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CourtListener opinion 2812301
Date unknown · US
- Extracted case name
- pending
- Extracted reporter citation
- 979 A.2d 892
- Docket / number
- 1088 MDA 2014
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Machine-draft public headnote: CourtListener opinion 2812301 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.
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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“e trial court's ultimate determination that the ring was non- marital property based on the testimony that was presented.10 Lastly, we address Husband's complaint that the Master and trial court erred by imposing the equitable distribution award through a QDRO versus DRO.11 Husband's Brief at 21, 26, 27, 33. We note, however, that Husband ____________________________________________ 10 In doing so, we note our agreement with the trial court that it "did not order any property be turned over to a third party." Trial Court Opinion, 8/29/14, at 9. 11 The Pennsylvania Commonwealth Court has distinguished these t”
retirement benefits“June 20, 2014, and an amended notice of appeal on July 9, 2014. Husband and the trial court complied with Pa.R.A.P. 1925. On appeal, Husband presents the following questions for review: [1] Whether the trial court failed to distribute Husband's military retirement plan consistent with Pennsylvania and Federal law when it ordered Husband to indemnify Wife and maintain a set monthly amount if her share was reduced either because he elected to take a disability waiver or for any other reason? [2] Whether the trial court erred in its method of valuing and distributing Husband's military retirement plan? [3] Whether th”
pension“edural history of this case as follows: The parties were married on May 16, 1987 and separated on February 14, 2010. Husband served in the Navy for twenty- three years, eighteen of which were during the parties' marriage. Husband now receives a military pension and an additional $871 per month of Veterans Administration disability pay. Since Husband has been receiving disability he has generally worked ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 We note that a Decree in Divorce was entered on January 14, 2014. J-A08013-15 full time. The Master throu”
alternate payee“Opinion, 8/29/14, at 9. 11 The Pennsylvania Commonwealth Court has distinguished these terms, as follows: Generally, a qualified domestic relations order, or "QDRO," is defined as: a domestic relations 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 the plan. To be "qualified," the order must contain certain required information and may not alter the amount or form of plan benefits. (Footnote Continued Next Page) - 22 - J-A08013-15 did not raise this issue in his Pa.R.A.P. 1925(b) Statement of Errors Complained of on A”
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- US
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- reporter: 979 A.2d 892 · docket: 1088 MDA 2014
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- May 14, 2026
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Clean opinion text
J-A08013-15
2015 PA Super 145
SAMUEL A. MORGANTE, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KELLY S. MORGANTE,
Appellee No. 1088 MDA 2014
Appeal from the Order Entered June 9, 2014
In the Court of Common Pleas of Lycoming County
Civil Division at No(s): 11,20,065
BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.
OPINION BY SHOGAN, J.: FILED JUNE 26, 2015
Appellant Samuel A. Morgante ("Husband") appeals from the order
denying his exceptions to a Master's report and recommendation regarding
equitable distribution of property acquired during his marriage to Kelly S.
Morgante ("Wife").1 We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
The parties were married on May 16, 1987 and separated
on February 14, 2010. Husband served in the Navy for twenty-
three years, eighteen of which were during the parties' marriage.
Husband now receives a military pension and an additional $871
per month of Veterans Administration disability pay. Since
Husband has been receiving disability he has generally worked
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
We note that a Decree in Divorce was entered on January 14, 2014.
J-A08013-15
full time. The Master through her amended report set Husband
with a net earning capacity of $3,000.00 per month due to his
culinary skills and certifications. Wife['s] net monthly income is
$2,278.08.
A Master's Hearing in regard to Equitable Distribution was
held on August 31, 2012; October 12, 2012; December 9, 2012;
supplemented by an Order of Court dated March 5, 2013. A
Master's Report and Recommendation in regard to Equitable
Distribution was filed on June 25, 2013. On July 10, 2013,
Husband filed a Motion to Re-Open/Clarify the Record.
Subsequently, Husband filed Exceptions on July 10, 2013 and
Amended Exceptions on July 15, 2013. A hearing was scheduled
before the Family Court Hearing Officer in regard to the Motion
to Re-Open/Clarify the Record on August 23, 2013, regarding
Husband's request. On September 5, 2013, the [trial court]
heard argument from both parties in regard to the Exceptions
filed by Husband on July 10, 2013, and Amended Exceptions
filed by Husband on July 15, 2013.
The primary issue in Husband's Motion to Re-Open/Clarify
the Record concerned Husband's income and inclusion of his
Navy Retirement and Disability payment in his income. This was
a very similar issue to the issue raised in Husband's Exceptions.
