J-S39007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

REBECCA J. TYLER,                                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ZANE M. TYLER,

                            Appellant                 No. 835 WDA 2016


                  Appeal from the Order Entered May 19, 2016
                In the Court of Common Pleas of McKean County
                      Civil Division at No(s): 962 C.D. 1995


REBECCA J. TYLER,                                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

ZANE M. TYLER,

                            Appellee                  No. 876 WDA 2016


                  Appeal from the Order Entered May 19, 2016
                In the Court of Common Pleas of McKean County
                      Civil Division at No(s): 962 C.D. 1995


BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 01, 2017

        Zane M. Tyler (Husband) and Rebecca J. Tyler (Wife) each appealed

from the order entered on May 19, 2016, in response to Wife’s petition for

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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special relief, requesting clarification of the family law master’s 1997 report

and recommendation and a qualified domestic relations order (QDRO), dated

June 14, 1999.     The May 19, 2016 order outlined a payment plan for the

$17,224.17 balance owed to Wife from Husband, relating to Wife’s equitable

share of Husband’s military pension including an interest rate of 2.1% per

year. We affirm.

      We begin by setting forth the trial court’s recitation of the facts as

stated in its opinion filed pursuant to Pa.R.A.P. 1925(a) in connection with

Husband’s appeal:

            As part of the parties’ divorce, equitable distribution was
      made. The Family Law Master (“FLM”) issued a Report and
      Recommendations at the culmination of the parties’ final divorce
      hearing.   This Report was dated January 17, 1997, and
      subsequently adopted as an Order of Court on January 29, 1997
      …. The Report provided inter alia that:

            If [Husband] is able to do so, it is recommended that
            he pay to [Wife] approximately $77,500, or fifty
            percent of the present value of his military pension
            as of December 19, 1990. If [Husband] is unable to
            make a lump sum payment in this amount or
            arrange to pay that amount to [Wife] in installment
            payments over a reasonably short time, then it is
            recommended that [Wife’s] interest in the military
            pension be paid to her after [Husband] retires in a
            percentage of his monthly installments equal to 50%
            of the marital portion of the pension calculated
            according to the formula approved in Brown v.
            Brown, 447 Pa. Super. 424, 669 A.2d 969, 974
            (1995). Counsel should, in that event, prepare a
            Qualified Domestic Relations Order designed to effect
            this result.

         1997 Report and Recommendations, Page 11.


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           Subsequently, counsel for both parties submitted a
     Qualified Domestic Relations Order (“QDRO”), which was
     executed … on June 14, 1999. The QDRO stated as follows:

          (b) [Husband] shall withdraw $77,500.00 from his
          military retirement account.
          (c) [Husband] shall do so by paying no more than
          50% of the present value of his monthly military
          retirement pension account.
          (d) Said payments shall continue until the sum total
          of $77,500.00 is paid to [Wife].

       Qualified Domestic Relations Order, Tyler v. Tyler, 962
       C.D. 1995 Dated June 14, 1999.

            The parties were divorced on January 5, 1999. On January
     9, 2013, Wife filed a Petition for Special Relief in which she
     sought clarification of the FLM’s January 17, 1997 Report. Prior
     to said filing, Defense Finance and Accounting Services,
     overseers of Husband's military pension, indicated that it had
     overpaid Wife the amount of $19,290.00 and, therefore, sought
     reimbursement for this overpayment, plus interest. Wife paid
     the $19,290.00 plus an additional $5,519.01 in interest, for a
     total of $24,809.01. The [c]ourt referred the Petition for Special
     Relief to the FLM for resolution.

            The FLM issued a Report and Recommendations on June 7,
     2013. The FLM concluded that the QDRO did not follow the
     recommendations as outlined in the 1997 Report.            In so
     concluding, the FLM stated that, rather than Wife[’s] receiving a
     sum certain to be paid in installments, the QDRO should have
     provided for a percentage of Husband’s benefit based upon the
     value of the pension as of the date of the parties’ separation—
     December 19, 1990. In support of this recommendation, the
     FLM cited Brown, supra; Smith v. Smith, 936 A.2d 246 (Pa.
     2007); and 23 Pa.C.S.[] § 3501(e)(1) and (2). Therefore, it was
     the FLM’s Recommendation that the QDRO may have been
     drafted in error in regards to the computation method for
     distributing the marital portion of Husband’s pension owed to
     Wife.

