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CourtListener opinion 3198632

Date unknown · US

Extracted case name
pending
Extracted reporter citation
859 A.2d 511
Docket / number
1147 MDA 2015
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 3198632 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

FC-2012-021531-D1 BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED APRIL 27, 2016 Appellant, Thomas E. Bortz ("Husband"), appeals from the order entered in the Lycoming County Court of Common Pleas. Husband contends the Qualified Domestic Relations Order ("QDRO") regarding his City of Williamsport Police Pension Plan is not consistent with his and Appellee's, Stacie L. Bortz's ("Wife"), Marriage Settlement Agreement ("MSA").1 We affirm. At the hearing on the Petition for Contempt/Petition for Enforcement of Property Settlement Agreement filed by Wife on April 17, 2015, the parties stipulated, inter a

retirement benefits

16. Employment Benefits. The parties hereto have reached agreement regarding the retaining of and distribution of their respective employment benefits as follows: * * * B. Wife's retirement. The parties agree that all of the marital portion of Wife's retirement account(s) and/or pension plan(s) through her employment with Lycoming County shall be divided between the parties such that Wife will receive Fifty-Five Percent (55%) of the martial portion and Husband will receive Forty-Five (45%) of the martial portion pursuant to current law. For purposes of determining the marital portion, the parties agree that they we

pension

RALD, J.: FILED APRIL 27, 2016 Appellant, Thomas E. Bortz ("Husband"), appeals from the order entered in the Lycoming County Court of Common Pleas. Husband contends the Qualified Domestic Relations Order ("QDRO") regarding his City of Williamsport Police Pension Plan is not consistent with his and Appellee's, Stacie L. Bortz's ("Wife"), Marriage Settlement Agreement ("MSA").1 We affirm. At the hearing on the Petition for Contempt/Petition for Enforcement of Property Settlement Agreement filed by Wife on April 17, 2015, the parties stipulated, inter alia, to the following facts: "[T]hey entered into a [MSA] *

domestic relations order

1531-D1 BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED APRIL 27, 2016 Appellant, Thomas E. Bortz ("Husband"), appeals from the order entered in the Lycoming County Court of Common Pleas. Husband contends the Qualified Domestic Relations Order ("QDRO") regarding his City of Williamsport Police Pension Plan is not consistent with his and Appellee's, Stacie L. Bortz's ("Wife"), Marriage Settlement Agreement ("MSA").1 We affirm. At the hearing on the Petition for Contempt/Petition for Enforcement of Property Settlement Agreement filed by Wife on April 17, 2015, the parties stipulated, inter a

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: 859 A.2d 511 · docket: 1147 MDA 2015
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-A02043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS E. BORTZ, : IN THE SUPERIOR COURT OF
 : PENNSYLVANIA
 Appellant :
 :
 v. :
 :
STACIE L. BORTZ :
 : No. 1147 MDA 2015

 Appeal from the Order Entered June 23, 2015
 in the Court of Common Pleas of Lycoming County Civil Division
 at No(s): FC-2012-021531-D1

BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 27, 2016

 Appellant, Thomas E. Bortz ("Husband"), appeals from the order

entered in the Lycoming County Court of Common Pleas. Husband contends

the Qualified Domestic Relations Order ("QDRO") regarding his City of

Williamsport Police Pension Plan is not consistent with his and Appellee's,

Stacie L. Bortz's ("Wife"), Marriage Settlement Agreement ("MSA").1 We

affirm.

 At the hearing on the Petition for Contempt/Petition for Enforcement of

Property Settlement Agreement filed by Wife on April 17, 2015, the parties

stipulated, inter alia, to the following facts: "[T]hey entered into a [MSA]

*
 Former Justice specially assigned to the Superior Court.
1
 The MSA is also referred to as a Property Settlement Agreement. For
consistency, we refer to it as a MSA.
 J-A02043-16

dated December 5, 2013."2 R.R. at 25a. "[T]hey hired Jonathan Cramer of

Conrad Siegal to prepare the QDROs, the three (3) QDROs referenced in

that [MSA]." Id. "[T]hey obtained drafts of the three (3) QDROs from Mr.

Cramer and . . . the plan administrators of each of the three (3) pension

plans approved the [QDROs] as drafted by Jonathan Cramer." Id. at 25a-

26a. Wife signed the QDROs. Id. at 26a. Husband has not executed the

QDROs. Id. "The parties agree that they were married on December 18,

2004 and they separate[d] on October 24, 2012." Id. at 29a. They

stipulated that the agreement was "that the martial portion would be divided

55/45." Id. at 32a.