The Court had been advised by the Family Court Hearing Officer,
who took the additional evidence on Husband's Motion to Re-
Open/Clarify the Record, that an Amended Master's Report
would be issued based upon the additional evidence that was
received. The Court, therefore, deferred ruling on the
Exceptions which were filed by Husband until such time as the
Amended Master's Report was issued in light of the fact that the
Court anticipated that the Amended Master's Report may or may
not resolve the Exceptions or may create new exceptions in the
matter. The Court indicated that, upon the entry of the
Amended Master's Report, the Court would conduct a telephone
conference with counsel for Husband and Wife to determine how
the parties wished to proceed on the outstanding Exceptions.
An Amended Master's Report on Equitable Distribution was
issued on November 19, 2013. The Court, thereafter, conducted
a phone conference with counsel on November 22, 2013, to
determine counsel's position on how the Court should proceed
with the outstanding Exceptions in light of the Amended Master's
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Report on Equitable Distribution being issued. All parties agreed
that additional argument would be necessary.
On November 20, 2013, Husband filed Exceptions to the
Amended Master's Report. On December 30, 2013, the [trial
court] heard argument by the parties on the outstanding
Exceptions. On June 9, 2014 this Court issued an Opinion and
Order ruling on Husband's Exceptions. The Court's Opinion and
Order were prepared without the benefit of a transcript as
neither party had paid for its preparation. Both parties agreed
that the Court would review the Master's notes in making
determinations regarding personal property.
Trial Court Opinion, 8/29/14, at 2–4.2 The trial court granted some of
Husband's exceptions and denied others. Order, 6/9/14. Husband filed a
notice of appeal on June 20, 2014, and an amended notice of appeal on
July 9, 2014. Husband and the trial court complied with Pa.R.A.P. 1925.
On appeal, Husband presents the following questions for review:
[1] Whether the trial court failed to distribute Husband's military
retirement plan consistent with Pennsylvania and Federal law
when it ordered Husband to indemnify Wife and maintain a set
monthly amount if her share was reduced either because he
elected to take a disability waiver or for any other reason?
[2] Whether the trial court erred in its method of valuing and
distributing Husband's military retirement plan?
[3] Whether the trial court violated the Equal Protection and
Supremacy Clauses of the Constitution by ordering Husband to
indemnify Wife for any reductions in her share of the military
retirement pay?
* * *
____________________________________________
2
The transcripts from the August 23, 2013 Master's hearing and the
September 5, 2013, and December 30, 2013 arguments before the trial
court are not included in the certified record.
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J-A08013-15
[7] Whether the trial court erred in adopting credibility
determinations of the Master regarding the ring, which were not
supported by the record[?]
Appellant's Brief at 5.3
We apply the following standard in reviewing an equitable distribution
order:
A trial court has broad discretion when fashioning an
award of equitable distribution. Our standard of review
when assessing the propriety of an order effectuating the
equitable distribution of marital property is whether the
trial court abused its discretion by a misapplication of the
law or failure to follow proper legal procedure. We do not
lightly find an abuse of discretion, which requires a
showing of clear and convincing evidence. 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, 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.
Biese v. Biese, 979 A.2d 892, 895 (Pa.Super.2009). 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.
____________________________________________
3
Appellant has withdrawn issues 4, 5, and 6. Appellant's Brief at 5.
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J-A08013-15
Childress v. Bogosian, 12 A.3d 448, 455–456 (Pa. Super. 2011) (most
internal citations and quotation marks omitted).
Husband's first three issues concern his Navy retirement pay and
Veterans Affairs ("VA") disability pay, 38 U.S.C. §§ 1101–1163. These
issues implicate the interplay of federal and state law. The Uniformed
Services Former Spouses' Protection Act ("USFSPA" or "The Act"), 10 U.S.C.
§ 1408, refers to military retirement pay as "disposable retired pay" and
defines that term as: "the total monthly retired pay to which a member is
entitled less amounts which . . . (B) are deducted from the retired pay of
such member as a result of . . . a waiver or retired pay required by law in
order to receive compensation under title 5 or title 38 [(Veterans Affairs)]."
10 U.S.C. § 1408(a)(4)(B).4 To prevent duplication of benefit payments, a
retired service member may only receive VA benefits if he waives a
corresponding amount of disposable retired pay. 38 U.S.C. §§ 5304–5305.
