J-S12015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ANN KRIS HANKEY                       :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 JAMES D. HANKEY, JR.                  :
                                       :
                   Appellant           :   No. 1643 MDA 2017

            Appeal from the Order Entered September 27, 2017
  In the Court of Common Pleas of Luzerne County Civil Division at No(s):
                              912 C of 2003


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                          FILED APRIL 09, 2018

     James D. Hankey, Jr., (Husband) appeals from the order, entered in the

Court of Common Pleas of Luzerne County, granting, in part, Ann Kris

Hankey’s (Wife) petition for special relief and directing Husband to pay Wife

$24,975.00, the amount of pension benefits to which the court determined

Wife was entitled. After our review, we affirm.

     The parties were married on December 31, 1992, and they divorced on

October 1, 2003. The divorce decree incorporated the parties’ property

settlement agreement (PSA). The PSA, dated September 25, 2003, provided

that Wife would receive sixty percent (60%) of the marital portion of

Husband’s pension from the Pennsylvania State Employees’ Retirement
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System (SERS).         The PSA stated that Wife’s counsel “will prepare the

appropriate Qualified Domestic Relations Order [QDRO].”1

        Husband retired from the Pennsylvania State Police on October 25,

2014, and he began receiving SERS pension benefits beginning in November

2014.     The parties, however, did not reach an agreement regarding an

appropriate QDRO until 27 months later, on December 29, 2016, at which

time a stipulated order was entered. That order was subsequently approved

by SERS and, in February 2017, Wife began receiving her benefits.2


____________________________________________


1 A QDRO is an order “which creates or recognizes the rights of an alternate
payee to receive all or a portion of the benefits payable to a participant under
the plan. To be `qualified,’ the order must contain certain required information
and may not alter the amount or form of plan benefits.” Smith v. Smith, 938
A.2d 246, 248 (Pa. 2009) (citation omitted). The actual qualifying of the
domestic relations order is done by the employer's pension administrator. Id.

2   The QDRO provides, in relevant part:

        8. . . . The equitable distribution portion of the marital property
        component of Member’s [Husband’s] retirement benefit, as set
        forth in Paragraph Seven (7), shall be payable to Alternate Payee
        [Wife] and shall commence as soon as administratively feasible
        and SERS approves a Domestic Relations Order incorporating this
        Stipulation and Agreement, whichever is later.

                                               ****

        10. . . . Alternate Payee’s share of Member’s retirement benefit
        shall be deducted from member’s annuity payments by SERS and
        paid to the Alternate Payee pursuant to the provisions of this
        Stipulation and Agreement, beginning with the first full annuity
        payroll cycle after SERS’ approval of this Stipulation and
        Agreement as a Domestic Relations Order.



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       With respect to the payments to which Wife was entitled from the date

of Husband’s retirement until February 2017, the parties were advised that

SERS rules did not allow for retroactive payments. Consequently, Wife filed a

petition for special relief on April 27, 2017. Following oral argument on the

petition, the court granted Wife relief. The parties had stipulated that the

marital portion of Husband’s SERS pension was valued at $1,542.00 per

month, and that since Wife was awarded 60%, she was entitled to $925.00

per month.3 This is the amount Wife received following approval and entry of

the QDRO. The trial court determined that Wife was entitled to this amount

from the date of Husband’s retirement, November 2014, until the date Wife

began receiving the payments directly from SERS, in February 2017. Thus,

the court awarded Wife $925.00 for 27 months, which amounted to

$24,975.00.

       Husband appealed. Essentially, Husband argues that Wife’s right to

payments commenced after entry of the QDRO, and not, as the trial court

found, as of November 2014, when Husband began receiving his retirement

benefits.   He raises two issues for our review:


____________________________________________


QDRO, 12/30/16. We note the one-day discrepancy in the filing date of the
QDRO. The document is date-stamped on 12/30/16. See Stipulation and
Agreement for Entry of Domestic Relations Order, 12/30/16. The court and
counsel, state that the QDRO was filed on 12/29/16. See N.T., supra at 2,
11, 12, and 16.

