J   -A24001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ERIN M. FETTERS                            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

                 v.


    CHRISTOPHER FETTERS

                      Appellant            :   No. 332 MDA 2018

                 Appeal from the Order Entered January 12, 2018
                  In the Court of Common Pleas of York County
                    Civil Division at No(s): 2013-FC-2259-15


BEFORE:     OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                               FILED JANUARY 07, 2019

        Christopher Fetters (Husband) appeals pro se from the order entered

January 12, 2018, in the Court of Common Pleas of York County,' directing

Husband to pay Erin M. Fetters (Wife) $115,000.00 from an American Funds2

IRA, "for attorney's fees, interest, et cetera, as   a   total payment from that

account." Order, 1/12/2018 at 2. Based upon the following, we affirm in part,

reverse in part, limited to the amount of the interest and attorney's fees

award, and remand.

        The parties are well acquainted with the history of this case, and

therefore we discuss only the facts pertinent to the order under appeal.


1   The parties' divorce decree was entered on July 11, 2017.

2  In the parties' settlement agreement, the American Funds accounts are
referred to as "Amerifund" accounts. See N.T., 6/26/2017. See also N.T.,
1/3/2018, at 11 (Husband explaining, "For the record, it was American Funds.
It was misquoted in the document in the equitable distribution.").
J   -A24001-18



        On June 26, 2017, the parties placed a           settlement agreement on the

record before the Divorce Master, and entered        a   Stipulation that stated in part,

the agreement "resolved all claims and issues associated with the divorce,"

that the agreement "may be entered as an Order of Court and may be

incorporated into but shall not be merged with the Divorce Decree," that the

agreement "is      a   contractual agreement," and that it "is effective and

enforceable immediately, except as otherwise expressly stated in the

agreement." Stipulation, 6/27/2017,      1111   1, 4, 5 and 6.

        The settlement agreement that was placed on the record, states, in

relevant part:

              The ABBOT [sic] annuity retirement valued at $109,270,
        husband will receive $81,006 and wife will receive $28,264 of the
        marital value.

              In essence, any QDRO [qualified domestic relations order3]
        necessary to effectuate the intent of this distribution will be signed
        by both parties, and wife will receive the $28,264 in value. Any
        remaining balance in that annuity will be received by husband.

              As it relates to the ABBOTT Laboratory stock      retirement
        plan, it is valued at $137,998. Wife will receive $110,998 in value
        and the remaining value in the ABBOTT Laboratory stock
        retirement plan will remain with husband.


3 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 n.3 (Pa. 2007). The actual qualifying of the domestic relations
order is done by the employer's pension administrator. Id.




                                        -2
J   -A24001-18



             The Amerifund [sic] IRA valued at $1,243 will be transferred
        to QRDO to wife.

              The Amerifund [sic] IRA valued at $90 will be transferred to
        wife as well.

                  All retirement plans shall be transferred via QDRO or any
        necessary transfer according to the administrators of the plans.

N.T., 6/26/2017, at 4.
        On December 28, 2017, Wife filed a motion to compel Husband to

execute      a   QDRO.4 The matter came before the motions court on January 3,

2018.     At that proceeding, Husband appeared pro se and informed the court

he had combined three accounts referenced in the        settlement agreement    -
$110,098.00 (Abbott Laboratory stock retirement plan), $1,243.00 (American

Funds IRA), and $90.00 (American Fund IRA)           - into one American Funds
account to enable transfer to Wife without another QDRO.         Specifically, the

amount of $112,331.00 owed to Wife from the various accounts was held in




4   The motion stated, in part:

        On   or about June 26, 2017, the parties participated in a
        Settlement Conference to which they came to an Agreement. The
        transcript on record states, "[I]n essence, any QDRO necessary to
        effectuate the intent of this distribution will be signed by both
        parties, and wife will receive $28,264 in value .... Barring any
        unforeseen circumstance, do you agree that the signing of any
        documentation effectuating QDRO's within 30 days of their
        receipt." Husband stated, "I agree." A true and correct copy of
        the Transcript is attached hereto as "Exhibit B."