 The MSA provided, inter alia, as follows:

 16. Employment Benefits. The parties hereto have
 reached agreement regarding the retaining of and
 distribution of their respective employment benefits as
 follows:

 * * *

 B. Wife's retirement. The parties agree that all of the
 marital portion of Wife's retirement account(s) and/or
 pension plan(s) through her employment with Lycoming
 County shall be divided between the parties such that Wife
 will receive Fifty-Five Percent (55%) of the martial portion
 and Husband will receive Forty-Five (45%) of the martial
 portion pursuant to current law. For purposes of
 determining the marital portion, the parties agree that
 they were married on December 18, 2004, and they
 separated on October 24th, 2012. In the event the parties
 need to prepare a [QDRO] for purposes of dividing Wife's

2
 See R.R. at 5a-15a. For convenience, we refer to the reproduced record
where applicable.

 -2-
 J-A02043-16

 retirement account(s) and/or pension plan(s), they agree
 to hire a third party to prepare the necessary paperwork
 and will equally share the expense associated therewith.

 C. Husband's Retirement. The parties have agreed to
 divide all of the marital portion of Husband's retirement
 account(s) and/or pension plan(s) through his employment
 with the City of Williamsport in such a manner that Wife
 shall receive Fifty-Five(55%) of the marital portion and
 Husband will receive Forty-Five Percent (45%) of the
 marital portion pursuant to current law. For purposes of
 determining the marital portion, the parties agree that
 they were married on December 18, 2004, and they
 separated on October 24th, 2012. In the event the parties
 need to prepare a [QDRO] for purposes of dividing
 Husband's Retirement Account(s) and/or pension plan(s),
 they agree to hire a third party to prepare the necessary
 paperwork and will equally share the expense associated
 therewith.

 D. Husband's Deferred Compensation Account. The
 parties agree to divide the marital portion of Husband's
 deferred compensation account such that Wife will receive
 Fifty-Five Percent (55%) of the partial portion of the
 account and Husband will receive Forty-Five Percent (45%)
 of the marital portion of the account pursuant to current
 law. For purposes of determining the marital portion, the
 parties agree that they were married on December 18,
 2004, and they separated on October 24th, 2012. In the
 event the parties need to prepare a [QDRO] for purposes
 of dividing Husband's Deferred Compensation Account,
 they agree to hire a third party to prepare the necessary
 paperwork and will equally share the expense associated
 therewith.

MSA, 12/5/13, at 12a-13a.

 Paragraph 7 of the QDRO which applies to Husband's City of

Williamsport, PA Pension Plan states, in pertinent part, as follows:

 7. This [Q]DRO assigns to [Wife], an amount equal to
 55.0% of the marital portion of [Husband's] accrued
 retirement benefit under the Plan as of [Husband's] date of

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 J-A02043-16

 retirement. The marital portion of [Husband's] accrued
 retirement benefit equals the monthly retirement benefit,
 payable in the normal form of payment for [Husband's]
 lifetime, multiplied by a fraction equal to 7.85 years (the
 period from December 18, 2004, date of marriage, until
 October 24, 2012, date of separation) divided by the years
 of credited benefit service (including any partial year
 credited) earned by [Husband] as of the date his benefit
 accruals cease. If any cost-of-living increase or other
 increase is applied to the pension payable to [Husband],
 the same increase shall apply to [Wife's] share, but only to
 the extent permitted by the Plan and state law.

Trial Ct. Order and Op., 6/23/15, at 44a-45a (quotation marks omitted).3

 On June 23, 2015, the trial court entered an order providing, inter alia,

that "Husband is hereby ORDERED and DIRECTED to sign the Domestic

Relations Order in regard to his City of Williamsport Police Pension Plan as

drafted by Conrad Siegel . . . ." Id. at 51a. This appeal followed. Appellant

filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. The trial court filed a Pa.R.A.P. 1925(a) opinion relying upon its

order and opinion of June 23, 2015.

 Husband raises the following issues for our review:

 I. Did the Trial Court err and/or commit an abuse of
 discretion in finding that the language of Paragraph 16 B.
 through D. in the parties' [MSA] is clear and unambiguous?

