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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICKY W. BLOOM IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
REBECCA L. BLOOM
No. 1443 WDA 2016
Appeal from the Order September 8, 2016
In the Court of Common Pleas of Fayette County
Civil Division at No(s): 255 OF 1991, G.D.
BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 31, 2017
Ricky W. Bloom (“Husband”) appeals the September 8, 2016 order
granting, in part, Rebecca L. Bloom’s (“Wife”) petition for enforcement of
divorce settlement agreement and for counsel fees. We affirm.
The facts underlying this matter are not in dispute. Husband and Wife
were married on April 22, 1972. Husband served in the Army for the
majority of the marriage, having re-entered service in November of 1973,
and retired in December of 1991.1 Following their separation, Husband and
Wife entered into a divorce settlement agreement, which provided, inter alia,
that Wife would receive one-half of Husband’s Army retirement pay for life.
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1
Husband was drafted into the Army in October of 1969, but left the service
two years later in October of 1971.
* Retired Senior Judge assigned to the Superior Court.
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The court entered a divorce decree on March 5, 1992, incorporating that
document. Thereafter, Husband retired from the Army, and Wife received
monthly payments of $656.50 from Husband’s military retirement pay from
1992 until January of 2012.
In 2009, following an annual physical and psychiatric consultation,
Appellant was declared totally disabled and was required to resign from the
high school teaching position he held at that time. In December 2011,
Husband decided to forego his monthly retirement benefits in order to
receive tax-exempt payments through the Combat Related Service
Connected Disability (“CRSC”) program. In order to do so, Husband waived
his right to the entirety of his military retirement payments. In February
2012, as a result of Husband’s decision to wholly waive his retirement
benefits, the monthly payments to Wife ceased.
On February 1, 2016, Wife filed a petition for enforcement of divorce
settlement agreement and for counsel fees, contending that Husband’s
cessation of the monthly payment to her violated the terms of their accord.
After a hearing on the matter, the trial court ordered Husband to reinstitute
the previously agreed upon monthly payments, plus an additional $100.00
per month towards $36,107.50 in back payments which accrued between
2012 and 2016. The court denied Wife’s request for counsel fees. Husband
filed a timely notice of appeal and complied with the court’s order to file a
Rule 1925(b) concise statement of errors complained of on appeal. The
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court authored a Rule 1925(a) opinion. This matter is now ready for our
consideration.
Appellant raises three questions for our review:
A. Did the lower court err in finding that [Wife] was entitled to
receive payments of a portion of [Husband’s] CRSC military
disability benefits pursuant to a divorce settlement agreement
that the parties had entered into in January of 1992?
B. Did the lower court err in failing to find the doctrine of laches
precluded [Wife] from entitlement to a resumption of payments
from [Husband], or, in the alternative, assuming arguendo that
she was entitled to a resumption of payments, that it was
improper to date that resumption of payments retroactively to
January of 2012?
C. Did the court err in failing to find that the relief sought by [Wife]
was barred by the statute of limitations?
Husband’s brief at 4 (capitalization omitted).
For ease of disposition, we evaluate Husband’s issues in reverse order.
In his third issue, Husband contends that Wife’s petition to enforce the
divorce settlement agreement was barred by the statute of limitations. We
note that “[a] question regarding the application of the statute of limitations
is a question of law.” K.A.R. v. T.G.L, 107 A.3d 770, 775 (Pa.Super. 2014)
(citation omitted). The statute of limitations applicable to a contract is four
years. Id.; 42 Pa.C.S. § 5525(a)(8). Simply, Husband asserts that Wife
filed her petition more than four years after Husband allegedly breached the
settlement agreement. As such, he concludes that this matter was barred
by the statute of limitations.
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Upon review of the record, we find Husband is not entitled to relief. It
is undisputed that Wife’s last payment was received in January 2012. Thus,
Wife’s claim that Husband breached their agreement did not materialize until
February 2012, when Wife’s February monthly payment was not made. Wife
instituted this proceeding by filing a petition for enforcement of the divorce
settlement agreement on February 1, 2016, within the four year statute of
limitations provided by law.2 Thus, Wife’s complaint was not barred by the
applicable statutory period.
