J-S61017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ESTATE OF MICHAEL A. BENYO AND  :          IN THE SUPERIOR COURT OF
 JEFFREY BENYO, INDIVIDUALLY     :               PENNSYLVANIA
                                 :
           v.                    :
                                 :
 SCOTT F. BREIDENBACH, ESQ.,     :
 REPRESENTATIVE OF THE ESTATE OF :
 MARSHA BENYO                    :
                                 :
               Appellant         :          No. 324 EDA 2017

             Appeal from the Judgment Entered April 18, 2018
  In the Court of Common Pleas of Chester County Civil Division at No(s):
                             2013-08348-CT

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BOWES, J.:                             FILED MAY 13, 2019

     Scott F. Breidenbach, Esquire, personal representative of the estate of

Marsha Benyo (“Wife”), appeals from the judgment entered against her in this

dispute arising from the property settlement agreement she reached with her

late husband, Michael Benyo (“Husband”), whose estate is represented by his

brother, Jeffrey Benyo. We affirm the verdict upon which the judgment was

entered, but vacate the judgment and remand for further proceedings

consistent with this memorandum.

     We glean the following facts and history from the certified record.

Husband and Wife married in 1989. Husband was employed as a police officer

with the North Coventry Township Police Department, and Wife worked as an

account manager at Brown Printing Company.          Husband’s employment

entitled him to a defined benefit pension to which he made no personal
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contributions, while Wife participated in a 401(k) retirement plan through her

employer as well as a profit sharing plan.

      When Husband retired from his position as police chief in 2010, he

elected a joint annuity benefits option through the Pennsylvania Municipal

Retirement System (“PMRS”). Under this option, Husband received a lesser

monthly payment than he would have received on a single-life annuity based

solely upon his life expectancy, but the payments of $2,137.99 per month

would continue to be paid to Wife, as his joint annuitant, for the remainder of

her life. Wife continued to work following Husband’s retirement.

      Husband filed a complaint in divorce on May 21, 2012, alleging that the

marriage was irretrievably broken, requesting equitable distribution of marital

property, and seeking that any property settlement agreement (“PSA”)

reached by the parties be incorporated in the final decree of divorce. The

parties executed a jointly-prepared PSA on June 18, 2012. PSA, 6/18/12, at

5-6, 12. The agreement provided that it was to be incorporated into “any

divorce decree that may be entered” and to “continue in full force and effect

after such time as a final decree in divorce may be entered with respect to the

parties.” Id. at 2.

      Pursuant to the PSA, Wife was to obtain Husband’s share of the marital

residence and pay Husband for half of the property’s value within thirty days

of the agreement. Id. at 6. The parties were to keep their respective bank

accounts, vehicles, and personal property, but for the household furnishings,

which Wife would retain and pay Husband for half of the value. Id. at 6-7.

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Husband and Wife agreed to evenly divide household debts, as well as joint

bank accounts totaling approximately $120,000.             Id. at 3, 10.         As to

retirement benefits, the PSA states as follows:

              Husband agrees to waive all right, title and interest in Wife’s
      Brown Printing Profit Sharing Plan.             Husband will sign any
      necessary paperwork to facilitate said waiver. Wife will agree to
      waive all right, title and interest in Husband’s Police Pension. Wife
      will sign any necessary paperwork upon demand to facilitate said
      waiver. In addition, Wife agrees to waive any death benefit from
      Husband’s Pension. She will sign any necessary paperwork to
      facilitate said waiver. At the time of the signing of this Agreement,
      Wife is to receive a one hundred percent (100%) death benefit.
      If the Plan Administrator of said Pension will not permit a waiver
      of said death benefit to Wife or a change of beneficiary based on
      Wife’s life expectancy, Wife will agree to sign any necessary
      paperwork, including a statement in writing that she waives the
      benefits and instructs her estate to make payment of any benefits
      it may receive to a beneficiary designated by Husband. As of the
      date of the signing of this Agreement, the designated beneficiary
      of the death benefit will be Jeffrey Benyo, who currently resides
      at 186 Upper Valley Road, Christiana, Pennsylvania. Unless Wife
      receives a written statement from Husband that the designated
      beneficiary has changed, any proceeds that she or her estate
      receives shall be paid to Jeffrey Benyo. It is understood that, if
      Wife fails to fulfill the obligation set forth in the Agreement, Jeffrey
      Benyo and/or the estate of Michael Benyo may pursue all claims
      he or the estate may have against Wife and may seek appropriate
      sanctions including but not limited to counsel fees.

             Currently Husband is receiving monthly payments from his
      Police Pension. The aforesaid benefits were used for the benefit
      of both parties. As a result, Wife agrees to reimburse Husband
      for fifty percent (50%) of the net proceeds he received since
      October 2010. Said reimbursement shall be performed on or
      before June 30, 2012. As of June 30, 2012, said reimbursement
      will be Seventeen Thousand Eight Hundred Twenty Dollars
      ($17,820).

