Kepler v. Kepler (memorandum)

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J-S61027-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 LOUISE JEAN CERASOLI KEPLER IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ALAN EMORY KEPLER Appellee No. 26 EDA 2012 Appeal from the Order Entered December 2, 2011 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): April Term, 1991 No. 02841 LOUISE JEAN CERASOLI KEPLER IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. ALAN EMORY KEPLER Appellee No. 114 EDA 2012 Appeal from the Order Entered December 2, 2011 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): April Term, 1991 No. 02841 BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.* MEMORANDUM BY LAZARUS, J. Filed: January 10, 2013 The parties, Alan Emory Kepler ( Husband ) and Louise Jean Cerasoli Kepler ( Wife ) filed these cross appeals from the trial court s December 2, ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S61027-12 2011 order granting in part Husband s petition to enforce the parties March 4, 1994 property settlement agreement ( PSA ). The trial court determined that pursuant to the PSA, Husband was entitled to $29,200.00 of Wife s pension benefit that accrued as an employee of PNC Bank. After our review, we find no error or abuse of discretion, Cioffi v. Cioffi, 885 A.2d 45 (Pa. Super. 2005), and we affirm on the opinion authored by the Honorable Lisette Shirdan-Harris. Wife raises the following issues on appeal: 1. The statute of limitations for contracts is 4 years, which begins to run at the time of the breach. A contract required that, within 10 days of execution of a qualified domestic relations order (QDRO), Wife deliver the QDRO to the pension plan administrator; the QDRO was executed in 1994, Wife did not deliver the QDRO, and husband sought to enforce the contract in 2011. Did husband act within the statute of limitations? 2. A contract cannot be altered; rather, a contract must be enforced according to its terms. Husband wants an amount of Wife s retirement benefits different from that amount in the parties contract. Can the contract be altered to give Husband such different amount? 3. A statement in a petition is a judicial admission, which cannot be refuted; and in cases of a written contract, the intent of the parties is the contract. Husband admits, in his petition, that the parties contract specifies Husband s benefits are $29,200. Is the written contract the parties intent? 4. A preliminary injunction cannot issue if the possible harm can be compensated with money damages. This case concerns the payment of money, and therefore any possible harm can be compensated by money damages. Can a preliminary injunction issue? 5. A contract states a non-breaching party is entitled to counsel fees if the contract is enforced. The non-breaching party -2- J-S61027-12 sought to enforce a breach more than 13 years after the statute of limitation had expired. Is the non-breaching party entitled to counsel fees?1 In his cross-appeal, Husband raises the following issues: 1. Did the court err in entering a lump [sum] award relative to distribution of a defined benefit pension? 2. Did the court err in refusing to take testimony, consider expert testimony and permit discovery for the purpose of interpreting, quantifying and implementing the terms of the parties PSA in making its order? 3. Did the court err in refusing to issue an injunction to protect the rights of Husband? 4. Did the court err in failing to find a breach of the parties PSA and refusing to award counsel fees pursuant to the said agreement? 5. Did the court rule correctly that the instant petition to enforce was not barred by any statute of limitations? The parties were married in 1982 and separated in 1992. The parties PSA, dated March 4, 1994, was incorporated into the parties April 12, 1994 divorce decree. The PSA provided for entry of a qualified domestic relations order (QDRO) against Wife s pension in favor of Husband. As of April 4, 1992, Wife s defined benefit retirement plan2 had a present value of ____________________________________________ 1 We note that Wife s Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal presented a summary of facts that amounted to a statute of limitations claim. Wife s issue on appeal here, therefore, is limited to that claim, which is presented in her first issue. We find issues 2 through 5 are waived. See Childress v. Bogosian, 12 A.3d 448 (Pa. Super. 2011); Balicki v. Balicki, 4 A.3d 654 (Pa. Super. 2010). 2 Prior to 2004, there was confusion as to the proper valuation method for the marital portion of a defined benefit plan. Compare Berrington v. Berrington, 633 A.2d 589 (Pa. 1993) (finding spouse's share should be (Footnote Continued Next Page) -3- J-S61027-12 $61,457; the PSA stated that Husband was entitled to $29,200, or approximately 47.5%. The PSA reads, in relevant part: It is agreed between the parties that Husband shall be entitled to $29,200 of said pension benefit, payable to Husband at the time Wife commences to receive her benefits under the Plan. The benefits payable to Husband shall be paid to Husband in the manner of periodic payments from the Plan over Husband s then life expectancy. The periodic payments to Husband shall be the actuarial equivalent of the lump sum value of benefits due Husband as provided above. . . . It is intended by the parties hereto that this provision for pension benefits shall be approved by the Court of Common Pleas as a separate Order which shall constitute a Qualified Domestic Relations Order (QDRO) to the Plan Administrator of the Plan within ten (10) days of the execution of said QDRO. PSA, 3/4/1994, at ¶3.5. Wife was required to deliver a QDRO to the pension plan administrator within ten days of its execution. Wife prepared a draft QDRO, but it was not executed by the parties, and thus Wife never delivered it to her pension plan administrator. Wife began receiving benefits in June 2004. In June 2011, (Footnote Continued) _______________________ calculated based upon the salary at the time of separation) with Gordon v. Gordon, 681 A.2d 732 (Pa. 1996) (coverture fraction should be used to determine spouse's share of enhancements from employee-spouse's election for early retirement) and Holland v. Holland, 588 A.2d 58 (Pa. Super. 1991) (former spouse entitled to share in increase of marital share which may occur by employee spouse's continued employment). The legislature addressed this in 2004, adding subsection (c) to section 3501 of the Divorce Code. 23 Pa.C.S. § 3501(c) (definition of Defined benefit retirement plan ). In 2007, our Supreme Court examined section 3501(c) and concluded that the courts must honor the legislature's unequivocal intention to utilize the coverture fraction to provide economic justice between the parties. Smith v. Smith, 938 A.2d 246, 258 (Pa. 2007). -4- J-S61027-12 Husband received a letter from PNC Bank indicating that the pension was in pay status. On August 11, 2011, Husband filed a petition to enforce the PSA. The trial court held a hearing on October 6, 2011. court requested briefs from the parties. Thereafter, the On December 2, 2011, the court entered an order awarding Husband $29,200 of Wife s pension benefit, specifying that the method and amount of payments to Husband are to be determined through the Plan Administrator pursuant to the accepted QDRO submitted by the Parties and payable through the PNC Retirement Plan. See Order, 12/2/2011. Wife s statute of limitations claim is clearly meritless. Despite her characterization of Husband s action as one for breach of contract, his action is simply one to enforce the parties PSA. Under the Divorce Code, a court has power to effect compliance with an agreement at any time. See 23 Pa.C.S. § 3502(e) (Powers of the court).3 With respect to Husband s claims, we also find no error or abuse of discretion. After a careful review of the parties briefs, the record on appeal, ____________________________________________ 3 Section 3502(e) of the Divorce Code states: 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 the order: (1) enter judgment; . . . (7) award counsel fees and costs . . . . 23 Pa.C.S. § 3502(e) (emphasis added). -5- J-S61027-12 and the relevant law, we conclude that Judge Shirdan-Harris opinion properly disposes of Husband s issues on appeal. Therefore, we rely upon Judge Sherdan-Harris decision to affirm the trial court s order. We instruct the parties to attach that decision in the event of further proceedings in this matter. Order affirmed. -6-

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