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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
REBECCA J. TYLER, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ZANE M. TYLER,
Appellant No. 835 WDA 2016
Appeal from the Order Entered May 19, 2016
In the Court of Common Pleas of McKean County
Civil Division at No(s): 962 C.D. 1995
REBECCA J. TYLER, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ZANE M. TYLER,
Appellee No. 876 WDA 2016
Appeal from the Order Entered May 19, 2016
In the Court of Common Pleas of McKean County
Civil Division at No(s): 962 C.D. 1995
BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 01, 2017
Zane M. Tyler (Husband) and Rebecca J. Tyler (Wife) each appealed
from the order entered on May 19, 2016, in response to Wife’s petition for
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*
Retired Senior Judge assigned to the Superior Court.
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special relief, requesting clarification of the family law master’s 1997 report
and recommendation and a qualified domestic relations order (QDRO), dated
June 14, 1999. The May 19, 2016 order outlined a payment plan for the
$17,224.17 balance owed to Wife from Husband, relating to Wife’s equitable
share of Husband’s military pension including an interest rate of 2.1% per
year. We affirm.
We begin by setting forth the trial court’s recitation of the facts as
stated in its opinion filed pursuant to Pa.R.A.P. 1925(a) in connection with
Husband’s appeal:
As part of the parties’ divorce, equitable distribution was
made. The Family Law Master (“FLM”) issued a Report and
Recommendations at the culmination of the parties’ final divorce
hearing. This Report was dated January 17, 1997, and
subsequently adopted as an Order of Court on January 29, 1997
…. The Report provided inter alia that:
If [Husband] is able to do so, it is recommended that
he pay to [Wife] approximately $77,500, or fifty
percent of the present value of his military pension
as of December 19, 1990. If [Husband] is unable to
make a lump sum payment in this amount or
arrange to pay that amount to [Wife] in installment
payments over a reasonably short time, then it is
recommended that [Wife’s] interest in the military
pension be paid to her after [Husband] retires in a
percentage of his monthly installments equal to 50%
of the marital portion of the pension calculated
according to the formula approved in Brown v.
Brown, 447 Pa. Super. 424, 669 A.2d 969, 974
(1995). Counsel should, in that event, prepare a
Qualified Domestic Relations Order designed to effect
this result.
1997 Report and Recommendations, Page 11.
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Subsequently, counsel for both parties submitted a
Qualified Domestic Relations Order (“QDRO”), which was
executed … on June 14, 1999. The QDRO stated as follows:
(b) [Husband] shall withdraw $77,500.00 from his
military retirement account.
(c) [Husband] shall do so by paying no more than
50% of the present value of his monthly military
retirement pension account.
(d) Said payments shall continue until the sum total
of $77,500.00 is paid to [Wife].
Qualified Domestic Relations Order, Tyler v. Tyler, 962
C.D. 1995 Dated June 14, 1999.
The parties were divorced on January 5, 1999. On January
9, 2013, Wife filed a Petition for Special Relief in which she
sought clarification of the FLM’s January 17, 1997 Report. Prior
to said filing, Defense Finance and Accounting Services,
overseers of Husband's military pension, indicated that it had
overpaid Wife the amount of $19,290.00 and, therefore, sought
reimbursement for this overpayment, plus interest. Wife paid
the $19,290.00 plus an additional $5,519.01 in interest, for a
total of $24,809.01. The [c]ourt referred the Petition for Special
Relief to the FLM for resolution.
The FLM issued a Report and Recommendations on June 7,
2013. The FLM concluded that the QDRO did not follow the
recommendations as outlined in the 1997 Report. In so
concluding, the FLM stated that, rather than Wife[’s] receiving a
sum certain to be paid in installments, the QDRO should have
provided for a percentage of Husband’s benefit based upon the
value of the pension as of the date of the parties’ separation—
December 19, 1990. In support of this recommendation, the
FLM cited Brown, supra; Smith v. Smith, 936 A.2d 246 (Pa.