           Wife currently has a 401(K) with Brown Printing. Wife
      agrees to transfer fifty percent (50%) of said 401(K) to Husband.

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       Said 50% interest shall be calculated as of June 30, 2012.
       Husband shall also be entitled to any market increases of said
       interest as of June 30, 2012 and his interest shall be reduced by
       any market decreases that arise thereafter, as well. Husband,
       through his counsel, shall be responsible for drafting any Qualified
       Domestic Relations Order that is necessary to facilitate said
       transfer. Wife shall cooperate in signing said Qualified Domestic
       Relations Order [(“QDRO”)] within ten (10) days of demand.

Id. at 8-9.

       Finally, the PSA provided that it was binding and remained in full force

and effect until terminated under the terms of the PSA, that it would be

incorporated in, but not merged with, “any Divorce Decree which may be

granted by a court of competent jurisdiction,” and that it inured to the benefit

of their respective heirs and assigns. Id. at 5, 11.

       Following execution of the PSA, Husband and Wife began performing

their individual obligations under the PSA. Specifically, the parties divided up

the bank account, Wife paid Husband for his shares of the marital residence

and the furniture, and Husband transferred the deed to the property into

Wife’s name. N.T. Trial, 2/8/16, at 67-69, 93, 113, 116. Indeed, the only

obligation under the PSA that was not performed was Wife’s waiver of

Husband’s pension benefits.1 Id. at 68-69.

       The parties also moved forward with the divorce proceedings.           On

August 24, 2012, the parties executed a proposed QDRO, as well as affidavits
____________________________________________


1PMRS advised Husband that he could not change the benefit option that he
chose when he retired or choose a different person as his joint annuitant. See
Wife’s Trial Exhibit 5 (deposition of Sean E. Christine) at exhibit 8 (Letter of
10/11/12).



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of consent to the entry of a final divorce decree.2 On September 4, 2012,

notice of intent to request entry of the divorce decree was filed. The executed

QDRO was entered by the trial court on September 13, 2012. A praecipe to

transmit the record to the court for entry of the decree was filed on October

2, 2012.

       On October 31, 2012, the trial court declined to enter the decree, and

instead ordered that the record be returned to the prothonotary. The court

noted that the affidavit of service of the divorce complaint upon Wife

demonstrated improper service. It indicated that Husband was the one who

had personally served Wife, although he was not competent to effectuate

service. Order 11/1/12 (citing Pa.R.C.P. 1930.4 (allowing service of original

process by any competent adult), and Pa.R.C.P. 76 (defining competent adult

as a person over eighteen years old who is not a party or the employee or

relative of a party)). Accordingly, the trial court directed the parties to correct

the deficiency and file a new praecipe.

       On November 2, 2012, the day after the trial court’s order was mailed

to the parties, Husband committed suicide. Within days of Husband’s death,




____________________________________________


2 Therein Wife affirmed, subject to the penalties for unsworn falsification to
authorities in a document that was captioned with the pending divorce action,
that the marriage was irretrievably broken and that “ninety days have elapsed
from the date of the filing and service of the complaint.” Wife’s Affidavit of
Consent, 9/6/12.



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Husband’s share of Wife’s 401(k) was transferred to Husband pursuant to the

QDRO.3

         Husband’s estate contacted PMRS concerning Husband’s pension

benefits, but was informed that there was no “death benefit” available because

Husband made no personal contributions to the plan; that it viewed Wife as

the proper recipient of the annuity payments; and that, if Wife waived her

right to receive the benefits, PMRS would consider her as predeceasing

Husband such that the payments would cease altogether. See Wife’s Trial

Exhibit 5 (Deposition of Sean E. Christine) at exhibit 6. On August 1, 2013,

PMRS issued an official administrative decision that the PSA did not affect its

obligation to pay the benefits to Wife, and that she was “the rightful recipient

of [Husband’s] pension benefit[.]” Id. at exhibit 8. Husband’s estate did not

appeal that decision.       Accordingly, Wife continued to receive the annuity

payments that she began receiving in January 2013. See N.T. Trial, 2/8/16,

at 75.

         Husband’s estate and Jeffrey Benyo (collectively “Appellees”) jointly

filed a complaint against Wife on August 23, 2013, and an amended complaint

on January 28, 2015, with much litigation in between.4            The amended
____________________________________________


3 Wife testified that the transfer of money happened a few days after
Husband’s death, while Husband’s estate suggested that it occurred
immediately prior to his death. See N.T. Trial, 2/8/16, at 92. Either way, the
timing of the transfer does not impact our resolution of the appeal.

4 In addition to extensive filings in the instant case, the litigation during this
time included an unsuccessful attempt by Wife to replace Jeffrey Benyo as
administrator of Husband’s estate in Berks County.

