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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
DIANE CONRAD

Appellant

v.

SHAWN CONRAD : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1604 MDA 2022 Appeal from the Order Entered October 17, 2022 In the Court of Common Pleas of Berks County Civil Division at No(s): 12

- 18628

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E. * MEMORANDUM BY LAZARUS, J.: FI LED: A UGU ST 1, 2023
Diane Conrad (Wife) appeals from the order, entered in the Court of Common Pleas of Berks County , dismissing her counterclaim s for constructive trust and attorneys’ fees, filed in response to Shawn Conrad’s (Husband) petition for special relief

. After our review, we affirm. The parties married on April 8, 1995 , and separated on July 25, 2012

. Wife filed for divorce on August 2, 2012. The Honora b le Madelyn S. Fudeman
entered a divorce decree on February 5, 2016 . The parties’ December 2, 2015 post

- nuptial agreement (PNA) was incorporated 1 in to the parties’ divorce
decree. The PNA, dated December 2, 2015 , was set forth on the record before divorce master, Louis Shucker, Esquire , as follows :

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 The PNA was not merged with the divorce decree.J

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[Husband’s] military pension and his State Police p ension will be divided 60 percent to [W]ife and 40 percent to [H]usband. [ Husband’s] deferred compensation plan will be divided the first [$] 30,000 to [H]usband, [and] the remainder of the deferred compensation to be split 50/50 between the parties. [Hus band’s ] Vanguard mutual fund will also be split 60 percent to [W]ife , 40 percent to [H]usband and that will be accomplished within 30 days of today. Wife will keep her Pennsy lvania School System Employees Retirement Systems pension 100 percent.

. . . The parties shall execute any and all documents necessary to effectuate the terms and conditions of this agreement including the preparation of any Qualified Domestic Relations Orders [QDRO 2 ] or any other document necessary to transfer funds to or from th e respective retirement accounts.
PNA, 12/2/15, at 2

- 3 , 5

. The PNA required that three QDROs be drafted within 30 days of the December 2, 2015 date. It was not until nearly four years later, however, on June 28, 2019, that the parties entered into a st ipulation and agreement (Agreement) for a domestic relations order regarding Husband’s Pennsylvania State Employees’ Retirement System (SERS) State Police Pensio n. The Agreement provides , in part , that Wife (Alternate Payee) would
receive 60% of the mar ital portion of Husband’s (Member of SERS) retirement benefit, using the coverture fraction (numerator is SERS Member’s years of credited service for the period from date of marriage to date of separation; denominator is total years of Member’s service). Id. at ¶ 6. Both parties acknowledged that Husband’s benefit was in pay status at the time they

_________________ __________ ______ ____ _______
2 Generally, a qualified domestic relations order, or QDRO, “creates or recognizes the rights of an alternate payee to receive all or a portion of the benefits payable to a participant under [ a ] pension plan.” Getty v. Getty , 221 A.3d 192, 195 n.4 (Pa. Sup er. 2019) (citation omitted)

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executed the Agreement

. Id. at ¶ 10. The Agreement also provided that Husband’s deferred compensation plan was to be divided so that he would receive the first $30,000. 00 and the remainder would be split 50/50 between the parties. Wife received 60% of Husband’s Vanguard Mutual Fun d, and Wife retained 100% of her Pennsylvania School System Employees Retirement System pension. The Agreement stated that the parties intended the terms of the stipulation and agreement be “approved, adopted and entered as a
Domestic Relations Order.” I d. at ¶ 15. The Honorable J. Benjamin Nevius entered this Agreement as an order. See Stipulation and Agreement for the Entry of Domestic Relations Order, 6/28/19. On February 5 , 2 021, Husband filed a petition for special relief

— m otion
to vacate decree and/ or a mend QDRO. On March 18, 2021, Wife filed a
response and counterclai m. T he matter was continued throughout 2021

. Judge Nevius scheduled a hearing for May 5, 2022 . The court also directed the parties to file briefs ; Husband’s brief was due to be filed by June 6, 2022, and Wife’s responsive brief was due on July 6, 2022. However, no May 5,
2022 hearing was held. The matter was reassigned to the Honorable Jill Gehman Koestel, who scheduled a conference with counsel for both parties on September 29, 2022

. See Trial Court Opinion, 12/29/22, at 2. The court
noted that the conference did not take pla ce because Husband’s counsel was
unavailable and because “[b]oth counsel told the [c]ourt the matter could b e decided on the briefs and the record.” Id. at 2 n.5. By order dated OctoberJ

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12, 2022 , and filed on October 17, 2022 , Judge Koestel dismissed Husband’s petition and Wife’s counterclaims. Wife filed this appeal

. 3 Both Wife and the trial court have comp lied with
Pa.R.A.P. 1925. Wife raises the following issue : “Whether the [c] o urt erred/a bused its discretion in denying [Wife’s] petition without a hearing where [Wife] raised sufficient issues of material fact to entit le [her] to a hearing and/or judgment in her favor?” Appellant’s Brief, at 4.
Our standard of review of a trial court’s decision to grant or deny special
relief in a divorce action is an abuse of discretion. Conway v. Conway , 209 A.3d 376, 371 (Pa. Sup er. 2019)

. 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.

