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CourtListener opinion 10746719

Date unknown · US

Extracted case name
pending
Extracted reporter citation
799 A.2d 812
Docket / number
1203 EDA 2020
QDRO relevance 5/5Retirement relevance 5/5Family-law relevance 5/5gold label pending
Research-use warning: This page contains machine-draft public annotations generated from public opinion text. The headnote is not Willie-approved gold-label work product and is not legal advice. Verify the full opinion and current law before relying on it.

Machine-draft headnote

Machine-draft public headnote: CourtListener opinion 10746719 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to pension / defined benefit issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.

Retrieval annotation

Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.

Category: pension / defined benefit issues

Evidence quotes

QDRO

a hearing on September 17, 2017, and filed a report on August 21, 2018. The trial court entered a preliminary order and decree implementing the report on August 21, 2018. On December 27, 2018, the trial court entered a qualified domestic relations order ("QDRO") regarding Appellee's pension from the Whitehall Township Police Pension Fund and Trust (the "Trust"). Under the QDRO Appellant would ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-A04004-21 receive survivor benefits under the pension if Appellee predeceased her. The Trust rejected the QDRO in pa

pension

2017, and filed a report on August 21, 2018. The trial court entered a preliminary order and decree implementing the report on August 21, 2018. On December 27, 2018, the trial court entered a qualified domestic relations order ("QDRO") regarding Appellee's pension from the Whitehall Township Police Pension Fund and Trust (the "Trust"). Under the QDRO Appellant would ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-A04004-21 receive survivor benefits under the pension if Appellee predeceased her. The Trust rejected the QDRO in part, stating that Appellant, as

survivor benefits

) regarding Appellee's pension from the Whitehall Township Police Pension Fund and Trust (the "Trust"). Under the QDRO Appellant would ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-A04004-21 receive survivor benefits under the pension if Appellee predeceased her. The Trust rejected the QDRO in part, stating that Appellant, as a former spouse, is ineligible for survivorship benefits under Appellee's pension.1 In specific: Paragraph 9 of the original Pension QDRO provided that Appellant was entitled to a portion of the survivor benefit payable under the Police Pens

valuation/division

-1102 BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.* OPINION BY STABILE, J.: FILED OCTOBER 06, 2021 Appellant, Theresa Cuth, appeals from the May 1, 2020 decree of divorce. We affirm. On August 13, 2015, Appellant filed a complaint for divorce and equitable distribution against Appellee, Brian A. Cuth, after twenty-two years of marriage. An appointed Master conducted a hearing on September 17, 2017, and filed a report on August 21, 2018. The trial court entered a preliminary order and decree implementing the report on August 21, 2018. On December 27, 2018, the trial court entered a qualified domestic relations order (

Source and provenance

Source type
courtlistener_qdro_opinion_full_text
Permissions posture
public
Generated status
machine draft public v0
Review status
gold label pending
Jurisdiction metadata
US
Deterministic extraction
reporter: 799 A.2d 812 · docket: 1203 EDA 2020
Generated at
May 14, 2026

Related public corpus pages

Deterministic links based on shared title/citation terms and QDRO / retirement / family-law retrieval scores.

Clean opinion text

J-A04004-21

 2021 PA Super 200

 THERESA CUTH IN THE SUPERIOR COURT
 OF PENNSYLVANIA
 Appellant

 v.

 BRIAN A. CUTH

 Appellee No. 1203 EDA 2020

 Appeal from the Decree Entered May 1, 2020
 In the Court of Common Pleas of Lehigh County
 Civil Division at No: 2015-FC-1102

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*

OPINION BY STABILE, J.: FILED OCTOBER 06, 2021

 Appellant, Theresa Cuth, appeals from the May 1, 2020 decree of

divorce. We affirm.

 On August 13, 2015, Appellant filed a complaint for divorce and

equitable distribution against Appellee, Brian A. Cuth, after twenty-two years

of marriage. An appointed Master conducted a hearing on September 17,

2017, and filed a report on August 21, 2018. The trial court entered a

preliminary order and decree implementing the report on August 21, 2018.

On December 27, 2018, the trial court entered a qualified domestic relations

order ("QDRO") regarding Appellee's pension from the Whitehall Township

Police Pension Fund and Trust (the "Trust"). Under the QDRO Appellant would

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
 J-A04004-21

receive survivor benefits under the pension if Appellee predeceased her. The

Trust rejected the QDRO in part, stating that Appellant, as a former spouse,

is ineligible for survivorship benefits under Appellee's pension.1 In specific:

 Paragraph 9 of the original Pension QDRO provided that
 Appellant was entitled to a portion of the survivor benefit payable
 under the Police Pension Plan in the event that Appellee remarries
 and predeceases Appellant. The Administrator of [the Trust]
 determined that Paragraph 9 is ‘not enforceable under the Plan
 and applicable law' and thus, that it would not be accepted.

