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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
DIANE CONRAD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SHAWN CONRAD : No. 1604 MDA 2022
Appeal from the Order Entered October 17, 2022
In the Court of Common Pleas of Berks County Civil Division at No(s):
12-18628
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED: AUGUST 1, 2023
Diane Conrad (Wife) appeals from the order, entered in the Court of
Common Pleas of Berks County, dismissing her counterclaims for constructive
trust and attorneys’ fees, filed in response to Shawn Conrad’s (Husband)
petition for special relief. After our review, we affirm.
The parties married on April 8, 1995, and separated on July 25, 2012.
Wife filed for divorce on August 2, 2012. The Honorable Madelyn S. Fudeman
entered a divorce decree on February 5, 2016. The parties’ December 2, 2015
post-nuptial agreement (PNA) was incorporated1 into the parties’ divorce
decree. The PNA, dated December 2, 2015, was set forth on the record before
divorce master, Louis Shucker, Esquire, as follows:
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* Former Justice specially assigned to the Superior Court.
1 The PNA was not merged with the divorce decree.
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[Husband’s] military pension and his State Police pension will be
divided 60 percent to [W]ife and 40 percent to [H]usband.
[Husband’s] deferred compensation plan will be divided the first
[$]30,000 to [H]usband, [and] the remainder of the deferred
compensation to be split 50/50 between the parties. [Husband’s]
Vanguard mutual fund will also be split 60 percent to [W]ife, 40
percent to [H]usband and that will be accomplished within 30 days
of today. Wife will keep her Pennsylvania School System
Employees Retirement Systems pension 100 percent. . . . The
parties shall execute any and all documents necessary to
effectuate the terms and conditions of this agreement including
the preparation of any Qualified Domestic Relations Orders
[QDRO2] or any other document necessary to transfer funds to or
from the respective retirement accounts.
PNA, 12/2/15, at 2-3, 5.
The PNA required that three QDROs be drafted within 30 days of the
December 2, 2015 date. It was not until nearly four years later, however, on
June 28, 2019, that the parties entered into a stipulation and agreement
(Agreement) for a domestic relations order regarding Husband’s Pennsylvania
State Employees’ Retirement System (SERS) State Police Pension.
The Agreement provides, in part, that Wife (Alternate Payee) would
receive 60% of the marital portion of Husband’s (Member of SERS) retirement
benefit, using the coverture fraction (numerator is SERS Member’s years of
credited service for the period from date of marriage to date of separation;
denominator is total years of Member’s service). Id. at ¶ 6. Both parties
acknowledged that Husband’s benefit was in pay status at the time they
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2 Generally, a qualified domestic relations order, or QDRO, “creates or
recognizes the rights of an alternate payee to receive all or a portion of the
benefits payable to a participant under [a] pension plan.” Getty v. Getty,
221 A.3d 192, 195 n.4 (Pa. Super. 2019) (citation omitted).
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executed the Agreement. Id. at ¶ 10. The Agreement also provided that
Husband’s deferred compensation plan was to be divided so that he would
receive the first $30,000.00 and the remainder would be split 50/50 between
the parties. Wife received 60% of Husband’s Vanguard Mutual Fund, and Wife
retained 100% of her Pennsylvania School System Employees Retirement
System pension. The Agreement stated that the parties intended the terms
of the stipulation and agreement be “approved, adopted and entered as a
Domestic Relations Order.” Id. at ¶ 15. The Honorable J. Benjamin Nevius
entered this Agreement as an order. See Stipulation and Agreement for the
Entry of Domestic Relations Order, 6/28/19.
On February 5, 2021, Husband filed a petition for special relief—motion
to vacate decree and/or amend QDRO. On March 18, 2021, Wife filed a
response and counterclaim. The matter was continued throughout 2021.
Judge Nevius scheduled a hearing for May 5, 2022. The court also directed
the parties to file briefs; Husband’s brief was due to be filed by June 6, 2022,
and Wife’s responsive brief was due on July 6, 2022. However, no May 5,
2022 hearing was held. The matter was reassigned to the Honorable Jill
Gehman Koestel, who scheduled a conference with counsel for both parties on
September 29, 2022. See Trial Court Opinion, 12/29/22, at 2. The court
noted that the conference did not take place because Husband’s counsel was
unavailable and because “[b]oth counsel told the [c]ourt the matter could be
decided on the briefs and the record.” Id. at 2 n.5. By order dated October
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12, 2022, and filed on October 17, 2022, Judge Koestel dismissed Husband’s
petition and Wife’s counterclaims.
Wife filed this appeal.3 Both Wife and the trial court have complied with
Pa.R.A.P. 1925. Wife raises the following issue: “Whether the [c]ourt
erred/abused its discretion in denying [Wife’s] petition without a hearing
where [Wife] raised sufficient issues of material fact to entitle [her] to a
hearing and/or judgment in her favor?” Appellant’s Brief, at 4.
Our standard of review of a trial court’s decision to grant or deny special
relief in a divorce action is an abuse of discretion. Conway v. Conway, 209
A.3d 376, 371 (Pa. Super. 2019).
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.
Id., citing Prol v. Prol, 935 A.2d 547, 551-52 (Pa. Super. 2007).