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complaint stated four claims seeking: (1) that Wife be required to place all

funds she received from PMRS in escrow pending disposition of the case; (2)

a declaratory judgment that the PSA is enforceable; (3) a finding that Wife

breached the PSA in failing to transfer the annuity payments from PMRS to

Jeffrey Benyo and that damages were due; and (4) an order requiring Wife to

transfer future payments from PMRS to Jeffrey Benyo, with reimbursement by

him for any tax liability she incurred as a result.   Wife filed an answer, new

matter, and counterclaim which alleged that the PSA was unenforceable and

the QDRO was invalid, and sought damages for conversion of her 401(k) funds

and the damage Husband did to her home and her pets during the course of

his suicide.

      The case proceeded to a non-jury trial on February 8, 2016. Counsel

engaged in extensive pre-trial discussion of the issues and legal theories.

Although the trial court appeared to initially agree with Wife’s positions

concerning the availability of equitable relief and the validity of the QDRO, it

ultimately decided to take evidence on all of the claims. The trial court heard

testimony from Wife, the pension valuation expert presented by Husband’s

estate, and Sean Christine, PMRS chief of membership services, whose

deposition testimony and correspondence file were also admitted into

evidence.




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       The parties submitted written closing arguments following the trial, and

the court entered its verdict on July 26, 2016.5 The court found for Appellees

and against Wife on both the claims of Appellees and Wife’s counterclaim.

Specifically, the court (1) declared that the PSA was valid and binding, that

Jeffrey Benyo was an intended third-party beneficiary of the PSA, and that the

PSA required Wife to remit the payments she received from PMRS to

Husband’s estate or Jeffrey Benyo; (2) found that Wife owes Husband’s estate

or Jeffrey Benyo $503,656.51 for breaching the PSA; (3) ordered Wife to

transfer any future payments from PMRS to Jeffrey Benyo within ten days of

their receipt, with Jeffrey to reimburse her for any taxes paid by Wife, and to

refrain from terminating the benefits; and (4) concluded that Wife failed to

prove that she was entitled to recover damages related to Husband’s actions

or the 401(k) funds transferred pursuant to the QDRO.        The court further

provided that, as long as Wife paid over the $79,414.08 in PMRS funds she

had already received within sixty days and complied with the order concerning

forwarding future payments to Jeffrey Benyo, Appellees were prohibited from

registering a judgment on the verdict or executing upon one.

       Wife filed a timely post-trial motion which the trial court denied on

December 21, 2016. Wife filed a timely notice of appeal, and the trial court

ordered her to file a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Wife then filed for bankruptcy, and the case was stayed.
____________________________________________


5 The verdict is dated July 21, 2016, but the docket reflects that it was not
served on the parties until July 26, 2016.

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         Wife died on October 15, 2017, and her trial/appellate counsel

subsequently was appointed as personal representative of her estate. The

bankruptcy stay was lifted, and the trial court issued a new Rule 1925(b)

order. Wife’s estate filed a timely Rule 1925(b) statement and a notice of

death and substitution of successor. This Court, on March 26, 2018, noted

that Wife had failed to reduce the verdict to judgment, and ordered that a

praecipe to enter judgment and an updated docket be filed within ten days

upon pain of having the appeal dismissed.6 Thirteen days after Wife’s estate

failed to comply, the trial court entered an order in lieu of an opinion indicating

that the appeal should be dismissed. Judgment was entered on the verdict

on April 18, 2018, and an updated docket was filed in this court nine days

later.

         Wife’s estate failed to file a timely brief, even after this Court granted

an extension nunc pro tunc. Appellees filed a motion to quash the appeal

based upon the absence of a brief. Wife’s estate filed its brief the next day.

This Court denied the motion to quash, providing that Appellees could raise

____________________________________________


6 As we discuss more fully infra, the circumstances of this case were such that
the verdict was not actually ripe for reduction to judgment when this Court
directed that judgment be entered, as the verdict expressly provided that it
was not subject to recording or enforcement unless and until the trial court
determined that Wife failed to comply with the equitable relief awarded to
Appellees. However, there was no cause to quash the appeal even in the
absence of a judgment, as the verdict was immediately appealable pursuant
to Pa.R.A.P. 311(a)(4)(ii) (providing interlocutory order mandating conduct
not previously mandated is immediately appealable when effective before
entry of a final order) because it required Wife to pay Appellees past and
future sums before a judgment would be entered against her.

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the issue with the merits panel. Appellees then filed their one-page brief late,

abandoning their quashal argument and merely requesting that this Court

adopt the findings and conclusions of the trial court.      Appellees’ brief at

unnumbered 1. Thus, the matter is finally ripe for our disposition.

      Wife’s estate presents the following questions for our review, which we

have re-ordered for ease of disposition:

      1)    Did the lower court err by failing to dismiss, upon motion of
            [Wife], the equity counts in [Appellees’] amended complaint
            where the pleading failed to make any assertion of an
            inadequate remedy at law, failed to contain allegations of
            fact sufficient to establish an inadequate remedy at law, and
            in contradiction pleaded damages in excess of $500,000?

      2)    Did the lower court err by ruling that the QDRO was valid
            without in personam jurisdiction because it asserted that
            there was a valid divorce pending when the order was
            signed, where the divorce complaint was filed May 21, 2012,
            where the court found that [Wife] had not been served with
            process in the case within 30 days causing the complaint to
            lapse months before the order was signed without notice to
            [Wife]?

