J-A01037-17



                                  2017 PA Super 190


LEO JACKSON, JR.                                  IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       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 Court at No(s): FD 87-007382-006


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

CONCURRING OPINION BY BOWES, J.:                       FILED JUNE 16, 2017

       I concur with the learned majority insofar as it concludes that the trial

court erred in precluding Nadine Jackson (“Wife”) from asserting her right to

the marital portion of the pension Leo Jackson (“Husband”) earned while he

was employed as a Pennsylvania State Trooper.1            Thus, I join in my

esteemed colleagues’ decision to remand the matter so the parties can

litigate the unresolved question concerning the equitable distribution of that

marital asset.



____________________________________________


1
 I also join the majority’s characterization of Wife’s laches argument and its
concomitant rejection of that assertion.



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



      I write separately to clarify an imprecision regarding whether Wife

waived her economic claims by failing to level them prior to the entry of the

divorce decree. To be clear, I believe Wife’s economic claims are, in fact,

waived.    However, since Husband’s request for equitable distribution

remained open when Wife filed the inventory listing only the pension’s

marital value, I agree with the majority that she can argue her entitlement

to that asset. Nevertheless, to the extent that the majority’s holding can be

read as a broad pronouncement that one party’s request for equitable

distribution preserves all remaining economic claims as to both parties, I am

constrained to disagree. As I outline infra, the essential component of this

case that allows Wife to assert her right to the pension benefits fifteen years

after the entry of the divorce decree is not the fact that Husband requested

equitable distribution but, rather, that Husband’s claim was never resolved.

      I briefly reiterate the relevant procedurally history.       Recall that

Husband requested equitable distribution in his divorce complaint, which

pleaded:

            Plaintiff and Defendant have acquired property during their
      marriage which is marital property within the meaning of the
      Divorce Code.

             WHEREFORE, Plaintiff prays this Court to equitably divide,
      distribute and assign the marital property of the parties.

Divorce Complaint, 11/12/99, at 2.




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       Wife responded with a counter affidavit wherein she noted her intent

to assert an unspecified economic claim.2 However, she neglected to file any

formal economic claims in a counterclaim or a separate pleading. Thus, the

only request for equitable distribution that was filed in this case, and the

only economic claim that was raised and preserved for the trial court’s

review, related to the entreaty Husband leveled in his divorce complaint.

       Thereafter, on September 20, 2001, Husband filed a praecipe to

transmit the record for the entry of a divorce decree. That form indicated

that the “Equitable distribution of property” was a pending related claim.

Praecipe to Transmit Record, 9/2/01.           The ensuing divorce decree entered

on October 16, 2001, bifurcated the termination of the bonds of matrimony

from the outstanding economic claims. Specifically, it provided, “The court

____________________________________________


2
  The counter affidavit that the majority references provides, in pertinent
part, as follows:

           (b) I wish to claim economic relief which may include
           alimony, division of property, lawyer’s fees or expenses
           or other important rights.

       I understand that in addition to checking (b) above, I must also
       file all of my economic claims with the Prothonotary in writing
       and serve them on the other party. If I fail to do so before the
       date set forth on the Notice of Intention to Request Divorce
       Decree, the divorce decree may be entered without further
       notice to me, and I shall be unable thereafter to file any
       economic claims.

Wife’s Counter-Affidavit, 8/27/01.



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retains jurisdiction of any claims raised by the parties to this action for which

a final order has not yet been entered.” Divorce Decree, 10/16/01.

      For the next fourteen years, the issue of equitable distribution

remained unresolved as Husband neglected to pursue the economic claim

that he asserted in his divorce complaint and preserved in the bifurcated

divorce decree.      On April 8, 2015, Wife effectively revived Husband’s

dormant request by filing an inventory of marital property that listed the

marital portion of Husband's pension and retirement benefits as the only

marital asset. See Inventory and Appraisement, 4/8/15, (unnumbered page

three)   (“Marital    Portion   of   Husband's     pension    and     retirement

benefits/savings/annuity from his employment with the Pennsylvania State

Police[.]). As Husband filed a timely request for equitable distribution in his

divorce complaint and that claim remained open when Wife filed her

inventory seeking the marital portion of his pension, I agree that she can

pursue her entitlement to that asset in equitable distribution.

