J-S17023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GARY L. FOLMAR, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

LINDA M. FOLMAR,

Appellee No. 1039 WDA 2015

Appeal from the Order June 8, 2015

In the Court of Common Pleas of Clearfield County

Civil Division at No(s): No. 2012-912-CD

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 21, 2016

Gary L. Folmar (“Husband”) appeals from the June 8, 2015 order 

granting Linda M. Folmar’s (“Wife”) petition for clarification of a Qualified 

Domestic Relations Order (“QDRO”).1 Wife seeks to dismiss the appeal as 

untimely and also requests attorney’s fees incident to litigating this appeal. 

For the reasons that follow, we deny Wife’s motions to dismiss and for 

counsel fees, and we affirm the trial court’s order. 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.

1

“A QDRO . . . is a domestic relations 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 [pension] plan.” Morgante v. Morgante, 119 

A.3d 382, 395 n.11 (Pa. Super. 2015) (quoting Berrington v. Berrington,

633 A.2d 589, 591 n.3 (Pa. 1993)). 
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The record reflects that Husband and Wife were married on 

November 19, 1977, and Husband filed for divorce on June 14, 2012. On 

June 27, 2014, Husband and Wife executed a marital settlement agreement 

which included a paragraph that the parties would equally divide the 

amounts paid into Husband’s 401(k) retirement account provided by his 

employer, Your Building Centers (“YBC”). Marriage Settlement Agreement, 

6/27/14, at unnumbered 5, ¶ D. The agreement specified that the parties 

agreed “to execute a [QDRO] evidencing the equal division of this asset, 

which QDRO will be approved by the Court and presented to Standard 

Insurance Company2 upon completion.” Id. 

On July 2, 2014, the parties signed a Stipulation and Agreement that 

included the following paragraphs:

6. The parties hereto acknowledge that they are aware of 

the formula available that may be utilized in the calculation for 

the division of the 401(k) retirement plan of Participant; 

however, the Participant and Alternate Payee have agreed that 

they shall waive this formula of calculating the division and that 

the retirement plan of Participant shall be divided in a 

fifty-fifty (50% to each party) per cent split for each party 

as of the date of signing this Stipulation and Agreement.

7. Participant’s retirement benefit is defined as all 

monies paid to or on behalf of Participant by [YBC], 

including any lump sum withdrawals and/or any increases as of 

the date of separation of Participant and Alternate Payee, 

which date was May 25, 2012, less any decrease or plus any 

____________________________________________

2

 Standard Insurance Company administers Husband’s 401(k) retirement 

account. Stipulation and Agreement, 7/2/14, at unnumbered 1, ¶ 1.
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increase to the retirement plan on the separation date due to the 

economic conditions. Equitable distribution of the marital 

property component of Participant’s retirement benefit, as set 

forth in Paragraph 6 shall commence as soon as administratively 

feasible after Participant’s effective date of retirement, or the 

approval by YBC of a Domestic Relations Order incorporating this 

Stipulation and Agreement, whichever is later. 

Stipulation and Agreement, 7/2/14, at unnumbered 2, ¶¶ 6, 7 (emphases 

added). On that same date, the trial court entered a final decree divorcing 

the parties and incorporating the Stipulation and Agreement and the QDRO. 

Divorce Decree, 7/2/14, at 1; QRDO, 7/2/14, at 1.

On December 16, 2014, Husband filed a Corrected Praecipe to Amend 

the QDRO. Therein, Husband averred that the: 

[Husband’s] Plan Administrator divided the benefits of the 

401(k) retirement plan of [Husband] on a 50-50 basis, however, 

they used the date of the Agreement as stated in Paragraph 6 

which was July 2, 2014 and not the separation date of May 25, 

2012 in Paragraph 7, which was what the parties had discussed 

and what they agreed upon. 

Corrected Praecipe to Amend QDRO, 12/16/14, at ¶ 6. Husband, alleging a 

“discrepancy in the dates as stated in the QDRO,” requested the trial court 

to issue an order “directing that the scheme of distribution of the monies in 

[Husband’s] 401(k) retirement plan through YBC be amended to reflect the 

parties’ separation date of May 25, 2012, as was their express intent.” Id. 

at ¶ 7, unnumbered 2. Wife filed an answer denying that the parties agreed 

that the valuation date of the 401(k) account was the date of the parties’ 

separation on May 25, 2012. Answer to Petition, 12/23/14, at unnumbered 

1. Wife further pled “[I]t is believed and therefore averred that the [QDRO] 
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in question has been established as a qualified order and is an existing order 

within the clear meaning of Paragraph 14 thereof, which relates to the 

Court’s authority to amend it.” Id.

