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CourtListener opinion 4201793
Date unknown · US
- Extracted case name
- pending
- Extracted reporter citation
- 663 A.2d 184
- Docket / number
- 190 MDA 2017
Machine-draft headnote
Machine-draft public headnote: CourtListener opinion 4201793 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“07, 2017 These are three consolidated appeals filed by Christopher Smith ("Husband"), pro se, from the orders entered on September 15, 2015 and December 29, 2016.1 The September 15, 2015 order entered a divorce decree and order of equitable distribution/qualified domestic relations order ("QDRO"), and the December 29, 2016 order granted Susan C. Smith's ("Wife") motion to compel Husband to sign Wife's proposed QDRO, and denied Husband's motion to compel Wife to sign the QDRO that he proposed. After our review, we quash the appeal at 191 MDA 2017, and affirm the appeals at 190 MDA 2017 and 192 MDA 2017.2 _______________________________”
pension“filed by each of the parties evidencing that each of the parties consents to the divorce." 23 Pa.C.S.A. § 3301(c). -4- J-S41024-17 3. The marital property, excluding the joint TD Ameritrade stock account and Husband's [State Employee Retirement System] Pension [SERS], shall be divided 53% to Wife and 47% to Husband, with an offset for credits. **** 7. Within sixty (60) days of the date of the final decree, Husband shall pay to Wife the sum of $92,310.88 to effectuate equitable distribution of the [marital] assets. 8. Husband's existing SERS pension value shall be divided equally between the parties by”
domestic relations order“These are three consolidated appeals filed by Christopher Smith ("Husband"), pro se, from the orders entered on September 15, 2015 and December 29, 2016.1 The September 15, 2015 order entered a divorce decree and order of equitable distribution/qualified domestic relations order ("QDRO"), and the December 29, 2016 order granted Susan C. Smith's ("Wife") motion to compel Husband to sign Wife's proposed QDRO, and denied Husband's motion to compel Wife to sign the QDRO that he proposed. After our review, we quash the appeal at 191 MDA 2017, and affirm the appeals at 190 MDA 2017 and 192 MDA 2017.2 _______________________________”
survivor benefits“final decree, Husband shall pay to Wife the sum of $92,310.88 to effectuate equitable distribution of the [marital] assets. 8. Husband's existing SERS pension value shall be divided equally between the parties by way of a QDRO. Husband shall elect the survivor annuity option. QDRO preparation costs shall be divided between the parties. 9. The joint TD Ameritrade stock account shall be divided 53% to Husband and 47% to Wife based upon its current valuation at the time [] the final Divorce Decree is entered. 10. Wife's request for alimony is DENIED. Order, 9/15/15. On October 5, 2015, Husband filed a pro se no”
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: 663 A.2d 184 · docket: 190 MDA 2017
- 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-S41024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SUSAN C. SMITH IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER C. SMITH
Appellant No. 190 MDA 2017
Appeal from the Order Entered December 29, 2016
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2013-20491
*****
SUSAN C. SMITH IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER C. SMITH
Appellant No. 191 MDA 2017
Appeal from the Order Entered September 15, 2015
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2013-20491
*****
SUSAN C. SMITH IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER C. SMITH
Appellant No. 192 MDA 2017
J-S41024-17
Appeal from the Order Entered December 29, 2016
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2013-20491
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 07, 2017
These are three consolidated appeals filed by Christopher Smith
("Husband"), pro se, from the orders entered on September 15, 2015 and
December 29, 2016.1 The September 15, 2015 order entered a divorce
decree and order of equitable distribution/qualified domestic relations order
("QDRO"), and the December 29, 2016 order granted Susan C. Smith's
("Wife") motion to compel Husband to sign Wife's proposed QDRO, and
denied Husband's motion to compel Wife to sign the QDRO that he proposed.
