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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRENDA L. SWARTZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
EARL A. SWARTZ :
:
Appellant : No. 1457 MDA 2019
Appeal from the Order Entered July 31, 2019
In the Court of Common Pleas of Union County
Civil Division at No(s): CV-12-0512
BRENDA L. SWARTZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
EARL A. SWARTZ :
:
Appellee : No. 1488 MDA 2019
Appeal from the Order Entered July 31, 2019
In the Court of Common Pleas of Union County
Civil Division at No(s): CV-12-0512
BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.
MEMORANDUM BY KING, J.: FILED JANUARY 29, 2020
Appellant, Earl A. Swartz (“Husband”), and Cross-Appellant, Brenda L.
Swartz (“Wife”), appeal from the order entered in the Union County Court of
Common Pleas, which granted in part and denied in part Husband’s motion to
amend a Qualified Domestic Relations Order (“QDRO”). We affirm.
In its opinion, the trial court accurately set forth the relevant facts and
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procedural history of this case. Thus, we have no reason to restate them.1
At No. 1457 MDA 2019, Husband raises the following issue for our
review:
WHETHER THE TRIAL COURT ERRED, AS A MATTER OF LAW,
IN DETERMINING THAT [WIFE] IS ENTITLED TO THE
BENEFIT OF [HUSBAND’S] SALARY ADJUSTMENTS FOR THE
PURPOSE OF DETERMINING [WIFE]’S PRO RATA SHARE OF
[HUSBAND’S FEDERAL EMPLOYEES’ RETIREMENT SYSTEM
(“FERS”)] PENSION WHEN THE PARTIES’ MARITAL
SETTLEMENT AGREEMENT IS SILENT AS TO ANY SUCH
ADJUSTMENTS?
(Husband’s Brief at 1).
At No. 1488 MDA 2019, Wife raises the following issue for our review:
DID THE [TRIAL] COURT ERR BY GRANTING HUSBAND’S
MOTION TO AMEND [THE QDRO] FILED IN EXCESS OF FIVE
(5) YEARS FOLLOWING THE ENTRY OF THE [QDRO],
THEREBY VIOLATING THE VALID MARRIAGE SETTLEMENT
AGREEMENT, 42 PA.C.S.[A.] § 5505 AND DOING SO
WITHOUT ANY SUPPORTING FACTS OF RECORD?
(Wife’s Brief at 4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Michael T.
Hudock, we conclude the parties’ issues merit no relief. The trial court opinion
____________________________________________
1 On August 29, 2019, Husband timely filed a notice of appeal at No. 1457
MDA 2019. Wife timely filed a cross-appeal on September 10, 2019, at No.
1488 MDA 2019. See Pa.R.A.P. 903(b) (explaining if timely notice of appeal
is filed by party, any other party may file notice of appeal within 14 days of
date on which first notice of appeal was served, or within time otherwise
prescribed by this rule, whichever period last expires). The cross-appeals
were mistakenly listed consecutively. On January 14, 2020, this Court issued
an order consolidating the cross-appeals sua sponte.
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comprehensively discusses and properly disposes of the questions presented.
(See Opinion in Support of Order, filed July 31, 2019, at 3-7) (finding:
regarding court’s jurisdiction to modify QDRO, extraordinary circumstances
exist to justify modification; due to policy change beyond parties’ control or
contemplation, QDRO now grants Wife portion of annuity supplement to which
she was not entitled pursuant to terms of parties’ marital settlement
agreement (“MSA”) at time they executed it; MSA is silent as to annuity
supplement; MSA specifically identified Wife’s entitlement to “Husband’s gross
monthly annuity,” former spouse survivor annuity, and Husband’s Thrift
Savings Plan; MSA makes clear parties did not intend for Wife to receive
portion of annuity supplement, and mutual mistake has occurred as result of
policy change; even if MSA was ambiguous, Wife would not be entitled to
annuity supplement; MSA and QDRO would not have awarded Wife portion of
annuity supplement at time parties executed MSA or court entered QDRO;
regarding Husband’s salary adjustments, court does not find mutual mistake;
MSA makes clear Wife is entitled to portion of “Husband’s gross monthly
income”; parties made no exceptions in MSA for Husband’s salary
adjustments, even though MSA specifically contemplated Husband’s service
for periods of time outside parties’ marriage2). Accordingly, we affirm based
____________________________________________
2 Further, in 2004, the legislature added a subsection to the Divorce Code
regarding the distribution of defined benefit pensions, at 23 Pa.C.S.A. §
3501(c). See 23 Pa.C.S.A. § 3501(c)(1) (stating in case of marital portion of
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on the trial court’s opinion.