3

The trial court held a hearing on Husband’s praecipe to amend on 

January 5, 2015. At the outset of the hearing, the trial court questioned 

whether it had the authority to amend the QDRO and then proceeded to 

entertain argument on Husband’s petition. N.T., 1/5/15, at 2. Husband 

claimed that the 401(k) should be valued as of May 25, 2012, consistent 

with paragraph seven of the Stipulation and Agreement and, allegedly, in 

conformity with the intent of the parties. Wife argued that the trial court did 

____________________________________________

3

 Paragraphs fourteen and fifteen of the Stipulation and Agreement

incorporated into the QDRO provide: 

14. The Court of Common Pleas of Clearfield County, 

Pennsylvania, shall retain jurisdiction to amend any Domestic 

Relations Order based on this Stipulation and Agreement, but 

only for the purpose of establishing it or maintaining it as a 

Domestic Relations Order; provided, however, that no such 

amendment shall require YBC to provide any type or form of 

benefit, or any option not otherwise provided by YBC, and 

further provided that no such amendment or right of the Court 

to so amend will invalidate any existing Order. 

15. Upon its entry as a Domestic Relations Order, a 

certified copy of this Stipulation and Agreement and any 

attendant document shall be served upon YBC immediately. The 

Domestic Relations Order shall take effect immediately upon its 

approval and the approval of any attendant document by YBC 

and shall remain in effect until further Order of Court.

Stipulation and Agreement, 7/2/14, at unnumbered 4.
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not have authority to modify the QDRO. Alternatively, Wife asserted that 

the retirement account should be valued as of the date the parties signed 

the Stipulation and Agreement per paragraph six of that agreement. At the 

conclusion of the hearing, the trial court declared: “I’m going to review the 

statute to make sure—to see if I have the power to amend the QRDO and I’ll 

render a decision. Okay. I understand the parties’ respective positions.” 

Id. at 13. On January 9, 2015, “following argument on [Husband’s] Praecipe 

to Amend QDRO, the review of the statutes and case law, upon 

consideration of same” the trial court dismissed Husband’s request to 

amend. Order, 1/9/15, at 1. Husband filed an appeal to this Court but 

subsequently withdrew it. Folmar v. Folmar, 164 WDA 2015, Notice of 

Discontinuance of Action, 4/13/15. 

The complexion of the case was transformed on April 23, 2015, when 

Wife then filed a Petition for Clarification of the QDRO. Apparently

precipitated by a communication from the YBC plan administrator seeking 

specification of the date of valuation of the 401(k) account,4 Wife requested 

____________________________________________

4

 We deem it prudent to reproduce the March 9, 2015 letter from the plan 

administrator in full: 

Dear Parties:

As you may recall, you originally submitted a draft domestic 

relations order (“Draft Order”) for our review in July 2012. 

Shortly thereafter, we notified each of you of how we would 

administer the Draft Order upon our receipt of a final version 

(Footnote Continued Next Page)
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(Footnote Continued) _______________________

entered by the court (the “Final Order”). Specifically, we noted 

we would assign to the alternate payee an amount equal to fifty 

percent of the participant’s balance as of the date the parties 

sign the Final Order.

In summer 2014, we received a copy of the Final Order which, 

similar to the Draft Order, states:

. . . the retirement plan of the participant shall be 

divided in a fifty-fifty (50 %) to each party per cent 

split for each party as of the date of signing this 

Stipulation and Agreement.

And consistent with both this provision in the Final Order and our 

previous explanation to the parties, we established an account 

for the alternate payee and assigned to her fifty percent of the 

balance as of the date the parties signed the Final Order 

(June 27, 2014).

However, the Final Order also introduced the potential for a 

different interpretation as to how it should be administered by 

referencing the date of the parties’ separation (May 25, 2012). 

The Participant maintains this is the date as of which the Plan 

should determine the value of the balance to be divided, while 

the Alternate Payee believes such date is June 27, 2014. As you 

know, we asked both parties to stipulate and clarify this point, 

but we understand the parties cannot agree.