Wife’s counterclaim sought a constructive trust to enforce the parties’
PNA. Wife claims Husband withheld at least $50,000.00 of funds to which she
was entitled under the PNA, and that the court abused its discretion by
deciding the matter without a hearing. See Appellant’s Brief, at 7. We find
no abuse of discretion.
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3 Wife retained new counsel for this appeal.
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In Pennsylvania, the law of contracts governs a property agreement if
the agreement is not merged into a divorce decree. Crispo v. Crispo, 909
A.2d 308, 313 (Pa. Super. 2006) (“property settlement agreements are
presumed to be valid and binding upon the parties”). An agreement that is
not merged “stands as a separate contract, is subject to the law governing
contracts[,] and is to be reviewed as any other contract.” Id. at 312–13.
A court may construe or interpret a [marital settlement
agreement] as it would a contract, but it has neither the power
nor the authority to modify or vary the [agreement] unless there
has been fraud, accident[,] or mistake.
It is well-established that the paramount goal of contract
interpretation is to ascertain and give effect to the parties’ intent.
When the trier of fact has determined the intent of the parties to
a contract, an appellate court will defer to that determination if it
is supported by the evidence.
Further, where . . . the words of a contract are clear and
unambiguous, the intent of the parties is to be ascertained from
the express language of the agreement itself.
Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004) (internal citations
and quotation marks omitted).
A QDRO effectuates the distribution in that it “creates or recognizes the
rights of an alternate payee to receive all or a portion of the benefits payable
to a participant under [a pension] plan.” Smith v. Smith, 938 A.2d 246, 248
n.3 (Pa. 2007). See also supra n.1. In cases where parties have entered a
marital settlement agreement, as in the instant matter, a QDRO merely
implements substantive rights already created by the settlement agreement.
Grieve v. Mankey, 679 A.2d 814 (Pa. Super. 1996) (holding order directing
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QDRO did not affect either party’s substantive rights but was simply
procedural mechanism to effectuate pension entitlement as agreed to by
parties).
In her counterclaim, Wife averred:
Husband admits . . . that he retired from the Pennsylvania State
Police, chose the Single Life Annuity option and received an[]
undisclosed lump sum. . . . Husband failed to timely notify Wife
of the above and continues to refuse to disclose the amount of his
“lump sum.[”] It is possible, Husband made other withdrawals
from retirements accounts which Wife is not yet aware of but may
learn through discovery. Wife asks this Honorable Court to
establish a constructive trust on the lump sum Husband received
including an[y] increase in value for the benefit of Wife consistent
with the Agreement of the parties that was incorporated into the
[d]ivorce [d]ecree.
Wife’s Response and Counterclaim, 3/18/21, at ¶¶ 88-92.
Wife has not raised sufficient issues of material fact to entitle her to
either a hearing or judgment in her favor. Wife does not aver that Husband’s
option election, lump sum withdrawal, or “possible” withdraws, infringed on
her entitlement to 60% of the marital share as set forth in the parties’
Agreement, which was filed as a QDRO with the Berks County Prothonotary’s
Office on June 25, 2019.4 That order provides that
[t]he equitable distribution portion of the marital property
component of [Husband’s] retirement benefit [] shall be payable
to [Wife] and shall commence as soon as administratively feasible
on or about the date [Husband] enters pay status and SERS
approves a Domestic Relations Order incorporating this
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4 A QDRO with respect to Husband’s military pension was also filed on June
25, 2019. A QDRO with respect to Husband’s Deferred Compensation Program
was filed on October 17, 2019.
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Stipulation and Agreement, whichever is later. [Husband] and
[Wife] acknowledge that [Husband] has already entered pay
status prior to the entry of the Domestic Relations Order,
therefore it is understood that upon approval by SERS of a
Domestic Relations Order incorporating this Stipulation
and Agreement, SERS will commence payment to [Wife] of
any remaining portion of the equitable distribution portion
of the marital property component of [Husband’s]
retirement benefit[.] . . . [Husband] and [Wife]
acknowledge that [Husband’s] benefit is in pay status. At
the time of retirement, [Husband] elected to receive an
annuity pursuant to the terms of the Maximum Single Life
Annuity option.
Agreement, supra at ¶ 7, 10 (emphasis added). Moreover, Wife does not
aver in her counterclaim that she did not receive her allocation. Nor does Wife
aver any facts that raise an issue with respect to fraud, duress, or
misrepresentation with respect to the parties’ Agreement or the domestic
relations order implementing the parties’ rights under that Agreement. See
id.; see also 23 Pa.C.S.A. § 3505(d) (constructive trust for undisclosed
assets).5
We find no error or abuse of discretion. Conway, supra. Accordingly,
we affirm the trial court’s order.
Order affirmed.
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5 We also note that, at this point, Wife has waived her claim since she knew
that Husband’s pension was in pay status at the time of execution of the June
28, 2019 Agreement, and this acknowledgement was memorialized in the
Agreement. Also reflected in the Agreement is Husband’s election of an
annuity pursuant to the terms of the Maximum Single Life Annuity option, and
Wife’s marital share was already calculated under the QDRO. As noted above,
Wife makes no claim of fraud, misrepresentation, or duress with respect to
that Agreement.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/01/2023
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Conrad, D. v. Conrad, S.
Combined Opinion