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filed: December 18, 1986.


Appeal from Judgment entered granting Petition to Reopen Award of Equitable Distribution and denying Exceptions to the Special Master's Report, entered in the Court of Common Pleas of Luzerne County October 17, 1985, Docket Number 4592-C.


Jerry B. Chariton, Wilkes-Barre, for appellant.

John S. Fine, Jr., Wilkes-Barre, for appellee.

McEwen, Olszewski and Kelly, JJ.

Author: Kelly

[ 359 Pa. Super. Page 346]

This is an appeal from the Judgment entered denying appellant's exceptions to the special master's report and granting appellee's petition to reopen the previous uncontested award of equitable distribution of marital assets. For the reasons stated below, we vacate the order of the lower court, and remand for further proceedings.

Judith and Clyde D. Major were married December 22, 1962. Clyde Major, appellant herein, had been a flight engineer in the Air Force from before the time of his marriage until his retirement in February 1981. On December 8, 1981 appellee Judith Major filed a complaint in divorce, alleging indignities to the person. A special master was appointed; his report recommending the grant of a divorce was filed on October 31, 1982. Counsel filed a stipulation permitting bifurcation of the divorce action from the marital property disposition on December 2, 1982; that same day the decree in divorce was entered.

The same special master took testimony regarding the property distribution and filed his report and recommendations on March 14, 1983. The main assets distributed included the marital home and land in Luzerne County, some undeveloped parcels of land in Texas, the two cars,

[ 359 Pa. Super. Page 347]

    home furnishings, a life insurance policy and appellee's employee stock plan assets. As no exceptions were filed to the report and recommendation of the master, a final order was entered on March 29, 1983.

Sometime on or about October 17, 1983, appellee filed a petition for rule to show cause as to why the issue of equitable distribution should not be re-opened to include appellant's military retirement pension. No mention of the pension benefits had been made in previous court records. The special master was re-appointed and filed a report on July 31, 1985, withholding a recommendation on procedural aspects of re-opening the final order, but recommending that the pension be recognized as marital property. Appellant filed exceptions which were denied by the trial court; a final order was entered and reduced to judgment on October 17, 1985, granting appellee a share of the military pension benefits. Appeal to this court timely followed.

Appellant presents four issues for review. He contends that: his military retirement pay is not marital property; 23 P.S. § 401 (j) prohibits the award of equitable distribution because at the time of the divorce in December, 1982, appellee had no vested right to the pension; assuming arguendo the pension is marital property, appellee waived her right to claim her portion by her failure to file exceptions to the March 29, 1983 order; and the lower court erred in citing in its opinion an unpublished memorandum of this court. We shall address these issues seriatim.


The issue of whether Pennsylvania will recognize a military retirement pension as marital property is one of first impression. Equitable distribution of marital property in the Commonwealth is governed by the Divorce Code, 23 P.S. § 401 et seq., and by the Rules of Civil Procedure, Rule 1920.1 et seq. Specifically, the applicable portions of the law relating to distribution of marital property are as follow:

[ 359 Pa. Super. Page 348]

§ 401. Decree of court

(c) In all matrimonial causes, the court shall have full equity power and jurisdiction. . . .

(d) In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors. . . .

(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.

(e) For purposes of this chapter only, "marital property" means all property acquired by either party during the marriage except:

(4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce.

(6) Veterans' benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958, Public Law 85-857, 72 Statute 1229, as amended, except for those benefits received by a veteran where such veteran has waived a portion of his ...

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