Order affirmed.
Judge Musmanno joins this memorandum.
President Judge Emeritus Bender concurs in the result
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/29/2020
____________________________________________
defined benefit retirement plan being distributed by means of deferred
distribution, defined benefit plan shall be allocated between its marital and
non-marital portions solely by use of coverture fraction). “Thus, the non-
employee spouse is permitted to enjoy increases in value occasioned by
continued employment of the worker.” Smith v. Smith, 595 Pa. 80, 102,
938 A.2d 246, 259 (2007) (internal citation omitted). In other words, in
general, “the determination of the marital potion of a defined benefit pension
will entail a straightforward application of the coverture fraction to the final
total value of the pension, even though the value has increased due to years
of postseparation employment.” Id. Here, Husband’s reliance on
Katzenberger v. Katzenberger, 534 Pa. 419, 633 A.2d 602 (1993) affords
him no relief because that case pre-dates the legislature’s addition of Section
3501(c).
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BRENDAL. SWARTZ, IN THE COURT OF COMMON PLEAS
Plaintiff OF THE 17™ JUDICIAL DISTRICT
OF PENNSYLVANIA
vs. UNION COUNTY BRANCH
EARL A. SWARTZ, CIVIL ACTION - LAW
Defendant NO. 12-0512
OPINION
HUDOCK. P.J .• July31. 2012
Defendant Earl A. Swartz filed a Motion to Amend Qualified Order on January 23, 2019.
Plaintiff B.tenda Swartz filed a Response to Defendant's Motion to Amend Qualified Order and
Plaintiff's Counterclaim for Attorney Fees. Defendant asserts that he will receive an "annuity
supplement'' upon retirement "which is a supplement annuity received by law enforcement and a few
others, such as members of Congress, as additional compensation when they retire earlier than Social
Security benefits begin." Motion to Amend, Paragraph 6. Previously, the Office of Personnel
Management considered the "annuity supplement" separate from the apportionment to a former
spouse through a Qualified Order that is silent as to the annuity supplement. Defendant alleges that
now the Office of Personnel Management will apply the state court ordered marital share to both the
basic annuity and the annuity supplement when not specifically addressed. Defendant assert� that tthe
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parties did not contemplate the annuity supplement, and therefore, the contract was the product of
their mutual mistake. Additionally, Defendant asks that the Court reform the Qualified Order to
specific exclude Plaintiff's entitlement to "salary adjustments."
The parties married November 4, 1984. The parties executed a Marriage Settlement
Agreement, Agreement, on November 25, 2013. The Agreement contained a provision titled
"Husband's FERS Benefits" which reads:
"(11) Husband is a participant in the Federal Employees Retirement System
(hereinafter referred to as "FERS"). Husband's FERS benefits have accrued during the
marriage. Wife is to be awarded by means of a Qualified Order fifty-five per cent (sic) (55%)
of the fraction of Husband's gross monthly annuity whose numerator is the number of months
of Federal civilian and military service that Husband performed during the marriage and whose
denominator is the total number of months of Federal civilian and military service performs
by Husband. The marriage shall be identified as beginning November 4, 1984 and to have
ended July 11, 2012 for purposes of calculating the former spouse annuity and former spouse
survivor annuity. In the event Wife dies before Husband, the former spouse annuity benefit
shall be made payable to Bethany M. Swartz and Bradley Swartz.