3 We note that the May 24, 2016 QDRO indicates Wife’s marital share is
$925.20 per month.

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         1. Did the trial court commit an abuse of discretion and err as
            a matter of law when it granted Wife’s petition for special
            relief, which violated a QDRO and, after the petition was
            filed in excess of one hundred (100) days after the QDRO
            was entered without a showing of extrinsic fraud, lack of
            jurisdiction over the subject matter, a fatal defect apparent
            on the face of the record or some other evidence of
            extraordinary cause justifying intervention by the court?

         2. Did the trial court commit an abuse of discretion and err as
            a matter of law by granting Wife’s petition for special relief
            when Wife, not Husband, breached the PSA by taking
            thirteen (13) years to file an acceptable QDRO after the
            parties had been divorced, and the court granted additional
            benefits to Wife after Wife was being paid in accordance with
            both the PSA and the QDRO?

Appellant’s Brief, at 4-5.

      On appeal from an order interpreting a marital settlement agreement,

we must decide whether the trial court committed an error of law or abused

its discretion. Tuthill v. Tuthill, 763 A.2d 417, 419 (Pa. Super. 2000) (en

banc).

      Because contract interpretation is a question of law, this Court is
      not bound by the trial court’s interpretation. Our standard of
      review over questions of law is de novo and to the extent
      necessary, the scope of our review is plenary as the appellate
      court may review the entire record in making its decision.
      However, we are bound by the trial court’s credibility
      determinations . . . . On appeal from an order interpreting a
      marital settlement agreement, we must decide whether the trial
      court committed an error of law or abused its discretion.

Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super. 2007) (citations

omitted). Established Pennsylvania law states:

      When interpreting the language of a contract, the intention of the
      parties is a paramount consideration. In determining the intent
      of the parties to a written agreement, the court looks to what they

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      have clearly expressed, for the law does not assume that the
      language was chosen carelessly. When interpreting agreements
      containing clear and unambiguous terms, we need only examine
      the writing itself to give effect to the parties’ intent.

Melton v. Melton, 831 A.2d 646, 653–54 (Pa. Super. 2003) (internal

citations omitted).

      The PSA provides, in relevant part:

      7. RETIREMENT ACCOUNTS

      Husband began his employment with the Pennsylvania State
      Police on January 22, 1990; the parties were married on
      December 31, 1992 and separated on January 7, 2001.
      Therefore, Wife shall get sixty (60) percent of the marital
      portion of husband’s retirement benefit from the
      Commonwealth of Pennsylvania. Wife’s counsel will prepare
      the appropriate Qualified Domestic Relations Order.

Property Settlement Agreement, 9/25/03, at 3 (emphasis added).

      Husband first claims the trial court “did not have jurisdiction to rescind

and/or modify the [QDRO] of December 29, 2016, [and] did not have

jurisdiction to make an award to [Wife] under 42 Pa.C.S.A. § 5505[.]”

Appellant’s Brief, at 5-6. He claims that since Wife’s petition for special relief

was filed beyond 30 days after the QDRO was filed, and since Wife has not

established extrinsic fraud, lack of jurisdiction over the subject matter, a fatal

defect apparent on the face of the record, or other evidence of extraordinary

cause justifying intervention, the court had no authority to modify the order.

      We agree with the trial court that section 5505 is not applicable here.

The trial court did not modify or rescind the QDRO. The court granted Wife




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relief pursuant to its broad enforcement powers set forth in section 3015 of

the Divorce Code.

      Section 3105(a) states that parties to an agreement regarding matters

within the jurisdiction of the court under the Divorce Code, 23 Pa.C.S.A. §

3101 et seq., whether or not the agreement has been merged or incorporated

into the decree, may use a remedy or sanction set forth in the Divorce Code

to enforce the agreement to the same extent as though the agreement had

been an order of the court, unless otherwise agreed. Id. at § 3105(a).     See

Annechino v. Joire, 946 A.2d 121, 123 (Pa. Super. 2008). See also 23

Pa.C.S.A. § 3101 (stating legislature’s intent and objectives include

effectuating economic justice between parties and insuring fair and just

settlement of parties’ property rights).