The Act further provides that a service member's "disposable retired ... pay"
may be treated "as property solely of the member or as property of the
member and his spouse in accordance with the law of the jurisdiction." 10
____________________________________________
4
We note that the Master regularly refers to Husband's Navy retirement
pay as a pension. However, Husband testified that, unlike a pension, which
is paid until death, "the military retirement pay is a pay that can stop or
start at any time. So basically if I go back on active duty, the pay stops."
N.T., 10/12/12, at 161. We shall use the statutory term "disposable retired
pay." 10 U.S.C. § 1408; see also Wife's Brief at 4–8 (discussing
"disposable retired pay").
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J-A08013-15
U.S.C. § 1408(c)(1). In Pennsylvania, disposable retired pay is classified as
marital property, divisible upon divorce. Major v. Major, 518 A.2d 1267
(Pa. Super. 1986).
Both federal and Pennsylvania law provide that marital property does
not include the portion of military retirement pay waived to receive VA
disability benefits. In Mansell v. Mansell, 490 U.S. 581 (1989), the United
States Supreme Court held, "[The Act] does not grant state courts the power
to treat, as property divisible upon divorce, military retirement pay that has
been waived to receive veteran's disability benefits." Id. at 594–595.
Following the directive in Mansell, the Pennsylvania Superior Court stated in
Martin v. Martin, 561 A.2d 1231 (Pa. Super. 1989), "[T]o the extent
Pennsylvania's Divorce Code allows equitable distribution of VA disability
retirement pay, or pay waived to receive disability pay, the Code is pre-
empted by federal law and cannot be given effect." Id. at 1235. See also
Miller v. Miller, 577 A.2d 205, 207–208 (Pa. Super. 1990) (discussing
Mansell and Martin); cf. Goodemote v. Goodemote, 44 A.3d 74, 77 (Pa.
Super. 2012) (holding that where VA disability payments were deposited and
held in investment account, increase in value of investment that accrued
during marriage is marital property subject to equitable division).
Husband first argues that the trial court violated federal and state law
in distributing his disposable retired pay when it ordered him to indemnify
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J-A08013-15
Wife and maintain a set monthly payment amount. Husband's Brief at 13.
According to Husband:
This case is somewhat unique and may be a case of first
impression, and not just in Pennsylvania. The vast majority of
cases across the country dealing with waivers of military
retirement, including Pennsylvania case law, involve property
settlement agreements or consent orders. See Hayward v.
Hayward, 868 A.2d 554 (Pa.Super. 2005).
* * *
Through an agreement Wife could have tried to protect herself
with indemnity language and if Husband had agreed to it, then
the court could certainly have enforced that agreement. Here,
however, the parties were unable to negotiate a property
settlement agreement. The court cannot attempt to secure for
Wife indemnification regarding disability benefits of its own
accord. See Halstead [v. Halstead, 596 S.E.2d 353, 355–356
(N.C. Ct. App. 2004)]; Clauson [v. Clauson, 831 P.2d 1257,
1264 (Alaska 1992)].
Husband's Brief at 20–21.
In response, Wife suggests that the trial court's result is consistent
with "a growing number of cases" across the country. In those cases, even
in the absence of an express indemnity agreement, courts have preserved
the former spouse's share of the service member's disposable retired pay
when the service member chooses to accept disability pay, "by guaranteeing
a specified payment from the retirement pay or from any other source
available." Wife's Brief at 11 (citing cases) (emphasis in original). In further
support of her position, Wife relies on the following summary of the VA
waiver issue penned by Colonel Mark Sullivan, U.S. Army, ret.:
-7-
J-A08013-15
Numerous states have addressed the post-decree VA waiver
situation. The large majority of states allow a judge to use
equitable remedies to prevent a retiree from effecting a
unilateral reduction of military retired pay granted to the other
spouse in the settlement or divorce decree. The claim of the
military retiree that he is somehow protected by the USFSPA and
the Mansell decision in his post-divorce election of VA benefits,
and the resulting loss to the former spouse, should fail in most
jurisdictions.
Wife's Brief at 12–13 (quoting Mark E. Sullivan and Charles R. Raphun,
Dividing Military Retired Pay: Disability Payments and the Puzzle of the
Parachute Pension, 24 J. AM. ACAD. MATRIM. LAW 147, 159 (2011)) (emphasis
in original).
Here, the Master calculated the marital portion of Husband's
disposable retired pay for equitable distribution purposes as $1,090,539.94.