 II. Did the Trial Court err and/or commit an abuse of
 discretion in its decision of June 23, 2015, regarding the
 parties' [MSA] relative to equitable distribution, and
 specifically in finding that the [QDRO] regarding [ ]
 Husband's City of Williamsport Police Pension Plan, as

3
 The Domestic Relations Order was docketed July 17, 2015. See R.R. at
53a-56a.

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 J-A02043-16

 drafted by Conrad Siegel, is consistent with the terms of
 the parties' [MSA] dated December 5, 2013?

Husband's Brief at 4.

 Husband contends that the language in the MSA agreement, viz.,

"pursuant to current law," in paragraph 16 B. through D. is ambiguous. Id.

at 14. He claims that the phrase refers to contract law and not to "the

statutory law [viz., 23 Pa.C.S. § 3501(c)(1),] regarding the division of

defined benefit retirement plan." Id. Based upon this Court's holding in

Bianchi v. Bianchi, 859 A.2d 511 (Pa. Super. 2004), Husband contends

Wife "cannot benefit from post-separation increases in [Husband's] pension .

. . ." if they are attributable to his "efforts and/or contributions." Id. at 17-

19. Husband states that the QDROS "are legally incorrect as they include,

as a benefit to Wife, post separation monetary contributions made by the

efforts and/or contributions of Husband . . . ." Id. at 19.

 We address Husband's issues together because they are interrelated.

In conducting our review of the court's holding as to the MSA, we are guided

by the following principles:

 Because contract interpretation is a question of law,
 this Court is not bound by the trial court's
 interpretation. Our standard of review over
 questions of law is de novo and to the extent
 necessary, the scope of our review is plenary as the
 appellate court may review the entire record in
 making its decision. However, we are bound by the
 trial court's credibility determinations.

 . . . On appeal from an order interpreting a marital
 settlement agreement, we must decide whether the

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 J-A02043-16

 trial court committed an error of law or abused its
 discretion.

Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super. 2007) (citations

omitted).

 The Pennsylvania Supreme Court in Smith v. Smith, 938 A.2d 246

(Pa. 2007) held, inter alia, that "courts . . . should allocate the pension

between its marital and nonmarital portions solely by use of a coverture

fraction" pursuant to 23 Pa.C.S. § 3501(c) (quotation marks omitted). Id.

at 259.

 In 2004, . . . the legislature attempted to address the
 confusion in our law by adding a subsection to the Divorce
 Code regarding the distribution of defined benefit
 pensions. In relevant part, § 3501(c) provides:

 (c) Defined benefit retirement plans.-Notwithstanding
 subsections (a) [General Rule regarding marital
 property], (a.1) [Measuring and determining the
 increase in value of non-marital property] and (b)
 [Presumption that all property acquired during the
 marriage is marital]:

 (1) In the case of the marital portion of a defined
 benefit retirement plan being distributed by means of
 a deferred distribution, the defined benefit plan shall
 be allocated between its marital and nonmarital
 portions solely by use of a coverture fraction. The
 denominator of the coverture fraction shall be the
 number of months the employee spouse worked to
 earn the total benefit and the numerator shall be the
 number of such months during which the parties
 were married and not finally separated. The benefit
 to which the coverture fraction is applied shall include
 all postseparation enhancements except for
 enhancements arising from postseparation monetary
 contributions made by the employee spouse,
 including the gain or loss on such contributions.

 -6-
 J-A02043-16

 * * *

 23 Pa.C.S. § 3501 (emphasis omitted).

 Significantly, in its official comments, the legislature
 specifically addressed this Court's prior holdings regarding
 the distribution of defined benefit pensions, criticizing the
 lead opinion in Berrington [v. Berrington, 633 A.2d 589
 (Pa. 1993)], which valued the pension utilizing the salary
 at the time of separation, and commending the analysis
 offered in Gordon by Justices Flaherty, Cappy, and
 Newman, and by the Superior Court in Holland v.
 Holland, [ ] 588 A.2d 58 ([Pa. Super.] 1991).

 New subsection (c) seeks to reverse Berrington [ ]
 to adopt a coverture fraction methodology along the
 lines of Holland [ ] and to include all
 postseparation enhancements except for
 postseparation monetary contributions by the
 employee spouse in the value of the pension.
 The new language codifies the result reached by
 Justices Flaherty, Cappy and Newman regarding the
 postseparation retirement enhancements in Gordon
 v. Gordon, [ ] 681 A.2d 732 ([Pa.] 1996) (3-3
 decision on this issue, affirming the Superior Court's
 exclusion of the enhancements from the marital
 estate). Three early retirement inducements were at
 issue in Gordon. The justices listed above opined
 that since no present efforts or contributions of the
 employee spouse were required to receive the
 supplemental retirement income and bonus
 inducements, they were includable in the marital
 estate. The third inducement was an annuity paid
 for partially by the employee spouse and partially by
 the employer. Justices Flaherty, Cappy and Newman
 would have included the portion of the annuity paid
 for by the employer in the marital estate.

