J-A02020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LINDA MARIE PERRY                                  IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

WAYNE J. PERRY

                            Appellant                   No. 363 EDA 2013


               Appeal from the Order Entered December 28, 2012
                In the Court of Common Pleas of Lehigh County
                  Domestic Relations at No(s): 2009-FC-1619


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and STRASSBURGER, J.*

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.

FILED JULY 29, 2014



claims do not entitle him to relief, and that this case should be remanded for

                                               counsel fees. However, because I

conclude that the trial court abused its discretion by refusing to award



receive but did not, I respectfully dissent.

        It is well-                               pension funds accrued during

marriage is marital property and subject to equitable distribution. Endy v.

Endy, 603 A.2d 641, 643 (Pa. Super. 1992). Here, the parties and the trial

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A02020-14




pension. When the pension initially entered pay status, Wife received 100%

of the marital portion of her pension, and Husband received nothing.

Husband requested that he be awarded these missed payments in his




The trial court denied this petition. In its opinion pursuant to Pa.R.A.P. 1925,

the trial court justifies this decision by stating that Husband delayed the

preparation of a QDRO and the entry of the divorce decree, and that he



12/28/2012, at 15.

      T

initial refusal to sign the QDRO while exceptions were pending cannot be

deemed a meritless delaying tactic where, as here, the trial court granted

those exceptions in part. Admittedly, Husband did not sign the QDRO

immediately   after   his   exceptions    were   resolved.   However,   APL   was



It does not appear that Husband was receiving any sort of financial benefit

from Wife after that date, and he would have had no incentive to delay the

proceedings unnecessarily.

      Thus, I conclude that Husband was entitled to the relevant portion of




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