Report and Recommendation, 6/25/13, at 14. No one disputes that this
amount does not include the $871.00 per month of Husband's VA disability
pay. For her share of Husband's disposable retired pay, Wife requested that
the Master award a fixed dollar amount rather than a percentage. N.T.,
12/19/12, at 160. Her reasoning was that:
the VA [pay] is not considered an income and if his disability
level increases [then] his retirement benefit from the Navy
decreases in the percentage amount even though he would be
receiving the same amount just in two different venues. That I
could receive considerably less to nothing. . . . [T]he percentage
would stay the same, but the amount that I would get –– it
would be a smaller amount taken the percentage amount out of.
Id. In awarding Wife her share of Husband's disposable retired pay, the
Master complied with Wife's request, as follows:
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J-A08013-15
The single largest marital asset in this case is Husband's
Navy [disposable retired pay]. It is from this course that
Husband will need to make payment to Wife to effectuate the
distribution of the marital estate. Wife has requested that these
payments be made not as a percentage of the monthly
[disposable retired pay], but as an actual dollar figure awarded
to Wife on a monthly basis. After division of the marital property
as set forth below, the payment from Husband to Wife will be
$568,629.78. After subtracting from this the $1,428.52 credit
awarded to Husband for monies deposited into the joint account
and used by Wife after separation, this amount is reduced to
$567,201.26, which is 47.652% of the present value of the Navy
[disposable retired pay]. Wife will therefore be awarded
47.652% of the current monthly [disposable retired pay], or
$911.11 monthly.
Report and Recommendation, 6/25/13, at 21–22.
The trial court analyzed the Master's recommendation as follows:
The Master did not err in regard to section [sic] 23
Pa.C.S.A. §3501 (a)(6). The Master noted Husband was
collecting $871.00 per month in Veterans' Administration
disability benefits. This was not held an asset subject to
Equitable Distribution. The Master properly considered the
disability benefits as income.
The Master did not fail to utilize the coverture fraction to
establish the marital portion of Husband's Navy [disposable
retired pay]. The Master valued the marital portion of Husband's
Navy [disposable retired pay] as $1,090,539.94. This amount
takes into consideration the marital coverture. The Master's
well-reasoned report outlines that the Navy [disposable retired
pay] is the parties' largest marital asset and the way in which
the split was divided in order to offset other monies. The split of
47.652% to Wife is appropriate.
The Master through use of a fixed-dollar amount sought to
indemnify Wife from any changes of Husband's income from
Navy [disposable retired pay] to disability pay. The Master erred
by not entering the award as a percentage to allow Wife the
benefit of any cost of living adjustments to which Husband may
become entitled. 23 Pa.C.S.A. § 3501(c) specifically allows for a
spouse to be entitled to post separation enhancements. . . . .
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J-A08013-15
Further the use of the fix-dollar award does not in this case
necessarily protect Wife from an inequitable result. Should
Husband's Navy [disposable retired pay] be reduced to a less
than $911.11 monthly payment, Wife would not be able to
enforce her order.
Trial Court Opinion and Order, 6/9/14, at 5–6.
Having corrected the Master's fixed-dollar-award error, the trial court
added an indemnification provision regarding Wife's share of Husband's
disposable retired pay:
If [Husband's] Navy [disposable retired pay] is reduced in
any way which reduces the amount or share of retried [sic] pay
to which [Wife] is entitled, such as the receipt of disability pay,
then he will promptly make direct payments to [Wife] to
indemnify her and hold her harmless from any reduction, costs
or damages which she may occur [sic]. The minimum payment
which Wife shall receive either directly from the Navy
[disposable retired pay] and/or through direct payment from
Husband is $911.11 per month, plus consideration of the
associated COLAs.[5]
Trial Court Opinion and Order, 6/9/14, at 6. The trial court further analyzed
the Master's recommendation and its resolution of Husband's first issue in its
Pa.R.A.P. 1925(a) opinion to this Court:
The Master found the marital value of the Navy [disposable
retired pay], excluding the current disability, to be
$1,090,539.94. This represents over 80% of the total marital
estate at $1,334,930.43. The Master determined Husband
should be awarded 45% of the marital estate and Wife should be
awarded 55% of the marital estate. In order to effectuate this
split and after accounting for the split of other marital assets and
credit to Husband, the Master determined the total payment due
to Wife by Husband in equitable distribution was $567,201.26.
____________________________________________
5
Cost of Living Adjustments.