      3)    Did the lower court err by holding that [Wife] failed to carry
            her burden of proof that her 401(k) funds were converted
            by counterclaim defendants where the 9/13/2012 “QDRO”
            was signed without jurisdiction over [Wife], where the lack
            of service caused the divorce action to lapse, making the
            “QDRO” a nullity and void ab initio, where the court ruled on
            the record at the outset that “from my position any order
            issued under the divorce action is invalid” and, when
            challenged, the court emphasized “No. No. No. It’s the
            ruling. It’s not the position; it’s the ruling”?

      4)    Did the court error [sic] by interpreting the focal paragraph
            addressing [Husband’s] retirement benefits without
            considering the PMRL which provides definitions of terms
            used in the paragraph, such as “death benefits,” “pension


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              benefits,” and “survivor annuitant,” and by ignoring the
              clearly applicable paragraphs within the agreement (e.g.,
              para. 10 & 11) which provide that illegal provisions in the
              agreement must be stricken (para. 11), rather than
              motivating the court to violate another provision of the
              agreement by supplying, amending, modifying and revising
              the terms of the agreement which specifically confronts the
              imperative prohibition contained in paragraph 10 that
              “under no circumstance” shall the court have the power or
              authority to engage in such activity?

       5)     Did the court commit error by “re-writing” the terms of the
              [PSA] in its attempt to do indirectly that which the PSA failed
              to accomplish legally and in trying to circumvent the
              unassignability provision of 53 PS 881.115?

       6)     Did the lower court commit error and violate the anti-
              alienation provisions of 53 PS 881.115 and 53 PS 764 by
              ordering that [Wife] shall transfer any future payments (net
              proceeds after all taxes are paid) she receives as a
              beneficiary of [Husband’s] police pension directly to Jeffrey
              Benyo. . . ?

Wife’s brief7,8 at 5-6 (unnecessary capitalization omitted).

       We begin with a review of the applicable law. “On appeal from an order

interpreting a marital settlement agreement, we must determine whether the

trial court committed an error of law or an abuse of discretion. We do not

____________________________________________


7Although it is Wife’s estate that is pursuing this appeal, we shall refer to the
appellant as “Wife” and cite to “Wife’s brief” for the sake of simplicity.

8 We note with displeasure that there is little or no correlation between the six
questions stated and the six sections of argument offered in Wife’s unartful
and disjointed brief. For example, the argument for both questions regarding
the QDRO (questions 2 and 4 in Wife’s brief) are addressed together under
subheading 5 in the argument section of the brief. Wife has made deciphering
and analyzing its claims far more difficult than was necessary.              The
disorganized and less-than-forthright briefing by Wife, combined with
Appellees’ failure to submit any brief that addressed the issues, caused
substantial delay in our resolution of this appeal.

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usurp the trial court’s fact-finding function.” Tuthill v. Tuthill, 763 A.2d 417,

419 (Pa.Super. 2000) (cleaned up).

      Property settlement agreements are governed by the law of contracts

and are enforceable at law or equity. Stamerro v. Stamerro, 889 A.2d 1251,

1257, 1258 (Pa.Super. 2005).        The goal of contract interpretation is to

ascertain the intent of the parties. In re Estate of Hoffman, 54 A.3d 903,

907 (Pa.Super. 2012).     “When construing agreements involving clear and

unambiguous terms, a trial court need only examine the writing itself to give

effect to the parties’ understanding.” Id. (cleaned up).

      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. This
      Court must construe the contract only as written and may not
      modify the plain meaning under the guise of interpretation. When
      a contract is free from ambiguity, the court must interpret the
      contract as written.

Mazurek v. Russell, 96 A.3d 372, 378 (Pa.Super. 2014) (cleaned up).

      As our Supreme Court has stated, “in determining intent, we are mindful

to examine the entire contract, taking into consideration the surrounding

circumstances, the situation of the parties when the contract was made and

the objects they apparently had in view and the nature of the subject matter.”

Commonwealth by Shapiro v. UPMC, 188 A.3d 1122, 1131 (Pa. 2018).

However, the unambiguous provisions of written contracts cannot be




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contradicted or varied by oral testimony. Halpin v. LaSalle Univ., 639 A.2d

37, 39 (Pa.Super. 1994).

      With these principles in mind, we turn to the questions before us. Wife

first contends that the trial court erred in allowing Appellees to proceed with

their equity count because there was an adequate remedy at law. Wife’s brief

at 40. With no citation to authority to support its position, Wife maintains that

the complaint “did not even remotely support an action in equity.” Id. at 41.

Wife further argues that she was subject to trial by ambush when the court

indicated immediately before trial began that the equity claim was dismissed,

but then changed its mind after a recess. Id.