2007); and 23 Pa.C.S.[] § 3501(e)(1) and (2). Therefore, it was
the FLM’s Recommendation that the QDRO may have been
drafted in error in regards to the computation method for
distributing the marital portion of Husband’s pension owed to
Wife.
Husband filed Exceptions to the June 2013 Report and
Recommendations in which he argued that the parties never
anticipated paying, or receiving, anything more than
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$77,500.00. Essentially, he argued that the language in the
2013 Report suggested that Wife should be receiving a higher
amount from the pension than $77,500.00 but that the parties
did not contemplate a lifetime sharing of [Husband’s] pension.
Finally, he argued that the [c]ourt should not consider the FLM’s
opinion of the then sixteen (16) year old QDRO because it was
irrelevant for a determination of this matter.
These Exceptions were overruled by this [c]ourt in its
Opinion and Order dated July 30, 2013 and filed August 1, 2013.
The [c]ourt reasoned that the FLM intended to distribute to Wife
50% of Husband’s pension, as then valued. This amount was
$77,500.00 if it was paid immediately, but the FLM contemplated
the actual dollar amount being more if it were distributed via
long-term installment payments. No objection or appeal was
filed as to this Order, and it became final after thirty (30) days.
In January 2016, Wife's counsel requested a [h]earing. A
[h]earing was held on April 7, 2016. During the [h]earing, Wife
prayed for an equitable resolution to the QDRO that was drafted
in error; namely that she continue to receive payments in
accordance with the intention of the FLM’s recommendations or
that she receive payment of interest on the $77,500.00 lump
sum, as she has been paid over a period of almost twenty (20)
years.
To date, Wife received [a] net total of $71,254.99 from
Husband’s military pension. Although Wife received total
payments in the amount of $96,064.00, Wife was forced to
repay $24,809.01 in principal and interest for alleged
“overpayments” to her.
Essentially, both parties submitted the matter for
interpretation, admitting the QDRO was poorly drafted and the
parties[’] having failed to reach any agreement on how the
QDRO should be interpreted.
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Trial Court’s Rule 1925(a) Opinion (TCO-Husband’s Appeal), 8/23/16, at 1-
4.1
After the April 7, 2016 hearing was held and upon receipt of the FLM’s
report and recommendation, the trial court issued the order presently on
appeal. The order provided that Wife was owed a balance of $17,224.17 “as
of May 2012 for her equitable share of [Husband’s] military pension at an
interest rate of 2.1% per annum.” Trial Court Order, 5/19/16. The court
directed that the interest that accrued from May 2012 to June 2016 totaled
$1,476.86 and was to be paid by Husband to Wife within thirty days. Id.
The court further directed that Husband was to pay Wife $733.47 per month
for twenty-four months, which would satisfy Husband’s debt to Wife.
Both Husband and Wife filed timely appeals and complied with the
court’s orders to file statements of errors complained of on appeal. Husband
now raises two issues for our review:
1. Did the lower [c]ourt abuse its discretion and err in
considering [Wife’s] Petition for Special Relief?
2. If the lower [c]ourt properly considered [Wife’s] Petition for
Special Relief, did the lower [c]ourt act properly and within its
discretion in promulgating its Order of May 19, 2016?
Husband’s brief at 4. Wife raises one issue for our review:
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1
The factual rendition in the court’s Rule 1925(a) opinion relating to
Husband’s appeal is essentially a mirror image of the one issued in response
to Wife’s appeal. See Trial Court Rule 1925(a) Opinion (TCO-Wife’s Appeal),
8/11/16, at 1-3.
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Did the trial court abuse its discretion when it ruled that [Wife]
was only entitled to a limited number of payments from
[Husband’s] military pension[?]
Wife’s brief at 12.
To begin, we quote the trial court’s introductory paragraph in its
opinion relating to Husband’s appeal, which states:
Simply put, the [c]ourt and the parties determined at
hearing that the QDRO had been poorly drafted and did not
reflect the FLM’s recommendations. Furthermore, it was
believed that there was no way to redraft the QDRO so late in
time. The parties’ arguments illustrate that Husband and Wife
were never in agreement with the concept of the pension
distribution. Husband argued that the QDRO should be
interpreted to mean that Wife should only receive a share of
Husband’s pension until she collected the amount of
$77,500.00[.] Wife interpreted the QDRO to mean that if
Husband could not immediately pay the $77,500.00 due her,
then Wife should receive 50% of Husband’s pension payments in
perpetuity. Like the vexing QDRO, neither of these arguments
comports with the FLM’s recommendations.
