J-A16037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ARTHUR L. IVES,                              :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
                     Appellant               :
                                             :
              v.                             :
                                             :
KATHRYN E. IVES,                             :
                                             :
                     Appellee                :           No. 1929 WDA 2012

              Appeal from the Decree entered on November 5, 2012
                in the Court of Common Pleas of Warren County,
                        Civil Division, No. A.D. 355 of 2010

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED AUGUST 11, 2014

                                                       Decree in Divorce entered



We affirm the Decree.

        The trial court set forth the relevant procedural history in its Opinion,

which we incorporate herein by reference. See Trial Court Opinion, 2/13/13,

at 2-3.1

        On appeal, Husband raises the following issues for our review:

        1. Did the [trial c]ourt err as a matter of law [by] attempting to
           cure the defect apparent on the docket by amending the
           divorce decree by its [O]rder of December 4, 2012[,] filed on
           December 4, 2012[,] at 4:06 p.m.[,] after a Notice of Appeal
           had been filed to the Superior Court on December 4, 2012 at
           3:33 p.m.[,] where there is no statutory authority for the
           [trial c]ourt to sua sponte



1
    Wife filed a separate appeal, which is not at issue herein.
J-A16037-14

         does not conform to the authority of the [t]rial [c]ourt after
         appeal[,] as provided by Pa.R.A.P. 1701(b)(1)(2)?

      2. Did the [trial c]ourt err as a matter of law [by] ruling on

         Recommended Order in equitable distribution prior to the
         time that a divorce had been granted to the parties?

      3. Did the [trial c]ourt err as a matter of law [by] granting the
         divorce [Decree] after equitable distribution had been
         confirmed where the [t]rial [c]ourt did not hold a hearing in
         [c]onformity with 23 Pa.C.S.A. § 3323(b) and where there
         was no stipulation for bifurcation[,] nor bifurcation granted[,]
         by the [trial] court after hearing pursuant to 23 Pa.C.S.A.
         § 3323(c.1)?

      4. Did the [trial c]ourt err as a matter of law [by] equitably


Brief for Husband at 5 (issues renumbered for ease of disposition).

      In his first issue, Husband contends that, after he filed his Notice of

Appeal, the trial court was divested of authority to amend the November 5,

2012 Decree in Divorce to incorporate its October 1, 2012 Opinion and Order



distribution report.2 Id. at 22.

      Pennsylvania Rule       of Appellate   Procedure   1701(a) provides, in

pertinent part, as follows:

      Except as otherwise prescribed by these rules, after an appeal is
      taken . . ., the trial court . . . may no longer proceed further in
      the matter.




2

not filed until October 1, 2012.


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J-A16037-14

Pa.R.A.P. 1701(a); see also Prall v. Prall, 698 A.2d 1338, 1340 (Pa.

Super. 1997) (holding that the trial court was divested of its jurisdiction

after wife filed an appeal, and lacked the authority to issue an order

                                                      ; see also 42 Pa.C.S.A.

§ 5505 (stating that a trial court may modify or rescind any order within 30

days if no appeal from such order has been taken or allowed).

      However, Rule 1701(b) provides certain exceptions to the general

prohibition, and permits the trial court to take certain actions after an appeal

has been filed. Pursuant to Rule 1701(b)(1), the trial court is permitted to,



while an appeal of the matter is pending. Pa.R.A.P. 1701(b)(1).

      Here, we believe that the trial court entered the December 4, 2012

Findings and Decree in Divorce in an effort to formally correct its November

5, 2012 Decree in Divorce, which inadvertently failed to incorporate its

                                                                   ptions to the
                                                           3
                                                               Because the trial

court did not make a substantive modification of either the November 5,

2012 Decree in Divorce or the October 1, 2012 Opinion and Order, the trial


3
  Pursuant to                                                             shall
include . . . an order determining and disposing of existing property rights
and interests between the parties ....
                                                   October 1, 2012 Opinion and
Order
equitable distribution report. Thus, it failed to conform to Section 3323(b).



                                  -3-
J-A16037-14

              of its December 4, 2012 Findings and Decree in Divorce was a

permissible correction under Rule 1701(b)(1).4     See Pa.R.A.P 1701(b)(1);

see also Hoag v. Hoag, 646 A.2d 578, 580 n.2 (Pa. Super 1994) (holding

                                                    order, after an appeal had

been filed, to clarify and correct its prior support order, conformed with Rule

1701(b)(1) because it was not a substantive modification of the prior

support order); Sell v. Sell, 714 A.2d 1057, 1063 (Pa. Super. 1998)

(holding th

counsel fees to mother, after an appeal of the prior support order had been

filed, was permitted by Rule 1701(b)(1) because the award of counsel fees

was already of record, but had been inadvertently omitted from the prior

order).




second and third issues are moot.

      In his final issue, Husband contends that the trial court erred by

equitably dividing his early retirement pension because it was recomputed as


4

                                                                   er 5, 2012
Decree in Divorce was not permissible under Rule 1701(b)(1). See Manack
v. Sandlin, 812 A.2d 676, 682 (Pa. Super. 2002) (holding that the trial
        order denying a motion to vacate the default judgment, entered after
an appeal of the default judgment had been filed, was null and void because
it did not constitute a corrective order). Thus, this aspect of the December
4, 2012 Findings and Decree is null and void. See id.