After our review, we quash the appeal at 191 MDA 2017, and affirm the
appeals at 190 MDA 2017 and 192 MDA 2017.2
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Two of Husband's appeals, 190 MDA 2017 and 192 MDA 2017, are from
the same order, entered on December 29, 2016. This Court consolidated
these appeals, sua sponte, with the appeal filed at 191 MDA 2017. See
Order, 2/13/17. See also Pa.R.A.P. 513. Because Husband's appeal from
the September 15, 2015 order was stayed and subsequently withdrawn, we
quash the appeal docketed at 191 MDA 2017. See discussion infra, at p. 8.
2
Wife's counsel has notified this Court that, due to Wife's limited resources,
she would not be filing an appellee's brief. Counsel has indicated agreement
with the trial court's findings and opinion.
-2-
J-S41024-17
The parties were married on September 15, 1984; they separated on
February 24, 2014. The parties have an adult son, who is now 29 years
old.
On June 12, 2014, the court appointed Loreen Burkett, Esquire, as a
special master to hear the issue of alimony pendent lite (APL). On June 23,
2014, the court appointed Special Master Burkett to make recommendations
on the claim for equitable distribution. Following a hearing on February 24,
2015, Special Master Burkett determined that Wife was entitled to APL and
recommended Husband pay $1,178.00 per month. Husband, who argued
Wife had not demonstrated need for APL, filed exceptions. The trial court
denied Husband's exceptions, and, thereafter, denied Husband's motion for
reconsideration. Husband appealed to this Court, and we quashed that
appeal. See Smith v. Smith, 121 MDA 2015 (Order, filed February 12,
2015). See also Calibeo v. Calibeo, 663 A.2d 184 (Pa. Super. 1995)
(order for either spousal support or alimony pendente lite is interlocutory
and not appealable until all economic claims have been resolved).
On April 28, 2015, Special Master Burkett filed a motion for
withdrawal, stating that she had recently "identified an issue which may
create the appearance of a conflict in the future[.]" Motion for Withdrawal
of Appointment of Special Master, 4/28/15, at ¶ 5. On May 5, 2015, the
court granted the motion to withdraw and appointed Keith Kilgore, Esquire,
as Special Master, who, on May 12, 2015, petitioned the court to appoint an
alternate because he had previously represented Husband. On May 18,
-3-
J-S41024-17
2015, the court vacated Kilgore's appointment and appointed Anne Kline,
Esquire, to address the issues of divorce, equitable distribution and alimony.
On July 7, 2015, Special Master Kline recommended a divorce be
granted pursuant to section 3301(c) of the Divorce Code,3 and that the
marital assets be distributed 53% to Wife and 47% to Husband; she also
recommended Wife's request for alimony be denied.
Husband and Wife both filed exceptions. The Honorable Bradford H.
Charles dismissed both parties' exceptions and entered an order on
September 15, 2015, which states, in relevant part:
AND NOW, THIS 15TH DAY OF September, 2015, after a careful
consideration of the file, including the transcript of the hearing
on February 24, 2015 and the Special Master's report of July 7,
2015, the Exceptions filed by both parties in the above-captioned
matter are DENIED and the recommendations of the Special
Master are AFFIRMED in their entirety as follows:
1. Pursuant to Section 3301(c) of the Divorce Code, Susan
C. Smith (hereafter "Wife") and Christopher C. Smith
(hereafter "Husband") are hereby divorced from the
bonds of matrimony.
2. Provided that no appeal of this decision is filed, alimony
pendente lite will be terminated effective immediately.
If an appeal is filed, we will entertain a hearing to
determine whether alimony pendente lite should
continue during the pendency of the appeal.
____________________________________________
3
Section 3301(c) provides: "The court may grant a divorce where it is
alleged that the marriage is irretrievably broken and 90 days have elapsed
from the date of commencement of an action under this part and an affidavit
has been filed by each of the parties evidencing that each of the parties
consents to the divorce." 23 Pa.C.S.A. § 3301(c).
-4-
J-S41024-17
3. The marital property, excluding the joint TD Ameritrade
stock account and Husband's [State Employee
Retirement System] Pension [SERS], shall be divided
53% to Wife and 47% to Husband, with an offset for
credits.