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J-A08013-15
The Master initially ordered this payment to be made monthly
from Husband's Navy [disposable retired pay] in the set dollar
amount of $911.11 per month. The use of the set dollar figure
was at the request of Wife due to her concern that Husband's
benefit would be reduced by disability and consequently reduce
her own entitlement. Husband through his Exceptions raised
that the set amount was an error and the award should instead
be entered as a percentage. This Court agreed and granted
Husband's Exception, finding a percentage is the most equitable
resolution.
Trial Court Opinion, 8/29/14, at 5.
Husband acknowledges that the trial court "properly deducted the
disability benefits Husband currently receives from his military retirement
and only awarded Wife a portion of his military retirement as it existed on
the date of separation." Husband's Brief at 16. Husband complains,
however, that the trial court improperly "circumnavigated the mandate of 10
U.S.C. § 1408 and Pennsylvania Law by giving Wife an indemnity for any
reduction to the military retirement which occurred because of receipt of
disability in the future." Id.
In response to Husband's argument, the trial court explained that:
[t]he indemnification language does not seek to nor does it
impact Husband's protected Veteran's Disability Benefits.
Disability Benefits are not subject to Equitable Distribution. The
Master found that Husband owed to Wife a payment of
$567,201.26 in Equitable Distribution. Instead of ordering a
lump sum payment, this Court allowed for payments to be made
monthly and directly from the Husband's Navy retirement
benefits. In the event Husband['s] Navy retirement benefits do
not cover this payment, he must use his outside funds.
Throughout Husband's disability he has worked full time.
Additional assets were awarded to Husband. Husband would be
able to use either his income or his separate assets to meet the
obligation under the indemnity clause. The Master's and this
Court's determination represent an equitable distribution of the
- 11 -
J-A08013-15
parties' marital assets as accrued at the date of separation. The
Court cannot speculate on an increase or decrease in the value
of investment account[s] or any other asset over time. Before
the Court today is that Wife is owed a payment of $567,201.26
to effectuate equitable distribution[;] potential future changes in
Husband's status beyond COLAs does not and should not be
allowed to affect the award.
Trial Court Opinion, 8/29/14, at 7.
Upon review, we acknowledge Husband's concerns. Nonetheless, we
reject Husband's conclusion that the trial court's equitable distribution plan
"is a direct contravention of Federal law and an attempt to do through a
back door what the court cannot do outright." Husband's Brief at 22.
The Master and trial court recognized that, in order to effectuate an
equitable distribution of the marital estate, Husband owed Wife a payment of
$567,201.26, an obligation Husband does not refute. Calculating that
amount as equaling 47.652% of the present value of Husband's disposable
retired pay, the Master improperly awarded Wife her share as a fixed
monthly payment of $911.11, thereby denying Wife the benefit of COLAs.
Report and Recommendation, 6/25/13, at 22. Recognizing the Master's
error, the trial court awarded Wife the $567,201.26 payment as a
percentage of Husband's disposable retired pay. The trial court's use of the
same monthly payment figure the Master proposed—$911.11—obfuscates
the fact that Wife received a percentage of Husband's disposable retired pay,
but is not otherwise flawed. Additionally, the trial court recognized that
Husband's disposable retired pay was one source of income from which to
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J-A08013-15
pay his monthly obligation to Wife. As the trial court observed, "Throughout
Husband's disability he has worked full time. Additional assets were
awarded to Husband. Husband would be able to use either his income or his
separate assets to meet the obligation under the indemnity clause." Trial
Court Opinion, 8/29/14, at 7.
Contrary to Husband's assertions, the challenged indemnification
language does not impact his ability to waive his disposable retired pay for
disability pay; nor does it subject Husband's disability pay to equitable
distribution. The indemnification language merely directs Husband to use
his disposable retired pay, less his disability pay, and other assets to provide
Wife with her equitable share of the marital estate. If Husband's disposable
retired pay decreases for whatever reason—including an increase in his
disability pay—Husband may meet his monthly obligation to Wife with other
assets. The monthly payment of $911.11 allows Husband to meet that
obligation over time, rather than as a lump sum payment of $567,201.26.6
____________________________________________
6
Husband asserts that he may one day "be living solely off of the disability
payments. If he does not have any other assets, then the order will have an
impact on his disability payments and run afoul of the Mansell decision, as it
will effectively award Wife a portion of Husband's disability benefits."
Husband's Brief at 22–23. We reject Husband's invitation to speculate as to
future circumstances. Presently, Husband's disability pay is not subject to
the equitable distribution order. If Husband's forecasted change of
circumstances should occur, he could request modification of the order.
