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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GARY L. FOLMAR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LINDA M. FOLMAR,
Appellee No. 1039 WDA 2015
Appeal from the Order June 8, 2015
In the Court of Common Pleas of Clearfield County
Civil Division at No(s): No. 2012-912-CD
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 21, 2016
Gary L. Folmar (“Husband”) appeals from the June 8, 2015 order
granting Linda M. Folmar’s (“Wife”) petition for clarification of a Qualified
Domestic Relations Order (“QDRO”).1 Wife seeks to dismiss the appeal as
untimely and also requests attorney’s fees incident to litigating this appeal.
For the reasons that follow, we deny Wife’s motions to dismiss and for
counsel fees, and we affirm the trial court’s order.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
“A QDRO . . . is 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 [pension] plan.” Morgante v. Morgante, 119
A.3d 382, 395 n.11 (Pa. Super. 2015) (quoting Berrington v. Berrington,
633 A.2d 589, 591 n.3 (Pa. 1993)).
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The record reflects that Husband and Wife were married on
November 19, 1977, and Husband filed for divorce on June 14, 2012. On
June 27, 2014, Husband and Wife executed a marital settlement agreement
which included a paragraph that the parties would equally divide the
amounts paid into Husband’s 401(k) retirement account provided by his
employer, Your Building Centers (“YBC”). Marriage Settlement Agreement,
6/27/14, at unnumbered 5, ¶ D. The agreement specified that the parties
agreed “to execute a [QDRO] evidencing the equal division of this asset,
which QDRO will be approved by the Court and presented to Standard
Insurance Company2 upon completion.” Id.
On July 2, 2014, the parties signed a Stipulation and Agreement that
included the following paragraphs:
6. The parties hereto acknowledge that they are aware of
the formula available that may be utilized in the calculation for
the division of the 401(k) retirement plan of Participant;
however, the Participant and Alternate Payee have agreed that
they shall waive this formula of calculating the division and that
the retirement plan of Participant shall be divided in a
fifty-fifty (50% to each party) per cent split for each party
as of the date of signing this Stipulation and Agreement.
7. Participant’s retirement benefit is defined as all
monies paid to or on behalf of Participant by [YBC],
including any lump sum withdrawals and/or any increases as of
the date of separation of Participant and Alternate Payee,
which date was May 25, 2012, less any decrease or plus any
____________________________________________
2
Standard Insurance Company administers Husband’s 401(k) retirement
account. Stipulation and Agreement, 7/2/14, at unnumbered 1, ¶ 1.
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increase to the retirement plan on the separation date due to the
economic conditions. Equitable distribution of the marital
property component of Participant’s retirement benefit, as set
forth in Paragraph 6 shall commence as soon as administratively
feasible after Participant’s effective date of retirement, or the
approval by YBC of a Domestic Relations Order incorporating this
Stipulation and Agreement, whichever is later.
Stipulation and Agreement, 7/2/14, at unnumbered 2, ¶¶ 6, 7 (emphases
added). On that same date, the trial court entered a final decree divorcing
the parties and incorporating the Stipulation and Agreement and the QDRO.
Divorce Decree, 7/2/14, at 1; QRDO, 7/2/14, at 1.
On December 16, 2014, Husband filed a Corrected Praecipe to Amend
the QDRO. Therein, Husband averred that the:
[Husband’s] Plan Administrator divided the benefits of the
401(k) retirement plan of [Husband] on a 50-50 basis, however,
they used the date of the Agreement as stated in Paragraph 6
which was July 2, 2014 and not the separation date of May 25,
2012 in Paragraph 7, which was what the parties had discussed
and what they agreed upon.
