties’ Divorce Decree in the Petition for Relief Order, or
thereafter.
Husband timely filed a Notice of appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal. The
trial court then issued a Rule 1925(a) Opinion.
Husband now presents the following issues for our review:
1. Did the trial court err by ordering the modification of an [O]rder
31 months after it had become final by operation of 42 Pa.C.S.
§ 5505 and 23 Pa.C.S. § 3332?
2. Did the trial court err by ordering [that] an amended QDRO be
entered when the trial court failed to vacate the [D]ivorce
[D]ecree?
3. Did the trial court err by ordering [that] an amended QDRO be
entered when the trial court had lost jurisdiction to enter a
modified QDRO?
4. Did the trial court err by finding a fatal defect appeared on the
face of the record[,] pursuant to 23 Pa.C.S. § 3332[,] when the
pertinent language of the two relevant operative [O]rders was
identical?
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5. Did the trial court’s [O]rder to execute an amended QDRO[,]
that differed in a single respect from the parties’ negotiated
settlement[,] violate Husband’s due process rights under the
United States and Pennsylvania [C]onstitutions?
6. Did the trial court err by relying on evidence elicited at [the]
[H]earing[,] after the subject [O]rders had been entered[,] to
determine that a fatal defect appeared on the face of the
record?
Brief for Husband at 3-4 (some capitalization omitted).
Like Husband, we address his first four issues simultaneously, as they
are related. The main thrust of Husband’s argument is that the trial court
lacked jurisdiction to address Wife’s Petition, where modification of the 2015
QDRO was not authorized under 23 Pa.C.S.A. § 3332 or 42 Pa.C.S.A. § 5505.
See Brief for Husband at 7-11.
We are guided by the closely-related Hayward decision, wherein the
panel observed that,
[t]ypically, a court may modify an order within thirty days after
its entry, according to [42 Pa.C.S.A. § 5505] ….
***
In Stockton v. Stockton, 698 A.2d 1334, 1337 (Pa. Super.
1997), we concluded [that] section 5505 applies to petitions to
modify QDROs. We stated:
The lower court’s authority under 42 Pa.C.S.A. § 5505 to
modify or rescind an order is almost entirely
discretionary; this power may be exercised sua sponte,
or may be invoked by a request for reconsideration filed
by the parties, and the court’s decision to decline to
exercise such power will not be reviewed on appeal.
Although 42 Pa.C.S.A. § 5505 gives the trial court broad
discretion, the trial court may consider a motion for
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reconsideration only if the motion is filed within thirty
days of the entry of the disputed order. After the
expiration of thirty days, the trial court loses its broad
discretion to modify, and the order can be opened or
vacated only upon a showing of extrinsic fraud, lack of
jurisdiction over the subject matter, a fatal defect
apparent on the face of the record or some other
evidence of extraordinary cause justifying intervention
by the court.[7]
Id. (emphasis added) (citations and quotation marks omitted).
Absent an allegation of extrinsic fraud or other extraordinary
cause, the trial court does not have jurisdiction to grant a petition
to modify a QDRO if such petition was filed more than thirty days
from the date the QDRO was entered. Id. at 1338.
Hayward, 808 A.2d at 235 (footnote added); see also Melton v. Melton,
831 A.2d 646, 651 (Pa. Super. 2003). “[E]xtraordinary circumstances exist
where there is a fatal defect apparent on the face of the record.” Hayward,
808 A.2d at 236 (quoting Stockton, 698 A.2d at 1337).
Significantly, the Hayward Court went on to hold that
the trial court erred by failing to modify the 1995 QDRO to
comport with the consent order entered into by the parties in
1989. Although [h]usband filed his motion for special relief almost
six years after entry of the 1995 QDRO [(and fourteen years after
the parties’ divorce decree)8], extraordinary circumstances exist
since there is a fatal defect on the face of the record, i.e., the 1995
QDRO utilizes an improper coverture fraction that has the effect
of granting [w]ife 50% of [h]usband’s entire military pension
rather than 50% of the marital portion of his pension[,] as agreed
to by the parties in the 1989 consent order[,] and as provided by
Pennsylvania law.
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7 Notably, the italicized language employs the language of 23 Pa.C.S.A.
§ 3332, though not identified as such in Hayward.
8 The Hayward Court did not open or vacate the divorce decree.
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Hayward, 808 A.2d at 236 (footnote added, emphasis in original).