- 13 -
J-A08013-15
In sum, we conclude that the trial court entered an order of equitable
distribution that effectuates economic justice between the parties and
achieves a just determination of their property rights. Biese, 979 A.2d at
895. Moreover, we are persuaded by Wife's argument that our result is
consistent with the trend in other jurisdictions to equitably distribute a
service member's disposable retired pay in a manner that protects both the
service member and the former spouse. See Wife's Brief at 9–18
(discussing cases). Thus, we discern no abuse of the trial court's discretion
in distributing Husband's disposable retired pay with an indemnification
provision for Wife.
Next, Husband complains that the trial court erred in its method of
valuing and distributing Husband's disposable retired pay. Husband's Brief
at 25. According to Husband, the trial court should have distributed his
disposable retired pay according to 23 Pa.C.S. § 3501(c)(1). That provision
reads as follows:
(c) Defined benefit retirement plans.--
* * *
(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
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J-A08013-15
postseparation enhancements 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. § 3501(c)(1).
The trial court addressed this challenge succinctly:
The value of the marital portion of Husband['s] pension plan was
determined using the coverture fraction. The Master considered
the length of marriage during Husband's naval service. The trial
court has "the authority to divide the award as the equities
presented in the particular case may require." Drake v. Drake,
555 Pa. 481, 725 A.2d 717, 727 (Pa. 1999). The distribution
does follow the requirements of the statu[t]e.
Trial Court Opinion, 8/29/14, at 8 (citing 23 Pa.C.S. § 3501(c)). We agree.
The record supports the trial court's conclusion that the Master applied
the coverture fraction. Trial Court Opinion and Order, 6/9/14, at 5.
Specifically, the Master found that Husband and Wife were married for
twenty-three years and eight months.7 Report and Recommendation,
6/25/13, at 3. Also, the Master determined that 91.619% of Husband's
disposable retired pay is marital. Id. at 4. The Master further found that
the $567,201.26 payment owed to Wife in equitable distribution is 47.652%
of the present value of Husband's disposable retired pay. Id. at 22. Given
the deference due to a Master's findings, Childress, 12 A.3d at 456, we
conclude that the Master complied with the requirements of 23 Pa.C.S.
____________________________________________
7
The actual length of time from May 16, 1987, to February 14, 2010 is
twenty-two years, eight months, and twenty-nine days.
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J-A08013-15
§ 3501(c)(1). Accordingly, we further conclude that the trial court did not
err in valuing and distributing Husband's disposable retired pay.
Husband's third question suggests that the trial court violated the
Equal Protection and Supremacy Clauses of the state and federal
constitutions by ordering him to indemnify Wife "if her percentage of
Husband's disposable military retired pay is reduced ‘for any reason.' Wife
would be guaranteed a payment for her lifetime but Husband would not,
even though the court awarded the remaining military retirement benefit to
Husband in equitable distribution." Husband's Brief at 30.8 According to
Husband:
[T]he trial court created a difference in treatment between
military members and their spouses. The trial court elected to
protect spouses over the military members from forces beyond
either party's control. This disparate treatment of the members
violates equal protection principles because it impermissibly
treats similarly situation [sic] persons (persons with an interest
in military disposable retired pay) differently.
Id. at 32. In response, Wife observes that:
the trial court's order, guaranteeing [Wife] a particular amount
from [Husband's] retirement pay does not violate federal law or
state law, and is completely within the court's power to effect an
equitable distribution award. Because there is no violation of
federal law or state law, the trial court does not "protect spouses
over the military members" (Appellant's Brief, p. 32), and there
is no violation of the constitutional right of equal protection.
____________________________________________
8
Husband acknowledges that he is not challenging the constitutionality of
23 Pa.C.S. § 3105(c) or 10 U.S.C. § 1408, only the trial court's application of
those statutes to the case at hand. Husband's Brief at 32.
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Wife's Brief at 18 (citation omitted; emphasis in original).
The trial court also disposed of this challenge succinctly:
Husband['s] third issue is similar to the first. "The Trial
Court erred in violating the Constitutional Rights of Husband by
not affording equal protection and refusing to uphold the
supremacy of Federal law". The Court above addressed that
Husband's Navy [disposable retired pay] is a marital asset under
federal law and that his Veteran's Disability entitlements are not
disturbed by this Court's ruling.
Trial Court Opinion, 8/29/14, at 8–9.