Trial Court Opinion, 7/20/20, at 2. Appellant refused to execute a revised

QDRO omitting Paragraph 9 and on April 17, 2019 the trial court remanded

the matter to the Master for creation of a new equitable distribution scheme.

 The Master conducted a hearing on July 9, 2019. Appellant maintained

that she thought Paragraph 9 of the QDRO should be approved under the

township's ordinance. N.T. Hearing, 7/9/19, at 16-20. She did not, however,

take any legal action against Whitehall Township to enforce Paragraph 9. Id.

at 39. The parties also addressed the possibility of Appellant obtaining an

insurance policy on Appellee's life in lieu of a portion of the survivor benefits

of Appellant's pension.2 Appellant testified that a policy would cost $200 to

$900 per month, depending on the duration and value of the policy. Id. at

____________________________________________

1 See generally, Police Pension Fund Act, 53 P.S. 761, et seq.

2 Appellant's inability to obtain survivor benefits under Appellee's pension was
the only remaining equitable distribution issue. The parties agreed upon the
division of the pension during Appellee's post-retirement lifetime, and they
agreed upon the division of their other assets. N.T. Hearing, 7/9/19, at 28-
34.

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 J-A04004-21

27. She brought no written quotes or supporting documentation to the

hearing. Id. at 44-46. Appellant said she was unwilling to obtain life

insurance on Appellee, in lieu of survivor benefits under his pension, if she

was solely responsible for the monthly premium. Id. at 27-28. She

considered $200 per month an excessive life insurance premium. Id. at 48.

Her monthly income was $5,500.00 and her household expenses were

approximately $2,500.00. Id. at 47-48.

 The Master issued a report which read in part as follows:

 The remand order directed the undersigned to address what
 has become an impossibility regarding contemplated division of
 [Appellee's] pension benefits. As a corollary to the remand on this
 issue, the undersigned also was tasked with addressing possible
 ‘overpayment' by Appellee of spousal support/alimony pendente
 lite based upon the delay from the time the preliminary order and
 decree was signed in September, 2018, and the continuing
 unresolved issues which have delayed entry of a divorce decree
 and termination of support based upon the recommendations
 made by the undersigned.

 […]

 It is further recommended that [Appellant] make an election
 as to securing a life insurance policy on [Appellee's], in whatever
 form and death benefit payable she chooses, in order to secure a
 reasonable portion of the pension benefits which would be payable
 to her and which may be subject to forfeiture in the event of
 [Appellee's] death. However, as the terms of the [pension plan]
 (interpreted by the plan administrator) will not honor [Appellant's]
 designation to receive death benefits, it is concluded that neither
 party is at fault for this interpretation and/or change in
 circumstances and that the terms of the plan are simply what they
 are, requiring the parties to adapt accordingly. As [Appellee]
 should not have to incur additional costs based upon the terms of
 the plan, but because [Appellant] takes some risk through the
 equitable distribution award provided to her, it is recommended
 that [Appellant] make the election as to life insurance coverage

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 J-A04004-21

 for [Appellee] and that [Appellee] fully cooperate with obtaining a
 physical and the taking of any and all steps necessary to permit
 [Appellant] to secure her chosen life insurance coverage for
 [Appellee]. The cost of obtaining the coverage in the first instance
 and the ongoing premiums which will be due to maintain the
 chosen life insurance coverage should be the responsibility of
 [Appellant].

Report of the Master in Divorce, 7/29/19, at 1-5 (some capitalization omitted).

 Both parties filed exceptions to the Master's recommended order. The

trial court conducted a hearing on September 25, 2019. Appellant asked for

time to procure expert testimony on the value of the survivor's benefits she

could no longer receive under Appellee's pension. N.T. Hearing, 9/25/19, at

8. Based on the expert's valuation, Appellant would ask for an offset of that

amount against other marital assets. Id. The trial court noted Appellant's

failure to develop the record at hearing before the Master:

 [Appellant's Counsel]: So we need a – there is – in Master
 Roberts' recommended division of assets, there's an award to
 [Appellant] of 50 percent of the pension. There's also an award
 to [Appellant] of the survivor benefit. There's no numbers
 attached to that, none. In the survivor benefit issue, we need a
 number attached to that, and the only way to do that is to have it
 valued.

