J-A01037-17


                              2017 PA Super 190
                                        :
LEO JACKSON, JR.,                       :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  Appellee              :
           v.                           :
                                        :
NADINE JACKSON,                         :
                                        :
                  Appellant             :    No. 942 WDA 2016

                        Appeal from the Order June 1, 2016
                in the Court of Common Pleas of Allegheny County
                    Family Division at No(s): FD 87-007382-006

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                          FILED JUNE 16, 2017

      Nadine Jackson (Wife) appeals from the order dated June 1, 2016,

which made final the court’s May 3, 2016 order holding that Wife had waived

any claim for equitable distribution. For the reasons that follow, we vacate

the trial court’s order and remand for proceedings consistent with this

opinion.

      The trial court set forth the relevant factual and procedural history as

follows.

            Wife and [Leo Jackson, Jr.] (Husband) were married on
      April 23, 1988.    On November 12, 1999, Husband filed a
      Complaint for Divorce with a claim for equitable distribution of
      property. Wife did not file an Answer or Counterclaim to the
      Divorce Complaint. On August 27, 2001, Wife filed a Counter-
      Affidavit under Section 3301(d) of the Divorce Code, checking
      the box stating that she wished to claim economic relief. On
      August 30, 2001, Husband filed a Notice of Intention to Request
      Entry of 3301(d) Divorce Decree. The Notice provides that
      “unless you have already filed with the court a written claim for
      economic relief, you must do so by the above date or the court


* Retired Senior Judge assigned to the Superior Court.
J-A01037-17


     may grant the divorce and you will lose forever the right to ask
     for economic relief. The filing of the form counter-affidavit alone
     does not protect your economic claims.” Wife never filed a
     written claim for economic relief. On September 20, 2001,
     Husband filed a Praecipe to Transmit Record in which he
     indicated that equitable distribution was a pending, related
     claim.   On October 16, 2001, the [trial court] entered a
     bifurcated divorce decree, retaining jurisdiction of “any claims
     raised by the parties to this action for which a final order has not
     yet been entered.”

            Neither party filed an inventory nor were [any] equitable
     distribution proceedings initiated. Fourteen years later, Husband
     retired and Wife sought her marital share of his pension. On
     April 8, 2015, Wife filed an inventory and asked the [trial court]
     to require Husband to do the same. On May 28, 2015, Wife filed
     a Motion for Special Relief, seeking to freeze Husband’s
     retirement assets. Husband objected on the basis that Wife’s
     claim was waived. There were no factual issues in dispute and
     the [trial court] directed the parties to submit the issue on
     briefs.

           Following a review of the record, the brief[s] of the parties,
     and applicable Pennsylvania law, the [trial court] found that Wife
     waived her claim for equitable distribution to Husband’s pension.
     Wife filed a Motion for Reconsideration which was granted. By
     Order dated June 1, 2016, the [trial court] vacated its order
     granting [re]consideration and entered the [May 3, 2016] order
     as final.

          Wife timely appealed, and, in response to an Order issued
     pursuant to [Pa.R.A.P.] 1925(b), filed a Concise Statement of
     Matters Complained of on Appeal[.]

Trial Court Opinion, 9/9/2016, at 2-3.

     On appeal, Wife presents the following issues for our consideration,

which we have reordered for ease of disposition.

     1. Whether the [trial court] erred in vacating its order granting
        Wife’s motion for reconsideration and making final its order
        dated May 3, 2016 where its opinion concluded Wife’s pursuit
        of equitable distribution was barred by laches?


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J-A01037-17



      2. Whether despite the record revealing that Wife had filed for
         economic relief, [did the trial court err] in determining that
         she had not and therefore waived any claim for equitable
         distribution rather than recognize that the intent of the
         parties controlled when the bifurcated divorce decree as a
         matter of law preserved equitable distribution when the [trial
         court] retained jurisdiction over it which meant said economic
         issues survived the decree which was on its face [] absent of
         any fraud or defect requiring it be opened or vacated?

Wife’s Brief at 2 (unnecessary capitalization and suggested answers

omitted).