Therefore, we cannot currently administer the Final Order as a 

Qualified Domestic Relations Order (“QDRO”). The parties must 

submit an amended Final Order that provides a clear valuation 

date. To that effect, paragraph 14 of the Final Order states:

The Court of Common Pleas of Clearfield County, 

Pennsylvania, shall retain jurisdiction to amend any Domestic 

Relations Order based on this Stipulation and Agreement, but 

only for the purpose of establishing it or maintaining it as a 

Domestic Relations Order . . .

As we wait for an amended order providing undisputed direction 

that permits us to administer an order as a QDRO, we have 

reversed the transaction establishing the Alternate Payee’s 

account and restored the Participant’s account balance. The 

(Footnote Continued Next Page)
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the trial court to enter an order reflecting the trial court’s January 9, 2015 

decision dismissing Husband’s praceipe to amend the QDRO and effectively 

setting the date of valuation of the 401(k) account at July 2, 2014, when the 

parties executed the Stipulation and Agreement. After Husband filed an 

answer, the trial court held a hearing on May 28, 2015. At the hearing, Wife 

represented that the plan administrator notified the parties that it could not 

consider the trial court’s January 9, 2015 Final Order as a QDRO until the 

trial court clarified the date of valuation of the 401(k) account. N.T., 

5/28/15, at 3. Husband countered that because the trial court had 

previously decided it did not have the authority to amend the order, the 

remedy was remand of the matter for testimony before a master. Id. at 6–

7. 

On June 8, 2015, the trial court entered an order clarifying that the 

QDRO entered simultaneously therewith “shall reflect that the date of 

valuation [of the 401(k) account] shall be the date of execution of the 

QDRO.” Order, 6/8/15, at unnumbered 1. Paragraph six of the June 8, 

2015 QDRO filed simultaneously specified that the 401(k) account “shall be 

divided evenly, with each party to receive fifty percent (50%) of the balance 

(Footnote Continued) _______________________

Participant’s account will remain frozen so as to prevent any 

loans or distributions and preserve the entire balance while this 

issue remains pending.

Answer to Petition for Clarification, 5/27/15, Exhibit B.
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contained in the Plan as of July 2, 2014 [the date of execution of the 

Stipulation and Agreement]”. QDRO, 6/8/15, at ¶6. 

Husband filed an appeal to this Court on July 7, 2015. In response to 

the July 8, 2015 trial court order, Husband filed a Pa.R.A.P. 1925(b) 

statement raising eight issues. The trial court responded to the allegations 

of error, as follows: 

[Husband] filed for divorce from [Wife] on June 14, 2012. 

In July of 2014 the parties agreed to [split Husband’s] 401(k) on 

a 50%-50% basis by a Stipulation and Agreement. On July 2, 

2014 a Divorce Decree was entered incorporating the Stipulation 

and Agreement (QDRO). The QDRO contained two paragraphs 

which were inconsistent with each other with respect to the date 

when which the 401(k) was to be divided. Compare Stipulation 

and Agreement, ¶ 6 with Stipulation and Agreement, ¶ 7. 

[Husband] contends that the 401(k) was to be divided on the 

date of separation and [Wife] contends that it should have been 

divided on the date the both parties signed the Stipulation and 

Agreement. Consistently with paragraph 6, the Plan 

administrator divided the 401(k) as of July 2, 2014; the date 

[the] QDRO was signed by both parties.

On November 26, 2014, [Husband] petitioned the Court to 

amend the QDRO. [Husband] argued that the 401(k) should be 

divided as of the June 2012, the date of separation, consistent 

with paragraph 7; whereas [Wife] argued that it should be 

valued and divided as of July 2, 2014, the date both parties 

signed the QDRO, consistent with paragraph 6 of the QDRO. A 

hearing was held on January 9, 2015 where the Court issued an 

Order ruling in [Wife’s] favor.1

1

 Though [Husband] appealed this January 9, 2015 

Order, he subsequently petitioned to the Superior 

Court to have his appeal discontinued.

The Court reasoned to divide the payment at the date of 

separation, but not distribute the 401(k) until the date the 

agreement was signed, would allow [Husband] to inequitably 

earn interest on [Wife’s] agreed upon share. Accordingly, the 
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Court gave effect to the interpretation that would provide the 

most equitable outcome, namely, to value and distribute the 

401(k) as of the date of signing the Stipulation and Agreement 

as provided for in paragraph 6. The conflicting paragraphs were 

amended on [Wife’s] Petition to Amend the QDRO to reflect the 

Court’s decision. See Amended QDRO.