Motion to Compel Defendant to Execute Qualified Domestic Relation Order,
12/28/2017, at 114.
                                         -3
J   -A24001-18


one American Funds IRA account that also included "a couple thousand more"

of Husband's money. See N.T., 1/3/2018, at 16. Husband further indicated

he had no dispute with the QDRO    that was referenced   in   the motion to compel,

relating to the Abbott annuity retirement ($28,264.00), and he would sign it.

        The trial court determined that Husband had failed to comply with the

settlement agreement by unilaterally moving the funds and obviating the need

for the other QDRO that had been prepared pursuant to the settlement

agreement. The trial court ordered Husband to pay Wife $115,000.00 from

the American Funds IRA account. Thus, Wife received the amount due under

the settlement agreement, $112,331.00, and           a   combined interest and

attorney's fees award of $2,669.00. The trial court also ordered Husband to

pay the actuary costs for the QDROs.

        The trial court placed the following order, entered January 12, 2018, on

the record after hearing argument on the motion:

        AND NOW, this 3rd day of January, 2018, the Court is looking at
        page 4 of the transcript from a Divorce Masters' proceeding where
        wife was to receive $110,998 for an Abbott Laboratory Stock
        retirement account. Husband took it upon himself to move that
        account and combine everything into one American Fund account.
        Wife was also to receive an American Fund IRA valued at $1,243,
        and an American Fund IRA at [sic] valued at $90. The total of
        those would be $112,331.

        Wife caused a QDRO to be prepared, which is now apparently not
        needed, as Husband has moved the funds into the American Funds
        IRA. Therefore, Husband today has executed the documents
        required from American Funds to move all of the money to Wife.
        Wife will receive $115,000 from that account for attorney's
        fees, interest, et cetera, as a total payment from that
        account.

                                      -4
J   -A24001-18



        Additionally, within 10 days from today's date, Husband will
        provide the documentation from that account showing the
        transfers in as well as the interest earned from the date of transfer
        to present. If Attorney Hobbs feels that a different or higher
        amount is owed to Wife, he may bring that back to the Court's
        attention if the parties cannot reach an agreement as to what wife
        should be receiving. The Court makes it clear that Wife is entitled
        to the interest on the money from the date of the marriage
        settlement agreement. That is not a windfall to Husband because
        of the delay.

        Husband will be responsible for all costs to Jonathan
        Cramer [the actuary] for preparation of the QDRO's due to
        the confusion that he created by moving the funds
        unilaterally. He will be responsible for paying that amount within
        30 days of receiving a statement from Mr. Cramer. Wife will be
        responsible for the $20 fee to American Funds when the
        paperwork is filed by her attorney.

Order, 1/12/2018 (emphasis added).

        On January 23, 2018, Husband filed a motion     for reconsideration, which

was granted by the trial court on February 2, 2018. On February 8, 2018, the

trial court reaffirmed its prior order of January 12, 2018.      On February 12,

2018, Husband filed this timely appeal.5

        Husband presents nine questions for this Court's review:

        1.   Whether [Wife's] attorney committed flagrant fraud upon the
             court which should have rendered the entire motion void[?]




5 On February 14, 2018, the trial court ordered Husband to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal. Husband filed his Rule
1925(b) statement on March 6, 2018. On March 23, 2018, the trial court
issued a Rule 1925(a) opinion, relying on the reasoning set forth in its order
of February 8, 2018, affirming its prior order of January 12, 2018.


                                        -5
J   -A24001-18


        2. Whether the Agreement allowed [Husband] to         transfer 401k
             retirement funds by a type of transfer other than a QDRO
             without acting in bad faith or breaching the contract[?]

        3. Whether the Equitable     Distribution Agreement was a contract
             with unambiguous clauses which rendered it unmodifiable by
             the trial court under Pennsylvania contract law[?]

        4. Whether actuary fees, interest, attorney's fees, or costs were
             contained in a Breach of Contract clause (or for any reason
             whatsoever) within the four corners of the Agreement[?]

        5.   Whether the trial court awarded attorney's fees, interest, and
             costs due to a Breach of Contract clause or for apparent
             contempt[?]

        6. Whether the trial court improperly awarded sanctions, sua
           sponte, in Business Court without a hearing and without a
             motion for Summary Judgement by [Wife?]

        7. Whether the       trial court improperly calculated interest without
             a scintilla of evidence for IRA and 401k stock and mutual fund
             accounts which did not accrue interest[?]