Accordingly, the panel reversed the trial court’s order denying husband’s
motion for special relief, and “remand[ed] for proper calculation of the marital
portion of [h]usband’s pension benefits to which [w]ife is entitled under the
consent order.” Id. at 237.
Husband herein argues that the trial court lacked jurisdiction to grant
the relief requested in Wife’s Petition, since the court failed to vacate the
Divorce Decree, and had no authority to open the Decree. Brief for Husband
at 10; see also id. at 7 (asserting that “the [t]rial [c]ourt failed to abide by
the constraints of Section 3332 when it failed to vacate the Decree (its only
available remedy)[.]”). According to Husband, “Wife’s right to the portion of
her PSERS retirement that was awarded to Husband[,] by operation of the
Consent Order and [2015] QDRO[,] was extinguished with the entry of the
Decree, so vacating the Decree was necessary to consider that claim.” Id. at
10 (citing Justice v. Justice, 612 A.2d 1354, 1357 (Pa. Super. 1992) (stating
that “a divorce decree [that has become final] must be either vacated or
opened in order for the trial court to consider [a party’s] economic claims”
arising from the marriage)).
Husband further contends that, contrary to the trial court’s
determination,
Hayward[,] is inapposite to the instant case because the key
underlying fact (i.e.[,] the source of the definition of “marital
portion”) is factually distinct from the instant case. In the instant
case, the parties did not borrow any definition of “marital portion,”
be it from case law or statute, but defined that term for
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themselves in the Consent Order and again in the [2015] QDRO.
… The [2015] QDRO entered utilized precisely the definition of
the marital portion to which the parties had agreed when they
executed the Consent Order. … Therefore, unlike in Hayward,
the two relevant [O]rders [in this case] are consistent with one
another[,] so there is no fatal defect on the face of the record
owing to “mistakes made by the court or its officers.” Hayward,
808 A.2d at 235.
Brief for Husband at 11.
We conclude that Hayward is on-point and controls our disposition.
First, the Hayward Court did not set forth or apply the divorce decree-specific
provisions of section 3332; rather, it applied section 5505 to address a belated
attempt to modify a QDRO. See Hayward, 808 A.2d at 235-36. The
Hayward Court did not rule that it was necessary for the parties’ divorce
decree to be vacated. Indeed, the panel held that the trial court was
authorized to modify the parties’ flawed QDRO language (which constituted a
fatal defect on the face of the record rising to the level of an extraordinary
circumstance) to comport with the parties’ earlier consent order, even where
the husband had filed his petition requesting this special relief after the
expiration of the five-year time limit set forth in section 3332. See id. at 235-
36, 237. Thus, in the instant case, Husband’s attempt to invoke section 3332
as a bar is misplaced.9 Additionally, Hayward made clear that a QDRO that
has the effect of granting one spouse non-marital pension monies of the other
spouse “contravenes Pennsylvania law.” Id. at 237 (stating that “pension
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9 Nevertheless, it bears repeating that Wife filed Wife’s Petition well prior to
the expiration of section 3332’s five-year time limit.
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benefits accruing prior to date of marriage and after date of final separation
are not subject to equitable distribution.”).
Here, like the circumstances in Hayward, we conclude that the 2015
QDRO’s use of an improper coverture fraction, which failed to comport with
the clear and unambiguous language of the Consent Order concerning the
division of marital retirement property,10 constituted a fatal defect on the face
of the record, which rose to the level of an extraordinary circumstance.11
Therefore, pursuant to Hayward, the trial court had the authority to correct
this defect and order the filing of an amended QDRO.12 See id. at 235-37;
cf. Stockton, 698 A.2d at 1338 (interpreting sections 3332 and 5505 as
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10We note that the record belies Husband’s representation that the parties
“defined th[e] term [‘marital portion’] for themselves in the Consent Order
and again in the [2015] QDRO.” Brief for Husband at 11. Neither of these
documents define this term.
11 Specifically, the division of Wife’s pension effectuated by the 2015 QDRO
did not correspond with the Consent Order that the parties were to equally
divide only the marital portions of their retirement assets. See Petition for
Relief Order, 10/6/17, at 5; see also 23 Pa.C.S.A. § 3102(a)(6) (identifying
the Commonwealth’s policy to “[e]ffectuate economic justice between parties
who are divorced or separated and … insure a fair and just determination and
settlement of their property rights.”). Essentially, the trial court erred in
accepting the 2015 QDRO.