      Further, section 3323(f) of the Domestic Relations Code provides:

      (f) Equity power and jurisdiction of the court.--In all
      matrimonial causes, the court shall have full equity power and
      jurisdiction and may issue injunctions or other orders which are
      necessary to protect the interests of the parties or to effectuate
      the purposes of this part and may grant such other relief or
      remedy as equity and justice require against either party or
      against any third person over whom the court has jurisdiction and
      who is involved in or concerned with the disposition of the cause.

23 Pa.C.S.A. § 3323(f). See 23 Pa.C.S.A. § 3502(e) (“If, at any time, a party

has failed to comply with an order of equitable distribution, as provided for in

this chapter or with the terms of an agreement as entered into between the

parties, after hearing, the court may, in addition to any other remedy available

under this part, in order to effect compliance with its order: 1) enter

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judgment[.]”) (emphasis added).      See also Romeo v. Romeo, 611 A.2d

1325, 1328 (Pa. Super. 1992) (petitions for special relief not limited to period

when action is pending; after final disposition of all matters in divorce action,

party may need assistance of court in enforcing some portion of order);

Pa.R.C.P. 1920.1 et seq. (rules of court governing actions in divorce or

annulment of marriage); Pa.R.C.P. 1920.43 (petitions for special relief).

      Here, while we do not ignore Wife's failure to take more prompt and

effective action to secure her marital interest in the pension, both parties

intimated at the hearing that the parties’ prior counsel may have contributed

to the delay.   We note, too, that the trial court acknowledged on several

occasions that the parties had gone back and forth for some time before

reaching an agreement, and that the parties’ present counsel had handled the

case in an exemplary manner. Further, the parties recognized that there had

been administrative delay as a result of an incorrect social security number.

In any event, the trial court here determined that the PSA, not the QDRO,

controlled.   We agree.

      The PSA plainly states that Wife is entitled to 60% of Husband’s

retirement benefit.    Husband began receiving his retirement benefit in

November 2014, and, therefore, Wife was entitled to her marital beginning on

that date. It was not until the QDRO was ultimately approved and Wife began

receiving her payments, in February 2017, that Wife realized she was not

receiving the full benefit to which she was entitled, that is, 60% of Husband’s

retirement benefit as of his date of retirement.   We agree with the trial court

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that the absence or delay in the entry of a QDRO does not negate Husband’s

responsibility under the parties’ agreement, and that the court had the

authority to enforce the parties’ agreement. Wife’s right to her marital share

of the pension existed prior to entry and approval of the QDRO. See Prol v.

Prol, 935 A.2d 547, 556 n.2 (Pa. Super. 2007). The QDRO recognized that

right; it did not create it.   Smith, supra.    We find no error or abuse of

discretion. Tuthill, supra.

      Husband also argues the trial court abused its discretion in failing to

consider that Wife breached the PSA by waiting thirteen years to obtain a

QDRO, when the PSA specifically states that it is Wife’s counsel’s duty to obtain

the QDRO. In the alternative Husband argues the PSA was ambiguous and,

therefore, the court should have considered extrinsic evidence, namely, the

QDRO.

      We note that the trial court specifically stated in its Pa.R.A.P. 1925(a)

opinion that Husband should not be rewarded because of the negligence of

Wife or her prior attorney. See Trial Court Opinion, 11/30/17, at 15.        We

agree. There is no support for Husband’s contention that Wife’s share would

not become effective until after administrative approval of a QDRO by SERS.

That determination is separate from the agreement the parties reached.

Husband’s argument that Wife should forfeit part of her equitable distribution

award under these circumstances is contrary to the goal of effectuating

economic justice.




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      Moreover, we find meritless Husband’s argument that the PSA was

ambiguous. The PSA clearly states that Wife is entitled to 60% of Husband’s

retirement benefit.    There is nothing in the parties’ agreement that would

indicate Wife would receive payments only after a QDRO was approved by

SERS or that Wife would forfeit payments as a result of delay in the entry and

approval of a QDRO. Where, as here, the words of the contract are clear and

unambiguous, the parties’ intent is ascertained from the express language of

the agreement. Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004).

Husband has failed to establish that the trial court erred or abused its

discretion. Tuthill, supra. Accordingly, we affirm the trial court’s order

granting Wife’s petition for special relief.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/09/18




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