      “Ordinarily, this Court reviews an order granting special relief for an

abuse of discretion.    However, where, as here, an appeal presents a

question of law, our standard of review is de novo and our scope of review

plenary.”   Raines v. Raines, 149 A.3d 375, 378 (Pa. Super. 2016)

(citations omitted).

      Wife first contends the trial court erred in finding her pursuit of

equitable distribution was barred by the doctrine of laches. A review of the

record reveals that Wife’s issue stems from the trial court’s 1925(a) opinion,

wherein the court stated it was unaware of any precedent which “permits a

party who waived her right to equitable distribution to force adjudication of

the opposing party’s claim to his detriment a decade later.”      Trial Court

Opinion, 9/9/2016, at 5. Wife is attacking a straw man. We fail to see how

the trial court’s passing remark in its 1925 opinion can be construed as a

finding that Wife is barred from raising her claim under the doctrine of

laches. Further, neither the June 1, 2016 order nor the May 3, 2016 order


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J-A01037-17


contains any reference to such a finding.1     Rather, the trial court’s May 3

order focuses on the fact that Wife had failed to file for economic claims, and

thus she waived her claims.

      We now turn to Wife’s remaining issue on appeal, namely, whether the

trial court erred in holding Wife waived her claims for equitable distribution.

Wife asserts that she is entitled to pursue economic claims against Husband

by virtue of the fact that: (1) Husband filed a divorce action raising a claim

for equitable distribution; (2) Wife filed a counter-affidavit prior to the entry

of the decree checking the box indicating that she wished to claim economic

relief; and (3) the parties entered into a bifurcated divorce, wherein the trial

court retained jurisdiction over claims raised by the parties for which a final

order had yet to be entered. Wife’s Brief at 8-22. Wife further argues that

the trial court incorrectly found that her only remedy to pursue economic

claims was to file a petition to open or vacate the divorce decree. Id. at 19.

Wife argues that she has never attempted to open or vacate the decree, and

her filings sought only to distribute equitably the sole marital asset of the

parties, Husband’s pension. “This request was predicated upon the fact that

the economic claims of the parties survived the divorce through their




1
  There is no discussion of any prejudice to Husband. Prejudice is a
prerequisite for laches. See Sprague v. Casey, 550 A.2d 184, 187 (Pa.
1988) (“[I]n order to prevail on an assertion of laches, [a respondent] must
establish: a) a delay arising from petitioner’s failure to exercise due
diligence; and, b) prejudice to the respondents resulting from the delay.”).



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J-A01037-17


bifurcated decree[.]” Id. For this reason, Wife argues, a petition to open or

vacate a decree was unnecessary. Id.

     The trial court offered the following response to Wife’s arguments:

            Wife did not file a counterclaim or a separate petition
     raising claims. The parties did not file inventories or conduct
     discovery in contemplation of equitable distribution. Wife did not
     petition the [trial court] to appoint a master less than [thirty]
     days after entry of the divorce decree. Wife did not file a
     petition to vacate or open the divorce within thirty days. Wife
     does not offer any explanation for her failure to follow the rules
     of civil procedure, or for the passage of fourteen years before
     she petitioned the court. Wife argues that it was Husband’s
     choice to bifurcate the divorce and have the [trial court]
     separately adjudicate his claim for equitable distribution.
     Pa.R.C.P. 1920.52(d) states that “in all cases the court shall
     enter a decree separately adjudicating each claim raised.” Wife
     contends that the marital property, in this case Husband’s
     pension, remains in custodia legis because Husband elected not
     to amend the divorce complaint to withdraw the claim for
     equitable distribution. He is not prejudiced by the passage of
     time because he was aware that his claim was still pending.

           Wife contends it was not necessary for her to file a Petition
     to Open/Strike the Divorce Decree within thirty days because
     she is not seeking to set aside the decree. The decree left open
     the issue of economic relief. According to Wife, she is entitled to
     proceed with a claim timely raised and preserved, over which
     this [trial court] retained jurisdiction following divorce and for
     which there has been no order adjudicating the claim. …

            Pennsylvania Rules of Civil Procedure require that explicit
     language appear in the Notice of Intention to Request Entry of
     3301(d) Divorce Decree and the Affidavit under 3301(d) advising
     the parties that they must preserve economic claims by formally
     filing them with the court prior to entry of a divorce decree or
     they will forever lose those claims. Pa.R.C.P. 1920.72, 1920.73.
     The [trial court] retained jurisdiction over claims raised by the
     parties for which no final order has been entered. Wife raised no
     economic claims. There is no precedent of which the [trial court]
     is aware that permits a party who waived her right to equitable



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J-A01037-17


      distribution to force adjudication of the opposing party’s claim to
      his detriment a decade later.

