Conner v. Conner, 856 MDA 2018

• Decision Date: 20 August 2019
• Docket Number: No. 856 MDA 2018,No. 907 MDA 2018,856 MDA 2018,907 MDA 2018
• Citation: 217 A.3d 301
• Parties: Christopher CONNER, Appellant v. Katherene E. Holtzinger CONNER Christopher Conner v. Katherene E. Holtzinger Conner, Appellant
• Court: Pennsylvania Superior Court

217 A.3d 301

Christopher CONNER, Appellant

v.Katherene E. Holtzinger CONNER

Christopher Conner

v.Katherene E. Holtzinger Conner, Appellant

No. 856 MDA 2018

No. 907 MDA 2018

Superior Court of Pennsylvania.

Argued June 25, 2019

Filed: August 20, 2019

Julia Swain, and Jessica L. Kitain, Philadelphia, for Conner.

Frederick N. Frank, Pittsburgh, for Holtzinger Conner.

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS^* , P.J.E.

OPINION BY MURRAY, J.:

Christopher Conner (Husband) appeals, and Katherene E. Holtzinger Conner (Wife) cross-appeals, from the order purporting to resolve the economic claims attendant to the parties' divorce action. Upon review, we reverse in part, affirm in part, and remand for further proceedings.

Factual and Procedural Background

Husband and Wife were married on July 29, 1984, and have four adult children. They were married for more than 30 years before separating in 2014. They are currently in their early 60s. Both parties have law degrees, although their careers and earnings have diverged.

Husband worked as an attorney in private practice for the first 20 years of his career. The retirement funds from Husband's time in private practice, plus $5,909 in premarital retirement funds, are reflected in Husband's Schwab IRA account.

On July 26, 2002, Husband was appointed United States District Judge for the Middle District of Pennsylvania. On September 1, 2013, Husband was appointed, and currently serves as, Chief Judge of the Middle District of Pennsylvania. In his capacity as a federal judge, Husband, upon satisfying the Rule of 80,¹ is entitled to receive "an annuity equal to the salary he was receiving at the time he retired." 28 U.S.C.A. § 371 (Judicial Income). Moreover, Husband can elect to participate in a judicial survivors' annuity system (JSAS), "a voluntary survivor benefit plan that provides annuities to the survivors of certain Article III judges." Trial Court Opinion, 4/24/18, at 2; see also 28 U.S.C.A. § 376. Husband contributes 2.2% of his gross income to the JSAS.

Wife began her career working at the Dauphin County District Attorney's Office. Following the birth of the parties' first child, Wife began working part-time in a private law practice. Eventually, Wife transitioned to a faculty position at Penn State Dickinson Law School, where she remained a part of the faculty until her contract expired in 2017. While at Dickinson Law School, Wife held various positions, including Director of Public Interest Programs and Faculty Supervisor for Externship Placement. At the time of the equitable distribution hearing, Wife was unemployed but receiving a pension through her Pennsylvania State Employee Retirement System (SERS).

On April 2, 2015, Husband filed a complaint in divorce. On November 10, 2016, Husband filed a petition for bifurcation, seeking to separate the divorce action from ancillary economic claims. Wife filed an answer to Husband's petition and a separate petition raising economic claims on November 23, 2016. On January 4, 2017, Wife filed a petition for alimony pendente lite (APL). On February 1, 2017, the trial court entered an order granting Husband's petition for bifurcation and issuing a divorce decree, and awarding Wife $3,900 per month in APL.

The record reveals that on September 25, 2017, after reviewing the parties' briefs — but without conducting an evidentiary hearing — the trial court entered an order finding Husband's Judicial Income and JSAS to be marital property subject to equitable distribution. See Order, 9/25/17. Husband filed a motion for reconsideration, which the trial court denied on November 16, 2017.

On November 28, 2017, the trial court convened a hearing to address equitable distribution and alimony. On December 22, 2017, the trial court entered an order and opinion, dividing the parties' assets, and awarding Wife $2,500 per month in alimony until Husband "reaches pay status for his Judicial [Income]," at which time "Wife shall immediately begin receiving her share of Husband's retirement..." Trial Court Opinion, 12/22/17, at ¶ 3-4. Husband and Wife both filed for reconsideration of the trial court's equitable distribution and alimony order. The trial court granted reconsideration on January 17, 2018. On March 9, 2018, the parties consented to post-trial stipulations, in which they addressed Husband's Schwab IRA, Judicial Income, JSAS, and alimony. On April 24, 2018, the trial court issued a final order and opinion disposing of the parties' equitable distribution and alimony claims.