      The issue warrants no relief from this Court. As noted above, property

settlement agreements are enforceable at law or equity. Stamerro, supra

at 1258. The action at law for damages may include past-due payments plus

interest, while equitable relief may include an order directing a party to comply

with future obligations under the contract.      Id. at 1257.     Count one of

Appellees’ amended complaint requested that the trial court order Wife to

place all funds she received from PMRS in escrow during the pendency of the

litigation. Under the above-cited law, such was a valid request sounding in

equity.

      Regarding the timing of the trial court’s decision to reinstate count one

after it had dismissed it, Wife waived the issue because she failed to raise a

contemporaneous objection. See N.T. Trial, 2/8/16, at 65. In any event, Wife

has not even attempted to show that she suffered prejudice as a result of the

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trial court’s ruling. She offers no suggestion how Wife’s trial strategy changed

from the time of the dismissal of the count immediately prior to the lunch

recess to its reinstatement immediately after lunch such that she was

“ambushed” at trial. Moreover, the trial court ultimately determined that the

dismissed-then-reinstated count was moot and awarded Appellees no relief

upon it. As such, the claim is devoid of merit.

      With her next two issues, Wife challenges the trial court’s rejection of

her counterclaim challenging the validity of the QDRO by which half of her

401(k) funds were transferred to Husband. Wife argues that the trial court

lacked jurisdiction to enter the order because she had not received proper

service of the divorce complaint, rendering it void ab initio. Wife’s brief at 5,

48-53. She maintains that she had no knowledge that the divorce action was

pending at the time she executed the PSA or the QDRO, and did not believe

that either would take effect until after a divorce decree was entered. Id. at

45, 50. Wife further contends that the trial court initially properly ruled that

the QDRO was invalid, and that she relied upon that ruling when she testified

at trial. Id. at 45. Therefore, Wife asserts that she is entitled to an award of

$133,750 plus interest against Husband’s estate. Id. at 51. We disagree.

      First, Wife misrepresents the finality of the pretrial ruling concerning the

QDRO’s validity. Wife correctly reports that the trial court initially stated its

ruling was that “any order issued under the divorce action is invalid.” Wife’s

brief at 16, 42; N.T. Trial, 2/8/16, at 19. However, Wife neglects to mention

that the court continued to entertain argument on the issue, vocalized its

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consideration of whether a QDRO could be entered “outside the context of a

divorce,” heard argument from Appellees’ counsel that a QDRO can be entered

to enforce a post-nuptial agreement without there being a divorce, and

reframed the issue as being whether the PSA was valid and enforceable.9 Id.

at 19-30. Thus, it should have come as no surprise to Wife that the issue was

revisited by the parties in the middle of trial, and the court explored the

subject with an expert witness, who confirmed that a retirement plan “will

accept a QDRO from whatever source as long as it’s signed by a court.” Id.

at 121, 134.

       Second, the court had jurisdiction on September 13, 2012 to enter the

QDRO that Husband and Wife had executed on August 24, 2012. The divorce

action was properly commenced by the filing of Husband’s complaint. See

Pa.R.C.P. 1920.3. While the record does not reflect compliance with the rules

as to service of that complaint on Wife, the defect in service did not necessarily

deprive the court of jurisdiction.

       The primary purpose of service is to give adequate notice of the
       pendency of an action. The idea of service of original process is
       to give reasonable assurance that a defendant will have actual
       knowledge of an action and of his or her duty to defend; if the
       manner of service is improper, then there is no such assurance.
       Defects in the manner of service of original process are not
       fundamental or vital, however, and thus may be waived.

____________________________________________


9 After reviewing the record, we fully understand the trial court’s statement
during the course of counsels’ pre-trial presentation of the issues involved:
“It’s all starting to come back to me now. I think I blocked it out because I
was suffering from some PTSD from listening to this the first time.” N.T. Trial,
2/8/16, at 29-30.

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2 Goodrich Amram 2d § 402:1 (footnotes omitted, emphasis added).                “A

defendant manifests an intent to submit to the court’s jurisdiction when the

defendant takes some action (beyond merely entering a written appearance)

going to the merits of the case, which evidences an intent to forego objection

to the defective service.” Fleehr v. Mummert, 857 A.2d 683, 685 (Pa.Super.

2004) (internal quotation marks omitted).

       At no time while the divorce action was pending did Wife object to

service. On the contrary, Wife’s execution of QDRO, captioned at the docket

number of the pending divorce action, reflected both Wife’s knowledge of the

existence of the divorce proceeding and her intent to submit to the court’s

jurisdiction.    Wife further evidenced her intent to submit to the court’s

jurisdiction by executing the affidavit of consent for that court to issue a

divorce decree. As such, the defect in the manner of service was waived by

Wife, and the court had personal jurisdiction.

       Third, the trial court’s rejection of Wife’s claim that the parties intended

the PSA to take effect only when the divorce was final is supported by the

record. As detailed above, the plain language of the agreement states that it

was to be incorporated into “any divorce decree that may be entered” and to

“continue in full force and effect after such time as a final decree in divorce

may be entered with respect to the parties.”10 Id. at 2 (emphasis added).