Id. , citing Prol v. Prol , 935 A.2d 547, 551

- 52 (Pa. Super. 2007).
Wife ’s counterclaim sought a const ructive trust to enforce the parties’
PNA

. Wife claims Husband withheld at least $50,000 .00 of funds to which she was entitled under the PNA, and that the court abused its discretion by deciding the matter without a hearing

. See Appellant’s Brief, at 7. We find
no abuse of discretion.

_________________ __________ ______ ____ _______
3 Wife retained new counsel for this appeal.J

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In Pennsylvania, the law of contracts governs a property agreement if the agreement is not merged into a divorce decree. Crispo v. Crispo , 909 A.2d 308, 313 (Pa. Super. 2006) (“property settlemen t agreements are presumed to be valid and binding upon the parties”). An agreement that is not merged “stands as a separate contract, is subject to the law governing
contracts [,] and is to be reviewed as any other contract.” Id. at 312

– 13. A court may construe or interpret a [marital settlement agreement] as it would a contract, but it has neither the power nor the authority to modify or vary the [agreement] unless there has been fraud, accident [,] or mistake. It is well

- established that the paramount g oal of contract interpretation is to ascertain and give effect to the parties’ intent. When the trier of fact has determined the intent of the parties to a contract, an appellate court will defer to that determination if it is supported by the evidence. Fu rther, where . . . the words of a contract are clear and unambiguous, the intent of the parties is to be ascertained from the express language of the agreement itself.

Bianchi v. Bianchi , 859 A.2d 511, 515 (Pa. Super. 2004) (internal citations and quotatio n marks omitted).
A QDRO effectuates the distribution in that it “ creates or recognizes the rights of an alternate payee to receive all or a portion of the benefits payable to a participant under [a pension] plan. ” Smith v. Smith , 938 A.2d 246, 248 n.3 ( Pa. 2007 ). See also supra n. 1

. In cases where parties have entered a marital settlement agreement, as in the instant matter, a QDRO merely implements substantive rights already created by the settlement agreement. Grieve v. Mankey , 679 A.2d 814 ( Pa. Sup er. 1996) (holding order directingJ

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QDRO did not affect either party’s substantive rights but was simply procedural mechanism to effectuate pension entitlement as agreed to by parties). In her counterclaim, Wife averred:
Husband admits

. . . that he retire d from the Pennsylvania State Police, chose the Single Life Annuity option and received an[] undisclosed lump sum.

. . . Husband failed to timely notify Wife of the above and continues to refuse to disclose the amount of his “lump sum.[”] It is possible, Husband made other withdraw als from retirements accounts which Wife is not yet aware of but may learn through discovery. Wife asks this Honorable Court to establish a constructive trust on the lump sum Husband received including an[y] increase in value fo r the benefit of Wife consistent with the Agreement of the parties that was incorporated into the [d]ivorce [d]ecree.
Wife’s Response and Counterclaim , 3/18/21, at ¶¶ 88

- 92.
Wife has not raised sufficient issues of material fact to entitle her to either a hearing or judgment in her favor. Wife does not aver that Husband’s option election , lump sum withdrawal, or “possible” withdraws, infringed on
her entitlement to 60% of the marital share as set forth in the parties’ Agreement , which was filed as a QDRO with the Berks County Prothonotary ’s
Office on June 25 , 2019. 4 That order provides that [t]he equitable distribution portion of the marital property component of [Husband’s] retirement benefit [] shall be payable to [Wife] and shall commence as s oon as administratively feasible on o r about the date [Husband] enters pay status and SERS approves a Domestic Relations Order incorporating this

_________________ __________ ______ ____ _______
4 A QDRO with respect to Husband’s military pension was also filed on Jun e 25, 2019. A QDRO with respect to Husband’s Deferred Compensation Program was filed on October 17, 2019

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Stipulation and Agreement , which ever is later. [Husband] and [Wife] acknowledge that [ Husband ] has already entered pay status prior to the entry of the Domestic Relations Order, therefore it is understood that upon approval by SERS of a Domestic Relations Order incorporating this S tipulation and Agreement, SERS will commence payment to [Wife] of a ny remaining portion of the equitable distribution portion of the marital property component of [ Husband’s] retirement benefit [.]

. . . [Husband] and [ Wife] acknowledge that [ Husband’s] benefit is in pay status . At the time of retirement , [Husband] electe d to receive an annuity pursuant to the ter ms of the Maximum Single Life Annuity option.
Agreement, supra at ¶ 7 , 10 (emphasis added)

. Moreover, Wife does not
aver in her counterclaim that she did not receive her allocation . N or does Wife
aver any facts that raise an issue with respect to fraud, duress , or misrepresentation with respect to the parties’ Agreement or the domestic
relations order implementing the parties’ rights under that Agreement. See
id. ; see also 23 Pa.C.S.A. § 3505 (d) ( constructive trust for undisclosed assets). 5
We find no error or abuse of discretion. Conway , supra
. Accordingly,
we affirm the trial court’s order.
Order affirmed.

_________________ __________ ______ ____ _______
5 W e also note that , at this point, Wife has waived her claim since she knew that Husband’s pension was in pay status at the time o f execution of the June 28, 20 19 Agreement , a n d this acknowledgement was memorialized in the Agreement

. Also reflected in the Agreement is Husband’s election of an annuity pursuant to the terms of the Maximum Single Life Annuity option , and Wife’s marital share was already calculated under the QDRO

. As noted above, Wife makes no claim of fraud, misrepresentation, or duress with respect to that Agreement.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8 /0 1 /2023