A former spouse survivor annuity shall be awarded to Wife equal to fifty per cent (sic)
(50 %) of Husband's employee annuity. Wife's share of Husband's employees annuity will be
reduced by the amount of fifty pet cent (sic) (50 %) of the costs associated with providing the
former spouse annuity awarded in the above paragraph and Husband's share of the employee
annuity will be reduced by the amount of fifty per cent (sic) (50%) of the costs associated
with providing the former spouse annuity awarded in the above paragraph. During Wife's
lifetime, the United States Office of Personnel Managctnent shall be directed to pay Wife's
share of the gross annuity or former spouse survivor annuity directly to Wife.
The United Statei.f Office of Personnel Management shall be directed by Qualified
Order not pay Husband any refund of his employee contributions so that any awards to Wife
as state above shall not be adversely affected.
The Court of Common Pleas issuing a· Divorce Decree in this matter shall retain
jurisdiction as part of the decree in divorce for the purpose of enforcement, amendment or
modification of any Qualifying Order necessary for the acceptance of the United States Office
of Personnel Management,
The above awards of the monthly annuity and former spouse survivor annuity are
equitable distributions of property pursuant to the Divorce Code of the Commonwealth of
Pennsylvania and not awards of alimony, spousal support or alimony pendente lite.
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Both patties agree and authorize the Court of Common Pleas having jurisdiction in
this matter to execute the Qualified Order, a copy of which is attached hereto and identified
as "Exhibit A" and approved by the parties.'The QualifJ..ed Order to be issued shall accompany
the Divorce Decree submitted upon transmittal of the r.e�a,;d by praecipe."
The Court granted the parties' request for divorce by final Decree dated December 20, 2013. The
Court entered a Qualified Order on December 20, 2013. The patties' Agreement and the Qualified
Order are silent as to the annuity supplement and "salary adjustments." Defendant's Motion to Amend
Qualified Order was filed January 23, 2019, in excess of five years from the entry of the Qualified
Order and Decree.
Both parties submitted briefs concerning the Court's jurisdiction to entertain Husband's
motion filed in excess of five years following the entry of the Qualified Order. The Superior Court in
Haywood v. Haywood, 808 A.2d 232 (Pa. Super. 2002) addressed a similar issue holding that extraordinary
circumstances existed to modify the parties, QDRO even after a six-year delay. The improper QDRO
in Haywood had the effect of granting "Wife 50% of Husband's� military pension rather than 50%
of the 'Jtmtit:.ilport.ii?l1 of his pension as agreed to by the parties in the 1989 consent order and as
provided by Pennsylvania law." Hayward v. Hayward, 808 A.2d 232, 236 (Pa. Super. 2002).
The Court wrote:
We must first address the issue of Husband's six-year delay in filing his motion for
special relief requesting modification of the 1995 QDRO. Typically, a court may modify an
order within thitty days after its entry, according to the following statute:
MN?il·(;;·JS ..� S5Q5. Modification of orders
Exeept "1$ otherwise :v. rovided 101:- p.te.scfibec. b.y law, -a court up0n notice to the p�ties 11'!-n
'm.Qclify �r rescind any o.td� within �o day� ·.�tei;. _its entty, netwithstanding' the. prior
tettninat:ip_n ef ·a.q.y term e.>f.cou.r:t, .if nd appeal form .such order baa been taken or ajlowecl.
42 Pn.C.S. � 5505,
In S1w #1J11 ·P.
1
.St()rkt:am 6�B A.2d 1.M11-,. 13.;}7 (.Pu;St1pe-r. 12n), we concluded .,section 55Q:5
applies to petitions to modify QDROs. We stated:
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The lower court's authority under 42 Pa,C.S.A. � 5·iJ05 to· inodify or rescind. an qr_der
is- almost �1l�ely dis.¢retio.n'ai.-y.; this powe.r �y be e�erdsed ilia .prin.le,. or tna.y, be
iov-0k�d hr a request {Qt recQ�tsldetai:ion ,61.ed by the parties, and the couet's def the .eontract,
11
.(�ourts e:mp.loy the doctrine of necesaary implication as a means of avoiding injustice by
infer:tlng contract provisions that reflect the· pru:ties1· silent intent." "In the abse�ee of an
expr�s.& term, the doctrine of necessary implication may act to imply a requirement necessitated
b'y. reason and justice without. v;hich the in.ten.t of the parties is frustrated."