 THE COURT: You knew that going back in front of the
 Master. I remanded it. Why didn't you develop the record then?

 [Appellant's Counsel]: Because we didn't know that Master
 Roberts was going to elect that option. You left it wide open.

 THE COURT: Two bites at the apple then.

 [Appellant's Counsel]: It's still before you. There is still
 jurisdiction for Your Honor to do what you intended to do in April
 of this year. There is still jurisdiction to do that now. And if you
 go back and look at your order –

 -4-
 J-A04004-21

 THE COURT: I understand what my order is. It's disturbing
 to me that we were here in April on a September order. And now,
 it's September again, and the parties are in the same place –

 [Appellant's Counsel]: Well, we're not in the same place.

 THE COURT: -- as a year ago.

 [Appellant's Counsel]: Let me further answer your question
 and suggest to Your Honor that we're really not in the same place.
 The easiest way for Master Roberts to effectuate the
 equitable division that you ordered was simply to offset
 against another asset. That would have been done. It
 would have been clean, over.

 Instead, he requires that [Appellant] get a life insurance
 policy, but in no amount. We don't have an amount for that, we
 don't have a value.

 THE COURT: Why wasn't that discussed?

 [Appellant's Counsel]: Because we didn't know that was
 going to be the option elected by Master Roberts. In fact, we
 argued against it because it's time consuming among other things.
 Expensive. Subject to argument.

Id. at 9-11 (emphasis added).3

 On December 21, 2019, the trial court entered an order denying the

parties' exceptions, except that it extended the date of termination of

Appellee's "spousal support/alimony pendente lite" ("APL") obligation to March

1, 2020. The court also set March 16, 2020 as the date after which the divorce

decree could be entered. On March 4, 2020, the trial court approved a revised

____________________________________________

3 The record reflects that both parties have life insurance policies. N.T.
Hearing, 9/25/19, at 9. The policy presently at issue is an additional policy
solely to protect Appellant if Appellee predeceases her and she receives no
survivor benefits under the pension.

 -5-
 J-A04004-21

QDRO with Paragraph 9 omitted. Appellant's counsel requested and received

several delays of entry of the divorce decree so that she could procure a life

insurance policy. The trial court entered the final divorce decree on May 1,

2020.4 This timely appeal followed.

 Appellant presents two questions:

 1. When it divided the marital estate, did the trial court err
 in its distribution of [Appellee's] pension by its
 floundering attempt to replace her survivor annuity—
 which would have secured her right to benefits in the
 event of his death—made without considering the
 pension's value, the amount of life insurance required to
 protect [Appellant] from the risk that he would die first,
 and any other method of effecting equitable distribution?

 2. Did the trial court err when it relieved [Appellee] of the
 obligation of paying alimony pendente lite prior to the
 completion of the divorce litigation?

Appellant's Brief at 6.

 These questions challenge the trial court's equitable distribution

scheme, set forth in orders rendered final by the divorce decree. Our review

is limited; we will not reverse unless we find an abuse of discretion or error of

law. Nagle v. Nagle, 799 A.2d 812, 818 (Pa. Super. 2002), appeal denied,

820 A.2d 162 (Pa. 2003). "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). "To assess whether the trial court abused

its discretion, we must determine whether the trial court misapplied the law

____________________________________________

4 According to the trial court's July 20, 2020 opinion, the life insurance policy
finally took effect on May 11, 2021. Trial Court Opinion, 7/20/20, at 12.

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 J-A04004-21

or failed to follow proper legal procedure." Hayward v. Hayward, 868 A.2d

554, 558 (Pa. Super. 2005). "Further, 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." Id.

 In support of her first argument, Appellant cites DeMarco v. DeMarco,

787 A.2d 1072 (Pa. Super. 2001), in which this Court considered the proper

valuation of the husband's police pension. The trial court considered expert

evidence and chose to value the pension as if the husband retired on his fiftieth

birthday (he was fifty-two as of the trial). Id. at 1074-75. The DeMarco

Court concluded that the record did not support an arbitrary selection of age

fifty as a retirement date, especially since the husband had already worked

past that age. Id. at 1080. Significantly, for purposes of analyzing the instant

case, the pension did not include survivor benefits. The wife nonetheless

obtained an insurance policy on the husband's life, and the trial court awarded

alimony to wife to cover the premiums. Id. at 1081. The DeMarco Court

vacated the alimony award, concluding it had no relation to the factors

specified in 23 Pa.C.S.A. § 3701, governing alimony awards. Id. The Court

also noted that, if the husband died before age seventy (presumably the age

at which the term life insurance policy expired), but after retirement, the wife

would receive some of the pension plus the lump sum life insurance payout.

