J-A02043-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS E. BORTZ, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

STACIE L. BORTZ :

: No. 1147 MDA 2015

Appeal from the Order Entered June 23, 2015

in the Court of Common Pleas of Lycoming County Civil Division

at No(s): FC-2012-021531-D1

BEFORE: PANELLA, STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 27, 2016

Appellant, Thomas E. Bortz (“Husband”), appeals from the order 

entered in the Lycoming County Court of Common Pleas. Husband contends 

the Qualified Domestic Relations Order (“QDRO”) regarding his City of 

Williamsport Police Pension Plan is not consistent with his and Appellee’s, 

Stacie L. Bortz’s (“Wife”), Marriage Settlement Agreement (“MSA”).1 We 

affirm.

At the hearing on the Petition for Contempt/Petition for Enforcement of 

Property Settlement Agreement filed by Wife on April 17, 2015, the parties 

stipulated, inter alia, to the following facts: “[T]hey entered into a [MSA] 

 

*

Former Justice specially assigned to the Superior Court.

1 The MSA is also referred to as a Property Settlement Agreement. For 

consistency, we refer to it as a MSA.
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dated December 5, 2013.”2 R.R. at 25a. “[T]hey hired Jonathan Cramer of 

Conrad Siegal to prepare the QDROs, the three (3) QDROs referenced in 

that [MSA].” Id. “[T]hey obtained drafts of the three (3) QDROs from Mr. 

Cramer and . . . the plan administrators of each of the three (3) pension 

plans approved the [QDROs] as drafted by Jonathan Cramer.” Id. at 25a26a. Wife signed the QDROs. Id. at 26a. Husband has not executed the 

QDROs. Id. “The parties agree that they were married on December 18, 

2004 and they separate[d] on October 24, 2012.” Id. at 29a. They 

stipulated that the agreement was “that the martial portion would be divided 

55/45.” Id. at 32a.

The MSA provided, inter alia, as follows:

16. Employment Benefits. The parties hereto have 

reached agreement regarding the retaining of and 

distribution of their respective employment benefits as 

follows:

 * * *

B. Wife’s retirement. The parties agree that all of the 

marital portion of Wife’s retirement account(s) and/or 

pension plan(s) through her employment with Lycoming 

County shall be divided between the parties such that Wife 

will receive Fifty-Five Percent (55%) of the martial portion 

and Husband will receive Forty-Five (45%) of the martial 

portion pursuant to current law. For purposes of 

determining the marital portion, the parties agree that 

they were married on December 18, 2004, and they 

separated on October 24th, 2012. In the event the parties 

need to prepare a [QDRO] for purposes of dividing Wife’s 

 

2 See R.R. at 5a-15a. For convenience, we refer to the reproduced record 

where applicable.
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retirement account(s) and/or pension plan(s), they agree 

to hire a third party to prepare the necessary paperwork 

and will equally share the expense associated therewith.

C. Husband’s Retirement. The parties have agreed to 

divide all of the marital portion of Husband’s retirement 

account(s) and/or pension plan(s) through his employment 

with the City of Williamsport in such a manner that Wife 

shall receive Fifty-Five(55%) of the marital portion and 

Husband will receive Forty-Five Percent (45%) of the 

marital portion pursuant to current law. For purposes of 

determining the marital portion, the parties agree that 

they were married on December 18, 2004, and they 

separated on October 24th, 2012. In the event the parties 

need to prepare a [QDRO] for purposes of dividing 

Husband’s Retirement Account(s) and/or pension plan(s), 

they agree to hire a third party to prepare the necessary 

paperwork and will equally share the expense associated 

therewith.

D. Husband’s Deferred Compensation Account. The 

parties agree to divide the marital portion of Husband’s 

deferred compensation account such that Wife will receive 

Fifty-Five Percent (55%) of the partial portion of the 

account and Husband will receive Forty-Five Percent (45%) 

of the marital portion of the account pursuant to current 

law. For purposes of determining the marital portion, the 

parties agree that they were married on December 18, 

2004, and they separated on October 24th, 2012. In the 

event the parties need to prepare a [QDRO] for purposes 

of dividing Husband’s Deferred Compensation Account, 

they agree to hire a third party to prepare the necessary 

paperwork and will equally share the expense associated 

therewith.

 

MSA, 12/5/13, at 12a-13a.

Paragraph 7 of the QDRO which applies to Husband’s City of 

Williamsport, PA Pension Plan states, in pertinent part, as follows:

7. This [Q]DRO assigns to [Wife], an amount equal to 

55.0% of the marital portion of [Husband’s] accrued 

retirement benefit under the Plan as of [Husband’s] date of 
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retirement. The marital portion of [Husband’s] accrued 

retirement benefit equals the monthly retirement benefit, 

payable in the normal form of payment for [Husband’s] 

lifetime, multiplied by a fraction equal to 7.85 years (the 

period from December 18, 2004, date of marriage, until 

October 24, 2012, date of separation) divided by the years 

of credited benefit service (including any partial year 

credited) earned by [Husband] as of the date his benefit 

accruals cease. If any cost-of-living increase or other 

increase is applied to the pension payable to [Husband], 

the same increase shall apply to [Wife’s] share, but only to 

the extent permitted by the Plan and state law.