We have explained, "There is no simple formula by which to divide
marital property; the method of distribution derives from the facts of the
individual case." Taper v. Taper, 939 A.2d 969, 974 (Pa. Super. 2007)
(citing Gaydos v. Gaydos, 693 A.2d 1368, 1376 (Pa. Super. 1997)). In
making an equitable distribution of property, the court must consider all
relevant factors. See 23 Pa.C.S. § 3502 (Equitable division of marital
property). "The courts attempt to split property equitably, instead of
equally, taking into consideration such factors as length of marriage, the
contributions of both spouses, ages and health of each spouse." Taper, 939
A.2d at 974 (quoting Drake v. Drake, 725 A.2d 717, 721 (Pa. 1999)).
"When reviewing an equitable distribution award, this court must consider
the distribution scheme as a whole." Id. (citing Wang v. Feng, 888 A.2d
882, 887 (Pa. Super. 2005)).
Here, we agree with Husband that "[t]he Equal Protection clause
guarantees equal application of the law." Husband's Brief at 30 (citations
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omitted). However, after an exhaustive review of Husband's arguments and
the certified record, we disagree with Husband's premise that the trial court
treated the parties differently. In arriving at an equitable distribution
recommendation, the Master examined each statutory factor set forth in 23
Pa.C.S. § 3502. Report and Recommendation, 6/25/13, at 15–20. Then,
after correcting the Master's fixed-dollar-amount award to Wife, the trial
court distributed Husband's disposable retired pay equitably based on the
Master's section 3502 findings. Considering the distribution scheme as a
whole, we discern no abuse of the trial court's discretion.
We also disagree with Husband's claim that the "inequity of the trial
court's decision guarantees Wife the benefit of the percentage by including
the COLAs, which can only be awarded through a percentage, but does not
require Wife to take any detriment." Husband's Brief at 33. In support of
his position, Husband forecasts a federal shutdown which would result in him
not receiving disposable retired pay, but still having to pay his equitable
distribution obligation to Wife. Id. at 33. Again, we decline to speculate
about future circumstances during which Husband might be deprived of his
disposable retired pay.
We reiterate that the trial court afforded Husband the opportunity to
pay his equitable distribution obligation to Wife over time through monthly
payments, rather than in a lump sum. Yet, Husband complains,
"[M]athematically speaking, this could not possibly be equitable distribution.
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At $911.11 per month, it would take . . . just under [fifty-two] years to pay
the figure of $567,201.26." Husband's Brief at 29; see also id. at 29 n. 6
"($911.11 per month is $10,933.32 per year. $567,201.26 divided by
$10,933 = 51.878227 years."). However, Husband fails to recognize that, in
its discretion, the trial court could have distributed Wife's $567,201.26
award through a higher monthly payment by Husband. Thus, the trial
court's scheme inures to Husband's benefit. Moreover, Husband is certainly
free to pay more per month, thereby reducing the duration of his payment
obligation to Wife.
Husband's final question concerns a 14-karat gold ring valued at
$7,268.00. Husband testified that his father purchased the ring at the time
of Husband's birth and that his mother presented him with the ring at his
retirement, a few months after his father had passed away. N.T., 8/31/12,
at 63–64. Wife took the position that the ring belonged to the parties' son,
Dominick. Id. at 68–69. The Master listed the ring as non-marital property
belonging to Dominick. Report and Recommendation, 6/25/13, at
Attachment 3. Husband filed an exception to the Master's determination
that the ring belonged to Dominick. Exceptions, 7/10/13, at ¶ 2.
After reviewing the Master's notes, the Court denied Husband's
exception, stating:
It is clear that the Master was presented with disputed
testimony from both parties as to the owners of the above-listed
items of property. The Master clearly did a thorough analysis of
the personal property and made credibility determinations in
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regard to whether the items belonged to Husband or belonged to
the parties' child, Dominick. The Court finds that the Master had
sufficient evidence to make the determinations that she made in
regard to the . . . ring. As the trier of fact, the [c]ourt must give
deference to the Master's determination in regard to credibility.
Trial Court Opinion and Order, 6/9/14, at 10. Initially, the trial court made
its "determination without benefit of the transcript prior to the June 9, 2014
[hearing]." Trial Court Opinion, 8/29/14, at 9. Subsequently, having
reviewed the transcripts:
the [trial c]ourt [found] that the Master had sufficient evidence
to make the determinations she made in regards to marital or
non-marital property. [The trial court relied] on the credibility
determination of the Master. The determination that the [ring
was] non-marital does not equate to an award of the property to
a third party, although [the court] mistakenly used the term
"awarded." The [c]ourt [did] not [order] any property be
turned over to a third party; the [c]ourt simply made a
determination as to marital or non-marital based on the
determination of ownership.