            For the foregoing reasons, the [trial court] determined that
      Wife waived a claim for equitable relief.

Trial Court Opinion, 9/9/2016, at 4-6.

      We disagree with the trial court’s conclusions.         First, the plain

language of the applicable statute requires the opposite result.    “Upon the

request of either party in an action for divorce or annulment, the court

shall equitably divide, distribute or assign, in kind or otherwise, the marital

property between the parties without regard to marital misconduct in such

percentages and in such manner as the court deems just after considering

all relevant factors.”   23 Pa.C.S. § 3502 (emphasis added).       The statute

clearly states that equitable distribution may be invoked by the request of

either spouse. Thus, Husband’s claim, which was never withdrawn, was still

pending disposition when Wife filed her inventory seeking a share of

Husband’s pension.

      Furthermore, Pa.R.C.P 1920.17(b)2 sets forth the procedure in which a

party may withdraw a claim for equitable distribution.       A claim may be

withdrawn only “by written consent of both parties filed with the court, or []

after filing and serving on the other party a written notice that the party

2
  We are cognizant that this rule was adopted during the pendency of this
case. Nevertheless, it is well-settled that “[u]nless the Supreme Court
specifies otherwise, a rule or an amendment to a rule shall apply to actions
pending on the effective date.” Pa.R.C.P. No. 52(c).




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J-A01037-17


intends to withdraw the claim of equitable distribution 20 days after service

of the notice.” It so follows that a claim filed by one party may be relied

upon by the other during the pendency of proceedings, and it is only when

both parties agree or the non-filing party is giving the opportunity to file his

or her own, may a claim be withdrawn.

      Second, this Court is unaware of any precedent which mandates that

both parties must file, by petition or counterclaim, a request for equitable

distribution, in order to preserve a claim for equitable distribution. Rather

case law suggests that an equitable distribution claim made by one party to

a divorce is sufficient. See, e.g., Gee v. Gee, 460 A.2d 358, 360 n.2 (Pa.

1983) (“Appellee’s petition for equitable distribution of property required the

court to equitably dispose of all the rights and interests of the parties in all

of the marital property.”) (emphasis in original).

      Third, appellate decisions in cases involving different but analogous

situations also support our rejection of the trial court’s determination. See

Brickus v. Dent, 5 A.3d 1281, 1288 (Pa. Super. 2010) (finding that even

though Father had initiated the action by filing a petition for modification

seeking to decrease his monthly payments, “the hearing officer had the

authority to increase Father’s support obligation in accordance with the

amended state support guidelines, even in the absence of a cross petition by

Mother.”).   See also Shoup v. Shoup, 364 A.2d 1319, 1322, n.5 (Pa.

1976) (“Once one of the parties has moved for judgment on the pleadings,



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J-A01037-17


the court may enter judgment in favor of either the plaintiff or the

defendant.”).

      Similarly, if any party to a civil action timely requests a jury trial, the

right is preserved as to all parties; each party need not separately make the

demand. See Pa.R.C.P. 1007.1 (a), (c)(1) (“In any action in which the right

to jury trial exists, that right shall be deemed waived unless a party files and

serves a written demand for a jury trial not later than twenty days after

service of the last permissible pleading. …     A demand for trial by jury may

not be withdrawn without the consent of all parties who have appeared in

the action.”) (emphasis added).

      For the foregoing reasons, we hold that the trial court erred in finding

Wife waived her claim for equitable distribution. As such, upon remand, the

trial court shall allow the parties to proceed through the equitable

distribution process.

      Order vacated.    Case remanded for proceedings consistent with this

opinion. Jurisdiction Relinquished.

      Judge Olson joins.

      Judge Bowes files a concurring opinion.




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J-A01037-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2017




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