This Court concluded that the monthly alimony income from husband, plus the

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 J-A04004-21

possibility of wife receiving her marital portion of the pension in addition to a

life insurance payout, constituted a "double award." Id.

 Appellant argues that DeMarco supports her case insofar as the Court

did not rule that an order directing the husband to pay life insurance premiums

was "erroneous per se." Appellant's Brief at 37. We agree that nothing in

DeMarco prohibits the result Appellant seeks. The question remains,

however, whether the trial court acted within its broad discretion in declining

to order Appellee to assist Appellant with the premiums. To that end, Appellee

cites DeMarco as support for his argument that benefits not included within

a pension plan should not be considered for purposes of equitable distribution.

 Appellee also cites Maloney v. Maloney, 754 A.2d 36 (Pa. Cmwlth.

2000), appeal denied, 775 A.2d 810 (Pa. 2001), in which the Borough of

Yeadon (joined as an additional party in the divorce action) challenged a trial

court order holding the Borough in contempt and directing it to comply with a

QDRO pertaining to the pension of the husband, a retired Borough police

officer. The husband died before the order was implemented. Id. at 38. Wife

received 50% of the husband's pension until his death, and nothing thereafter,

as the Borough contended that the wife as an ex-spouse was not entitled to

survivor's benefits under the ordinance governing the pension plan. Id. The

Commonwealth Court reversed the order of contempt, holding that the

ordinance did not provide survivor's benefits to an ex-spouse. Id. at 39.

Appellee relies on Maloney as additional support for his argument that

 -8-
 J-A04004-21

benefits not included in a pension plan are not properly part of an equitable

distribution scheme.

 We find DeMarco and Maloney instructive but not conclusive. Here,

as in DeMarco, it is possible that Appellant will receive her marital portion of

Appellee's pension during his post-retirement lifetime plus a life insurance

payout if he predeceases her before the end of the term of the policy. The

DeMarco Court treated this as a double payment, and the DeMarco Court's

rationale therefore supports the trial court's decision to leave Appellant

responsible for the premiums. Similarly, the Commonwealth Court's analysis

in Maloney supports a conclusion that a benefit not included in a pension plan

need not be considered in an equitable distribution scheme.5 In other words,

neither of these cases supports a conclusion that the trial court abused its

broad discretion by directing Appellant to obtain and pay for a life insurance

policy.

 Furthermore, Appellant has failed to make a case for any viable

alternative to the life insurance policy. Her arguments for an offset rest not

on evidence of record, but on evidence she wishes to produce after a remand

from this panel. Appellant claims she has retained an actuary to value the

____________________________________________

5 Commonwealth Court decisions do not bind this Court, but we may consider
them as persuasive authority. Petow v. Warehime, 996 A.2d 1083, 1189
n.1 (Pa. Super. 2010), appeal denied, 12 A.3d 371 (Pa. 2010).

 -9-
 J-A04004-21

survivor benefit she cannot receive, and she argues for an offset6 against other

marital assets based on the expert's valuation. According to the evidence

Appellant wishes to produce on remand, Appellee's monthly pension would

have been lower had he and Appellant remained married, and had he elected

the survivorship benefit for her. Appellant argues the trial court abused its

discretion because Appellee can receive a higher monthly pension and bear

no responsibility for the insurance premiums.

 We conclude that Appellant is not entitled to a remand to seek an offset.

Appellant, as demonstrated above, produced no pertinent evidence at the July

____________________________________________

6 The DeMarco Court wrote:

 Pennsylvania law provides two methods to distribute a
 pension when dividing the assets of a marital estate. 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 the time the estate is divided. 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.

DeMarco, 787 A.2d at 1077 (internal citations and quotation marks omitted)

 - 10 -
 J-A04004-21

9, 2019 hearing. This despite the Master's report following an earlier hearing,

held September 27, 2017:

 The largest marital asset aside from the real property is
 [Appellee's] defined benefit pension. As no specific value was
 ascertained for same and because the asset is not likely
 readily subject to an offset, it is recommended by the
 undersigned that the marital portion of [Appellee's] defined
 benefit pension be divided on a 50/50 basis pursuant to a [QDRO]

Report of the Master in Divorce, 8/21/18, at 15 (emphasis added). Thus, this

matter already has undergone two hearings at which Appellant could have

produced evidence of the value of Appellee's pension. At the second hearing,

Appellant was aware that the Trust would not pay survivor benefits to a former

spouse. Yet, at the July 9, 2019 remand hearing she produced no evidence

of the value of the survivorship benefit and no evidence of the cost of a life

insurance policy to replace the value of the survivorship benefit. Appellant

testified that she believed the Trust was wrong to reject Paragraph 9, but she

had taken no legal action to challenge the Trust's position. Appellant further

testified that she believed $200 per month—the lowest premium she could

find for a term insurance policy on Appellee's life—was excessive. She

nonetheless failed to produce evidence in support of any alternative.