            Husband filed Exceptions to the June 2013 Report and
     Recommendations in which he argued that the parties never
     anticipated paying, or receiving, anything more than

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     $77,500.00. Essentially, he argued that the language in the
     2013 Report suggested that Wife should be receiving a higher
     amount from the pension than $77,500.00 but that the parties
     did not contemplate a lifetime sharing of [Husband’s] pension.
     Finally, he argued that the [c]ourt should not consider the FLM’s
     opinion of the then sixteen (16) year old QDRO because it was
     irrelevant for a determination of this matter.

            These Exceptions were overruled by this [c]ourt in its
     Opinion and Order dated July 30, 2013 and filed August 1, 2013.
     The [c]ourt reasoned that the FLM intended to distribute to Wife
     50% of Husband’s pension, as then valued. This amount was
     $77,500.00 if it was paid immediately, but the FLM contemplated
     the actual dollar amount being more if it were distributed via
     long-term installment payments. No objection or appeal was
     filed as to this Order, and it became final after thirty (30) days.

           In January 2016, Wife's counsel requested a [h]earing. A
     [h]earing was held on April 7, 2016. During the [h]earing, Wife
     prayed for an equitable resolution to the QDRO that was drafted
     in error; namely that she continue to receive payments in
     accordance with the intention of the FLM’s recommendations or
     that she receive payment of interest on the $77,500.00 lump
     sum, as she has been paid over a period of almost twenty (20)
     years.

           To date, Wife received [a] net total of $71,254.99 from
     Husband’s military pension.     Although Wife received total
     payments in the amount of $96,064.00, Wife was forced to
     repay $24,809.01 in principal and interest for alleged
     “overpayments” to her.

           Essentially, both parties submitted the matter for
     interpretation, admitting the QDRO was poorly drafted and the
     parties[’] having failed to reach any agreement on how the
     QDRO should be interpreted.




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Trial Court’s Rule 1925(a) Opinion (TCO-Husband’s Appeal), 8/23/16, at 1-

4.1

       After the April 7, 2016 hearing was held and upon receipt of the FLM’s

report and recommendation, the trial court issued the order presently on

appeal. The order provided that Wife was owed a balance of $17,224.17 “as

of May 2012 for her equitable share of [Husband’s] military pension at an

interest rate of 2.1% per annum.” Trial Court Order, 5/19/16. The court

directed that the interest that accrued from May 2012 to June 2016 totaled

$1,476.86 and was to be paid by Husband to Wife within thirty days.        Id.

The court further directed that Husband was to pay Wife $733.47 per month

for twenty-four months, which would satisfy Husband’s debt to Wife.

       Both Husband and Wife filed timely appeals and complied with the

court’s orders to file statements of errors complained of on appeal. Husband

now raises two issues for our review:

       1.   Did the lower [c]ourt abuse its discretion and err in
       considering [Wife’s] Petition for Special Relief?

       2. If the lower [c]ourt properly considered [Wife’s] Petition for
       Special Relief, did the lower [c]ourt act properly and within its
       discretion in promulgating its Order of May 19, 2016?

Husband’s brief at 4. Wife raises one issue for our review:

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1
  The factual rendition in the court’s Rule 1925(a) opinion relating to
Husband’s appeal is essentially a mirror image of the one issued in response
to Wife’s appeal. See Trial Court Rule 1925(a) Opinion (TCO-Wife’s Appeal),
8/11/16, at 1-3.



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       Did the trial court abuse its discretion when it ruled that [Wife]
       was only entitled to a limited number of payments from
       [Husband’s] military pension[?]

Wife’s brief at 12.