      On the other hand, had Wife sought any forms of economic relief other

than the equitable distribution of marital property that Husband previously

requested, e.g., alimony, counsel fees, costs and expenses, those novel

claims undoubtedly would have been precluded. See Pa.R.A.P. 1920.31(c)

(“The failure to claim spousal support, alimony, alimony pendente lite or

counsel fees and expenses prior to the entry of a final decree of divorce or

annulment shall be deemed a waiver thereof unless the court expressly

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J-A01037-17



provides otherwise in its decree.”). To the extent that the majority’s holding

suggests that one party’s request for equitable distribution preserves all

remaining economic claims as to both parties, existing case law belies that

premise. In fact, we need look no further than our discussion in Melton v.

Melton, 831 A.2d 646, 651 (Pa.Super. 2003), a case that the trial court and

Husband both cite, albeit for a different principle.

       In Melton, the husband requested equitable distribution and counsel

fees, the wife neglected to file a counterclaim, and the trial court entered a

bifurcated divorce decree.        Thereafter, the wife filed a claim for alimony.

Husband moved to strike the alimony claim as untimely filed, which the trial

court denied.      Instead, the trial court permitted the wife to assert her

alimony claim nunc pro tunc and ultimately awarded her $1,808 a month.

       This Court reversed the trial court’s order permitting the untimely

claim for alimony and vacated the concomitant alimony award.               As a

predicate to our discussion that the trial court erred by allowing the wife to

assert an untimely alimony claim without opening or vacating the divorce

decree pursuant to 23 Pa.C.S. § 3332,3 we observed that the wife’s claim

____________________________________________


3
  As the trial court never resolved the economic claim that was excepted
from finality in the bifurcated divorce decree, Wife was not required to file a
petition to open or vacate the divorce decree pursuant to § 3332. Stated
another way, since equitable distribution was not addressed, there is no
issue as to finality that Wife must overcome. For the identical reason, Wife’s
claim does not implicate what effectively is the five-year statute of
(Footnote Continued Next Page)


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was waived because she failed to raise it in a counterclaim for alimony

pursuant to Pa.R.C.P. 1920.15. See id. at 651. Specifically we reasoned,

      [T]he divorce decree stated that “any existing spousal support
      order shall hereafter be deemed an order for alimony pendente
      lite if any economic claims remain pending”; and “the court
      retains jurisdiction of any claims raised by the parties to this
      action for which a final order has not yet been entered.” . . .
      Appellant raised a claim for equitable distribution, but Wife did
      not raise a counterclaim for alimony pursuant to Pa.R.C.P.
      1920.15. Thus, Appellant's claim for alimony is waived.

Id.

Hence, in contrast to the comprehensive scope of preservation that may be

drawn from the majority’s waiver analysis, our jurisprudence unequivocally

holds that certain economic claims, such as alimony, counsel fees, and

litigation expenses, are subject to waiver if they are not asserted prior to the

entry of the divorce decree.          At most, a request for equitable distribution

authorizes the trial court to divide the entire marital estate.        It does not

preserve any ancillary claims that were not specifically asserted.

      In sum, unlike my colleagues, I agree with the esteemed trial court’s

observation that Wife’s failure to assert an independent claim for equitable

distribution waived any economic claims that she attempts to assert at this

                       _______________________
(Footnote Continued)

limitations on motions to vacate a divorce decree. See 23 Pa.C.S. § 3332
(“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”).



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J-A01037-17



late juncture. Nevertheless, I recognize that the unique procedural posture

of this case permits Wife to assert a right to the marital portion of the

pension as a component of Husband’s unresolved request for equitable

distribution. Hence, I agree with the majority’s holding that the trial court

erred in rejecting Wife’s request to resolve the still open question regarding

the distribution of the only marital asset—Husband’s pension benefit.




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