Corrected Praecipe to Amend QDRO, 12/16/14, at ¶ 6. Husband, alleging a
“discrepancy in the dates as stated in the QDRO,” requested the trial court
to issue an order “directing that the scheme of distribution of the monies in
[Husband’s] 401(k) retirement plan through YBC be amended to reflect the
parties’ separation date of May 25, 2012, as was their express intent.” Id.
at ¶ 7, unnumbered 2. Wife filed an answer denying that the parties agreed
that the valuation date of the 401(k) account was the date of the parties’
separation on May 25, 2012. Answer to Petition, 12/23/14, at unnumbered
1. Wife further pled “[I]t is believed and therefore averred that the [QDRO]
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in question has been established as a qualified order and is an existing order
within the clear meaning of Paragraph 14 thereof, which relates to the
Court’s authority to amend it.” Id.3
The trial court held a hearing on Husband’s praecipe to amend on
January 5, 2015. At the outset of the hearing, the trial court questioned
whether it had the authority to amend the QDRO and then proceeded to
entertain argument on Husband’s petition. N.T., 1/5/15, at 2. Husband
claimed that the 401(k) should be valued as of May 25, 2012, consistent
with paragraph seven of the Stipulation and Agreement and, allegedly, in
conformity with the intent of the parties. Wife argued that the trial court did
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3
Paragraphs fourteen and fifteen of the Stipulation and Agreement
incorporated into the QDRO provide:
14. The Court of Common Pleas of Clearfield County,
Pennsylvania, shall retain jurisdiction to amend any Domestic
Relations Order based on this Stipulation and Agreement, but
only for the purpose of establishing it or maintaining it as a
Domestic Relations Order; provided, however, that no such
amendment shall require YBC to provide any type or form of
benefit, or any option not otherwise provided by YBC, and
further provided that no such amendment or right of the Court
to so amend will invalidate any existing Order.
15. Upon its entry as a Domestic Relations Order, a
certified copy of this Stipulation and Agreement and any
attendant document shall be served upon YBC immediately. The
Domestic Relations Order shall take effect immediately upon its
approval and the approval of any attendant document by YBC
and shall remain in effect until further Order of Court.
Stipulation and Agreement, 7/2/14, at unnumbered 4.
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not have authority to modify the QDRO. Alternatively, Wife asserted that
the retirement account should be valued as of the date the parties signed
the Stipulation and Agreement per paragraph six of that agreement. At the
conclusion of the hearing, the trial court declared: “I’m going to review the
statute to make sure—to see if I have the power to amend the QRDO and I’ll
render a decision. Okay. I understand the parties’ respective positions.”
Id. at 13. On January 9, 2015, “following argument on [Husband’s] Praecipe
to Amend QDRO, the review of the statutes and case law, upon
consideration of same” the trial court dismissed Husband’s request to
amend. Order, 1/9/15, at 1. Husband filed an appeal to this Court but
subsequently withdrew it. Folmar v. Folmar, 164 WDA 2015, Notice of
Discontinuance of Action, 4/13/15.
The complexion of the case was transformed on April 23, 2015, when
Wife then filed a Petition for Clarification of the QDRO. Apparently
precipitated by a communication from the YBC plan administrator seeking
specification of the date of valuation of the 401(k) account,4 Wife requested
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4
We deem it prudent to reproduce the March 9, 2015 letter from the plan
administrator in full:
Dear Parties:
As you may recall, you originally submitted a draft domestic
relations order (“Draft Order”) for our review in July 2012.
Shortly thereafter, we notified each of you of how we would
administer the Draft Order upon our receipt of a final version
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
entered by the court (the “Final Order”). Specifically, we noted
we would assign to the alternate payee an amount equal to fifty
percent of the participant’s balance as of the date the parties
sign the Final Order.
In summer 2014, we received a copy of the Final Order which,
similar to the Draft Order, states:
. . . the retirement plan of the participant shall be
divided in a fifty-fifty (50 %) to each party per cent
split for each party as of the date of signing this
Stipulation and Agreement.
And consistent with both this provision in the Final Order and our
previous explanation to the parties, we established an account
for the alternate payee and assigned to her fifty percent of the
balance as of the date the parties signed the Final Order
(June 27, 2014).
However, the Final Order also introduced the potential for a
different interpretation as to how it should be administered by
referencing the date of the parties’ separation (May 25, 2012).
The Participant maintains this is the date as of which the Plan
should determine the value of the balance to be divided, while
the Alternate Payee believes such date is June 27, 2014. As you
know, we asked both parties to stipulate and clarify this point,
but we understand the parties cannot agree.