Trial Ct. Order and Op., 6/23/15, at 44a-45a (quotation marks omitted).3

On June 23, 2015, the trial court entered an order providing, inter alia, 

that “Husband is hereby ORDERED and DIRECTED to sign the Domestic 

Relations Order in regard to his City of Williamsport Police Pension Plan as 

drafted by Conrad Siegel . . . .” Id. at 51a. This appeal followed. Appellant 

filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal. The trial court filed a Pa.R.A.P. 1925(a) opinion relying upon its 

order and opinion of June 23, 2015. 

Husband raises the following issues for our review:

I. Did the Trial Court err and/or commit an abuse of 

discretion in finding that the language of Paragraph 16 B. 

through D. in the parties’ [MSA] is clear and unambiguous?

II. Did the Trial Court err and/or commit an abuse of 

discretion in its decision of June 23, 2015, regarding the 

parties’ [MSA] relative to equitable distribution, and 

specifically in finding that the [QDRO] regarding [ ] 

Husband’s City of Williamsport Police Pension Plan, as 

 

3 The Domestic Relations Order was docketed July 17, 2015. See R.R. at 

53a-56a.
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drafted by Conrad Siegel, is consistent with the terms of 

the parties’ [MSA] dated December 5, 2013?

Husband’s Brief at 4. 

Husband contends that the language in the MSA agreement, viz., 

“pursuant to current law,” in paragraph 16 B. through D. is ambiguous. Id.

at 14. He claims that the phrase refers to contract law and not to “the 

statutory law [viz., 23 Pa.C.S. § 3501(c)(1),] regarding the division of 

defined benefit retirement plan.” Id. Based upon this Court’s holding in 

Bianchi v. Bianchi, 859 A.2d 511 (Pa. Super. 2004), Husband contends 

Wife “cannot benefit from post-separation increases in [Husband’s] pension . 

. . .” if they are attributable to his “efforts and/or contributions.” Id. at 17-

19. Husband states that the QDROS “are legally incorrect as they include, 

as a benefit to Wife, post separation monetary contributions made by the 

efforts and/or contributions of Husband . . . .” Id. at 19.

We address Husband’s issues together because they are interrelated. 

In conducting our review of the court’s holding as to the MSA, we are guided 

by the following principles:

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. However, we are bound by the 

trial court’s credibility determinations.

. . . On appeal from an order interpreting a marital 

settlement agreement, we must decide whether the 
J-A02043-16 

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trial court committed an error of law or abused its 

discretion.

Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super. 2007) (citations 

omitted). 

The Pennsylvania Supreme Court in Smith v. Smith, 938 A.2d 246 

(Pa. 2007) held, inter alia, that “courts . . . should allocate the pension 

between its marital and nonmarital portions solely by use of a coverture 

fraction” pursuant to 23 Pa.C.S. § 3501(c) (quotation marks omitted). Id.

at 259.

In 2004, . . . the legislature attempted to address the 

confusion in our law by adding a subsection to the Divorce 

Code regarding the distribution of defined benefit 

pensions. In relevant part, § 3501(c) provides:

(c) Defined benefit retirement plans.-Notwithstanding 

subsections (a) [General Rule regarding marital 

property], (a.1) [Measuring and determining the 

increase in value of non-marital property] and (b) 

[Presumption that all property acquired during the 

marriage is marital]:

(1) In the case of the marital portion of a defined 

benefit retirement plan being distributed by means of 

a deferred distribution, the defined benefit plan shall 

be allocated between its marital and nonmarital 

portions solely by use of a coverture fraction. The 

denominator of the coverture fraction shall be the 

number of months the employee spouse worked to 

earn the total benefit and the numerator shall be the 

number of such months during which the parties 

were married and not finally separated. The benefit 

to which the coverture fraction is applied shall include 

all postseparation enhancements except for 

enhancements arising from postseparation monetary 

contributions made by the employee spouse, 

including the gain or loss on such contributions.
J-A02043-16 

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 * * *

23 Pa.C.S. § 3501 (emphasis omitted).

Significantly, in its official comments, the legislature 

specifically addressed this Court’s prior holdings regarding 

the distribution of defined benefit pensions, criticizing the 

lead opinion in Berrington [v. Berrington, 633 A.2d 589 

(Pa. 1993)], which valued the pension utilizing the salary 

at the time of separation, and commending the analysis 

offered in Gordon by Justices Flaherty, Cappy, and 

Newman, and by the Superior Court in Holland v. 

Holland, [ ] 588 A.2d 58 ([Pa. Super.] 1991).

New subsection (c) seeks to reverse Berrington [ ] 

to adopt a coverture fraction methodology along the 

lines of Holland [ ] and to include all 

postseparation enhancements except for 

postseparation monetary contributions by the 

employee spouse in the value of the pension.

