Metzger v. Metzger

534 A.2d 1057, 369 Pa. Super. 17, 1987 Pa. Super. LEXIS 9551
CourtSuperior Court of Pennsylvania
DecidedNovember 10, 1987
DocketNos. 292, 293, 372 & 373
StatusPublished
Cited by7 cases

This text of 534 A.2d 1057 (Metzger v. Metzger) 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
Metzger v. Metzger, 534 A.2d 1057, 369 Pa. Super. 17, 1987 Pa. Super. LEXIS 9551 (Pa. Ct. App. 1987).

Opinion

DEL SOLE, Judge:

On September 23, 1980, John Metzger, hereinafter referred to as “Husband”, filed a complaint for divorce seeking equitable distribution. Two days later, Ana Maria Diaz Metzger, hereinafter referred to as “Wife”, also filed a divorce complaint in which she sought equitable distribution, alimony pendente lite, alimony, counsel fees, and expenses. Upon request of Husband, a bifurcated divorce was granted; the decree of divorce pursuant to 23 P.S. § 201(d) of the Divorce Code was entered on December 28, 1984. The remaining disputes associated with the parties’ divorce were referred to a Master. Following several hearings, the Master’s Report and Recommendation was filed on December 23, 1985. Both parties proceeded to file exceptions to the Report. Following argument, the trial court filed an order and opinion on December 30, 1986.

Although raised by neither party, we must determine whether or not Wife has preserved the majority of the [20]*20issues she now advances on appeal. Pa.R.C.P. 1920.55 sets out the time limits to be followed when filing exceptions to a master’s report:

[wjithin ten days after notice of the filing of the master’s report has been mailed, exceptions may be filed by any party to the report ...

The record reveals that the Master’s Report was filed and mailed to the parties on December 23, 1985. Timely exceptions were filed by Husband on December 31, 1985. However, Wife did not file her exceptions until January 3, 1986. Recently, in Sipowicz v. Sipowicz, 358 Pa.Super. 319, 517 A.2d 960 (1986), we held that a party’s failure to file timely exceptions within ten days as required by Rule 1920.55 resulted in a waiver of those claims of error raised on appeal. Id., 358 Pa.Superior Ct. at 324, 517 A.2d at 963. Instantly, Wife’s exceptions were filed 11 days after the Master’s Report was mailed. Therefore, all of the issues which Wife could have raised in timely exceptions to the Master’s Reports are now considered waived on appeal.1

We are mindful, though, that no exceptions need be filed to preserve for appeal issues which claim that the trial court erred when it entered an order which altered the terms of the master’s report and recommendation. This is based on the fact that Rule 1920.55(c) does not permit the filing of motions for post-trial relief after a decree has been [21]*21entered. Accordingly, the first opportunity to raise certain objections to the trial court’s treatment of a divorce case is through a direct appeal. Such claims are therefore preserved. Benson v. Benson, 357 Pa.Super. 166, 515 A.2d 917 (1986).

As stated, supra, we shall not address the plethora of issues raised by Wife which challenge the trial court’s adoption of particular portions of the Master’s Report. However, Wife’s issue with respect to the trial court’s determination that she share in the costs associated with the parties’ divorce is preserved insofar as the first time it could have been raised was by direct appeal. We now turn to the issues raised by the parties.

Husband’s Navy Pension

Husband argues that the trial court erred in ruling that his Naval pension was marital property subject to equitable distribution. It is Husband’s position that military pensions are not property subject to division in adjudications involving marital property. Husband relies upon the Uniformed Services Former Spouses Protection Act (USFSPA), 10 U.S.C. § 1408 (1986) which states:

[i]f the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member’s eligibility for retired or retainer pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired or retainer pay of the member as property of the member or property of the member and his spouse.

10 U.S.C. § 1408(d)(2) (1986). Subsection (c) of § 1408 provides:

a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.

[22]*22Husband claims that Wife was not married to him during ten years of his credible service in the military; therefore, she is barred by the Act from receiving any portion of the Naval pension. We disagree.

We note that the specific provisions found in § 1408 refer only to court orders which concern payments made pursuant to a military pension after June 25, 1981. Instantly, the trial court’s decision with respect to the Naval pension did not affect any payments which Husband may receive from the plan. Rather, the trial court’s formula in valuing the Naval pension for equitable distribution purposes — the “immediate offset method” — would determine only that portion of the pension which accrued during the marriage. Clearly, § 1408 of the Act does not speak to the equitable distribution of a military pension and is not applicable to the case at bar.

Having decided that a Naval pension may be subject to equitable distribution, we must address Husband’s claim that the pension was earned prior to the parties’ marriage. “Each spouse has a reasonable expectation of enjoying the monies received from an employee retirement fund.” Braderman v. Braderman, 339 Pa.Super. 185, 194, 488 A.2d 613, 617 (1985). In Flynn v. Flynn, 341 Pa.Super. 76, 83, 491 A.2d 156, 160 (1985), we commented on the reasoning upon which this general rule is grounded:

[sjince a pension benefit is an economic resource acquired with funds that would otherwise have been utilized by the parties during their marriage to purchase other assets, it constitutes marital property. This determination is made without regard to the possibly contingent nature of the pension, whether or not it has vested or matured.

Based on this analysis, the only time span which is relevant for equitable distribution purposes will be the total period of time Husband participated in the pension “from date of marriage until date of separation.” LaBuda v. LaBuda, 349 Pa.Super. 524, 536, n. 9, 503 A.2d 971, 977, n. 9 (1986). See Braderman, supra, 339 Pa.Superior Ct. at 198, 488 A.2d at 619. This is true insofar as all other excluded time represents periods in which the Naval pension [23]*23was not acquired with funds otherwise available to the parties during marriage. In the case sub judice, Wife will be eligible to receive the extrapolated value of the pension from the parties’ date of marriage on February 25,1972 until Husband’s June 30, 1974 retirement from the Navy.

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Bluebook (online)
534 A.2d 1057, 369 Pa. Super. 17, 1987 Pa. Super. LEXIS 9551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metzger-v-metzger-pasuperct-1987.