Therefore, we cannot currently administer the Final Order as a
Qualified Domestic Relations Order (“QDRO”). The parties must
submit an amended Final Order that provides a clear valuation
date. To that effect, paragraph 14 of the Final Order states:
The Court of Common Pleas of Clearfield County,
Pennsylvania, shall retain jurisdiction to amend any Domestic
Relations Order based on this Stipulation and Agreement, but
only for the purpose of establishing it or maintaining it as a
Domestic Relations Order . . .
As we wait for an amended order providing undisputed direction
that permits us to administer an order as a QDRO, we have
reversed the transaction establishing the Alternate Payee’s
account and restored the Participant’s account balance. The
(Footnote Continued Next Page)
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the trial court to enter an order reflecting the trial court’s January 9, 2015
decision dismissing Husband’s praceipe to amend the QDRO and effectively
setting the date of valuation of the 401(k) account at July 2, 2014, when the
parties executed the Stipulation and Agreement. After Husband filed an
answer, the trial court held a hearing on May 28, 2015. At the hearing, Wife
represented that the plan administrator notified the parties that it could not
consider the trial court’s January 9, 2015 Final Order as a QDRO until the
trial court clarified the date of valuation of the 401(k) account. N.T.,
5/28/15, at 3. Husband countered that because the trial court had
previously decided it did not have the authority to amend the order, the
remedy was remand of the matter for testimony before a master. Id. at 6–
7.
On June 8, 2015, the trial court entered an order clarifying that the
QDRO entered simultaneously therewith “shall reflect that the date of
valuation [of the 401(k) account] shall be the date of execution of the
QDRO.” Order, 6/8/15, at unnumbered 1. Paragraph six of the June 8,
2015 QDRO filed simultaneously specified that the 401(k) account “shall be
divided evenly, with each party to receive fifty percent (50%) of the balance
_______________________
(Footnote Continued)
Participant’s account will remain frozen so as to prevent any
loans or distributions and preserve the entire balance while this
issue remains pending.
Answer to Petition for Clarification, 5/27/15, Exhibit B.
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contained in the Plan as of July 2, 2014 [the date of execution of the
Stipulation and Agreement]”. QDRO, 6/8/15, at ¶6.
Husband filed an appeal to this Court on July 7, 2015. In response to
the July 8, 2015 trial court order, Husband filed a Pa.R.A.P. 1925(b)
statement raising eight issues. The trial court responded to the allegations
of error, as follows:
[Husband] filed for divorce from [Wife] on June 14, 2012.
In July of 2014 the parties agreed to [split Husband’s] 401(k) on
a 50%-50% basis by a Stipulation and Agreement. On July 2,
2014 a Divorce Decree was entered incorporating the Stipulation
and Agreement (QDRO). The QDRO contained two paragraphs
which were inconsistent with each other with respect to the date
when which the 401(k) was to be divided. Compare Stipulation
and Agreement, ¶ 6 with Stipulation and Agreement, ¶ 7.
[Husband] contends that the 401(k) was to be divided on the
date of separation and [Wife] contends that it should have been
divided on the date the both parties signed the Stipulation and
Agreement. Consistently with paragraph 6, the Plan
administrator divided the 401(k) as of July 2, 2014; the date
[the] QDRO was signed by both parties.
On November 26, 2014, [Husband] petitioned the Court to
amend the QDRO. [Husband] argued that the 401(k) should be
divided as of the June 2012, the date of separation, consistent
with paragraph 7; whereas [Wife] argued that it should be
valued and divided as of July 2, 2014, the date both parties
signed the QDRO, consistent with paragraph 6 of the QDRO. A
hearing was held on January 9, 2015 where the Court issued an
Order ruling in [Wife’s] favor.1
1
Though [Husband] appealed this January 9, 2015
Order, he subsequently petitioned to the Superior
Court to have his appeal discontinued.
The Court reasoned to divide the payment at the date of
separation, but not distribute the 401(k) until the date the
agreement was signed, would allow [Husband] to inequitably
earn interest on [Wife’s] agreed upon share. Accordingly, the
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Court gave effect to the interpretation that would provide the
most equitable outcome, namely, to value and distribute the
401(k) as of the date of signing the Stipulation and Agreement
as provided for in paragraph 6. The conflicting paragraphs were
amended on [Wife’s] Petition to Amend the QDRO to reflect the
Court’s decision. See Amended QDRO.