____________________________________________


10Wife testified that she did not believe that the agreement would take effect
until the divorce was finalized because the PSA stated that it “‘shall be in full



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See also id. at 11 (“This Agreement shall be incorporated in, but not merged

with or be impaired by any Divorce Decree which may be granted by a court

of competent jurisdiction. The Agreement shall survive such Decree in full

force and effect . . . .”). A thing cannot “survive” or “continue” to exist after

an event unless it also existed before that event. The use of “any” divorce

decree that “may” be entered supports this notion that the PSA was a certainty

although the entry of divorce decree was indefinite. As this language is clear

and unambiguous, Wife’s testimony to the contrary cannot be used to

establish a different intent. See Halpin, supra at 39. Further, Wife’s self-

serving testimony is contradicted by the conduct of the parties.11

       Fourth, entry of the QDRO was within the subject-matter jurisdiction of

the court, and was not somehow invalidated by the fact that no divorce decree

ultimately issued.       A QDRO “is a domestic relations order that creates,

recognizes, or assigns to an alternate payee the right to receive all or a portion

of the benefits payable to a participant under a pension plan subject to the

Employee Retirement Income Security Act (ERISA).” Wilder, Pa. Family Law

Prac. and Proc. (5th ed.), at § 23-4 (footnote omitted).
____________________________________________


force after such time as a final decree in divorce may be entered.’” N.T. Trial,
2/8/16, at 91 (purporting to quote PSA, 6/18/12, at 2). However, the
agreement actually states that it shall continue to be in force after the parties
are divorced. Counsel failed to note the inaccuracy of Wife’s quote when
repeating it in the brief of appellant. See Wife’s brief at 10.

11As noted earlier, although no divorce decree ever issued, Wife and Husband
both performed all of their property-distributing obligations under the PSA but
for Wife’s waiver of Husband’s pension benefits between their execution of the
PSA and Husband’s death. N.T. Trial, 2/8/16, at 67-69, 93, 113, 116.

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      Under 23 Pa.C.S. § 3105, “almost all matters involving family law issues

should be heard under the Divorce Code,” regardless of whether there is an

agreement that has been merged or incorporated into a divorce decree.

Annechino v. Joire, 946 A.2d 121, 122 (Pa.Super. 2008). This statute, along

with 23 Pa.C.S. § 3323(f), allows courts to enforce agreements even if they

were never “raised in the divorce pleadings” and grants the court “not only

broad enforcement powers, but full equity and jurisdiction to issue orders

necessary to protect the interests of the parties and effectuate economic

justice and insure the fair and just settlement of the parties’ property rights.”

Id. at 124 (internal quotation marks omitted).

      Hence, under Pennsylvania domestic relations law, a court with

personal jurisdiction over the parties has subject matter jurisdiction to enter

a QDRO pursuant to a property settlement agreement, even if not sought

during the litigation of a divorce action. See Wilder, supra at § 23-4 “(A

divorce action need not be involved so long as the QDRO is entered pursuant

to a state ‘domestic relations law.’ . . . A QDRO may be used to enforce a

property settlement agreement.”) (footnote omitted).

      For all of these reasons, Wife’s 401(k) money was properly distributed

through a QDRO that was executed pursuant to a valid PSA by Husband and

Wife and issued by a court with both personal and subject-matter jurisdiction.

Therefore, the trial court correctly determined that Wife failed to establish her

entitlement to a verdict on her counterclaim. No relief from this Court is due

with respect to Wife’s challenges to the QDRO.

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     The remaining three issues raised by Wife concern the trial court’s

interpretation of the PSA and enforcement of that interpretation. We begin

by reviewing the relevant language of the PSA:

     Wife will agree to waive all right, title and interest in
     Husband’s Police Pension.            Wife will sign any necessary
     paperwork upon demand to facilitate said waiver. In addition,
     Wife agrees to waive any death benefit from Husband’s Pension.
     She will sign any necessary paperwork to facilitate said waiver. At
     the time of the signing of this Agreement, Wife is to receive a one
     hundred percent (100%) death benefit. If the Plan Administrator
     of said Pension will not permit a waiver of said death benefit to
     Wife or a change of beneficiary based on Wife’s life
     expectancy, Wife will agree to sign any necessary paperwork,
     including a statement in writing that she waives the benefits and
     instructs her estate to make payment of any benefits it may
     receive to a beneficiary designated by Husband. As of the date of
     the signing of this Agreement, the designated beneficiary of the
     death benefit will be Jeffrey Benyo, who currently resides at 186
     Upper Valley Road, Christiana, Pennsylvania. Unless Wife receives
     a written statement from Husband that the designated beneficiary
     has changed, any proceeds that she or her estate receives
     shall be paid to Jeffrey Benyo. It is understood that, if Wife
     fails to fulfill the obligation set forth in the Agreement, Jeffrey
     Benyo and/or the estate of Michael Benyo may pursue all claims
     he or the estate may have against Wife and may seek appropriate
     sanctions including but not limited to counsel fees.

PSA, 6/18/12, at 8 (emphasis added).