****
7. Within sixty (60) days of the date of the final decree,
Husband shall pay to Wife the sum of $92,310.88 to
effectuate equitable distribution of the [marital]
assets.
8. Husband's existing SERS pension value shall be
divided equally between the parties by way of a
QDRO. Husband shall elect the survivor annuity
option. QDRO preparation costs shall be divided
between the parties.
9. The joint TD Ameritrade stock account shall be divided
53% to Husband and 47% to Wife based upon its
current valuation at the time [] the final Divorce
Decree is entered.
10. Wife's request for alimony is DENIED.
Order, 9/15/15.
On October 5, 2015, Husband filed a pro se notice of appeal. Wife
filed a petition to stay the order pending appeal, averring irreparable harm
in that Husband "will be free to remarry and name his future spouse as a
beneficiary of his State Employees Retirement Pension to which [Wife] was
awarded a fifty percent (50%) share." Application for Stay, 10/14/15, ¶ 6.
The court granted the stay on October 20, 2015. Despite the filing of an
appeal from the September 15, 2015 order, Husband filed a petition to seek
enforcement of that order on October 19, 2015. The court denied that
request on October 22, 2015, and five days later Husband filed a motion
-5-
J-S41024-17
seeking disqualification of the Honorable Bradford H. Charles. See Motion
for Immediate Disqualification of Judge Bradford H. Charles Due to Multiple
Violations of the Code of Judicial Conduct, 10/27/15.
In his motion, Husband claimed Judge Charles allowed Wife's attorney
"to knowingly make false statements about [Husband,] . . . and is clearly
biased against [Husband] in his rulings and actions by allowing this
misconduct of [Wife's] lawyer." Id. at 2. Husband also claimed that Judge
Charles' granting of Wife's petition for stay "is illegal and biased against
[him]." Id. On October 29, 2015, Judge Charles denied this motion, and
also denied Husband's motion for reconsideration of the September 15,
2015 order. Order of Court, 10/29/15. Order of Court, 10/29/15.
On November 3, 2015, Husband filed a "Motion to the President Judge
of the Court of Common Pleas of Lebanon County for the Immediate
Reconsideration and Disqualification of Judge Bradford H. Charles due to
Multiple Violations of the Code of Judicial Conduct[.]" In support of this
motion, Husband averred, in part:
This judge has refused to properly calculate the APL payment
based upon the laws of the Commonwealth of Pennsylvania and
adjusted [Husband's] APL payment. This violation of the Code of
Judicial Conduct has forced [Husband] to pay [Wife] over $270 a
month more than the maximum amount allowed by law.
Rule 2.3 requires a judge to perform the duties of judicial office
without bias or prejudice. A judge shall not by words or
conduct, manifest bias or prejudice. Judge Charles has
showed his distaste towards [Husband] by making a
-6-
J-S41024-17
number of derogatory comments about [Husband] during
the Judge's Opinion on Equitable Distribution [referring to
Judge Charles' September 15, 2015 opinion].4
The granting of the Stay Order is illegal and biased against
[Husband] on the following grounds:
Since [Husband] is fully willing to comply with the
September 15, 2015 Divorce Decree and Order of
Equitable Distribution, there can be absolutely no harm to
[Wife] to allow the Entry and Execution of this September
15 order. [Wife], who is the moving party in the divorce,
is not requesting reconsideration, nor is [Wife] appealing
the September 15, 2015 Divorce Decree and Order of
Equitable Distribution. So if [Husband] fully complies with
the Order, even while [Husband] is appealing the Order,
there is no legal reason for the Stay to be granted. There
is no justifiably claim of economic harm to [Wife] that
[Wife] can make. The only reason Judge Charles
signed this Order is his blatant bias against
[Husband].
The biased Judge failed to consider any of the
economic and health issues (diagnosis of cancer)
being endured by [Husband].
Motion, 11/13/15, at 2-4 (emphasis added).
____________________________________________
4
The trial court stated in its opinion that Husband has "impugned the
integrity of everyone who disagrees with him[.]" Opinion, 9/15/15, at 1.