Though [Husband] claims numerous errors on appeal; the 

present appeal is in essence simply an attempt to revisit the 

order of January 9, 2015. Accordingly, it is without merit. The 

time to appeal any issues relating to the January 9, 2015 Order 

has expired.

Trial Court Opinion, 8/14/15, at 1–2. 

In response to the trial court’s opinion, Husband has appended to his 

appellate brief a “Supplemental” 1925(b) statement raising additional issues. 

Husband’s Brief at Appendix C. However, this statement, filed subsequent 

to the trial court’s 1925(a) opinion, is not part of the certified record; nor is 

there any indication that the pleading was served on the trial court or Wife. 

Therefore, we will not consider the matters raised therein. See Rosselli v. 

Rosselli, 750 A.2d 355, 359 (Pa. Super. 2000) (this Court may review and 

consider only items which have been duly certified in the record on appeal). 

On August 27, 2015, Wife filed an application for relief under Pa.R.A.P. 

123. Wife theorized that the issues raised in Husband’s appeal relate back 

to the court’s order entered on January 9, 2015, and requested this Court to 

dismiss the appeal as untimely. 

Preliminarily, we deny the motion to dismiss the appeal. Facially, the 

appeal filed on July 7, 2015, was timely. Additionally, whether the issues 
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raised in Husband’s Rule 1925(b) statement are cognizable on appeal 

invokes a question of the merits, not the timeliness of the appeal. 

Husband describes the issues on appeal, as follows: 

A. Whether the lower court erred in applying the valuation of 

the retirement account as of the date of the execution of the 

QDRO and not the date of separation as agreed by the 

Husband and Wife?

B. Whether the lower court erred in assessing the parties’ intent 

at the time of the negotiations and execution of the QDRO[?]

C. Whether the lower court abused its discretion in failing to 

allow testimony and evidence as to provisions of the 

settlement?

Husband’s Brief at 5–6 (full capitalization omitted). 

We review a trial court’s decision to grant special relief in divorce 

proceedings under an abuse of discretion standard:

Judicial discretion requires action in conformity with 

law on facts and circumstances before the trial court 

after hearing and consideration. Consequently, the 

court abuses its discretion if, in resolving the issue 

for decision, it misapplies the law or exercises its 

discretion in a manner lacking reason. Similarly, the 

trial court abuses its discretion if it does not follow 

legal procedure.

Lachat v. Hinchcliffe, 769 A.2d 481, 487 (Pa. Super. 2001) 

(citation omitted). “An abuse of discretion exists when the trial 

court has rendered a decision or a judgment which is manifestly 

unreasonable, arbitrary, or capricious, has failed to apply the 

law, or was motivated by partiality, prejudice, bias or ill will.”

Prol v. Prol, 935 A.2d 547, 551 (Pa. Super. 2007) (citations omitted).

As Husband’s issues two and three are intertwined and readily 

resolved, we initially address these allegations of error. Husband contends, 

somewhat inconsistently, that the trial court erred in refusing to accept 
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testimony and evidence concerning the intent of the parties and further 

erred when it determined that the parties intended that the 401(k) account 

was to be valued as of the date the agreement was signed.

While Husband accurately relates that the trial court did not take 

testimony at either the January 5, 2015, or May 28, 2015 hearing, Husband 

fails to mention that he was not precluded by the trial court from doing so. 

A review of the notes of testimony from the January 5, 2015 hearing reveals 

that Husband made no attempt to offer testimony or evidence. At the 

May 28, 2015 hearing, Husband’s counsel offered that he was prepared to 

present testimony. When the trial court stated that that it would not hear 

testimony, counsel responded, “I can understand that” and proceeded to 

argue his position. N.T., 5/28/15, at 6. Having failed to lodge an objection 

when the trial court ruled to preclude testimony, indeed, having acquiesced 

in the court’s ruling, Husband has failed to preserve this issue for appeal. 

See McManamon v. Washko, 906 A.2d 1259, 1274 (Pa. Super. 2006) (this 

Court will not consider a claim on appeal which was not called to the trial 

court’s attention at a time when any error committed could have been 

corrected) (citation omitted). 

