Levenduski v. Levenduski

54 Pa. D. & C.4th 334, 2001 Pa. Dist. & Cnty. Dec. LEXIS 399
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedFebruary 2, 2001
Docketno. 357 S 1998
StatusPublished

This text of 54 Pa. D. & C.4th 334 (Levenduski v. Levenduski) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Levenduski v. Levenduski, 54 Pa. D. & C.4th 334, 2001 Pa. Dist. & Cnty. Dec. LEXIS 399 (Pa. Super. Ct. 2001).

Opinion

LEWIS, J.,

Defendant Laura Levenduski and plaintiff Joel Levenduski were married on May 31, 1980 and divorced on March 23,1999. The parties are the parents of three children, Nicholas, bom April 12, 1981; Renee, bom February 23, 1983; and Matthew, bom December 20,1991. Since December 9, 1997, Nicholas and Renee have resided with Mr. Levenduski and Matthew has resided with Mrs. Levenduski.

On March 10, 1999, the parties executed a property settlement agreement which both believed would resolve all issues pertaining to the divorce. At the time, the parties were represented by counsel. Presently before this court is Mrs. Levenduski’s petition for enforcement and contempt of property settlement agreement. She argues that her former husband has violated several provisions of their agreement, including those dealing with child support, life insurance and the division of Mr. Levenduski’s pension. This court’s analysis of her arguments and the relevant law is set forth below.

Mrs. Levenduski’s main contention pertains to paragraph 10 of the agreement which states in pertinent part:

“(10) Pension and retirement
“Wife will receive 30 percent of husband’s military retirement. Husband agrees to apply for retirement no later than June 30, 1999. . . . Wife further waives the military survivor benefit plan.”

The United States Code defines “disposable retired pay” in the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 USCS §1408, as the total monthly retired pay to which a member is entitled less [337]*337amounts which... (B) are deducted from the retired pay of such member as a result of... a waiver of retired pay required by law in order to receive compensation under title 5 or title 38. 10 USCS § 1408(A)(4)(B).

Testimony at the hearing revealed that Mr. Levenduski began receiving military pension of $2,406 in August of 1999. However, Mrs. Levenduski did not begin receiving her 30 percent share until September of 1999. Therefore, this court finds that Mrs. Levenduski is entitled to be reimbursed by her former husband for August of 1999 in the amount of $721.80, plus interest.

Subsequently, Mr. Levenduski applied for and was approved for veteran’s disability compensation. Those payments, which started in My of2000, are offset against his military retirement benefits and are tax-free. Accordingly, Mr. Levenduski maintains that the disability benefit is a separate benefit that Mrs. Levenduski is not entitled to. He further argues that the terms of the agreement are clear and unambiguous. The parties agreed that Mrs. Levenduski would receive 30 percent of Mr. Levenduski’s military pay, not an actual monetary amount, no mater what dollar figure Mrs. Levenduski contemplated at the time of the agreement’s execution.

Mrs. Levenduski counters that she knew nothing of her former husband’s intention to apply for disability benefits. She maintains that prior to the time the parties executed the agreement, an appraisal had been conducted regarding Mr. Levenduski’s pension. Mrs. Levenduski further maintains that she expected to receive an amount certain and she relied on that dollar figure. She contends that based on her reliance, she gave up her right to the [338]*338imposition of alimony in this action. Finally, she argues that since Mr. Levenduski did not apply for disability until after their agreement and after the commencement of his military retirement, Mr. Levenduski should be held to his contractual commitment, pursuant to the expectation of the parties at the time.

Mrs. Levenduski cites an unpublished Cumberland County opinion, issued on February 17, 1994 by the Honorable Edgar B. Bayley in support of her position. She maintains that the facts in that case, Adams v. Adams, 2205 civil 1987 (Cumb. Cty., February 17, 1994), are identical to the facts in the case sub judice. This court disagrees. In Adams, the wife was'to receive a designated portion of her husband’s retirement (46 percent). The provision in that property settlement agreement dealing with wife’s apportionment of her husband’s “disposable retirement pay” was specifically defined more restrictively as follows:

“All military retirement benefits to which husband is entitled reduced only by the survivor benefit plan premium if any for wife and before any waiver for benefits received in lieu of husband’s military retirement benefits, together with any cost-of-living increases or similar increases that occur after retirement.” Adams, at p. 3. (emphasis in original)

After execution of the agreement, husband received an offset from his military retirement pay for disability benefits subsequently received by him. Judge Bayley found the intent of the parties clear. Based on the specific language of their property settlement agreement, Judge Bayley required husband to pay the full amount [339]*339of military retirement pay to his ex-wife as calculated under the agreement without deductions for the veteran’s disability benefit. Adams, at pp. 4-5. Husband did not appeal from this determination.

Several years later, Mr. Adams attempted to again reduce his wife’s portion of his retirement. This time, Mr. Adams accepted a federal civil service position, which, like disability, operated to reduce his spouse’s monthly pension benefit due to a federally mandated pay-cap ordered for dual government compensation of military retirees. On appeal, the Pennsylvania Superior Court, in Adams v. Adams, 725 A.2d 824 (Pa. Super. 1999), affirmed the lower court’s ruling that Mr. Adams reimburse his wife the difference due between what she should receive pursuant to the terms of their property settlement agreement and what she received after her husband’s deduction due to the civil service employment. The Superior Court explained:

“The trial court noted in its opinion that it previously had determined in the divorce action that the parties had agreed to a more restrictive definition than that made by the federal government. They did so without regard to the federal government’s requirement that a reduction in husband’s military retirement pay was a precondition to receipt of veteran’s disability benefits. The trial court applied the same reasoning to deny husband a reduction in retirement pay owed to wife to reflect the reduction in his pension benefits required to meet the pay-cap imposed for dual government compensation of military retirees. Indeed, the trial court noted husband voluntarily elected to reduce his pension payments rather than his current salary....” Adams, 725 A.2d at 827.

[340]*340The Superior Court went on to reject Mr. Adams’ latter argument and found that the trial court’s conclusion was supported by the record. The court further discussed:

“Husband agreed to a more restrictive definition of eligible military retirement pay than the one recognized by the federal government. He promised not to make a waiver or accept any offset of his pension eligibility other than the amount deducted to fund one-half the survivor’s benefit plan insurance. Consequently, the trial court correctly decided husband is bound to this mutually agreed upon and more restrictive definition of “eligible” disposable military retirement pay.

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Related

Mansell v. Mansell
490 U.S. 581 (Supreme Court, 1989)
Adams v. Adams
725 A.2d 824 (Superior Court of Pennsylvania, 1999)

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Bluebook (online)
54 Pa. D. & C.4th 334, 2001 Pa. Dist. & Cnty. Dec. LEXIS 399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levenduski-v-levenduski-pactcompldauphi-2001.