From our review of Husband's motions, it appears that the court's statement
is an accurate assessment. Husband's characterizations of the judge, the
master, the judicial system and Wife's attorney, ("the biased judge," the
"incompetent judge and domestic relations master," the "lack of integrity in
Lebanon County," describing the Lebanon County judicial system as a
"compete cesspool of nepotism," and references to the "unethical lawyer"
who "needs a lesson in English," to list a few), are inappropriate and detract
from his legal arguments.
-7-
J-S41024-17
On November 4, 2015, Judge Charles entered an order denying this
second motion to disqualify, noting that President Judge John C. Tylwalk
assigned him to preside over issues pertaining to this divorce.5 In his order,
Judge Charles stated:
Prior to being assigned the responsibility to preside over issues
in the above-referenced matter, this Jurist had no known contact
with either [Wife] or [Husband]. This Jurist is not acquainted
with either party, nor did this Jurist have any known business
relationship with either party at any time in the past. This Jurist
has rendered decisions that have angered [Husband]. By itself,
that does not create grounds for disqualification. The fact that
[Husband] has filed vitriolic-infused motions that have
disparaged this Jurist also does not create a ground for this
Jurist to recuse himself. . . . [Husband] has appealed the
decision rendered by this Jurist with respect to divorce, equitable
distribution and alimony pendente lite. We do not question
[Husband's] ability to file and pursue an appeal, nor has [his]
appeal engendered any personal animus by this Jurist toward
him. [Husband] has asked us to enforce the Order we entered
that he has appealed. We will not do this. So long as any party
challenges the viability of a civil divorce order by filing an
appeal, it would be improper for this Court to enforce said Order
prior to a decision by the Pennsylvania Superior Court.
Order, 11/4/15, at 1-3.
Thereafter, Husband filed an emergency petition in this Court to vacate
the trial court's October 20, 2015 order staying enforcement of the
September 15, 2015 order. This Court denied that petition. On November
____________________________________________
5
On November 11, 2015, President Judge Tylwalk issued an order denying
Husband's motion seeking disqualification of Judge Charles. President Jude
Tylwalk stated that Judge Charles "is in the best position to determine
whether he is able to continue to preside impartially." Order, 4/11/15.
-8-
J-S41024-17
16, 2015, Husband filed an application to withdraw his appeal, which this
Court granted on November 24, 2015. That same day, the trial court
vacated the stay order, reinstated its September 15, 2015 order, and the
parties were divorced.
On April 19, 2016, Wife filed a petition to compel Husband to sign the
QDRO. The court held a hearing on June 9, 2016, at which the parties
disagreed on the term "survivor annuity option." Husband claimed that if
Wife predeceased him, Wife's share should revert and become his property.
Wife disagreed. The court scheduled another hearing for December 2,
2016, giving the parties time to consult with experts on the meaning of the
term, "survivor annuity option."
On August 29, 2016, Wife filed a second petition to compel Husband to
sign her proposed QDRO; on November 28, 2016, Husband filed a motion to
compel Wife to sign his proposed QDRO. At a hearing on December 2,
2016, both parties testified; Wife's expert, Mark Altschuler, President of
Pension Analysis Consultants, also testified. On December 29, 2016, the
court entered an order granting Wife's motion to compel Husband to sign the
QDRO prepared by Wife's expert, specifying that the parties were to share
the costs of preparation equally, denying Husband's motion to compel Wife
to sign his proposed QDRO, and denying Husband's continuing request that
Judge Charles recuse himself. See Order, 12/29/16.
Husband appealed on January 24, 2017, and the court ordered
Husband to file a Pa.R.A.P. 1925(b) concise statement of errors complained
-9-
J-S41024-17
of on appeal. Husband filed his Rule 1925(b) statement on February 13,
2017.
In his appellate brief, Husband raises 39 issues, spanning ten pages of
his brief. See Commonwealth v. Snyder, 870 A.2d 336, 340 (Pa. Super.