        8. Whether the trial court improperly awarded attorney's fees
             without a scintilla of evidence or without referencing   a   lodestar
             calculation[?]

        9. Whether the trial court improperly awarded actuary costs
             without evidence and without verifying the contents of the
             invoice as they related to the matters before the court[?]


Husband's Brief at 10-12.6,        7




6   Wife has not filed   a   responsive brief.

  Although Husband identifies nine "Question[s] Presented For Review," his
brief contains 11 arguments. We will only address Husband's arguments to
the extent they are "stated in the statement of questions involved or fairly
suggested thereby." Pa.R.A.P. 2116(a).

                                            - 6 -
J   -A24001-18


        At the outset, we state the principles that guide our review of   a   marriage

settlement agreement:

        "A marital [settlement] agreement incorporated but not merged
        into the divorce decree survives the decree and is enforceable at
        law or equity.    A settlement agreement between spouses is
        governed by the law of contracts unless the agreement provides
        otherwise."



           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.

           When interpreting a marital settlement agreement, the
           trial court is the sole determiner of facts and absent an
           abuse of discretion, we will not usurp the trial court's fact-
           finding function. 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) (internal
citations omitted).

        In his first issue, Husband claims Wife's attorney "committed          a   fraud

upon the court." Specifically, Husband contends Wife's attorney committed              a


fraud upon the court by failing to follow local rules, making false statements

in   the motion to compel execution of the QDRO, allowing the unauthorized

practice of law by    a   paralegal, and violating the Rules of Professional Conduct.

However, Husband's Rule 1925(b) statement only raises the issues that "the


                                           -7
J   -A24001-18


instant motion [was] based on multiple and fatal errors, as defined by local

rules," and that   'facts' submitted   by [Wife's] attorney in the instant motion

were objectively false." Husband's Concise Statement, 3/6/2018, at ¶¶2, 4.

Therefore, we address Husband's "fraud upon the court" claim only with

regard to the two issues preserved in the concise statement. See Pa.R.A.P.

1925(b)(4)(vii) ("Issues not included     in   the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.").

        In his brief, Husband claims Wife's attorney failed to follow York County

Civil Local Rules 205.1(a)(2)(i) and 208.2(d)(2).8 See Husband's Brief at 39.

Husband argues the motion to compel only referenced the QDRO for the

Abbott annuity ($28,264), which he did not dispute. He reasons that had




8YCCiv. 205.1(2)(i) states that "An original proposed order    ...   shall accompany
each document ...". YCCiv. 208.2(d) provides:

        Rule 208.2(d) Motions     - Certification of Concurrence.
         (1) A motion to the court shall contain a certification by the
        moving party that the party has sought concurrence in the motion
        from each party and that each party has either concurred in the
        motion or contests the motion.

         (2) A motion that is represented to be uncontested shall contain
        a certification by counsel for the moving party that counsel has
        conferred with all interested parties, the full text of the motion
        and proposed order has been disclosed, and that the requested
        relief is uncontested. A motion which is uncontested and which
        contains this certification need not be presented in a session of
        motions court, but shall be presented to the court pursuant to
        YCCiv. 205.1.


                                        -8
J   -A24001-18


Wife's attorney followed the local rules, and had he been presented with and

signed the Abbott annuity QDRO, there would have been no need for the

motion to be argued in court.

        We recognize Wife's attorney did not include a proposed order and a

certificate of concurrence with the motion as required by the local rule.

However, YCCiv. 126 provides, in relevant part,

        (a) These rules shall be liberally construed to secure the just,
        speedy and inexpensive determinations of every action, though
        the Court expects the parties to comply with these rules.

        (a)[sic] The court at every stage of any action may disregard any
        error or defect of procedure which does not affect the substantial
        rights of the parties.

YCCiv. 126(a), (a).

        At the January 3, 2018 proceeding, while Husband indicated his

readiness to execute the Abbott annuity QDRO, he also informed the court he

had combined the other accounts with funds due to Wife into one account to

enable transfer of funds to Wife without the need for another QDRO.           See

N.T., 1/3/2018, at 3. Thus, notwithstanding Husband's willingness to sign the

Abbott annuity QDRO, Wife always had the right to seek enforcement of the

settlement agreement with regard to the other QDRO that had been prepared

pursuant to the settlement agreement. As such, Husband's substantial rights

were not affected by Wife's attorney's failure to attach   a   proposed order and

a   certificate of concurrence. Accordingly, we find no abuse of discretion in the

trial court's decision to not enforce the local rules.