Next, Husband contends that Wife’s suit was barred by the doctrine of
laches. We observe that, “[u]nlike the application of the statute of
limitations, exercise of the doctrine of laches does not depend on a
mechanical passage of time.” Fulton v. Fulton, 106 A.3d 127, 131
(Pa.Super. 2014). Rather, “the doctrine of laches may bar a suit in equity
where a comparable suit at law would not be barred by an analogous statute
of limitations.” Id. We have previously described the defense of laches as
follows:
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2
Wife rebuts Husband’s contention arguing that the parties’ agreement
constituted a continuing contract, which would not be subject to the four
year statute of limitations. See Crispo v. Crispo, 909 A.2d 308, 313
(Pa.Super. 2006) (noting, “[w]hen a contract is continuing, the statute of
limitations will run either from the time when the breach occurs or when the
contract is in some way terminated.”). Since we find that Wife’s petition was
timely filed in any case, we need not determine whether the parties’
agreement constituted a continuing contract.
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Laches is an equitable doctrine which bars relief when the
complaining party is guilty of want of due diligence in failing to
promptly institute the action to the prejudice of another. In
order to prevail on an assertion of laches, respondents must
establish: a) a delay arising from petitioner’s failure to exercise
due diligence; and b) prejudice to the respondents resulting from
the delay. The question of laches is factual and is determined by
examining the circumstances of each case. Prejudice in the
context of a claim of laches means that the party must change
his position to his detriment in order to invoke laches.
In re Estate of Aiello, 993 A.2d 283, 287 (Pa.Super 2010) (internal
citations omitted).
Specifically, Husband emphasizes Wife’s four-year delay in instituting
an action against him. He asserts that Wife provided no explanation for that
delay, and he contends that he was prejudiced since he is unemployed and
had otherwise “organized his financial affairs around the income he has been
receiving throughout that period of time.” Husband’s brief at 25. Husband
also stresses the trial court’s award of damages as evidence that he was
prejudiced by Wife’s lack of diligence, since he now owes Wife back
payments which he previously considered as income. In the alternative,
Husband states that, assuming this matter is not barred by laches, then the
trial court erred in calculating Wife’s arrearages to the date his payments
ceased.
At the outset, we find that Husband has neither developed an
argument nor cited a single legal authority in support of his position that the
court erred in its assessment of damages calculated from February 2012.
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Husband’s brief at 25. Hence, that claim is waived. In re Estate of
Whitley, 50 A.3d 203 (Pa.Super. 2012) (observing, “[t]his Court will not
consider the merits of an argument which fails to cite relevant case or
statutory authority,” and “[f]ailure to cite relevant legal authority constitutes
waiver of the claim on appeal.”) (citations omitted).
Turning to Husband’s allegation that laches should bar Wife’s suit, we
find that the trial court did not err in determining that it did not apply. We
have long held that “he who seeks equity must do equity.” Aiello, supra at
288 (citation omitted). That is, “[a] party seeking equitable relief must
come before the court with clean hands.” Id. Equitable relief is not
available to a party who, to the detriment of the other party, has engaged in
bad conduct related to the matter at hand. Id. As discussed further infra,
Husband’s violation of the party’s settlement agreement created his sudden
influx of income. He cannot now rely on the benefit of that breach to assert
that he was prejudiced by Wife’s delay. Thus, no relief is warranted.
Finally, we turn to Husband’s first issue. When we review a trial
court’s decision to enforce a settlement agreement, we are guided by the
following:
our scope of review is plenary as to questions of law, and we are
free to draw our own inferences and reach our own conclusions
from the facts as found by the court. However, we are only
bound by the trial court’s findings of fact which are supported by
competent evidence. The prevailing party is entitled to have the
evidence viewed in the light most favorable to its position. Thus,
we will only overturn the trial court’s decision when the factual
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findings of the court are against the weight of the evidence or its
legal conclusions are erroneous.
Salsman v. Brown, 51 A.3d 892, 893-894 (Pa. Super. 2012) (citation
omitted).
This Court previously discussed the interplay of the federal and state
laws at issue herein:
The Uniform Former Spouses’ Protection Act [(“The Act”)] . . .
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 . . . waiver of
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). To prevent duplication of benefit payments, a
retired service member may only receive [Veterans Affairs]
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 U.S.C. § 1408(c)(1). In Pennsylvania,
disposable retired pay is classified as marital property, divisible
upon divorce.