TCO-Husband’s Appeal at 5.
The main thrust of Husband’s argument in his brief is that the court
did not have the power to entertain Wife’s petition for special relief because
its actions violated section 3332 of the Domestic Relations Code entitled
“Opening or vacating decrees[,]” which states:
A motion to open a decree of divorce or annulment may be made
only within the period limited by 42 Pa.C.S. § 5505 (relating to
modification of orders) and not thereafter.[2] The motion may lie
where it is alleged that the decree was procured by intrinsic
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2
Section 5505 provides that a court “may modify or rescind any order within
30 days after its entry … if no appeal from such order has been taken or
allowed.” 42 Pa.C.S. § 5505.
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fraud or that there is new evidence relating to the cause of
action which will sustain the attack upon its validity. A motion
to vacate a decree or strike a judgment alleged to be void
because of extrinsic fraud, lack of jurisdiction over the
subject matter or a fatal defect apparent upon the face of
the record must be made within five years after entry of
the final decree. Intrinsic fraud relates to a matter adjudicated
by the judgment, including perjury and false testimony, whereas
extrinsic fraud relates to matters collateral to the judgment
which have the consequence of precluding a fair hearing or
presentation of one side of the case.
23 Pa.C.S. § 3332 (emphasis added). Thus, Husband claims that because
Wife’s petition for special relief was filed 14 years after the divorce decree
was entered and 12½ years after the QDRO was issued, the court abused its
discretion by considering the petition, i.e., the court was without jurisdiction.
Although the trial court did not specifically address Husband’s
jurisdiction argument in its opinion, it explained the reasons for its decision
as follows:
In her original report and recommendations, the FLM
suggested that Husband had two (2) options: the first was to
make a lump sum payment to Wife in the amount of $77,500.00
(her share of the pension as then valued) or pay Wife a
coverture fraction not to exceed 50% of Husband’s pension
payments when Husband’s pension finally reached pay status.
The point of the first option being to settle the matter quickly;
the gist of the second option being that Wife should be allowed
to collect more money (i.e. interest) if she had to wait years to
receive money that was determined to be hers in 1997.
Admittedly, the FLM did not put an end date for Wife’s share of
pension benefits if she were to be paid according to a coverture
fraction. The FLM reiterated the same theme in her 2013 report.
To effectuate the FLM Recommendations, a QDRO was
drafted. The QDRO was certainly not the product of the parties’
agreement as Husband suggested in his Concise Statement.
There was no testimony to indicate the QDRO was anything
other than a way to effectuate the FLM’s Recommendations.
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Furthermore, it was apparent that Husband and Wife had
different expectations at the time the QDRO was drafted just as
they have different interpretations of the QDRO now.
As far as Husband[’s] paying Wife her share of the military
pension, Husband clearly did not elect to pay the $77,500.00
immediately in full. Instead, he chose to make “installment
payments” over time out of his pension. However, these
installments were improperly taken from Husband’s pension as
he was sharing half of his pension when he should have only
been sharing a coverture fraction.
Because the QDRO had been poorly drafted so many years
ago, the [c]ourt could not redraft the QDRO to properly reflect
the FLM’s recommendations. However, the [c]ourt was not
without remedy as Wife was appealing to the equitable powers of
this [c]ourt. The question for the [c]ourt then became whether
Wife could equitably be awarded interest on the installment
payments owed to her for the original $77,500.00 and how could
it be distributed to her if she were so entitled.
TCO-Husband’s Appeal at 5-6 (footnote omitted).
The decision in Hayward v. Hayward, 808 A.2d 232 (Pa. Super.
