GEOFFREY H. JAGO Appellee
TINA M. JAGO Appellant
from the Order Entered November 9, 2018 In the Court of
Common Pleas of Lehigh County Domestic Relations at No(s):
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI
[*] , J.
Tina M. Jago ("Wife"), appeals from the order
entered in the Lehigh County Court of Common Pleas, which
vacated a qualified domestic relations order
("QDRO") the court had previously entered upon
joint petition of Wife and Geoffrey H. Jago
("Husband") and denied the parties' amended
joint petition for entry of an amended QDRO. We affirm.
relevant facts and procedural history of this case are as
follows. The parties married on June 21, 1997, and are still
married. Husband is a participant in a JetBlue Airways
Retirement Plan ("Plan"). On June 21, 2018, the couple
filed a "Verified Joint Petition for QDRO." In the
petition, the parties sought to transfer $400, 000.00 from
the Plan to an individual retirement account
("IRA") in Wife's name. The petition read, in
relevant part, as follows:
1. [Husband], Plan Participant; and [Wife], Alternate Payee,
were married on or about June 21, 1997. … There is no
pending petition for divorce or other family law matter
before this Honorable Court.
2. [Husband] and [Wife], as current spouse and qualifying
Alternate Payee of [Husband], both wish to execute a
[QDRO]…regarding the [Plan]…. … Said
QDRO properly distributes the funds pursuant to the mutual
requests of the parties.
* * *
4. [Husband] has obtained pre-approval of the attached QDRO
from the [Plan], Plan Administrator. …
5. The Parties further acknowledge and expressly state that
the signing of the QDRO is for public records purposes only
and pursuant to federal law restrictions. Notwithstanding any
particular language of the joint Petition and/or QDRO, the
parties do not intend to partition any of the funds involved
in the QDRO transfer, nor change the classification of the
community nature of the funds in [Husband]'s name into
separate property into the name of [Wife].
6. The parties acknowledge and agree that should any portion
of this Joint Petition or QDRO be interpreted to have changed
the classification of the funds transferred; then both
parties shall immediately sign documentation pursuant to
Pennsylvania law donating the funds back to the Plan.
(Verified Joint Petition for QDRO, filed 6/21/18; R.R. at
3a-4a). The trial court approved the proposed QDRO
via an order dated June 22, 2018, and docketed June
the parties sought to increase the amount of funds
transferred from the Plan to Wife's IRA. In a letter
dated September 13, 2018, the Plan administrator pre-approved
a transfer of $700, 000.00 conditioned upon the trial court
executing an amended QDRO. On October 2, 2018, the parties
filed an "Amended Verified Joint Petition for
QDRO," seeking to transfer $700, 000.00 from the Plan to
Wife's IRA. The October 2nd proposed QDRO was
nearly identical to the original QDRO; the only significant
difference between the two QDROs was the amount of funds the
parties sought to transfer. Following a hearing on November
2, 2018, the court denied the amended QDRO petition and
vacated the initial QDRO on November 9, 2018. In its November
9th order, the court expressly stated the order
was final per Pa.R.A.P. 341(c).
December 6, 2018, Wife timely filed a notice of appeal. The
court ordered Wife on December 11, 2018, to file a concise
statement of errors complained of on appeal per Pa.R.A.P.
1925(b); Wife timely complied on January 2, 2019. On February
8, 2019, this Court issued a rule to show cause why the
November 9, 2018 order is a final, appealable order; Wife
filed a response on February 19, 2019. This Court discharged
the rule to show cause on February 21, 2019, and deferred the
matter to the merits panel.
raises three issues for our review:
WHETHER THE TRIAL COURT ERRED IN FAILING TO RECOGNIZE THE
PROPOSED ORDER AS "RELATING TO CHILD SUPPORT…OR
MARITAL PROPERTY RIGHTS TO A SPOUSE" UNDER 29 U.S.C.A.
WHETHER THE TRIAL COURT ERRED IN FAILING TO RECOGNIZE THE
PROPOSED ORDER AS APPROVED BY THE PLAN ADMINISTRATOR AS A
WHETHER THE TRIAL COURT ERRED IN REQUIRING A PENDING DIVORCE
AS A PREREQUISITE TO ENTERING A QDRO[?]
(Wife's Brief at 8).
issues combined, Wife contends a pending divorce or marital
separation is not required for entry of a QDRO. Wife submits
requiring a divorce decree or a pending domestic relations
action as a prerequisite to the entry of a QDRO elevates form
over substance, citing Brown v. Continental
Airlines, 647 F.3d 221 (5th Cir. 2011). Wife claims
courts can enter QDROs in actions other than divorce to
recognize the interests of a non-spouse, such as a child or
other dependent. Wife also argues the parties' QDROs
satisfied all other statutory requirements. Wife insists
entry of the amended QDRO is in accordance with Pennsylvania
domestic relations law, as the QDRO concerns marital property
rights. Wife concludes this Court should reverse the trial
court's order that denied the parties' petition to
enter an amended QDRO and vacated the initial QDRO, and
remand for entry of the amended QDRO. We disagree.
18, Title 29 of the United States Code outlines the
regulatory scope of ERISA. See generally 29 U.S.C.A.
§ 1001 et seq. One of the principle objectives
of ERISA is to protect the interests of plan participants and
beneficiaries. Boggs v. Boggs, 520 U.S. 833, 845,
117 S.Ct. 1754, 1762, 138 L.Ed.2d 45, ___ (1997) (citing 29
U.S.C.A. § 1001(b) and other sections). ERISA
accomplishes this objective through an
"anti-alienation" provision, which prevents a plan
participant from granting an interest in the benefits of the
participant's retirement plan to a non-participant.
Id. at 851, 117 S.Ct. at 1765, 138 L.Ed.2d at ___
(citing 29 U.S.C.A. § 1056(d)(1)). "The purpose of
the proscription, in ERISA, on alienation and assignment of
pension funds is to protect the participant from [the
participant's] own financial improvidence."
Richardson v. Richardson, 774 A.2d 1267, 1270