2005) ("14 very verbose issues which span three pages of his brief"
constituted substantial defect permitting quashal). "Although the page limit
on the statement of questions involved was eliminated in 2013, verbosity
continues to be discouraged." Pa.R.A.P. 2116, comment. "The appellate
courts strongly disfavor a statement that is not concise." Id.6 Due to the
verbosity and confusing nature of Husband's issues, we will attempt to
address Husband's main points of contention, which we have taken from his
Rule 1925(b) statement.7 We have also reworded and condensed Husband's
claims for ease of discussion and clarity:
1. Did the court err in refusing to admit as hearsay, at the
June 9, 2016 hearing, an affidavit and "routine business
____________________________________________
6
We also note that Husband has failed to comply with Pa.R.A.P. 2135, which
provides that "[a] principal brief shall not exceed 14,000 words" and "[a]
party shall file a certificate of compliance with the word count limit if the
principal brief is longer than 30 pages . . . when prepared on a word
processor or typewriter." Pa.R.A.P. 2135(a)(1) and (d). The numbered
pages, not including preliminary pages and appended exhibits, in Husband's
appellate brief, amount to 69.
7
See Morgante v. Morgante, 119 A.3d 382, 396 (Pa. Super. 2015)
(holding Husband's failure to raise challenge to equitable distribution award
in Rule 1925(b) statement constituted waiver).
- 10 -
J-S41024-17
correspondence" by SERS Assistant Counsel Salvatore A.
Darigo, Jr.?
2. Did the court err or abuse its discretion in recessing the
June 9, 2016 hearing and continuing it to December 2,
2016?
3. Did the court err in allowing testimony of Wife's expert
witness, Mark Altschuler, at the December 2, 2016
hearing?
4. Did the court err in finding Mark Altschuler's testimony was
not hearsay and was credible?
5. Did the court err in ordering Husband to sign the QDRO
proposed by Wife, which does not comply with the
equitable distribution order, where the payout calculation
was based on a maximum single life annuity and not the
survivor annuity option, thus precluding the pension
amount awarded to Wife to revert back to Husband in the
event Wife predeceases Husband?
6. Did the court err or abuse its discretion in awarding Wife
alimony pendent lite, and in precluding Husband from
cross-examining Wife on financial matters?
7. Did the court err or abuse its discretion in denying
Husband's motion to recuse?
Pa.R.A.P. 1925(b) Statement, 2/13/17 (rephrased and renumbered).
Our role in reviewing equitable distribution awards is well settled:
Our standard of review in assessing the propriety of a marital
property distribution is whether the trial court abused its
discretion by a misapplication of the law or failure to follow
proper legal procedure. An abuse of discretion is not found
lightly, but only upon a showing of clear and convincing
evidence.
McCoy v. McCoy, 888 A.2d 906, 908 (Pa. Super. 2005) (internal quotations
omitted). Further, this Court will only find an abuse of discretion where
"the law has been overridden or misapplied or the judgment exercised was
- 11 -
J-S41024-17
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence in the certified record." Biese v. Biese, 979
A.2d 892, 895 (Pa. Super. 2009) (quotations and citations omitted). When
reviewing an award of equitable distribution, "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."
Hayward v. Hayward, 868 A.2d 554, 559 (Pa. Super. 2005). Moreover, in
determining the propriety of an equitable distribution award, the court must
consider the distribution scheme as a whole. Biese, supra. "[I]t 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." Morgante, 119 A.3d at 387.
Husband's first five claims are related. As such, we will discuss them
together. As detailed in the facts above, Special Master Kline recommended
Husband's SERS pension be divided equally between the parties by way of a
QDRO, and that "Husband shall elect the survivor annuity option." Special
Master's Report, Recommendation 6, 7/15/15. At the June 9, 2016, hearing
on Wife's motion to compel, during Husband's cross-examination of Wife,
Husband attempted to enter into evidence a letter from Salvatore Darigo,
Jr., of the State Employee Retirement System, pertaining to Husband's
proposed QDRO. N.T. Hearing on Motion to Compel, 6/9/16, at 21. Wife's
counsel objected, arguing it constituted hearsay.