12In so holding, we acknowledge that the trial court, in its Petition for Relief
Order, stated that the “language in the Consent Order and [2015] QDRO
pertaining to [Wife’s] coverture fraction … constitutes a fatal defect apparent
on the face of the record, permitting this [c]ourt to open the parties’ [D]ivorce
[D]ecree ….” Petition for Relief Order, 10/6/17, at 3-4 (emphasis added).
This determination is in error. Nevertheless, it is well established that this
Court may affirm a trial court’s ruling on any basis. See Blumenstock v.
Gibson, 811 A.2d 1029, 1033 (Pa. Super. 2002) (stating that an appellate
court is not limited by a trial court’s rationale and may affirm on any basis).
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applied to a husband’s attempt to modify a QDRO and holding that his
allegations of his counsel’s failure to communicate adequately, and
dissatisfaction with counsel, were insufficient to prove fraud or any other
“extraordinary cause” to allow the trial court to modify the QDRO).
Accordingly, none of Husband’s first four issues entitle him to relief.
In Husband’s final two issues, which we will address together, he
contends that the trial court
(1) violated his right to due process when it ordered the execution
of an amended QDRO without first vacating the final Divorce
Decree and giving Husband the opportunity to renegotiate
equitable distribution; and
(2) improperly relied on evidence elicited at the Hearing, which
took place more than two years after the Consent Order and 2015
QDRO became final, in determining that a fatal defect existed on
the face of the record.
Brief for Husband at 11-13, 16-19.
The trial court correctly found in its Rule 1925(a) Opinion that Husband
has waived these issues for failing to raise them before the trial court. See
Trial Court Opinion, 1/9/18, at 3-6 (citing, inter alia, Pa.R.A.P. 302(a) (stating
that an issue cannot be raised for the first time on appeal)). Furthermore, the
fact that Husband raised these claims in his Rule 1925(b) Concise Statement
does not preserve them on appeal. See Beemac Trucking, LLC v. CNG
Concepts, LLC, 134 A.3d 1055, 1058 (Pa. Super. 2016) (stating that a party
cannot rectify the failure to preserve an issue by raising it, for the first time,
in a concise statement) (citation omitted)).
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Nevertheless, even if these two issues were not waived, we would
determine that they do not entitle Husband to relief for the following reasons
set forth in the trial court’s Opinion:
[(1) Husband’s claim that he was deprived of due process] is
predicated on Husband’s contention that he would not have
executed the Consent Order without the Defective Language
contained therein. Said contention is not credible. The [trial
c]ourt had the opportunity to observe and hear Husband’s
testimony, [i.e., at the Hearing,] and it is clear to the [c]ourt that
both Husband and Wife believed that they – in executing the
Consent Order – would be equally dividing only that portion of
Wife’s pension which was earned from the time of marriage to the
parties’ separation. Husband’s testimony that he knew that he
would be receiving more of Wife’s pension – and that he relied
upon the same – at the time he executed the Consent Order[,]
was not credible. Accordingly, the credible evidence does not
establish that Husband would have sought to renegotiate (or
further negotiate) the parties’ Consent Order if the Defective
Language therein was actually absent. Husband’s claim to the
contrary, therefore[,] lacks merit.
***
[(2) Concerning Husband’s claim that the trial court improperly
relied on evidence adduced at the Hearing,] other courts tasked
with determining whether a fatal defect exists on the record have
held hearings. See[,] e.g., Hayward [], 808 A.2d [at] 234 …
([stating that “t]he trial court held a hearing ….”). Moreover, [the
trial c]ourt [in the instant case] concluded that the Consent Order
itself revealed the fatal defect at issue[,] and that said conclusion
found further support from, rather than being based on, the
evidence elicited at the [H]earing. See [Petition for Relief] Order[,
10/6/17,] at 3-5 (finding the existence of a fatal defect on the
[face of the] record and then noting that such a conclusion was
“further support[ed]” by evidence from the [H]earing)[, and] 5
([considering “t]he plain language of the Consent Order as well
as the other evidence introduced at the [H]earing …. (emphasis
added)). Husband’s final claim of error, therefore, lacks merit
despite its waiver.
Trial Court Opinion, 1/9/18, at 4-6.
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Therefore, we conclude that the trial court did not err or abuse its
discretion in granting Wife’s Petition, and directing the parties to execute an
amended QDRO that utilizes a correct coverture fraction consistent with 23
Pa.C.S.A. § 3501(c)(1). See Hayward, 808 A.2d at 237.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2018
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