"The duty of good faith and the doctrine of necessary implication apply only in limited
circumstances. Implied · duties· cannot '11:Utnp· the exp,tess pt6v.isions in the· eontract, '' "Both the
Wtl'>li¢'d covenant of good faith and the doctrine of necesfia,ty. itx:iplic�t;iop ·are pririciples for
courts to harmonize the reasonable expectations ·of the parties with the inteat of the
contractors and the terms in their contract"
Stamerro v. Stamerro, 889 A.2d 1251, 1258-59 (Pa. Super. 2005(internal citations omitted).
It is clear from the parties' Agreement that the parties did not intend for Plaintiff to receive a
portion of the annuity supplement, and a mutual mistake has occurred as result of the change in policy.
The Agreement is silent as to the supplemental annuity; however, it specifically identifies Plaintiff's
entitlement to "Husband's gross monthly annuity," former spouse survivor annuity, and (in a separate
section) Husband's Thrift Savings Plan. Agreement, page 6. Further, each patty specifically released
the other from any additional claims.
Even if the Court were to find the Agreement to be unclear and consider attendant
circumstances, the Court would still find in Defendant's favor. The Agreement and the subsequent
Qualified Order would not have entitled Plaintiff to a portion of the supplemental annuity at the time
of the parties' Agreement or the entry of the order. The Court would consider the legal effect of the
parties' Agreement at the time it was entered.
A recent decision, Conway v. Conway, is instructive, although not controlling. The parties
entered into an agreement .regarding their marital pi:operty including division of Husband's police
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pension. At the time the parties entered their agreement, a former spouse was treated as a spouse,
pursuant to a city ordinance. The Court noted: "The record makes dear the parties intended for Wife
to receive pension benefits as a spouse or surviving spouse under the Plan". Conway v. Conway, 2019
PA Super 138, 209 A.3d 367 (Pa. Super. 2019). Subsequent to the parties, agreement, the city changed
the ordinance and a former spouse was no longer treated as a spouse. The plan administrator rejected
Wife's proposed QDRO due to the change in the ordinance. The Trial Court was reversed for
considering the date the Association received the plan as controlling (after the change to the
ordinance) and determinative of Wife's entitlement to benefits. Id.
The Court does not find a mutual mistake occurred in regards to Defendant's salary
adjustments. The Agreement is clear that Plaintiff is entitled to a portion of "Hus band's gross monthly
annuity." Agreement, page 6. The parties made no exception for Husband's salary adjustments,
although the Agreement specifically contemplated Husband's service for periods of time outside of
the marriage.
The Court grants Defendant's Motion to Amend Qualified Order. Defendant shall submit a
proposed Qualified Order to the Court within 60 days which specifically excludes the Defendant's
supplemental annuity pursuant to the parties' Agteetnent. The Court denies Plaintiff's Counterclaim
for Attorney's fees.
BY THE COURT:
MICHAEL T. HUDOCK, P.J.
, ·' 'I �,rn�cf!Al�Y-Gl.l':l'l.K r�F 1:0IJRTS.
f 1,0 UHl\)l'J r ( •t IN 1 Y, I·'/\.
c;rn111i1r:u rirmM 'ltil fo11;DHP ON THIS DATE
AUG ·- 1 201\:J
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c: Martin R. Wilson, Esquire, Counsel for Plaintiff
Brian L. Kerstetter, Esquire, Counsel for Defendant
The Honorable Louise 0. Knight, S.J.
Jenna A. Neidig, Esquire, Law Clerk
Administrative Assistant
e-cop1es: The Honorable Michael T. Hudock, P .J.
The Honorable Michael H. Shelley, J.
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