The court ruled as follows:
- 12 -
J-S41024-17
THE COURT: I agree. We're not going to get into the substance
of this today. We're obviously going to need another hearing to
have additional expert testimony provided. If he wants to show
her the letter in order to establish a sequence of events, he may
do so, but it's for that purpose only. So if you want to show Ms.
Smith the letter to get into the sequence of events, you may do
so.
****
BY MR. SMITH: Okay. So would you agree that on that May 5 th
document from Salvatore Darigo that in the first paragraph he
does say that the attached would be acceptable to SERS?
MS. WEISS [WIFE'S COUNSEL]: Objection.
THE COURT: It's the same objection he made to your exhibits.
I will allow some questions about this document to establish the
sequence of events. I will not allow the substance of what is
contained in this letter to be proven for the truth of the matter
asserted. Unless both of you agree to waive any hearsay
problems, the truth of the matter is going to have to be
established by witnesses on the witness stand who have
personal knowledge of these pension.
MS. WEISS: I agree. I don't want to waive.
THE COURT: Okay. So with that, the objection is sustained.
MR. SMITH: I'm just asking her whether or not the paragraph
says that the document attached is acceptable to the retirement
system.
THE COURT: And that's calling for a substantive answer. Just
like you objected when Ms. Weiss tried to get substantive
information in through the letters, she's objecting to your effort
to do that. I sustained your objections and I'm sustaining hers
. . . . [Y]ou're asking for me to accept that that letter is accurate
and without the witness to testify to the accuracy of the letter I
cannot accept that. You want to question her about: did you
receive this letter? What did you do with the letter? That
establishes a sequence of events. But I'm telling both sides
that as to the substance of which QDRO is correct and
which QDRO is not correct, I'm going to need testimony
from people that have personal knowledge about [the]
- 13 -
J-S41024-17
pensions and QDROs at issue. This witness does not have
that expertise or that personal knowledge.
Id. at 21-25 (emphasis added).
The parties disagreed on the meaning of the term "survivor annuity
option." Husband interpreted it as meaning that if Wife predeceased him,
before retirement, Wife's share should revert to him. Wife disagreed, and
interpreted it as meaning if Wife predeceased Husband while the pension
was in pay status, after retirement, only then would it revert back to him:
MS. WEISS: I think [t]hat the biggest objection we have is
that it does not provide for the survivor annuity properly.
. . . Paragraph 12 says that if she dies everything reverts
back to him and that's not the case in a survivor annuity.
It's not the law. It's not the case. When she dies, if she
dies before he goes into retirement, it becomes part of her
estate. . . .
MR. SMITH: That's an incorrect assessment, sir. Because the
survivor annuity is provided for assuming she stays alive. SERS
allows for overriding of the annuity at the point of the various
parties' death[s].
THE COURT: . . . I don't know what you're both trying to
communicate, but what I just heard you both agree. You both
agree that if she dies the amount of the QDRO goes into her
estate.
MR. SMITH: No, I do not agree with that and actually neither
does Attorney Weiss.
MS. WEISS: I certainly do. And so does my expert.
****
MR. SMITH: Sir, I'd also like to direct your attention to Exhibit
Number 4, Paragraph Number 12, so basically it says here is if
she dies before I retire, I pay her estate. If she dies after I
retire all the proceeds revert to me, the member, so she agrees
that if we're in a state of retirement that I should get all my
- 14 -
J-S41024-17
money back all the time. It's the last sentence in Paragraph 12
of the DRO that her own consultant put together.
MS. WEISS: And I believe that he's correct. I believe that my
pension analyst guy is correct in interpreting what a survivor
annuity means.
MR. SMITH: No, the survivor annuity says her benefits will
revert to member. I am the member, meaning I get the money
back.
MS. WEISS: When she dies after it's in pay status, not the way
you want it, which is that it goes back to you at anytime she dies
regardless of the pay status.
Id. at 29-33 (emphasis added).
At that point, the court entered an order on the record, which reads, in
part:
C. The Special Master did not define the term "survivor
annuity option." This phrase is obviously a term of
art. Neither of the parties have expertise to define
the meaning of that term.