     Wife contends that the payments she had been receiving from PMRS

were neither part of Husband’s pension nor a death benefit, as those terms

are defined under the Municipal Police Pension Law, but rather joint annuitant

benefits to which she was entitled in her own right. Wife’s brief at 6. Wife

further asserts that even if the PSA does provide for the waiver and/or

assignment of the benefits she received from PMRS, applicable statutes

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J-S61017-18


prohibit the assignment or transfer of municipal police pensions.     Id. at 5

(citing 53 P.S. §§ 764 and 881.115), 27-31. Moreover, argues Wife, the trial

court could not circumvent those statutes by ordering the transfer of the

payments from PMRS after Wife received them. Id. at 6, 33-34.

      None of Wife’s arguments warrants our disturbing the trial court’s

verdict. Construing the PSA as a whole, giving meaning to all language, it is

plain that the parties’ clear and unambiguous intent was for Wife to give up

all of her rights to receive money from PMRS in any form. Husband selected

for his retirement benefit an annuity that was calculated at the time of

Husband’s retirement and based upon the combined life expectancy of himself

and Wife. See N.T. Trial, 2/8/16, at 162, 184. There was no separate annuity

for Wife; rather, Husband’s pension was in the form of a single annuity which

would continue to pay as long as one of the joint annuitants was alive. See

id. at 162 (trial testimony of Sean Christine) (“So long as either one of them

is alive, that annuity will continue to pay. One does not stop when another

one begins, it’s not two separate. It’s one, based upon the entire length of

the life expectancy [of both annuitants].”); see also id. at 147-48 (discussing

that pension payments to Husband during his life and survivor annuity

payments to Wife thereafter were “the same benefit”). As such, Wife’s right

to receive annuity payments if Husband predeceased her was an “interest in

Husband’s Police Pension” that she expressly agreed to forfeit in the first

sentence of the PSA’s provisions regarding retirement benefits.         Wife’s


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J-S61017-18


construction distinguishing “survivor annuitant” benefits from “pension

benefits” and “death benefits” does not change the fact that all of those

benefits flow from Husband’s pension.

      Given the nature of the survivor annuity, Husband’s selection of a

survivor annuitant was irrevocable once he began to receive his pension

benefits prior to the parties’ separation, and he could not change the survivor

annuitant from Wife to another person. See id. at 160-61. This possibility

was contemplated by the parties post-separation and expressly addressed in

the PSA, which states “[i]f the Plan Administrator of said Pension will not

permit a waiver of said death benefit to Wife or a change of beneficiary

based on Wife’s life expectancy, Wife will agree to sign any necessary

paperwork, including a statement in writing that she waives the benefits and

instructs her estate to make payment of any benefits it may receive to a

beneficiary designated by Husband.” PSA, 6/18/12, at 8 (emphasis added).

The joint annuity was the only aspect of Husband’s retirement benefits that

was in any way tied to Wife’s life expectancy. Hence, Wife’s contention that

the survivor annuity was not included in Wife’s waiver of benefits utterly

ignores the above provision of the PSA, as well as her agreement that “any

proceeds that she or her estate receives shall be paid to Jeffrey Benyo.” Id.

Accordingly, the trial court properly ruled that, under the terms of the PSA,

Jeffrey Benyo, not Wife, was entitled to the payments from PMRS made after

Husband’s death.


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J-S61017-18


      Wife maintains, however, that Pennsylvania law makes assignment of

the pension benefits from Wife to another person illegal. Wife relies upon two

statutes in support of her contention. First, the Municipal Police Pension Law

provides as follows: “The pension payments, herein provided for, shall not be

subject to attachment, execution, levy, garnishment or other legal process,

and shall be payable only to the member or his designated beneficiary and

shall not be subject to assignment or transfer.”      53 P.S. § 776 (footnote

omitted). Similarly, the Pennsylvania Municipal Retirement Law states that

“[t]he retirement allowance and the contributions of members to the fund, all

contributions returned to contributors under the provisions of this act and the

moneys in the fund created by this act, shall be exempt from any State or

municipal tax and shall be unassignable except to a beneficiary.”       53 P.S.

§ 881.115(a).

      Wife argues that these statutes prohibit the assignment of Wife’s

interest in the survivor annuity to a third party, and prohibit the use of any

legal process to require their transfer to a third party. Wife’s brief at 27-32.

Wife further asserts that, because the provision of the PSA assigning her rights

in the pension benefits was illegal under the above statutes, the court could

not circumvent the law by ordering Wife to transfer the funds to Jeffrey Benyo

after they were paid to her by PMRS. Id. at 33-34 (quoting Employers’ Liab.

Assur. Corp. v. Fischer & Porter Co., 75 A.2d 8, 10 (Pa.Super. 1950)) (“It




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is settled beyond question that the law will not aid one to recover on a contract

expressly prohibited by law.”).

       Wife’s argument is contrary to relevant precedent.          Shortly after the

1950 case quoted by Wife was decided, this Court held that the legislature

exempted police pensions from attachment “for the protection of the

governmental        agency,”      not    in    aid   of   delinquent   husbands[.]”