                                  -4-
J-A16037-14

a disability pension based on an award of Social Security Disability. 5 Brief

for Husband at 11.        Husband concedes that he mischaracterized the

character of his pension during the initial equitable distribution hearing, but

asserts that the trial court failed to consider the exhibits entered into

evidence by the parties which, he contends, clearly establish that his pension

is now a disability pension. Id. at 11-12. Husband acknowledges that his

monthly early retirement pension payments were marital property, but

claims that, because his early retirement pension was converted to a

disability pension, it is no longer a marital assert subject to distribution. Id.

at 12.



distribution order absent an abuse of discretion or error of law that is

demonstrated by clear and convincing evidence. See Taper v. Taper, 939

A.2d 969, 973 (Pa. Super. 2007).

         Our Supreme Court has held that disability payments are not, per se,

excluded from the definition of marital property for equitable distribution


5
  The parties were separated on November 26, 2009. Husband, a member
of the Boilermakers Union, took an early retirement (at age 55) effective
May 2, 2010, and began receiving early retirement pension payments in the
amount of $2,192.67 per month. In May 2011, Husband was awarded
Social Security Disability benefits, to be paid monthly in the amount of
$1,851, retroactive to September 1, 2010. In June 2011, Husband elected
to convert his early retirement pension to a disability pension. Based on the

recomputed, and increased        to   $3,052.54   per   month,   retroactive   to
September 1, 2010.



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J-A16037-14

purposes. Drake v. Drake, 725 A.2d 717, 724 (Pa. 1999).6 As the Drake

Court explained, the Divorce Code presumes that all benefits that accrued

during the marriage are marital property, and makes no exclusion for any

                                                                      Id. at

722-24 (holding that a lump sum

benefits was marital property because the right to receive that payment

accrued prior to separation); see also 23 Pa.C.S.A. § 3501(a)(6), (8).

Accordingly, the Drake                                                     a

                                                                         725

A.2d at 724. Further, the Drake Court ruled that, under the Divorce Code,

an award, including a disability award, is marital property if the right to

receive the award accrued during the marriage.     Id. at 725-26; see also

Focht v. Focht, 32 A.3d 668, 674 (Pa. 2011) (holding that settlement

monies received by husband, post-separation from wife, in his personal

injury tort action, were marital property because his cause of action accrued

prior to separation).

      However, in Yuhas v. Yuhas, 79 A.3d 700, 705 (Pa. Super. 2013),

this Court distinguished Drake and Focht on the basis that those decisions


6
  In Drake
prior decisions in which we have held that a pure disability benefit will
qualify as a martial asset subject to equitable distribution only when it
cannot be separated from other proceeds that form part of the marital
estate. See, e.g., Ciliberti v. Ciliberti, 542 A.2d 580, 582 (Pa. Super.
1988).



                                 -6-
J-A16037-14

involved the accrual of a cause of action (i.e., the right to institute a suit for

damages) as opposed to the development of a disability. The Yuhas Court

                        both Drake and Focht involved lump sum payments,

not monthly payments that are contingent upon proof of continuing

              Yuhas, 79 A.3d at 706.        In contrast to Drake and Focht,

Yuhas involved monthly disability insurance payments received by husband

under a disability insurance policy following his development of carpal tunnel

syndrome, which left him unable to work as a surgeon. The Yuhas Court

determin

payments did not accrue during the marriage because his right to such

payments, if any, was conditioned on his ongoing submission of proof to the

insurance company of his continuing disab

corresponding action on that submission. 79 A.3d at 706. Thus, the Yuhas

Court ruled that the monthly disability payments received by husband post-

separation did not accrue during the marriage and, hence, were not marital

property. Id.

      Here,

to receive Social Security Disability.   See Boilermaker-Blacksmith National

Pension Trust Letter to Husband, 7/13/11.         However, Husband failed to

present evidence establishing the medical conditions that formed the basis




                                   -7-
J-A16037-14

for his Social Security Disability.7    See Trial Court Opinion, 10/1/11, at 2.

Thus, Husband failed to present evidence upon which the trial court could

                                          Social Security Disability award, or

whether the medical condition(s) underlying the award developed post-
                                                        8
separation. Id.                                             and failure to provide

the trial court with appropriate evidence, the record was devoid of evidence



his disability pension (which is contingent on his entitlement to Social

Security Disability) accrued during the marriage or accrues on an ongoing

basis subject to proof of disability.

      Based on our review of the record, we cannot say that the trial court

abused its discretion or committed an error of law in determining that

                                                                        sets forth


7
  Husband suggests that his Social Security Disability is based on his hives
condition. Brief for Husband at 11. Husband testified that, from 1999
forward, he has been treated for chronic hives, and that he takes medication
daily for his condition. See

hives-related disability began during the marriage, prior to separation.
However, Husband also testified that, after separation, he had surgeries on
both knees, was diagnosed with aseptic necrosis in both hips, had operations
on both legs, microscopic surgeries on both hips, and bulging discs in his
lower back. See Trial Court Opinion, 10/1/11, at 2.
8
  The court hearing officer found that Husband repeatedly lied during the
hearing in an attempt to intentionally mislead the hearing officer and Wife
                                        Social Security Disability and the
increased amount of his pension following its conversion to a disability

See                                         -47.


                                    -8-
J-A16037-14

the statutory presumption that all property acquired during the marriage is

marital unless it fits within one of the eight exceptions set forth in Section

3501(a). See 23 Pa.C.S.A. § 3501(b); see also Drake, 725 A.2d at 722.

In order to establish that his disability pension was his separate property

and not subject to equitable distribution, Husband was required to show that



3501(a)(1) through (a)(8). Drake, 725 A.2d at 723; see also 23 Pa.C.S.A.

§ 3501(b). Husband failed to meet his burden of proof. Thus, the trial court

did not err in following the dictates of Section 3501(b).

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2014




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