2002), provides guidance in this matter. In Hayward, the husband filed a
petition for special relief six years after the entry of a QDRO, claiming inter
alia that the QDRO “failed to comport with the agreed-upon terms of the
consent order[,]” which memorialized the distribution of the marital
property. Id. at 234. Specifically, the husband asserted that the QDRO
granted the wife 50% of his entire military pension rather than the portion
accumulated from the date of the marriage to the date of separation. Id.
Prior to addressing the issues raised by the husband, this Court noted the
husband’s six-year delay in filing his request for relief, recognizing that 42
Pa.C.S. § 5505 only allows a court to modify a QDRO within thirty days of its
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entry. Then, relying on Stockton v. Stockton, 698 A.2d 1334 (Pa. Super.
1997), the Hayward court quoted the following:
The lower court’s authority under 42 Pa.C.S.[] §
5505 to modify or rescind an order is almost entirely
discretionary; this power may be exercised sua
sponte, or may be invoked by a request for
reconsideration filed by the parties, and the court’s
decision to decline to exercise such power will not be
reviewed on appeal.
Although 42 Pa.C.S.[] § 5505 gives the trial court
broad discretion, the trial court may consider a
motion for reconsideration only if the motion is filed
within thirty days of the entry of the disputed order.
After the expiration of thirty days, the trial court
loses its broad discretion to modify, and the order
can be opened or vacated only upon a showing of
extrinsic fraud, lack of jurisdiction over the subject
matter, a fatal defect apparent on the face of the
record or some other evidence of extraordinary
cause justifying intervention by the court.
Id. (emphasis added) (citations and quotation marks omitted).
Absent an allegation of extrinsic fraud or other extraordinary
cause, the trial court does not have jurisdiction to grant a
petition to modify a QDRO if such petition was filed more than
thirty days from the date the QDRO was entered. Id. at 1338.
Hayward, 808 A.2d at 235 (quoting Stockton, 698 A.2d at 1337).
Notably, the emphasized language contained in the Hayward opinion’s
quoting of Stockton employs the language contained in 23 Pa.C.S. § 3332,
although not identified as such.
The Hayward decision further explains that “[e]xtraordinary
circumstances have been found to exist in the context of mistakes made by
the court or its officers[.]” Hayward, 808 A.2d at 235. In those instances,
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“the court had the discretion to grant relief to the moving party beyond the
thirty-day time bar imposed by section 5505.” Id. at 236. This Court in
Hayward determined that the trial court
erred by failing to modify the 1995 QDRO to comport with the
consent order entered into by the parties in 1989. Although [the
husband] filed his motion for special relief almost six years after
entry of the 1995 QDRO, extraordinary circumstances exist since
there is a fatal defect on the face of the record, i.e., the 1995
QDRO utilizes an improper coverture fraction that has the effect
of granting [the wife] 50% of [the husband’s] entire military
pension rather than 50% of the marital portion of his pension as
agreed to by the parties in the 1989 consent order and as
provided by Pennsylvania law.
Id.
Likewise, we recognize that the errors in the QDRO here similarly
reveal a fatal defect on the face of the record, which we conclude rises to
the level of an extraordinary circumstance.3 Specifically, in the case before
us, the QDRO does not comport with the FLM’s report and recommendation.
Notably, just as in Hayward, the QDRO makes no mention that the sum due
takes into consideration Wife’s entitlement to an amount that is 50% of only
the marital portion of Husband’s military pension. However, beyond that, it
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3
As an aside, we note that the trial court here did not cite section 3332 of
the Domestic Relations Code as giving it the power to address the parties’
claims; rather, it relied on its equitable powers, which we conclude was an
insufficient reason to allow it to accept jurisdiction of the matter. See
Hassick v. Hassick, 695 A.2d 851, 853 (Pa. Super. 1997) (stating that
“while a court possesses equitable powers in divorce proceedings, those
powers do not allow the court to ignore the limited circumstances set forth in
[s]ection 3332 for vacating a final decree….”).