D. It is obvious that expert testimony will be
required to assist the Court in discerning what
is meant by the phrase "survivor annuity
option." It is also obvious that a new hearing will
have to be scheduled to permit the parties to provide
such expert opinion.
Id. at 33-34; Order, 6/9/16 (emphasis added). The court also ordered that
each party provide the opposing party with a brief expert report, focused on
the meaning of the phrase "survivor annuity option," and stated: "You both
can have experts. . . . And then I'll hear testimony at the next hearing as to
what is meant by the term ‘survivor annuity option.'" Id. at 35. The court
recessed the hearing and rescheduled it for December 2, 2016.
- 15 -
J-S41024-17
At the December 2, 2016 hearing, Mark Altschuler was qualified as an
expert and testified on Wife's behalf.8 Husband cross-examined him, and
Husband testified as well. Husband did not present an expert on his behalf.
Against this backdrop, Husband challenges the court's rescheduling of
the hearing, its refusal to admit the correspondence from SERS
representative Darigo as substantive evidence on hearsay grounds, and its
decision to allow Wife's expert to testify. Each of these claims is meritless.
The trial court could not have been more transparent or justified in its
reasoning for rescheduling the hearing, requiring expert testimony to assist
the court in making a well-informed decision on the parties' main point of
contention, and rejecting Husband's hearsay evidence. Husband had an
opportunity to challenge Wife's expert's report and to present his own
expert. As the trial court noted, Husband, "somewhat surprisingly," chose
not to do so. Instead, he attempted to present unsubstantiated hearsay
evidence. See Sprague v. Walter, 656 A.2d 80, 913 (Pa. Super. 1995)
(affidavit is inadmissible hearsay when offered for its truth); see also
Botkin v. Metropolitan Life Ins. Co., 907 A.2d 641 (Pa. Super. 2006)
(report from financial expert, without testimony as to personal knowledge of
matter, is hearsay). Wife's expert's opinion, therefore, was unrebutted.
____________________________________________
8
Altschuler has a degree in mathematics and is a member of the American
Academy of Pension Experts. He has personally prepared over 10,000
QDROs, and he has testified as an expert in pension analysis over 60 times.
N.T. Hearing, 12/2/16, at 11-13.
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Further, the court found Wife's expert credible. This Court will not reverse
credibility determinations as long as they are supported by the evidence.
Morgante, 119 A.3d at 395. The trial court's reasons for accepting that
testimony are supported by the record, and we decline to revisit the trial
court's credibility determinations.
We conclude, therefore, that the court was within its discretion in
accepting Wife's proposed QDRO with her interpretation of the term
"survivor annuity option." Husband was neither surprised nor prejudiced by
the court's decisions. We find no error or abuse of discretion. See Smith
v. Smith, 653 A.2d 1259 (1995); see also Miller v. Miller, 617 A.2d 375
(Pa. Super. 1992) (where husband had opportunity to challenge wife's
accounting expert's report on pension valuation, but instead offered
unsubstantiated alternate calculation, and chose not to present his own
expert valuation, court properly accepted report of wife's expert).
Additionally, we find no abuse of discretion in the court's order requiring
Husband to sign Wife's proposed QDRO. In doing so, the court effectuated
economic justice.9 See Hayward, supra.
____________________________________________
9
As indicated above, there were insufficient liquid assets available to offset
the value of the marital home, and thus the master recommended that a
QDRO of Husband's pension be used to effectuate economic justice. The
trial court agreed, emphasizing that "a portion of wife's equitable distribution
award was provided via the QDRO." Trial Court Opinion, 12/28/16, at 19.
"[Wife's] rights to Husband's pension granted through the divorce are part of
her estate and she should retain the ability to designate how and where
those rights are to be distributed in the event of her death." Id. at 20. The
(Footnote Continued Next Page)
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Next, Husband argues the court erred or abused its discretion in
awarding Wife alimony pendent lite [APL] and in precluding Husband from
cross-examining Wife on financial matters.