Commonwealth v. Mooney, 92 A.2d 258, 260 (Pa.Super. 1952).                    Thus,

although a court could not require the police pension fund to distribute funds

to someone other than the beneficiary, the funds were “attachable in the

hands of the delinquent husband, when received by him and proceedings may

be directed against him personally for failure to pay support though his only

resources are derived from such payments.”12 Id.




____________________________________________


12The Mooney decision was later disapproved of by our Supreme Court, which
held that police pensions were attachable in the hands of the agency for the
purposes of enforcing support obligations. See Young v. Young, 488 A.2d
264, 268 (Pa. 1985). This Court further held that a government pension was
subject to attachment to enforce a judgment entered upon a spouse’s breach
of a property settlement agreement. Beltrami v. Rossi, 726 A.2d 401
(Pa.Super. 1999). In 2010, the legislature codified the rule that rights under
the Pennsylvania Municipal Retirement Law are indeed subject to attachment
under an approved domestic relations order, which includes approval of a PSA
entered into after July 9, 2010, relating to the marital property rights of a
spouse or former spouse. See Subsection (b)(1) of 53 P.S. § 881.115(b)(1).
See also 53 P.S. 881.102 (defining terms). While these provisions contradict
Wife’s claim that municipal pension funds are absolutely untouchable by any
legal process while in the hands of the agency, they are not applicable here,
as the trial court did not order PMRS to issue payments to a third party.

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J-S61017-18


      The trial court in this case did not attach Husband’s pension by ordering

PMRS to make the monthly payments to Jeffrey Benyo instead of to Wife.

Rather, as in Mooney, it required Wife to transfer the amount of the payments

she received to Jeffrey Benyo, as she promised to do when she executed the

PSA. Sean Christine, PMRS chief of membership services, testified at trial that

PMRS does not care what happens to the money after it paid it to Wife—she

is free to transfer it without restriction. See N.T. Trial, 2/8/16, at 178 (“[I]t’s

similar to having your employer pay you. The employer pays you, and what

you do with the money afterwards is your business.”). We see no illegality in

the trial court’s enforcement of Wife’s obligations under the PSA.

      Indeed, this Court recently approved a similar resolution when faced

with comparable facts in In re Estate of Easterday, 171 A.3d 911 (Pa.Super.

2017), appeal granted in part, 184 A.3d 542 (Pa. 2018). In that case, the

spouses also entered into an agreement to waive their rights to each other’s

pensions, but the husband died before his beneficiary was changed and before

grounds for divorce were established and a decree entered. Under ERISA, the

payments could not be made to anyone other than the beneficiary designated

in the retirement plan documents.         To enforce the parties’ agreement,

therefore, the trial court ordered the wife to pay to decedent’s estate all of the

pension benefits she received from the plan. This Court affirmed, holding that,

while ERISA removed the court’s ability to require the retirement plan

administrators to directly pay funds to a third party, it could enforce the


                                      - 24 -
J-S61017-18


parties’ property settlement agreement by ordering the wife to turn over to

the husband’s estate all proceeds she had received, as well as any future

proceeds she was entitled to receive. Id. at 920.

      Thus, pursuant to the law cited above, the trial court in the case sub

judice did not circumvent any illegality by ordering Wife to comply with the

PSA by remitting payments she received from PMRS to Jeffrey Benyo after she

received them.

      For all of the foregoing reasons, we affirm in full the trial court’s verdict

in favor of Appellees and against Wife. However, it is necessary for us to

vacate the judgment that was entered upon that verdict during the pendency

of this appeal after this Court directed its entry.

      The trial court’s verdict set forth alternative and contingent equitable

and monetary awards for Appellees. Specifically, it provided that if Wife paid

Appellees the amount she had received from PMRS prior to the verdict within

sixty days, and faithfully complied with the trial court’s order to transfer future

benefit payments, then the award of $503,656.51 (representing the total

value of payments Wife would receive if she lived to her statistical life

expectancy) would not be subject to recording or enforcement by Appellees.

The verdict also placed upon Jeffrey Benyo the duty to reimburse Wife for any

tax liability she realized by virtue of her receipt of the PMRS payments.

      Wife’s death after this appeal was filed mooted the primary, equitable

form of relief awarded by the trial court. Also, the record before us contains


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no information about the parties’ compliance with the duties imposed by the

trial court, how those duties were impacted by Wife’s filing for bankruptcy, or

how much money Wife received from PMRS before her death terminated the

annuity benefits. Even without those complicating factors, it is clear to us

from the conditional nature of the relief awarded in the verdict that additional

judicial fact-finding must occur prior to entry of a money judgment against

Wife.

        Accordingly, although Wife has presented this Court with no basis to

disturb the trial court’s verdict, we vacate the April 18, 2018 judgment entered

on that verdict and remand for the trial court to calculate the full and final

monetary relief due to Appellees and to enter judgment against Wife’s estate

for that amount.

        Judgment vacated. Verdict affirmed. Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/19




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