The new language codifies the result reached by 

Justices Flaherty, Cappy and Newman regarding the 

postseparation retirement enhancements in Gordon 

v. Gordon, [ ] 681 A.2d 732 ([Pa.] 1996) (3-3 

decision on this issue, affirming the Superior Court’s 

exclusion of the enhancements from the marital 

estate). Three early retirement inducements were at 

issue in Gordon. The justices listed above opined 

that since no present efforts or contributions of the 

employee spouse were required to receive the 

supplemental retirement income and bonus 

inducements, they were includable in the marital 

estate. The third inducement was an annuity paid 

for partially by the employee spouse and partially by 

the employer. Justices Flaherty, Cappy and Newman 

would have included the portion of the annuity paid 

for by the employer in the marital estate.

23 Pa.C.S. § 3501(c), cmt.

As we must defer to the legislature as the policy making 

body, we conclude that the holding in Berrington no 

longer controls regarding the use of the salary at time of 
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separation. Instead, we honor the legislature’s 

unequivocal intention to utilize the coverture fraction to 

provide economic justice between the parties, as discussed 

by the Superior Court in Holland:

A delayed distribution of pension benefits requires 

the non-employed spouse to wait until some 

indefinite time in the future to receive the marital 

share. To compensate for this postponement of 

benefit, that spouse is permitted to enjoy increases 

in value occasioned by continued employment of the 

worker. Also, the employed spouse increases the 

non-marital share of the benefits since continuing 

service enlarges the denominator. Further, later 

year wage increases are a product of experience and 

longevity which were developed during the marriage. 

The [employee-spouse] . . . can look forward to the 

benefits which accrue from a vested pension. His 

former spouse is entitled to share in any increase in 

value of the marital share which may occur by [the 

employee-spouse’s] continued employment.

Holland, 588 A.2d at 60. Accordingly, rather than using 

the salary at the time of separation, courts instead should 

allocate the pension “between its marital and nonmarital 

portions solely by use of a coverture fraction.” 23 Pa.C.S. 

§ 3501(c). Thus, the non-employee spouse “is 

permitted to enjoy increases in value occasioned by

continued employment of the worker.” Holland, 588 

A.2d at 60. In the simplest of cases, the determination of 

the marital portion of a defined benefit pension will entail a 

straightforward application of the coverture fraction to the 

final total value of the pension, even though the value has 

increased due to years of postseparation employment.

Id. at 257-59 (emphases added and footnote omitted).

In the case sub judice, the trial court opined:

The [c]ourt finds that the language of Paragraph 16B. 

through D. in the parties’ [MSA] is clear and unambiguous. 

The parties agree that Wife would receive 55% of the 

marital portion and Husband would receive 45% pursuant 

to current law. At the time the parties executed the 
J-A02043-16 

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[MSA,] the current law regarding the division of defined 

benefit retirement plans was outlined at 23 Pa.C.S.A. § 

3501(c)(1) . . . .

Trial Ct. Order and Op. at 46a.

In the instant case, the QDRO employed the coverture fraction. It 

stated: 

The marital portion of [Husband’s] accrued retirement 

benefit equals the monthly retirement benefit, payable in 

the normal form of payment for [Husband’s] lifetime, 

multiplied by a fraction equal to 7.85 years (the period 

from December 18, 2004, date of marriage, until October 

24, 2012, date of separation) divided by the years of 

credited benefit service (including any partial year 

credited) earned by [Husband] as of the date his benefit 

accruals cease.

R.R. at 45a. This was consistent with the MSA which provided, inter alia, as 

follows: 

The parties have agreed to divide all of the marital portion 

of Husband’s retirement account(s) and/or pension plan(s) 

through his employment with the city of Williamsport in 

such a manner that Wife shall receive Fifty-Five (55%) of 

the marital portion and Husband will receive Forty-Five 

Percent (45%) of the marital portion pursuant to current 

law. For purposes of determining the marital portion, the 

parties agree that they were married on December 18, 

2004, and they separated on October 24th, 2012.

R.R. at 12a-13a.

Husband’s argument that the MSA is ambiguous as to the reference to 

“current law” is unavailing. Section 3501(c)(1) is the applicable “current 

law” in the instant case. See Smith, 938 A.2d at 258-59. As the 

Pennsylvania Supreme Court held in Smith, we are bound by the 
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“legislature’s unequivocal intention to utilize the coverture fraction to provide 

economic justice between the parties . . . .” See id. at 258. “[R]ather 

than using the salary at the time of separation, courts instead should 

allocate the pension ‘between its marital and nonmarital portions solely by 

use of a coverture fraction.’” Id. at 259 (citation omitted). Therefore, Wife 

“is permitted to enjoy increases in value occasioned by continued 

employment of” Husband postseparation. See id. at 259. The QDRO in the 

instant case utilizes the coverture fraction. See id. at 258. Therefore, we 

affirm the order of the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/27/2016