                                       -9
J   -A24001-18


        Furthermore, to the extent Husband claims "facts submitted by [Wife's]

attorney in the instant motion were objectively false," we find this argument

provides no basis upon which to grant relief. While the record of the January

3, 2018 proceeding reveals there was confusion about which QDRO was at

issue, nothing in this record suggests Wife's attorney willfully misrepresented

facts in the motion to effect "fraud upon the court." Furthermore, Husband

had the opportunity to refute the allegations in the motion when the motion

came before the court. Therefore, Husband's first claim warrants no relief.

        In his second issue, Husband raises the question whether the settlement

agreement allowed him to transfer 401k retirement funds by               a   type of transfer

other than        a   QDRO without acting in bad faith or breaching the contract.

Husband contends "[m]ovement of the funds into one retirement vehicle could

not possibly be construed as         a   material breach by any reasonable person."

Husband's Brief at 64. This argument is unavailing.

        It   is   important to point out the instant proceeding was             a   motion to

compel Husband to execute the QDRO.                  Parties to   a   marriage settlement

agreement may enforce their agreement under the Divorce Code. Section

3105 of the Divorce Code, "Effect of agreement between parties" states, in

part:

        (a) Enforcement.-A party to           an agreement regarding matters
        within the jurisdiction of the court under this part, whether or not
        the agreement has been merged or incorporated into the decree,
        may utilize a remedy or sanction set forth in this part to enforce
        the agreement to the same extent as though the agreement had


                                            - 10 -
J   -A24001-18


        been an order of the court except as provided to the contrary in
        the agreement.
23 Pa.C.S.   §   3105(a).         Furthermore, under Section 3502(e) of the Divorce

Code courts have broad powers to enforce compliance "with an order of

equitable distribution      ...   or with the terms of an agreement as entered into

between the parties. ..." 23 Pa.C.S.             §   3502(e) (emphasis added). See Miller

v.   Miller, 983 A.2d 736, 745                (Pa. Super. 2009) (holding trial court was

empowered to award Wife attorney's fees under sections 3502(e)(7) and

3105(a) of the Code where Husband failed to comply with terms of settlement

agreement). Therefore, Husband's second argument warrants no relief.

        Husband's third           claim       raises the       question   whether the   parties'

settlement agreement was                  a   contract with unambiguous clauses which

rendered it unmodifiable by the trial court under Pennsylvania contract law.

Husband's fourth claim raises the question whether actuary fees, interest,

attorney's fees, or costs were contained in                a   Breach of Contract clause (or for

any reason whatsoever) within the four corners of the settlement agreement.

We will discuss the third and fourth issues together.

        The crux of Husband's argument as to both issues is that the trial court

erred in awarding Wife interest, attorney's fees and actuary fees, when the

settlement agreement did not provide for these damages. We disagree. As

already stated, pursuant to 23 Pa.C.S.                 §   3502(e), the trial court has broad

authority to enforce the parties' agreement. Specifically, the Divorce Code

provides:
J   -A24001-18


        (e) Powers of the court.        -  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 judgment;
           (2) authorize the taking and seizure of the goods and
           chattels and collection of the rents and profits of the real
           and personal, tangible and intangible property of the party;

           (3) award    interest on unpaid installments;
           (4) order and direct the transfer or sale of any property
           required in order to comply with the court's order;
           (5) require security to insure        future   payments       in
           compliance with the court's order;
           (6) issue attachment proceedings, directed to the sheriff
           or other proper officer of the county, directing that the
           person named as having failed to comply with the court
           order be brought before the court, at such time as the court
           may direct. If the court finds, after hearing, that the person
           willfully failed to comply with the court order, it may deem
           the person in civil contempt of court and, in its discretion,
           make an appropriate order, including, but not limited to,
           commitment of the person to the county jail for a period
           not to exceed six months;
           (7) award counsel fees and costs;
           (8) attach wages; or
           (9) find the party in contempt.
23 Pa.C.S.   §   3502(e) (emphasis added).