       To begin, we quote the trial court’s introductory paragraph in its

opinion relating to Husband’s appeal, which states:

              Simply put, the [c]ourt and the parties determined at
       hearing that the QDRO had been poorly drafted and did not
       reflect the FLM’s recommendations.        Furthermore, it was
       believed that there was no way to redraft the QDRO so late in
       time. The parties’ arguments illustrate that Husband and Wife
       were never in agreement with the concept of the pension
       distribution.   Husband argued that the QDRO should be
       interpreted to mean that Wife should only receive a share of
       Husband’s pension until she collected the amount of
       $77,500.00[.]    Wife interpreted the QDRO to mean that if
       Husband could not immediately pay the $77,500.00 due her,
       then Wife should receive 50% of Husband’s pension payments in
       perpetuity. Like the vexing QDRO, neither of these arguments
       comports with the FLM’s recommendations.

TCO-Husband’s Appeal at 5.

       The main thrust of Husband’s argument in his brief is that the court

did not have the power to entertain Wife’s petition for special relief because

its actions violated section 3332 of the Domestic Relations Code entitled

“Opening or vacating decrees[,]” which states:

       A motion to open a decree of divorce or annulment may be made
       only within the period limited by 42 Pa.C.S. § 5505 (relating to
       modification of orders) and not thereafter.[2] The motion may lie
       where it is alleged that the decree was procured by intrinsic
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2
  Section 5505 provides that a court “may modify or rescind any order within
30 days after its entry … if no appeal from such order has been taken or
allowed.” 42 Pa.C.S. § 5505.



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      fraud or that there is new evidence relating to the cause of
      action which will sustain the attack upon its validity. A motion
      to vacate a decree or strike a judgment alleged to be void
      because of extrinsic fraud, lack of jurisdiction over the
      subject matter or a fatal defect apparent upon the face of
      the record must be made within five years after entry of
      the final decree. Intrinsic fraud relates to a matter adjudicated
      by the judgment, including perjury and false testimony, whereas
      extrinsic fraud relates to matters collateral to the judgment
      which have the consequence of precluding a fair hearing or
      presentation of one side of the case.

23 Pa.C.S. § 3332 (emphasis added). Thus, Husband claims that because

Wife’s petition for special relief was filed 14 years after the divorce decree

was entered and 12½ years after the QDRO was issued, the court abused its

discretion by considering the petition, i.e., the court was without jurisdiction.

      Although the trial court did not specifically address Husband’s

jurisdiction argument in its opinion, it explained the reasons for its decision

as follows:

             In her original report and recommendations, the FLM
      suggested that Husband had two (2) options: the first was to
      make a lump sum payment to Wife in the amount of $77,500.00
      (her share of the pension as then valued) or pay Wife a
      coverture fraction not to exceed 50% of Husband’s pension
      payments when Husband’s pension finally reached pay status.
      The point of the first option being to settle the matter quickly;
      the gist of the second option being that Wife should be allowed
      to collect more money (i.e. interest) if she had to wait years to
      receive money that was determined to be hers in 1997.
      Admittedly, the FLM did not put an end date for Wife’s share of
      pension benefits if she were to be paid according to a coverture
      fraction. The FLM reiterated the same theme in her 2013 report.

            To effectuate the FLM Recommendations, a QDRO was
      drafted. The QDRO was certainly not the product of the parties’
      agreement as Husband suggested in his Concise Statement.
      There was no testimony to indicate the QDRO was anything
      other than a way to effectuate the FLM’s Recommendations.

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      Furthermore, it was apparent that Husband and Wife had
      different expectations at the time the QDRO was drafted just as
      they have different interpretations of the QDRO now.

             As far as Husband[’s] paying Wife her share of the military
      pension, Husband clearly did not elect to pay the $77,500.00
      immediately in full. Instead, he chose to make “installment
      payments” over time out of his pension.          However, these
      installments were improperly taken from Husband’s pension as
      he was sharing half of his pension when he should have only
      been sharing a coverture fraction.

             Because the QDRO had been poorly drafted so many years
      ago, the [c]ourt could not redraft the QDRO to properly reflect
      the FLM’s recommendations. However, the [c]ourt was not
      without remedy as Wife was appealing to the equitable powers of
      this [c]ourt. The question for the [c]ourt then became whether
      Wife could equitably be awarded interest on the installment
      payments owed to her for the original $77,500.00 and how could
      it be distributed to her if she were so entitled.

TCO-Husband’s Appeal at 5-6 (footnote omitted).