 Given the limited evidence before him, the Master concluded that the

life insurance policy was the best means of replacing the survivor benefit she

would have received had the parties remained married. And, given that

Appellant's monthly income was approximately $3,000.00 more than her

household expenses, the Master deemed a $200 per month policy affordable.

 - 11 -
 J-A04004-21

The trial court agreed, and in its December 31, 2019 order directed Appellant

to obtain an insurance policy with Appellee's cooperation.

 Given this Court's rationale in DeMarco, and given the sparse evidence

of record, for which Appellant is at fault, we discern no basis upon which we

can conclude that the trial court committed an error of law or an abuse of

discretion. Appellant's first argument lacks merit.

 Next, Appellant claims the trial court erred in terminating APL 7 prior to

the completion of this appeal. Appellant relies on DeMasi v. DeMasi, 597

A.2d 101, 104 (Pa. Super. 1991), appeal denied, 629 A.2d 1380 (Pa. 1993),

in which this Court held that, when an appeal is pending on matters of

equitable distribution, APL continues throughout the appeal. Appellant's

reading of DeMasi is correct, but her reading of the record is not. The order

in question, which the parties and the court referred to throughout this matter

as "APL," or "support," or "APL/support," is a support order. It was entered

by the Northampton County Domestic Relations Division, in accord with

Pa.R.C.P. No. 1920.31(a)(2).8 It was made a part of the record in this divorce

____________________________________________

7 Section 3702 of the Domestic Relations Code governs APL. 23 Pa.C.S.A.
§ 3702.

8 Rule 1910.2, governing venue of support actions, authorizes the transfer of
a support action to the county of a pending divorce action. Pa.R.C.P. No.
1910.2(c). Given its order terminating support, the trial court clearly assumed
jurisdiction over the support proceeding. We observe, however, that the
certified docket does not reflect the receipt of a transferred action or
consolidation of this action and the support action.

 - 12 -
 J-A04004-21

proceeding during the September 27, 2017 hearing before the Master. N.T.

Hearing, 9/27/17, at 11, Exhibit D-5. Acknowledging this, Appellant cites

Pa.R.C.P. No. 1920.31(d) that an existing support order becomes an APL order

upon entry of a final decree in divorce. Pa.R.C.P. No. 1920.31(d) ("Upon entry

of a decree in divorce, an existing order for spousal support shall be deemed

to be an order for alimony pendente lite if any economic claims remain

pending.")

 For several reasons, we are unable to grant relief. First, Appellant

cannot salvage her argument under 1920.31(d) because the support order

was terminated prior to entry of the divorce decree. Thus, there was no

existing support order to be converted into APL under Rule 1920.31(d).

Second, there is no indication in the record that Appellant ever sought APL.

Appellant filed a complaint pursuant to Rule 1910.4 in Northampton County,

but by her own acknowledgement did not seek APL in that complaint. She

also acknowledges that she never sought APL in this divorce action.9 This

____________________________________________

9 Appellant protests that she could not have claimed APL in this divorce
proceeding because the procedural rules prohibit it: "A divorce complaint shall
not include claims for child support, spousal support, and alimony pendente
lite. Instead, claims for child support, spousal support, and alimony pendente
lite shall be raised in the domestic relations section by filing a complaint
pursuant to Pa.R.C.P. No. 1910.4." Pa.R.C.P. No. 1920.31 (a)(2). We observe
that Appellant filed this divorce action in 2015, and the rules were amended
in 2018 to prohibit an APL claim in a divorce action. "As amended, Pa.R.C.P.
No. 1930.21 precludes parties from raising claims for […] alimony pendente
lite as counts in a divorce action." Pa.R.C.P. No. 1930.21, Explanatory
Comment – 2018. Regardless, nothing in the record indicates that Appellant
filed for APL in the trial court.

 - 13 -
 J-A04004-21

results in waiver: "The failure to claim […] alimony pendente lite […] prior to

the entry of a final decree of divorce or annulment shall be deemed a waiver

of those claims." Pa.R.C.P. No. 1920.30(c).

 Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2021

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