        Therefore, the trial court had authority to fashion   a   remedy in favor of

Wife, including the awards of interest, attorney's fees and actuary fee.         As

such, no relief is due on this claim.




                                        - 12 -
J   -A24001-18


        Nor are we persuaded by Husband's fifth argument, namely, that the

trial court converted the motion to compel into an indirect criminal contempt

complaint.        The trial court explicitly stated that it did not impose indirect

criminal contempt sanctions.           Furthermore, as discussed above, the trial

court's authority derives from Section 3502(e).                 Therefore, Husband's

argument     is   misplaced.

        We address Husband's final four issues together.            In his sixth issue,

Husband argues the trial court improperly awarded sanctions, sua sponte, in

motions court without       a   hearing. In the seventh issue, Husband contends the

trial court improperly calculated interest without     a   scintilla of evidence for IRA

and 401k stock and mutual fund accounts that did not accrue interest. In his

eighth issue, Husband asserts the trial court improperly awarded attorney's

fees without        a   scintilla of evidence or without referencing        a    lodestar

calculation. In his ninth issue, Husband contends the trial court improperly

awarded actuary costs without evidence and without verifying the contents of

the invoice as they related to the matters before the court.

        It bears note that Wife's motion to compel sought "attorney's fees, costs
and other such relief as the Court may deem necessary and/or proper."

Motion to Compel, 12/28/2017, at 3. The trial court awarded Wife            a   total sum

of $115,000.00, which represents $112,331.00 owed to Wife under the




                                           - 13 -
J   -A24001-18


settlement agreement,9 plus         a   combined award for attorney's fees and interest

of $2,669.00. In addition, the trial court ordered Husband to pay the actuary

fee.'°

         Based on our review of the record and Section 3502(e), we find no basis

upon which to disturb the trial court's decision that Wife is entitled to interest,

attorney's fees, and actuary costs.             At the January 3, 2018, proceeding,

Husband admitted he had combined accounts to enable transfer of funds to

Wife without      a   QRDO.

         However, with regard to the amount of the award of interest and

attorney's fees, we find the trial court should have held an evidentiary hearing.

See 23 Pa.C.S.         §   3502(e) (providing remedies that may be awarded after             a


hearing and showing of noncompliance).                See also Habjan v. Habjan, 73

A.3d 630, 643 (Pa. Super. 2013) (holding              a   trial court has authority under 23

Pa.C.S.    §   3502(e)(7) to award attorney's fees to          a   spouse as   a   consequence

of noncompliance by the other spouse);           Isralsky v. Isralsky,         824 A.2d 1178,

1192 (Pa. Super. 2003) (discussing considerations in determining reasonable

attorney's fees).




9 The total amount of $112,331.00 includes the individual amounts of
$110,098.00 (Abbott Laboratory stock), $1,243.00 (American Funds IRA),
and $90.00 (American Funds IRA).

1° The actuary fee amount does not appear in the record. Husband, in his
brief, states the amount is $950.00. See Husband's Brief at 74.
                                             - 14 -
J   -A24001-18


        While we recognize the motion to compel was listed as           a   matter for

motion court, the record discloses Husband filed       a   motion for reconsideration

in which he      averred the court granted interest and attorney's fees without

conducting   a   hearing pursuant to Section 3502(e). See Husband's Motion for

Reconsideration, 1/23/2018, at       1153.   Consequently, in light of Section 3502,

which requires     a   hearing, we reverse the court's order, limited to the amount

of the interest and attorney's fees award ($2,669.00), and we remand for an

evidentiary hearing.

        Finally, with regard to Husband's claim the trial court improperly

awarded actuary costs without evidence and without verifying the contents of

the invoice, we conclude Husband waived this argument.             Because Husband

did not raise this issue in his 1925(b) statement, it has not been preserved

for review. See 1925(b)(4)(vii).

        In summary, we reverse the trial court's order as to the amount of the

interest and attorney's fees award ($2,669.00), and remand for an evidentiary

hearing. Otherwise, we affirm.

        Order affirmed in part, reversed in part, limited to the amount of the

interest and attorney's fees award. Case remanded for an evidentiary hearing.

Jurisdiction relinquished.




                                         - 15 -
J   -A24001-18


Judgment Entered.




J seph D. Seletyn,
Prothonotary
Date: 1/7/2019




                     - 16 -
