Appeal from the Order Entered June 17, 2011 in the Court of Common Pleas of Bucks County, Civil Division, at No(s): A06-01-62624-Q-20
The opinion of the court was delivered by: Strassburger, J.
BEFORE: SHOGAN, OTT, and STRASSBURGER*fn1 , JJ.
OPINION BY STRASSBURGER, J.:
Christine A. MacDougall (Wife) appeals from the trial court's order denying her petition for civil contempt. We reverse and remand for further proceedings consistent with this opinion.
The overarching legal issue in this case is whether post-separation cost of living adjustments (COLAs) are considered marital property subject to the terms of an equitable distribution order, where the ex-spouse was awarded a share of the marital portion of the former spouse's defined benefit pension plan.
The relevant facts and procedural history of this case are as follows. On January 30, 1993, Wife and William MacDougall (Husband) were married.
The parties separated, and on July 26, 2001, Wife filed a complaint in divorce. On September 5, 2003, the couple participated in an equitable distribution hearing, and at the conclusion thereof, agreed that Wife would receive a deferred distribution of 50 percent of the marital portion of Husband's military pension. N.T., 9/05/03, at 1-11.
On May 20, 2004, the trial court entered a divorce decree and confirmed that Wife would receive 50 percent of the marital portion of Husband's military pension. Decree, 5/20/04, at 1. Pursuant to the terms of Husband's retirement plan, a service member who obtains 20 years of creditable service receives 50 percent of his monthly salary, as a pension, without any monetary contribution on the part of the service member.*fn2
After accumulating 20 years (240 months) of military service, Husband retired on December 31, 2005. As the parties were married in 1993 and separated in 2001, Husband served a total of 102 months in the military while married to Wife. According to a coverture fraction calculation, the marital portion of Husband's pension was 42.5 percent (102 months of service while married divided by 240 months of total service), and Wife's 50 percent share of this amount was 21.25 percent.
At the time of separation, Husband's monthly retirement benefit was calculated at $1,207.35, which amounted to 50 percent of his three year average monthly salary of $2,414.70. Consequently, Husband determined that Wife's 21.25 percent of the $1,207.35 monthly retirement benefit was $256.56. From the time of separation until his retirement, Husband received COLAs that increased his salary, and consequently, his retirement benefit.
On February 1, 2006, Husband entered retirement pay status and received his first monthly pension payment. Since then, Husband has each month mailed Wife a money order in the amount of $256.56. Due to the COLAs, Husband's actual total monthly retirement pay was $1,634.00 from February 2006 to December 2006; $1,687.00 from January 2007 to December 2007; $1,725.00 from January 2008 to December 2008; and $1,825.00 from January 2009 to December 2009.
On November 13, 2009, Wife filed a petition for civil contempt. In this petition, Wife claimed that Husband violated the equitable distribution order by failing to distribute 21.25 percent of Husband's actual, total monthly benefit as augmented by the COLA increases. On December 14, 2009, Husband filed an answer to the petition for contempt.
Following the submission of a joint stipulation of facts, oral argument, and legal briefing, the trial court denied Wife's petition for civil contempt on June 17, 2011. The trial court concluded that under prevailing precedent, Husband complied with the terms of the equitable distribution order. Particularly, the trial court concluded that under Berrington v. Berrington, 633 A.2d 589 (Pa. 1993), Husband properly used the date of separation to determine Wife's base monthly ...