Having concluded that the issue of testimony and evidence preclusion 

is either without merit (the January 5, 2015 hearing) or not reviewable (the 

May 28, 2015 hearing), it necessarily follows that we also reject Husband’s 

contention that the trial court erred in assessing the parties’ intent 
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concerning the valuation date of the 401(k) account. Simply stated, there 

was no record evidence of the parties’ respective views for the trial court to 

evaluate. This issue is likewise meritless.

Husband’s remaining argument is that the trial court improperly

redrafted the QDRO when it concluded that the 401(k) account was to be 

valued as of the date the parties signed the Stipulation and Agreement. The 

bulk of Husband’s argument again challenges the trial court’s failure to take 

testimony and its assessment of the parties’ intentions—claims we have 

already denied. To the extent that Husband protests that the court’s 

decision to set the valuation date as of the signing of the Stipulation and 

Agreement resulted in an inequitable distribution of the assets, we discern 

no error in the trial court’s rationale in this regard. As noted, the trial court 

reasoned that valuing the 401(k) account on the date of separation would 

disproportionately permit Husband to earn interest on Wife’s share and that 

“the most equitable outcome” was to appraise the account “as of the date of 

signing the Stipulation and Agreement as provided for in paragraph 6.” Trial 

Court Opinion, 8/14/15, at 2. The trial court’s conclusion was not 

unreasonable, arbitrary, or capricious; nor did the trial court err in its 

application of the law. Accordingly, Husband is unable to demonstrate that 

the trial court abused its discretion in interpreting the conflicting paragraphs 

of the Stipulation and Agreement. 
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Although not enumerated as a separate issue, we nonetheless address 

Husband’s position that while the trial court had earlier ruled it did not have 

authority to modify the QDRO, seven months later it modified the order upon 

Wife’s request. This argument fails for two reasons. First, although the 

court questioned its authority to modify a QDRO at the January 5, 2015 

hearing, the January 9, 2015 order specifically stated that Husband’s 

praecipe to amend the QDRO was dismissed after “review of the statutes 

and case law.” Order, 1/9/15, at unnumbered 1. Additionally, in its 1925(a) 

opinion, the trial court explained that its decision on the appropriate 

valuation date was in consideration of the equities of the distribution of 

assets. Clearly, the trial court resolved this dispute on the merits. 

The second reason to discount Husband’s argument is that, according 

to the terms of the Stipulation and Agreement, see n.3, supra, the trial 

court arguably had jurisdiction to modify the QDRO. Paragraph fourteen of 

the agreement permits the trial court to “retain jurisdiction to amend a 

[QDRO] . . . for the purpose of establishing it or maintaining it. . . .” 

Stipulation and Agreement, 7/2/14, at ¶ 14. The trial court, however, does 

not have the authority to “invalidate an existing [QDRO].” Id. Here, the 

trial court clarified the terms of the QDRO in response to the communication 

from the plan administrator that it could not administer the court’s 

January 9, 2015 order as a QDRO until the parties submitted an amended 

final order providing a clear valuation date. Having arrived at this 
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administrative stalemate, the trial court was the only entity in a position to 

make clear the terms of the agreement. Such a clarification was within its 

authority to maintain the QDRO and did not constitute an improper

invalidation of same.5 

Finally, we address Wife’s request for attorney’s fees and costs 

pursuant to 42 Pa.C.S. § 2503(9). This Court sua sponte may impose 

counsel fees. Morgan v. Morgan, 117 A.3d 757, 758-763 (Pa. Super. 

2015). Section 2503(9) provides for an award of counsel fees if “the 

conduct of another party in commencing the matter or otherwise was 

arbitrary, vexatious, or in bad faith.” 42 Pa.C.S. § 2503(9). We do not 

agree that Husband’s conduct in pursuing this appeal warrants the award of 

attorney’s fees. 

Motion to dismiss denied. Order of June 8, 2015 affirmed. Motion for 

attorney’s fees denied. Jurisdiction relinquished. 

____________________________________________

5

 We note further that the March 9, 2015 letter from the plan administrator 

indicates that the original July 2, 2014 QDRO was never finally accepted by 

the plan administrator. See n.4, supra. Thus, it is arguable that the trial 

court’s June 8, 2015 order clarifying its January 9, 2015 order actually 

established the QDRO. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2016