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06/23/97 THOMAS O. COHENOUR v. MARY L. COHENOUR

June 23, 1997

THOMAS O. COHENOUR, APPELLANT
v.
MARY L. COHENOUR, APPELLEE



Appeal from the Order entered January 19, 1996 in the Court of Common Pleas of Huntingdon County, Civil, at No. 91-1720. Before KURTZ, J.

Before: Cavanaugh, Johnson, and Eakin, JJ. Opinion BY Eakin, J.

The opinion of the court was delivered by: Eakin

OPINION BY EAKIN, J.:

Filed June 23, 1997

Thomas O. Cohenour (Husband) appeals from an order of the Court of Common Pleas of Huntingdon County (Kurtz, J., presiding) denying his exceptions to the master's report and recommendations. We affirm in part, vacate in part and remand.

Husband and appellee Wife were married September 18, 1965, separated on or about April 28, 1992, and were divorced on January 19, 1996. Husband is employed by the Department of the Army; his gross monthly income as of the Master's hearing was approximately $3,315. As an employee of the federal government, Husband is not eligible for a Social Security pension, but is covered under the Civil Service Retirement Act (CSRA) in lieu thereof.

After the birth of their first child, Wife was primarily a housewife and mother until the parties separated. Wife is now employed by a grocery store, with a gross monthly income averaging about $740; she receives no benefits from her employment.

In 1991, Husband filed a complaint in divorce; Wife filed an answer and new matter requesting alimony pendente lite, alimony, counsel fees, costs, expenses, and equitable distribution of marital property. Angela M. Kyper, Esquire, was appointed Master; her report was filed April 27, 1995, to which both parties filed exceptions. The court filed an opinion in October 1995, setting forth equitable distribution of marital property; on January 18, 1996 the court entered a Decree in Divorce, which incorporated the distribution plan. On January 19, the court entered a further order granting Wife "a pro rata share of the gross annuity", Husband's Federal Civil Service Retirement System ("CSRS") pension.

Husband claims the trial court erred in (1) awarding Wife an excessive share of his federal pension without offsetting the portion in lieu of Social Security, and without using the immediate offset method; (2) awarding Wife an inequitably large share of marital property, including alimony; (3) awarding him an escrow account used for the marital home; (4) failing to award him monthly rental value credits beyond October 1995; and (5) failing to credit him for debts paid, or failing to limit the "reverse credit" to Wife for debt payments.

Our standard of review is limited. A trial court has broad discretion in fashioning equitable distribution awards, and we will overturn an award only for an abuse of that discretion. Gill v. Gill, 450 Pa. Super. 611, 615, 677 A.2d 1214, 1216 (1996). "An abuse of discretion is not found lightly, but upon a showing of clear and convincing evidence"; we will not usurp the trial court's duty as factfinder. Miller v. Miller, 421 Pa. Super. 23, 28, 617 A.2d 375, 377-78 (1992). We may find an abuse of discretion if the trial court fails to follow proper legal procedures or misapplies the law. Paulone v. Paulone, 437 Pa. Super. 130, 133, 649 A.2d 691, 692 (1994). Further, we consider the circumstances of the case and the Conclusions of the trial court in light of the policy of effectuating economic Justice between the parties. Schneeman v. Schneeman, 420 Pa. Super. 65, 75, 615 A.2d 1369, 1374 (1992).

Social Security benefits are not subject to equitable distribution. Flemming v. Nestor, 363 U.S. 603, 609-10, 80 S. Ct. 1367, 1371-72, 4 L. Ed. 2d 1435 (1960) ("To engraft upon the Social Security system a concept of 'accrued property rights' would deprive it of the flexibility and boldness in adjustment to everchanging conditions which it demands"). Social Security retirement benefits are not considered marital property and cannot be distributed as part of the marital estate under Pennsylvania's Divorce Code. Powell v. Powell, 395 Pa. Super. 345, 353, 577 A.2d 576, 580 (1990).

"To the extent individuals with Social Security benefits enjoy an exemption of that 'asset' from equitable distribution, we believe those individuals participating in the CSRS must, likewise, be so positioned." Cornbleth v. Cornbleth, 397 Pa. Super. 421, 425, 580 A.2d 369, 371 (1990), alloc. denied, 526 Pa. 648, 585 A.2d 468 (1991). Therefore, "to the extent part of the pension might figuratively be considered 'in lieu of' a social security benefit[,] we believe that portion should be exempted from the marital estate." Id. ; see also Twilla v. Twilla, 445 Pa. Super. 86, 664 A.2d 1020 (1995). In light of this authority, we agree with Husband; the portion of his gross pension which is deemed in lieu of Social Security must be exempted from the marital estate.

Both parties' experts calculated the marital portion of Husband's CSRS pension at the time of separation, and in accordance with Cornbleth, deducting from the present value of the CSRS pension the present value of a Social Security benefit. In its October 31, 1995 opinion, the court accepted Wife's expert's figure of $43,880. N.T. Divorce Hearing, at 30. The court's formal order, however, provides Wife is "entitled to a pro rata share of the gross annuity" (emphasis added). This fails to state clearly that before distribution, that portion of Husband's CSRS pension in lieu of a Social Security benefit must be deducted, and the pro rata share based on the net figure. We acknowledge that the learned trial Judge reserved jurisdiction, specifically on issues of the pension, so as to effectuate its purpose; nevertheless, we are constrained to vacate the pension portion of the order and remand so the trial court may clarify its order, such that the "Social Security portion" is exempted from the award of the marital estate. *fn1 Cornbleth, (supra) .

Appellant next claims the court erred in using the deferred method of distribution, rather ...


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