DeMarco v. DeMarco

787 A.2d 1072, 2001 Pa. Super. 354, 2001 Pa. Super. LEXIS 3502
CourtSuperior Court of Pennsylvania
DecidedDecember 13, 2001
StatusPublished
Cited by18 cases

This text of 787 A.2d 1072 (DeMarco v. DeMarco) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeMarco v. DeMarco, 787 A.2d 1072, 2001 Pa. Super. 354, 2001 Pa. Super. LEXIS 3502 (Pa. Ct. App. 2001).

Opinions

ORIE MELVIN, J.

¶ 1 Appellant Frank DeMarco (Husband) asks us to determine whether the trial court properly valued his police pension fund for purposes of equitable distribution as if he retired at age fifty, even though he continues to work with no immediate plans to retire. We hold that it was error to simply value Husband’s pension as of the date the plan vested, without regard to certain factors that must be established in the record and considered [1074]*1074by the trial court before setting a retirement date, as a reference point, to value a pension. Accordingly, we reverse and remand for an evidentiary hearing consistent with this opinion.

¶ 2 The trial court set out the relevant facts and procedural history of this appeal as follows:

Plaintiff, Frank J. DeMarco (“Husband”) and Defendant, Barbara A. De-Marco (“Wife”) were married on January 17, 1970 and separated after twelve (12) years on July 2, 1982. Husband became employed as a police officer with the City of Pittsburgh on January 12, 1970, just five (5) days prior to the parties’ marriage and he continued in this employment throughout the marriage and through trial. Wife was not gainfully employed during the marriage as Husband insisted that she be a homemaker and primary caregiver to the parties’ children, Frank, Jr., born February 21, 1971 and Roxanne, born October 20, 1977. After the parties separated in 1982, Wife remained in the marital residence with the children and Husband voluntarily paid support to Wife of $700 per month until April 29, 1996, when the parties entered into a Consent Order whereby Husband paid Wife Alimony Pendente Lite of $740 per month. At the time of trial, Husband was fifty-one (51) years of age and Wife was fifty (50) years old.
The parties pursued their respective claims for equitable distribution of marital property, alimony and counsel fees at trial on September 21, 1998. The Court issued its Findings and Order on October 29, 1998, in which the [value of the] marital component of Husband’s pension from the Pittsburgh Police Department was determined to be $104,455 based upon a projected retirement age of 55 in 2002. Thereafter, Wife presented a Motion for Reconsideration which included, inter alia, an assertion that the Court erred in failing to value Husband’s pension as of April 1,1997, which is the first day of the month following Husband’s 50th birthday, and the date on which Husband first became eligible to receive full pension benefits following twenty (20) years of service. The Court granted Wife’s Motion for Reconsideration, and after review of the briefs of the parties and oral argument, the Court issued an Order on March 16, 1999 which amended the October 29, 1998 Findings and Order and ruled that the marital component of Husband’s pension should be and is valued at $158,908 at age 50 rather than $104,455 at age 55. Regarding Wife’s ancillary claims on reconsideration, the Court granted either party leave to request a conciliation or hearing for the presentation of further testimony and evidence. A hearing was conducted on June 30, 1999, and the Court issued its final Order on July 13, 1999, which reiterated the Court’s March 16, 1999 valuation of the marital component of Husband’s pension at $153,903. The July 13, 1999 Order provides in pertinent part:
The marital value component of [Husband]’s Pittsburgh Police Pension is found to be $153,903, which is the value attributed by the only expert witness, James Lynch, to [Husband]’s fully vested pension at age fifty (50) following twenty (20) years of service. The calculation of the marital component of [Husband]’s pension is based upon the date of [Husbandj’s actual eligibility for retirement at full benefit.

Trial Court Opinion, 12/8/99, at 1-3. Ultimately, the trial court valued the marital estate at $208,535.00. The court awarded Wife 60% of the marital estate or $125,121.00. This award consisted of the marital residence and roughly one-half of [1075]*1075the marital portion of Husband’s police pension. The court awarded Husband the remaining 40% of the marital estate and ordered Husband to pay Wife alimony in the amount of one hundred ($100.00) dollars per month for twenty (20) years. The trial court reasoned that the purpose of the alimony was to enable Wife to purchase an insurance policy on Husband’s life, to guarantee payment of her equitable share of Husband’s police pension, allegedly based on the fact that Husband’s pension does not have a spousal survivor benefit. This appeal followed.1

¶ 3 Husband raises the following issues on appeal:

WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW AND/OR ABUSED ITS DISCRETION WHEN IT PRESENTLY VALUED [HUSBAND’S] RETIREMENT BENEFITS AT AGE FIFTY EVEN THOUGH [HUSBAND] CONTINUED TO WORK?
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW AND /OR ABUSED ITS DISCRETION BY DENYING THE [HUSBAND] A CHOICE OF WHERE TO WORK?
DOES [HUSBAND’S] DESIRE TO CONTINUE IN HIS PRESENT EMPLOYMENT CONSTITUTE AN EFFORT TO DISSIPATE THE VALUE OF A MARITAL ASSET?

Appellant’s Brief at 8.

¶4 In each of these issues, Husband challenges the trial court’s valuation of his pension as if he had retired at age fifty. Husband asserts that the trial court erroneously valued his pension at age fifty because he worked past that age and at the time of trial was in fact fifty-two years old. Moreover, Husband avers that the trial court should have valued his pension as if he would retire at the average retirement age of sixty-five. Husband maintains that the trial court interfered with his right to choose where and for how long he works when the court fixed the value of his pension as if he had retired at age fifty, which was when he was first eligible for full retirement benefits. Finally, Husband suggests that the court should have retained jurisdiction over the property distribution because the assets of the marital estate were not great enough to offset the marital value of Husband’s pension at the time the marital estate was divided. Wife, on the other hand, agrees with the trial court. .She contends that the longer Husband works, the less his pension is worth. She suggests Husband is actually dissipating this marital asset with his continued employment. For the following reasons, we reject Wife’s position and share Husband’s concerns.

Our scope of review of an order of equitable distribution is limited. Such awards are within the sound discretion of the trial court, and will not be disturbed absent an abuse of discretion. An abuse of discretion will be found by this court only if the trial court failed to follow proper legal procedures or misapplied the law.

Litmans v. Litmans, 449 Pa.Super. 209, 673 A.2d 382, 386 (1996).

¶ 5 For a better understanding of the complexity of the problem of pension valuation for a defined benefit plan where the employee spouse has yet to retire, we must first understand the nature of retirement benefits. Pensions are simply deferred compensation from the employer for services rendered by the employee. They are [1076]*1076a type of intangible property because they represent a contractual right to future benefits payable upon retirement. Pension plans are generally one of two types: the defined contribution plan and the defined benefit plan.

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Cite This Page — Counsel Stack

Bluebook (online)
787 A.2d 1072, 2001 Pa. Super. 354, 2001 Pa. Super. LEXIS 3502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demarco-v-demarco-pasuperct-2001.