We review APL awards under an abuse of discretion standard.
Haentjens v. Haentjens, 860 A.2d 1056, 1062 (Pa. Super. 2004). APL is
"an order for temporary support granted to a spouse during the pendency of
a divorce or annulment proceeding." 23 Pa.C.S.A. § 3103. It "is designed to
help the dependent spouse maintain the standard of living enjoyed while
living with the independent spouse." Litmans v. Litmans, 209, 673 A.2d
382, 389 (Pa. Super. 1996). APL is thus not dependent on the status of the
party as being a spouse or being remarried but is based, rather, on the state
of the litigation, DeMasi v. DeMasi, 597 A.2d 101, 104–105 (Pa. Super.
1991), and "focuses on the ability of the individual who receives the APL
during the course of the litigation to defend her/himself[,]" and the only
issue is whether the amount is reasonable for the purpose, which turns on
the economic resources available to the spouse." Haentjens, at 1062; see
also Carney v. Carney, --- A.3d --- (filed July 11, 2017).
In one of the trial court's four comprehensive opinions in this case, the
Honorable Bradford H. Charles sets forth a comprehensive analysis of
_______________________
(Footnote Continued)
order entered on December 28, 2016 granted Wife's motion to compel
Husband to sign the QDRO prepared by Wife's expert, and it specified that
costs of preparation be shared equally between the parties. Id. at 21.
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Husband's challenge to the award of APL. See Trial Court Opinion,
12/19/14, at 6-21 (award of alimony pendente lite is within sound discretion
of trial court; court evaluated facts and circumstances, noting significant
income discrepancy, and concluded Wife established financial need). We,
therefore, rely upon that opinion to dispose of this claim.
In his final issue, Husband claims the court abused its discretion in
denying his continuing requests that Judge Charles, who has presided over
this litigation since its inception, recuse himself. This Court presumes
judges of this Commonwealth are "honorable, fair and competent," and,
when confronted with a recusal demand, have the ability to determine
whether they can rule impartially and without prejudice. Commonwealth
v. White, 734 A.2d 374, 384 (Pa. 1999). The party seeking disqualification
has the burden of producing evidence establishing bias, prejudice, or
unfairness necessitating recusal, and the "decision by a judge against whom
a plea of prejudice is made will not be disturbed except for an abuse of
discretion." Commonwealth v. Darush, 459 A.2d 727, 731 (Pa. 1983).
We discern no evidence of partiality on the part of Judge Charles. On
the contrary, his rulings were evenhanded and thoughtfully analyzed.
Husband's claims of bias and repeated characterizations of Judge Charles as
the "biased judge" throughout his two motions to disqualify, is unsupported
in the record, and his unsubstantiated accusations and allegations, strike
this Court as bluster. We are in full agreement with Judge Charles: "[T]he
time has come for both parties to dial down their rhetoric and focus their
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attention on moving beyond their vitriolic past. . . . [I]t is now time for both
HUSBAND and WIFE to move forward with their respective lives." Opinion,
9/15/15, at 1, 21.
We affirm the trial court's orders, and rely in part on the opinion dated
December 19, 2014. We direct the parties to attach a copy of that opinion
in the event of further proceedings.
Orders in 190 MDA 2017 and 192 MDA 2017 affirmed. Appeal in 191
MDA 2017 quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2017
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Circulated 08/23/2017 12:34 PM
IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CIVIL ACTION - FAMILY DIVISION
SUSAN C. SMITH NO. 2013-20491
Plaintiff,
v.
CHRISTOPHER C. SMITH
Defendant
·-· .. ·-· .. ' .......
· APPEARANCES:
M. Jannifer Weiss, Esquire For Susan C. Smith
WEISS, WEISS & WEISS
Jessica E. Lowe, Esquire Former Counsel for Christopher
C. Smith
Christopher C. Smith Pro Se
OPINION BY CHARLES, J .• December 19, 2014
This case focuses upon the interplay between financial need and
alimony pendente lite (APL). Susan Smith (hereafter \WIFE\") argues that