      The decision in Hayward v. Hayward, 808 A.2d 232 (Pa. Super.

2002), provides guidance in this matter. In Hayward, the husband filed a

petition for special relief six years after the entry of a QDRO, claiming inter

alia that the QDRO “failed to comport with the agreed-upon terms of the

consent order[,]” which memorialized the distribution of the marital

property.   Id. at 234.   Specifically, the husband asserted that the QDRO

granted the wife 50% of his entire military pension rather than the portion

accumulated from the date of the marriage to the date of separation. Id.

Prior to addressing the issues raised by the husband, this Court noted the

husband’s six-year delay in filing his request for relief, recognizing that 42

Pa.C.S. § 5505 only allows a court to modify a QDRO within thirty days of its



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entry. Then, relying on Stockton v. Stockton, 698 A.2d 1334 (Pa. Super.

1997), the Hayward court quoted the following:

            The lower court’s authority under 42 Pa.C.S.[] §
            5505 to modify or rescind an order is almost entirely
            discretionary; this power may be exercised sua
            sponte, or may be invoked by a request for
            reconsideration filed by the parties, and the court’s
            decision to decline to exercise such power will not be
            reviewed on appeal.

            Although 42 Pa.C.S.[] § 5505 gives the trial court
            broad discretion, the trial court may consider a
            motion for reconsideration only if the motion is filed
            within thirty days of the entry of the disputed order.
            After the expiration of thirty days, the trial court
            loses its broad discretion to modify, and the order
            can be opened or vacated only upon 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.

      Id. (emphasis added) (citations and quotation marks omitted).
      Absent an allegation of extrinsic fraud or other extraordinary
      cause, the trial court does not have jurisdiction to grant a
      petition to modify a QDRO if such petition was filed more than
      thirty days from the date the QDRO was entered. Id. at 1338.

Hayward, 808 A.2d at 235 (quoting Stockton, 698 A.2d at 1337).

Notably, the emphasized language contained in the Hayward opinion’s

quoting of Stockton employs the language contained in 23 Pa.C.S. § 3332,

although not identified as such.

      The   Hayward     decision   further   explains   that   “[e]xtraordinary

circumstances have been found to exist in the context of mistakes made by

the court or its officers[.]” Hayward, 808 A.2d at 235. In those instances,


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“the court had the discretion to grant relief to the moving party beyond the

thirty-day time bar imposed by section 5505.”       Id. at 236.   This Court in

Hayward determined that the trial court

       erred by failing to modify the 1995 QDRO to comport with the
       consent order entered into by the parties in 1989. Although [the
       husband] filed his motion for special relief almost six years after
       entry of the 1995 QDRO, extraordinary circumstances exist since
       there is a fatal defect on the face of the record, i.e., the 1995
       QDRO utilizes an improper coverture fraction that has the effect
       of granting [the wife] 50% of [the husband’s] entire military
       pension rather than 50% of the marital portion of his pension as
       agreed to by the parties in the 1989 consent order and as
       provided by Pennsylvania law.

Id.

       Likewise, we recognize that the errors in the QDRO here similarly

reveal a fatal defect on the face of the record, which we conclude rises to

the level of an extraordinary circumstance.3 Specifically, in the case before

us, the QDRO does not comport with the FLM’s report and recommendation.

Notably, just as in Hayward, the QDRO makes no mention that the sum due

takes into consideration Wife’s entitlement to an amount that is 50% of only

the marital portion of Husband’s military pension. However, beyond that, it

____________________________________________


3
  As an aside, we note that the trial court here did not cite section 3332 of
the Domestic Relations Code as giving it the power to address the parties’
claims; rather, it relied on its equitable powers, which we conclude was an
insufficient reason to allow it to accept jurisdiction of the matter. See
Hassick v. Hassick, 695 A.2d 851, 853 (Pa. Super. 1997) (stating that
“while a court possesses equitable powers in divorce proceedings, those
powers do not allow the court to ignore the limited circumstances set forth in
[s]ection 3332 for vacating a final decree….”).