Morgante v. Morgante, 119 A.3d 382, 387 (Pa.Super. 2015) (internal
citations and footnotes omitted). We observed that neither federal nor
Pennsylvania law considers the portion of military retirement pay waived by
a retiree to receive veterans’ affairs disability benefits as “disposable retired
pay.” Id. Hence, the sum of the retirees’ retirement pay subject to
equitable distribution as marital property cannot include those amounts
waived to receive such disability pay. See also Mansell v. Mansell, 490
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U.S. 581 (1989) (holding that the Act does not accord state courts the
power to treat retirement pay waived to receive disability benefits as
divisible property on divorce and finding that federal law prohibited
attachment of veterans’ disability benefits).
The relevant provision of the parties’ divorce settlement agreement
reads: “[Wife] will receive one half of [Husband’s] retirement pay from the
U.S. Army for as long as she lives. Upon [Husband’s] death, [Wife] will be
provided for by the Survivor’s Benefit Plan. Upon [Wife’s] death, should it
precede [Husband’s], her half of the retirement money will split between
[the parties’ two children].” Divorce Settlement Agreement, 1/10/92, at ¶
1. Instantly, pursuant to the above-settlement agreement, Wife received
monthly payments of $656.50 taken directly from Husband’s military
retirement pay. When Husband elected to receive CRSC disability benefits,
he waived his entitlement to the entirety of those retirement payments.
Thus, the source of disposable retired pay, to which Wife’s monthly payment
was attached, was completely depleted and her monthly payments ceased.
The trial court determined that Husband’s election of CRSC benefits in
lieu of his retirement payments amounted to “a ‘unilateral and extrajudicial
modification of the decree,’ depriving [Wife] of the bargained-for benefits
included in the divorce decree.” Trial Court Opinion, 9/8/16, at unnumbered
5 (citing Hayward v. Hayward, 868 A.2d 554, 560 (Pa.Super. 2005)). It
observed that, “so long as the court’s order avoids specifying an ‘improper
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source of funds’ for payments to be made in conformity with the decree,
there will be no violation of [Mansell, supra].” Id. Hence, it concluded
that Husband breached a valid contract when he unilaterally changed the
source of his monthly benefits so that Wife no longer received her share of
his retirement funds. The court determined that Wife was entitled to receive
the benefit of the bargain, but refrained from attaching Wife’s payments to
Husband’s CRSC benefits. Instead, it ordered Husband to pay Wife the
damages flowing from his breach of contract.
In support of his position, Husband attempts to distinguish this case
from Hayward, supra. In Hayward, the parties, following entry of a
divorce decree, entered into an equitable distribution agreement which
provided the wife with fifty percent of the marital portion of her ex-spouse’s
military and civil service pensions. The agreement resulted in a consent
order which was later converted into a qualified domestic relations order
(“QDRO”). Although the husband did not sign the QDRO or attend the
hearing on the matter, the court approved and entered the QDRO after the
wife filed a motion for special relief. The husband later contested the entry
of the QDRO, but the court denied relief. The husband appealed.
On appeal, this Court remanded the matter since the trial court had
employed an improper coverture fraction in calculating the benefits which
accrued prior to marriage and after separation. On remand, the court
corrected that error and, additionally, granted a motion by the wife
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requesting a hearing on a new allegation that the husband had waived his
military retirement pay to receive disability payments in order to avoid the
effect of the QDRO.
A hearing on the wife’s allegation was held before a hearing officer.
The hearing officer found that the husband had waived his military
retirement for an improper purpose and ordered him, in part, to pay the wife
a lump sum for arrearages and $249 per month as alimony in lieu of his
military pension. After the husband filed exceptions, the trial court held that
alimony was not available as a remedy at that juncture, but nevertheless,
granted the wife $249 per month in arrears owed from the military
retirement payments. The husband again appealed to this Court.
Of import here, the husband in Hayward argued on appeal that the
trial court erred in directing him to reimburse the wife from his veterans’
disability benefits. We noted that the value of the husband’s military
retirement benefits was not in dispute, and that the trial court had calculated
the wife’s monthly payments at the rate agreed upon by the parties.
Nevertheless, the husband alleged that the court erred in this regard, since
the wife’s payments should not reflect a percentage of his total retirement
payments, but a percentage of his disposable retired pay, which, as defined
by the Act, did not include the amount of retirement pay he waived in order
to receive veterans’ disability pay.