 23 Pa.C.S. § 3501(c), cmt.

 As we must defer to the legislature as the policy making
 body, we conclude that the holding in Berrington no
 longer controls regarding the use of the salary at time of

 -7-
 J-A02043-16

 separation. Instead, we honor the legislature's
 unequivocal intention to utilize the coverture fraction to
 provide economic justice between the parties, as discussed
 by the Superior Court in Holland:

 A delayed distribution of pension benefits requires
 the non-employed spouse to wait until some
 indefinite time in the future to receive the marital
 share. To compensate for this postponement of
 benefit, that spouse is permitted to enjoy increases
 in value occasioned by continued employment of the
 worker. Also, the employed spouse increases the
 non-marital share of the benefits since continuing
 service enlarges the denominator. Further, later
 year wage increases are a product of experience and
 longevity which were developed during the marriage.
 The [employee-spouse] . . . can look forward to the
 benefits which accrue from a vested pension. His
 former spouse is entitled to share in any increase in
 value of the marital share which may occur by [the
 employee-spouse's] continued employment.

 Holland, 588 A.2d at 60. Accordingly, rather than using
 the salary at the time of separation, courts instead should
 allocate the pension "between its marital and nonmarital
 portions solely by use of a coverture fraction." 23 Pa.C.S.
 § 3501(c). Thus, the non-employee spouse "is
 permitted to enjoy increases in value occasioned by
 continued employment of the worker." Holland, 588
 A.2d at 60. In the simplest of cases, the determination of
 the marital portion of a defined benefit pension will entail a
 straightforward application of the coverture fraction to the
 final total value of the pension, even though the value has
 increased due to years of postseparation employment.

Id. at 257-59 (emphases added and footnote omitted).

 In the case sub judice, the trial court opined:

 The [c]ourt finds that the language of Paragraph 16B.
 through D. in the parties' [MSA] is clear and unambiguous.
 The parties agree that Wife would receive 55% of the
 marital portion and Husband would receive 45% pursuant
 to current law. At the time the parties executed the

 -8-
 J-A02043-16

 [MSA,] the current law regarding the division of defined
 benefit retirement plans was outlined at 23 Pa.C.S.A. §
 3501(c)(1) . . . .

Trial Ct. Order and Op. at 46a.

 In the instant case, the QDRO employed the coverture fraction. It

stated:

 The marital portion of [Husband's] accrued retirement
 benefit equals the monthly retirement benefit, payable in
 the normal form of payment for [Husband's] lifetime,
 multiplied by a fraction equal to 7.85 years (the period
 from December 18, 2004, date of marriage, until October
 24, 2012, date of separation) divided by the years of
 credited benefit service (including any partial year
 credited) earned by [Husband] as of the date his benefit
 accruals cease.

R.R. at 45a. This was consistent with the MSA which provided, inter alia, as

follows:

 The parties have agreed to divide all of the marital portion
 of Husband's retirement account(s) and/or pension plan(s)
 through his employment with the city of Williamsport in
 such a manner that Wife shall receive Fifty-Five (55%) of
 the marital portion and Husband will receive Forty-Five
 Percent (45%) of the marital portion pursuant to current
 law. For purposes of determining the marital portion, the
 parties agree that they were married on December 18,
 2004, and they separated on October 24th, 2012.

R.R. at 12a-13a.

 Husband's argument that the MSA is ambiguous as to the reference to

"current law" is unavailing. Section 3501(c)(1) is the applicable "current

law" in the instant case. See Smith, 938 A.2d at 258-59. As the

Pennsylvania Supreme Court held in Smith, we are bound by the

 -9-
 J-A02043-16

"legislature's unequivocal intention to utilize the coverture fraction to provide

economic justice between the parties . . . ." See id. at 258. "[R]ather

than using the salary at the time of separation, courts instead should

allocate the pension ‘between its marital and nonmarital portions solely by

use of a coverture fraction.'" Id. at 259 (citation omitted). Therefore, Wife

"is permitted to enjoy increases in value occasioned by continued

employment of" Husband postseparation. See id. at 259. The QDRO in the

instant case utilizes the coverture fraction. See id. at 258. Therefore, we

affirm the order of the trial court.

 Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/2016

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