Id. (emphasis supplied).
On appeal, Husband argues as follows:
Wife never testified about the ring. Although her attorney
proffered a statement, such is not testimony. Husband
specifically presented testimony as to the ring. Thus, the
credibility determination that the ring was intended for the
parties' son and Wife's assumption that the son would get the
ring [were] not supported by the record.
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Husband's Brief at 37 (internal citations omitted; citing N.T., 8/31/12, at 68–
69). Husband does not challenge the trial court's ultimate finding that the
ring was non-marital, just the basis for that finding.9
Upon review, we observe that the record supports Husband's
assertion. During the three days of hearings, Wife did not, in fact, testify
about the ring; rather, her counsel informed the trial court of Wife's position.
N.T., 8/31/12, at 68–69. Yet, the trial court "made a determination as to
marital or non-marital based on the [Master's] determination of ownership,"
which, in turn, was based on the Master's credibility determination. Trial
Court Opinion, 8/29/14, at 9.
This Court will not reverse credibility determinations as long as they
are supported by the evidence. Childress, 12 A.3d at 455 (citation
omitted). Moreover, this Court may affirm the trial court's decision on any
valid basis, as long as the court came to the correct result. Wilson v.
Transport Ins. Co., 889 A.2d 563, 577 n. 4 (Pa. Super. 2005). Here, given
the lack of Wife's testimony regarding the ring, the Master's acceptance of
Wife's position as credible and determinative of ownership is not supported
____________________________________________
9
Wife retorts, "[Husband] cannot now claim that Wife did not testify when it
was he who specifically refused to provide a transcript to the trial court, and
instead asked the trial court to rely on the master's notes." Wife's Brief at
19. This argument ignores the fact that the trial court subsequently reviewed
the transcripts and determined that "the Master had sufficient evidence to
make the determinations she made in regards to marital or non-marital
property." Trial Court Opinion, 8/29/14, at 9.
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by the record. Consequently, the trial court's reliance on the Master's
credibility determination is not supported. Husband's unrebutted testimony
as to the pre-marital origin of the ring supports his claim of ownership.
More importantly, Husband's testimony also supports the trial court's
ultimate determination that the ring was non-marital property. N.T.,
8/31/12, at 63–64, 71–72. Thus, we reject the Master's unsupported
determination of ownership and the trial court's reliance thereon. However,
we affirm the trial court's ultimate determination that the ring was non-
marital property based on the testimony that was presented.10
Lastly, we address Husband's complaint that the Master and trial court
erred by imposing the equitable distribution award through a QDRO versus
DRO.11 Husband's Brief at 21, 26, 27, 33. We note, however, that Husband
____________________________________________
10
In doing so, we note our agreement with the trial court that it "did not
order any property be turned over to a third party." Trial Court Opinion,
8/29/14, at 9.
11
The Pennsylvania Commonwealth Court has distinguished these terms, as
follows:
Generally, a qualified domestic relations order, or "QDRO," is
defined as:
a domestic relations 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 the plan. To be
"qualified," the order must contain certain required
information and may not alter the amount or form of plan
benefits.
(Footnote Continued Next Page)
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did not raise this issue in his Pa.R.A.P. 1925(b) Statement of Errors
Complained of on Appeal or in his Statement of Questions Presented. Rule
1925(b) Statement, 7/9/14; Husband's Brief at 5. Thus, it is waived. See
Pa.R.A.P. 302(a) ("General rule. Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal."); Green v.
Green, 69 A.3d 282 (Pa. Super. 2013) (applying Rule 302(a) where
Husband failed to object to trial court's use of wife's exhibit which was not
formally admitted).
In sum, the trial court did not abuse its discretion in distributing the
marital estate. Husband's contrary claims do not warrant relief.
Order affirmed.
_______________________
(Footnote Continued)
Berrington v. Berrington, 534 Pa. 393, 397 n. 3, 633 A.2d
589, 591 n. 3 (1993), quoting Wilder, Mahood, and
Greenblatt, Pa. Family Law Practice and Procedure (2d ed), §
14-10. A DRO is:
a judgment, decree or order, including approval of a
property settlement agreement by the court, which relates
to the provision of child support, alimony payments or
marital property rights of a spouse, former spouse,
child or other dependent of a plan participant and is made
pursuant to a state domestic relations law.
Id. at n. 4, 633 A.2d at 591 n. 4.
Maloney v. Maloney, 754 A.2d 36, 38 n.3 (Pa. Cmwlth. 2000) (emphasis
supplied).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2015
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