J-S24018-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

DIANE CONRAD 

Appellant

v.

SHAWN CONRAD

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 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.: FILED: AUGUST 1, 2023

Diane Conrad (Wife) appeals from the order, entered in the Court of 

Common Pleas of Berks County, dismissing her counterclaims 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 Honorable Madelyn S. Fudeman 

entered a divorce decree on February 5, 2016. The parties’ December 2, 2015 

post-nuptial agreement (PNA) was incorporated1into 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.
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[Husband’s] military pension and his State Police pension 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. [Husband’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 Pennsylvania 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 

[QDRO2] or any other document necessary to transfer funds to or 

from the 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 stipulation and agreement 

(Agreement) for a domestic relations order regarding Husband’s Pennsylvania 

State Employees’ Retirement System (SERS) State Police Pension. 

The Agreement provides, in part, that Wife (Alternate Payee) would 

receive 60% of the marital 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. Super. 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 Fund, 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.” Id. 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, 2021, Husband filed a petition for special relief—motion 

to vacate decree and/or amend QDRO. On March 18, 2021, Wife filed a 

response and counterclaim. The 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 place because Husband’s counsel was 

unavailable and because “[b]oth counsel told the [c]ourt the matter could be

decided on the briefs and the record.” Id. at 2 n.5. By order dated October 
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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 complied with 

Pa.R.A.P. 1925. Wife raises the following issue: “Whether the [c]ourt 

erred/abused its discretion in denying [Wife’s] petition without a hearing 

where [Wife] raised sufficient issues of material fact to entitle [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. Super. 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 constructive 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.
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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 settlement 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 goal 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.

Further, 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 quotation 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. Super. 1996) (holding order directing 
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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 retired 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 withdrawals

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 for 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 soon as administratively feasible 

on or 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 June

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, whichever 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 Stipulation 

and Agreement, SERS will commence payment to [Wife] of 

any 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] elected to receive an 

annuity pursuant to the terms 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. Nor 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 We 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 of execution of the June 

28, 2019 Agreement, and 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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/01/2023