Husband filed a timely appeal, challenging: (1) the September 25, 2017 order finding Husband's Judicial Income and JSAS to be marital property subject to equitable distribution; (2) the November 16, 2017 order denying reconsideration of the September 25, 2017 order; (3) the December 22, 2017 equitable distribution order; and (4) the April 24, 2018 final equitable distribution order.² Husband's Brief at 11.

Wife cross-appealed, challenging the trial court's April 24, 2018 final order of equitable distribution. The trial court, Husband and Wife have all complied with Pennsylvania Rule of Appellate Procedure 1925.

Issues

On appeal, Husband raises five issues:

1. Did the trial court abuse its discretion and commit reversible error when it found that marital property included the salary guarantee afforded to [Husband], a United States Federal Judge, pursuant to 28 U.S.C.A. § 371 et seq. , upon a transition to senior status or to full retirement?

2. Did the trial court abuse its discretion and commit reversible error when, after having determined that Former Husband's [Judicial Income] benefits should be subject to deferred distribution, abruptly reversed course on reconsideration (without notice to the parties) and engaged in an independent actuarial calculation to determine a present value of said [Judicial Income] in the amount of $3,536,000?

3. Did the trial court abuse its discretion and commit reversible error by attributing an earning capacity to Former Wife far below the uncontested expert response [sic] submitted into evidence?

4. Did the trial court abuse its discretion and commit reversible error when, on reconsideration, it doubled the award of alimony to Former Wife from $2500 per month to $5000 per month after merely listing the relevant factors but not considering all relevant factors as required under 23 Pa.C.S.A. § 3701(b) and applying a reasonable needs analysis?

5. Did the trial court abuse its discretion and commit reversible error in assessing the value of the marital estate and applying the equitable distribution scheme?

Husband's Brief at 4-5 (suggested answers omitted).

In her cross-appeal, Wife raises three issues:

1. Although properly determining that Husband's [Judicial Income] constituted a marital asset, did the Trial Court abuse its discretion in its equitable distribution of Husband's Judicial [Income] by failing to provide for a deferred distribution of Wife's marital share?

2. Whether the Trial Court abused its discretion in adopting Husband's valuation of Wife's SERS pension as Husband's valuation included post-separation contributions, which are unequivocally precluded from inclusion in the valuation of the asset in equitable distribution, and by attributing to Wife a purported withdrawal from her SERS pension?

3. Whether the Trial Court committed an abuse of discretion in valuing Husband's Schwab IRA as of the date of separation, rather the [sic] date distribution, despite Husband's Schwab IRA growing dramatically in value post separation due to market increases on the marital portion of the asset?

Wife's Brief at 7-8 (suggested answers omitted).

Wife's Cross-Appeal

As a preliminary matter, we address our jurisdiction over Wife's cross-appeal. Pennsylvania Rule of Appellate Procedure 903 governs the filing of cross-appeals, and states in pertinent part:

... [I]f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was served , or within the time otherwise prescribed by this rule, whichever period last expires.

Pa.R.A.P. 903(b) (emphasis added). The appeal period is strictly construed, and we have no jurisdiction to expand the period or excuse the failure to file a timely notice of appeal. Instantly, Husband filed his timely notice of appeal on May 21, 2018. Wife filed a notice of cross-appeal, which was docketed on June 5, 2018, 15 days after Husband filed his notice of appeal. Thus, ostensibly, Wife's cross-appeal is untimely as it was filed beyond the 14 days prescribed in Pa.R.A.P. 903(b).

However, Husband did not serve Wife with his notice of appeal until May 23, 2018. Accordingly, Wife had 14 days from the date she was served with the notice of appeal to file a cross-appeal. See Pa.R.A.P. 903(b). As Wife filed her cross-appeal on June 5, 2018, 13 days from the date she was served with Husband's notice of appeal, it is timely. See id.

The Parties' Economic Claims

Turning to the issues before us, both Husband and Wife assert that the trial court erred in formulating its equitable distribution award. At the outset, we underscore the economic complexity of the parties' issues. We further observe:

We review a challenge to the trial court's equitable distribution scheme for an abuse of discretion. Brubaker v. Brubaker , 201 A.3d 180, 184 (Pa. Super. 2018) (citation omitted). "We do not lightly find an abuse of discretion, which requires a showing of clear and convincing evidence." Id. We will not find an abuse of discretion "unless the law has been overridden or misapplied or the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence in the certified record." Carney v. Carney , 167 A.3d 127, 131 (Pa. Super 2017). When reviewing an award of equitable distribution, "we measure the circumstances of the case against the objective of effectuating economic justice between the parties and achieving a

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