Though [Husband] claims numerous errors on appeal; the
present appeal is in essence simply an attempt to revisit the
order of January 9, 2015. Accordingly, it is without merit. The
time to appeal any issues relating to the January 9, 2015 Order
has expired.
Trial Court Opinion, 8/14/15, at 1–2.
In response to the trial court’s opinion, Husband has appended to his
appellate brief a “Supplemental” 1925(b) statement raising additional issues.
Husband’s Brief at Appendix C. However, this statement, filed subsequent
to the trial court’s 1925(a) opinion, is not part of the certified record; nor is
there any indication that the pleading was served on the trial court or Wife.
Therefore, we will not consider the matters raised therein. See Rosselli v.
Rosselli, 750 A.2d 355, 359 (Pa. Super. 2000) (this Court may review and
consider only items which have been duly certified in the record on appeal).
On August 27, 2015, Wife filed an application for relief under Pa.R.A.P.
123. Wife theorized that the issues raised in Husband’s appeal relate back
to the court’s order entered on January 9, 2015, and requested this Court to
dismiss the appeal as untimely.
Preliminarily, we deny the motion to dismiss the appeal. Facially, the
appeal filed on July 7, 2015, was timely. Additionally, whether the issues
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raised in Husband’s Rule 1925(b) statement are cognizable on appeal
invokes a question of the merits, not the timeliness of the appeal.
Husband describes the issues on appeal, as follows:
A. Whether the lower court erred in applying the valuation of
the retirement account as of the date of the execution of the
QDRO and not the date of separation as agreed by the
Husband and Wife?
B. Whether the lower court erred in assessing the parties’ intent
at the time of the negotiations and execution of the QDRO[?]
C. Whether the lower court abused its discretion in failing to
allow testimony and evidence as to provisions of the
settlement?
Husband’s Brief at 5–6 (full capitalization omitted).
We review a trial court’s decision to grant special relief in divorce
proceedings under an abuse of discretion standard:
Judicial discretion requires action in conformity with
law on facts and circumstances before the trial court
after hearing and consideration. Consequently, the
court abuses its discretion if, in resolving the issue
for decision, it misapplies the law or exercises its
discretion in a manner lacking reason. Similarly, the
trial court abuses its discretion if it does not follow
legal procedure.
Lachat v. Hinchcliffe, 769 A.2d 481, 487 (Pa. Super. 2001)
(citation omitted). “An abuse of discretion exists when the trial
court has rendered a decision or a judgment which is manifestly
unreasonable, arbitrary, or capricious, has failed to apply the
law, or was motivated by partiality, prejudice, bias or ill will.”
Prol v. Prol, 935 A.2d 547, 551 (Pa. Super. 2007) (citations omitted).
As Husband’s issues two and three are intertwined and readily
resolved, we initially address these allegations of error. Husband contends,
somewhat inconsistently, that the trial court erred in refusing to accept
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testimony and evidence concerning the intent of the parties and further
erred when it determined that the parties intended that the 401(k) account
was to be valued as of the date the agreement was signed.
While Husband accurately relates that the trial court did not take
testimony at either the January 5, 2015, or May 28, 2015 hearing, Husband
fails to mention that he was not precluded by the trial court from doing so.
A review of the notes of testimony from the January 5, 2015 hearing reveals
that Husband made no attempt to offer testimony or evidence. At the
May 28, 2015 hearing, Husband’s counsel offered that he was prepared to
present testimony. When the trial court stated that that it would not hear
testimony, counsel responded, “I can understand that” and proceeded to
argue his position. N.T., 5/28/15, at 6. Having failed to lodge an objection
when the trial court ruled to preclude testimony, indeed, having acquiesced
in the court’s ruling, Husband has failed to preserve this issue for appeal.
See McManamon v. Washko, 906 A.2d 1259, 1274 (Pa. Super. 2006) (this
Court will not consider a claim on appeal which was not called to the trial
court’s attention at a time when any error committed could have been
corrected) (citation omitted).