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is evident that neither party nor the court was able to properly interpret the
QDRO and how it aligns with the FLM’s recommendation. Thus, based on
Hayward, we conclude that the court here was permitted to address Wife’s
petition for special relief. We further point out that the Brown decision,
relied upon by the FLM, extensively explains the manner in which a deferred
distribution of a pension should be calculated, and directed that the failure to
include an award of interest was an error that should be remedied on
remand. See Brown, 669 A.2d at 975 n.3. Therefore, we conclude that the
trial court here did not err in addressing Wife’s petition for special relief.
Clearly, as recognized by the trial court, clarification was necessary because
the QDRO confirmed by the court in 1999 did not correspond with the
dictates of the FLM’s recommendation and report; essentially, the trial court
had erred by accepting the QDRO in 1999.4
Now, turning to Wife’s issue,
[w]e need [to] determine whether the trial court, by
misapplication of the law or failure to follow proper legal
procedure, abused its discretion. Moreover, “an abuse of
discretion is not found lightly, but only upon a showing of clear
and convincing evidence.” Specifically, we measure the
circumstances of the case and the conclusions drawn therefrom
by the trial court against the provision of 23 Pa.C.S.[] § 3502(a),
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4
Husband argues that the Hayward decision is distinguishable from the
situation presented to us in this appeal, noting that in Hayward no
reference is made to section 3332 and claiming also that here no fatal defect
is apparent on the face of the record. As discussed above, we disagree with
Husband’s interpretation of Hayward and its comparison to the instant
case.
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and the avowed intentions of the Divorce Code, namely to
“effectuate economic justice between [the] parties … and insure
a fair and just determination of their property rights.”
Palladino v. Palladino, 713 A.2d 676, 678 (Pa. Super. 1998) (quoting
Butler v. Butler, 621 A.2d 659, 663-64 (Pa. Super. 1993) (footnote
omitted)).
Wife acknowledges that “there were multiple errors committed in the
drafting of the QDRO.” Wife’s brief at 19. However, Wife claims that the
FLM intended that she “should receive lifetime payments if … [Husband] was
unable to pay the lump sum up front.” Id. at 20. Wife also asserts that the
FLM intended that Wife was to be paid 50% of Husband’s total monthly
military pension and that the coverture fraction should not be taken into
account. Wife appears to accept the fact that if paid at the time of the
divorce, the $77,500.00 amount due her was correct. However, she
contends that “the FLM contemplated that the amount would be more if it
were distributed via long-term pay out.” Id. at 21. Thus, based upon this
assertion, Wife takes issue with the trial court’s method of calculating
interest to “make [her] whole.” Id.
To support her position, Wife cites the unpublished memorandum
decision in Grothey v. Grothey, 144 A.3d 197 (Pa. Super. 2016)
(unpublished memorandum), arguing that it “is factually and procedurally
similar to this case.” Wife’s brief at 22. We alert Wife that citing
memorandum decisions is prohibited by our Internal Operating Procedures
(IOP) § 65.37. See Hunter v. Shire US, Inc., 992 A.2d 891 (Pa. Super.
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2010) (stating that pursuant to § 65.37, an “unpublished memorandum
decision shall not be relied upon or cited by a party”) (quoting Schaaf v.
Kaufman, 850 A.2d 655, 658 (Pa. Super. 2004)). Moreover, “it is not
binding on us.” Id.
Wife also cites Berrington v. Berrington, 633 A.2d 589 (Pa. 1993),
and Brown v. Brown, 690 A.2d 700 (Pa. 1997), contending that the court
should have analyzed the instant matter with reference to those cases.
However, Wife does not identify in what way the court’s determination was
inconsistent with those cases and we refuse to delve into an issue in an
attempt to make Wife’s arguments for her. Thus, we conclude that the trial
court did not abuse its discretion and we accept the method it utilized to
“effectuate economic justice between the parties.” See Palladino, 713 A.2d
at 678. The trial court’s decision is affirmed as a reasonable way to correct
a long-standing, confusingly drafted QDRO that the court in 1997 had
accepted as a way to achieve the FLM’s recommendations.
Order affirmed.
Judge Strassburger joins this memorandum.
Judge Bowes files a concurring memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2017
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