Gordon v. Gordon

NEWMAN, Justice,

concurring.

I join in the majority opinion of Mr. Justice Flaherty. However, I write separately to explicitly reject application of LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986), allocatur denied, 514 Pa. 648, 524 A.2d 494 (1987), relied upon by the Superior Court below and Mr. Justice Castille in his concurring and dissenting opinion in analyzing whether Mr. Gordon’s early retirement incentives are marital property.

Here, after more than eighteen years of marriage, Mr. Gordon obtained a divorce based on indignities to his person.1 *401The trial court fixed the parties’ separation date as December 31, 1977. In July 1987, before equitable distribution, Mr. Gordon accepted early retirement. As an incentive to select early retirement, Mr. Gordon accepted a retirement bonus, supplemental retirement income and an “ORBIT” annuity. Nearly fifteen years after separation, in October 1992, the trial court ordered equitable distribution of the marital estate,2 applying the immediate offset method of distribution.3

*402The trial court included in the marital estate Mr. Gordon’s early retirement incentives, reduced by the coverture fraction. The court reasoned that these incentives were based upon Mr. Gordon’s twenty-seven years of service with Sun Oil, and, thus, had accrued during the marriage.

Relying on LaBuda, the Superior Court reversed that part of the trial court’s Order that included the early retirement incentives in the marital estate. In LaBuda, the husband accepted a special early retirement incentive program after the parties had separated. The LaBuda Court held that the early retirement incentive had not accrued during the marriage because, unlike basic pension benefits that the parties contemplated throughout the marriage, the parties did not anticipate the incentive plan during the marriage because it 'was offered unexpectedly by the employer after separation.

Following Berrington v. Berrington, 534 Pa. 393, 633 A.2d 589 (1993), I disagree that the unanticipated nature of the early retirement inducement is dispositive where, as here, the increased benefits are part of the participant spouse’s retirement package based on years of service during the marriage and are not the product of any post-separation efforts or contributions of the participant spouse.

In Berrington, which involved deferred distribution, this Court held that post-separation increases in retirement benefits payable to the participant spouse that are not attributable to the post-separation efforts or contributions of the participant spouse may be shared by the non-participant spouse based on his or her proportionate share of the marital estate.4 *403The Berrington rationale is designed to provide the nonparticipant spouse the benefit of favorable changes in the benefits payable owing to factors not attributable to the participant spouse’s post-separation efforts or contributions between the date of separation and the date the non-participant spouse begins receiving his or her portion of the pension benefits. Nothing in Berrington limits application of this rationale to cases involving deferred distribution. To the contrary, where, as here, equitable distribution does not occur until fifteen years after separation, application of the Berrington rationale properly avoids awarding the non-participant spouse non-marital property and allows him or her to receive a marital share increased in value proportionate to the increase in value the participant spouse enjoys through factors not attributable to that spouse’s post-separation efforts or contributions.

For these reasons, I join the majority’s determination that the retirement bonus, the continuation pay and part of the ORBIT annuity, reduced by the coverture fraction, are to be included in the marital estate.

. The Divorce Code provides that the court may grant a divorce where, among other fault-based considerations, a spouse has "[o]ffered such indignities to the innocent and injured spouse as to render that spouse’s condition intolerable and life burdensome.” 23 Pa.C.S. § 3301(a)(6).

. Pursuant to the Divorce Code:

[i]n an action for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such proportions and in such manner as the court deems just after considering all relevant factors, including:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and source of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective.
(11) Whether the party will be serving as the custodian of any dependant minor children.

23 Pa.C.S. § 3502(a). Neither party has contested the trial court’s equal division of the marital estate or the trial court's denial of alimony to either party.

. Under the immediate offset method of distribution, the marital assets are divided at the time of the equitable distribution order, based on their present value. Miller v. Miller, 395 Pa.Super. 255, 577 A.2d 205, allocatur denied, 525 Pa. 664, 583 A.2d 794 (1990). As our Superior Court has explained, where, as here, the parties possess sufficient assets to offset the award of the pension to one party, the immediate offset method has the advantage of effectuating a final and immediate settlement of the distribution of assets between the parties. Id. See also *402Berrington v. Berrington, 534 Pa. 393, 400 n. 7, 633 A.2d 589, 592 n. 7 (1993).

. In Berrington, this Court referred to Section 401(e) of the Divorce Code of April 2, 1980, which as substantially reenacted specifically provides:

General rule.—As used in this chapter, "marital property” means all property acquired by either party during the marriage, including the *403increase in value, prior to the date of separation, of any nonmarital property acquired pursuant to paragraphs (1) and (3), except:
* # 4s * sfc *
(4) Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.

23 Pa.C.S. § 3501(a)(4). Accordingly, we held in Berrington that the non-participant spouse may not be awarded any portion of the participant spouse’s retirement benefits that are based on post-separation salary increases, incentive awards or years of service.