Having concluded that the issue of testimony and evidence preclusion
is either without merit (the January 5, 2015 hearing) or not reviewable (the
May 28, 2015 hearing), it necessarily follows that we also reject Husband’s
contention that the trial court erred in assessing the parties’ intent
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concerning the valuation date of the 401(k) account. Simply stated, there
was no record evidence of the parties’ respective views for the trial court to
evaluate. This issue is likewise meritless.
Husband’s remaining argument is that the trial court improperly
redrafted the QDRO when it concluded that the 401(k) account was to be
valued as of the date the parties signed the Stipulation and Agreement. The
bulk of Husband’s argument again challenges the trial court’s failure to take
testimony and its assessment of the parties’ intentions—claims we have
already denied. To the extent that Husband protests that the court’s
decision to set the valuation date as of the signing of the Stipulation and
Agreement resulted in an inequitable distribution of the assets, we discern
no error in the trial court’s rationale in this regard. As noted, the trial court
reasoned that valuing the 401(k) account on the date of separation would
disproportionately permit Husband to earn interest on Wife’s share and that
“the most equitable outcome” was to appraise the account “as of the date of
signing the Stipulation and Agreement as provided for in paragraph 6.” Trial
Court Opinion, 8/14/15, at 2. The trial court’s conclusion was not
unreasonable, arbitrary, or capricious; nor did the trial court err in its
application of the law. Accordingly, Husband is unable to demonstrate that
the trial court abused its discretion in interpreting the conflicting paragraphs
of the Stipulation and Agreement.
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Although not enumerated as a separate issue, we nonetheless address
Husband’s position that while the trial court had earlier ruled it did not have
authority to modify the QDRO, seven months later it modified the order upon
Wife’s request. This argument fails for two reasons. First, although the
court questioned its authority to modify a QDRO at the January 5, 2015
hearing, the January 9, 2015 order specifically stated that Husband’s
praecipe to amend the QDRO was dismissed after “review of the statutes
and case law.” Order, 1/9/15, at unnumbered 1. Additionally, in its 1925(a)
opinion, the trial court explained that its decision on the appropriate
valuation date was in consideration of the equities of the distribution of
assets. Clearly, the trial court resolved this dispute on the merits.
The second reason to discount Husband’s argument is that, according
to the terms of the Stipulation and Agreement, see n.3, supra, the trial
court arguably had jurisdiction to modify the QDRO. Paragraph fourteen of
the agreement permits the trial court to “retain jurisdiction to amend a
[QDRO] . . . for the purpose of establishing it or maintaining it. . . .”
Stipulation and Agreement, 7/2/14, at ¶ 14. The trial court, however, does
not have the authority to “invalidate an existing [QDRO].” Id. Here, the
trial court clarified the terms of the QDRO in response to the communication
from the plan administrator that it could not administer the court’s
January 9, 2015 order as a QDRO until the parties submitted an amended
final order providing a clear valuation date. Having arrived at this
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administrative stalemate, the trial court was the only entity in a position to
make clear the terms of the agreement. Such a clarification was within its
authority to maintain the QDRO and did not constitute an improper
invalidation of same.5
Finally, we address Wife’s request for attorney’s fees and costs
pursuant to 42 Pa.C.S. § 2503(9). This Court sua sponte may impose
counsel fees. Morgan v. Morgan, 117 A.3d 757, 758-763 (Pa. Super.
2015). Section 2503(9) provides for an award of counsel fees if “the
conduct of another party in commencing the matter or otherwise was
arbitrary, vexatious, or in bad faith.” 42 Pa.C.S. § 2503(9). We do not
agree that Husband’s conduct in pursuing this appeal warrants the award of
attorney’s fees.
Motion to dismiss denied. Order of June 8, 2015 affirmed. Motion for
attorney’s fees denied. Jurisdiction relinquished.
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5
We note further that the March 9, 2015 letter from the plan administrator
indicates that the original July 2, 2014 QDRO was never finally accepted by
the plan administrator. See n.4, supra. Thus, it is arguable that the trial
court’s June 8, 2015 order clarifying its January 9, 2015 order actually
established the QDRO.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2016
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