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In Hayward, we observed that the husband’s argument raised a
question of first impression in Pennsylvania. Upon reviewing a number of
cases from other jurisdictions that had addressed the issue, we were
persuaded by the rationale employed by those courts. We found that the
parties’ agreement was not limited to “disposable retirement pay,” and that
the wife “bargained for 50% of the marital portion of [the husband’s] civil
and military retirement benefits and [the husband] agreed to pay those
amounts.” Hayward, supra at 560-561. Hence, we concluded that the
husband was “bound by his agreement to pay 50% of the marital portion of
his military and civil retirement benefits, even though it may have to be paid
from other available funds.” Id. at 561. See In re Marriage of Gahagen,
690 N.W.2d 695 (Iowa Ct. App. 2004) (unpublished memorandum at *5)
(holding “a military ex-spouse’s post-decree election to waive some or all of
a military pension in order to collect veterans’ disability benefits constitutes
a ‘unilateral[] and extrajudicial []’ modification of the decree.”); In re
Marriage of Krempin, 83 Ca.Rptr.2d 134 (Cal. Ct. App. 1999) (observing,
“If the trial court were to conclude that the parties intended for appellant to
continue to receive her original share of respondent’s retirement pay even if
he waived all or a portion of that pay to obtain disability benefits, the
Mansell case would not prevent the court from giving appellant the benefit
of her bargain[.]”).
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Herein, Husband contends that Hayward is inapposite. He asserts
that, unlike in Hayward, this matter did not arise from a consent order or
QDRO. Thus, he alleges that his waiver did not constitute a “unilateral and
extrajudicial modification of the decree[.]” Husband’s brief at 16. Husband
claims that the parties’ settlement agreement was not drafted with the aid of
counsel, and that it was not made part of any consent order or “any other
document which reflected the Court’s imprimatur.” Id. Moreover, he notes
that, in some of the cases relied on by this Court in Hayward, the military
spouse intentionally acted to frustrate the settlement agreement. He claims
that he did not know the consequences of his waiver, and therefore, he did
not intentionally breach the agreement. Rather, he maintains that he
elected to receive CRSC benefits because it bore him a slight financial
advantage. Finally, Husband argues that, in the cases relied upon by this
Court in Hayward, the military spouses had other sources of income to
satisfy the courts equitable remedy. He insists that this case is
distinguishable since “no such sources for payment to Wife were identified in
the record of the instant case.” Id. at 17.
We are not persuaded by the distinctions advanced by Husband. In
Hayward, supra, we found the trial court did not abuse its discretion when
it fashioned an equitable remedy in favor of the wife. We emphasized that
the parties had entered into a valid agreement providing the wife with a
share of the husband’s retirement payments, that the agreement did not
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specifically apply to disposable retirement pay, and that the husband had
made a unilateral, extrajudicial decision affecting the wife’s share. We
determined that the husband was bound by his contract, and that he was
liable for payments to the wife equaling fifty percent of his military
retirement benefits.
Instantly, Husband and Wife entered into a divorce settlement
agreement that guaranteed that Wife would receive one-half of Husband’s
military retirement pay for life. Contrary to Husband’s assertion, that
document was incorporated into the divorce decree. Decree in Divorce,
3/5/92, 255 G.D. 1991, (“The Court hereby incorporates by reference the
terms of the parties’ separation agreement filed of record at above number
and term.”). Further, the agreement does not specifically reference
Husband’s disposable retired pay, but rather, ensures that Wife receive a
share of Husband’s “retirement pay from the U.S. Army.” Divorce
Settlement Agreement, 1/10/92, at ¶ 1. Thus, we find that Hayward,
supra, controls the disposition of this matter, and that the trial court did not
err in fashioning an equitable remedy providing Wife with the benefit of the
bargain, that is, an amount equaling fifty percent of Husband’s retirement
pay.
Lastly, we find the trial court was not obligated to specify a source of
income from which the payments owed to Wife were to originate. Husband
insists that the court cannot avoid the United States Supreme Court’s
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holding in Mansell, supra, by merely ensuring that Husband’s disability
benefits are not attached. He claims that the record must disclose a viable
separate source of income, and that the record does not contain evidence
that Husband possesses such a source.
Mansell, supra, does not stand for the proposition that the trial court
must determine that a party can satisfy his contractual obligations, but only
that such satisfaction cannot be attached directly to the party’s military
disability pay. Although some courts have utilized alternative sources of
income in rendering an equitable judgment, we find no language in Mansell
which mandates such a finding. Thus, Husband is not entitled to relief.
In sum, we find that the trial court did not err in granting Wife’s
motion to enforce the parties’ divorce settlement agreement and in directing
Husband to pay Wife $656.60 per month pursuant to that agreement, plus
an additional $100 per month towards outstanding arrearages.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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