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is evident that neither party nor the court was able to properly interpret the

QDRO and how it aligns with the FLM’s recommendation.          Thus, based on

Hayward, we conclude that the court here was permitted to address Wife’s

petition for special relief.     We further point out that the Brown decision,

relied upon by the FLM, extensively explains the manner in which a deferred

distribution of a pension should be calculated, and directed that the failure to

include an award of interest was an error that should be remedied on

remand. See Brown, 669 A.2d at 975 n.3. Therefore, we conclude that the

trial court here did not err in addressing Wife’s petition for special relief.

Clearly, as recognized by the trial court, clarification was necessary because

the QDRO confirmed by the court in 1999 did not correspond with the

dictates of the FLM’s recommendation and report; essentially, the trial court

had erred by accepting the QDRO in 1999.4

       Now, turning to Wife’s issue,

       [w]e need [to] determine whether the trial court, by
       misapplication of the law or failure to follow proper legal
       procedure, abused its discretion. Moreover, “an abuse of
       discretion is not found lightly, but only upon a showing of clear
       and convincing evidence.”         Specifically, we measure the
       circumstances of the case and the conclusions drawn therefrom
       by the trial court against the provision of 23 Pa.C.S.[] § 3502(a),
____________________________________________


4
   Husband argues that the Hayward decision is distinguishable from the
situation presented to us in this appeal, noting that in Hayward no
reference is made to section 3332 and claiming also that here no fatal defect
is apparent on the face of the record. As discussed above, we disagree with
Husband’s interpretation of Hayward and its comparison to the instant
case.



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     and the avowed intentions of the Divorce Code, namely to
     “effectuate economic justice between [the] parties … and insure
     a fair and just determination of their property rights.”

Palladino v. Palladino, 713 A.2d 676, 678 (Pa. Super. 1998) (quoting

Butler v. Butler, 621 A.2d 659, 663-64 (Pa. Super. 1993) (footnote

omitted)).

     Wife acknowledges that “there were multiple errors committed in the

drafting of the QDRO.” Wife’s brief at 19. However, Wife claims that the

FLM intended that she “should receive lifetime payments if … [Husband] was

unable to pay the lump sum up front.” Id. at 20. Wife also asserts that the

FLM intended that Wife was to be paid 50% of Husband’s total monthly

military pension and that the coverture fraction should not be taken into

account.     Wife appears to accept the fact that if paid at the time of the

divorce, the $77,500.00 amount due her was correct.           However, she

contends that “the FLM contemplated that the amount would be more if it

were distributed via long-term pay out.” Id. at 21. Thus, based upon this

assertion, Wife takes issue with the trial court’s method of calculating

interest to “make [her] whole.” Id.

     To support her position, Wife cites the unpublished memorandum

decision in Grothey v. Grothey, 144 A.3d 197 (Pa. Super. 2016)

(unpublished memorandum), arguing that it “is factually and procedurally

similar to this case.”     Wife’s brief at 22.   We alert Wife that citing

memorandum decisions is prohibited by our Internal Operating Procedures

(IOP) § 65.37. See Hunter v. Shire US, Inc., 992 A.2d 891 (Pa. Super.


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2010) (stating that pursuant to § 65.37, an “unpublished memorandum

decision shall not be relied upon or cited by a party”) (quoting Schaaf v.

Kaufman, 850 A.2d 655, 658 (Pa. Super. 2004)).          Moreover, “it is not

binding on us.” Id.

     Wife also cites Berrington v. Berrington, 633 A.2d 589 (Pa. 1993),

and Brown v. Brown, 690 A.2d 700 (Pa. 1997), contending that the court

should have analyzed the instant matter with reference to those cases.

However, Wife does not identify in what way the court’s determination was

inconsistent with those cases and we refuse to delve into an issue in an

attempt to make Wife’s arguments for her. Thus, we conclude that the trial

court did not abuse its discretion and we accept the method it utilized to

“effectuate economic justice between the parties.” See Palladino, 713 A.2d

at 678. The trial court’s decision is affirmed as a reasonable way to correct

a long-standing, confusingly drafted QDRO that the court in 1997 had

accepted as a way to achieve the FLM’s recommendations.

     Order affirmed.

     Judge Strassburger joins this memorandum.

     Judge Bowes files a concurring memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2017




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