from the Order Entered April 24, 2018 In the Court of Common
Pleas of Cumberland County Civil Division at No(s): 15-01899
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS [*] , P.J.E.
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.
and Procedural Background
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.
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
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,
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.
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).
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.
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.
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.
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. Husband's Brief at 11.
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.
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
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,
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
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?
Brief at 4-5 (suggested answers omitted).
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
Wife's Brief at 7-8 (suggested answers omitted).
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.
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
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.
Parties' Economic Claims
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 just determination of
their property rights." Hayward v. Hayward, 868
A.2d 554, 558 (Pa. Super. 2005). When determining the
propriety of an equitable distribution award, this Court must
consider the distribution scheme as a whole. Mundy v.
Mundy, 151 A.3d 230, 236 (Pa. Super. 2016). "We do
not evaluate the propriety of the distribution order upon our
agreement with the court's actions nor do we find a basis
for reversal in the court's application of a single
factor. Rather, we look at the distribution as a whole in
light of the court's overall application of the 23
Pa.C.S.A. § 3502(a) factors for consideration in
awarding equitable distribution. If we fail to find an abuse
of discretion, the order must stand." Harvey v.
Harvey, 167 A.3d 6, 17 (Pa. Super. 2017) (citation and
internal brackets omitted). Finally, "it is within the
province of the trial court to weigh the evidence and decide
credibility and this Court will not reverse those
determinations so long as they are supported by the
evidence." Brubaker, 201 A.3d at 184 (citation
Hess v. Hess, ___A.3d ___, 2019 WL 2334113, at *2
(Pa. Super. 2019).
first and second issues concern his Judicial Income, which
implicate the interplay of federal and state law. In his
first issue, Husband asserts that the trial court erred in
concluding that the annuity he receives upon satisfying the
Rule of 80 is a retirement benefit subject to equitable
371 of the United States Code reads, in relevant part:
§ 371. Retirement on salary; retirement in
(a) Any justice or judge of the United States appointed to
hold office during good behavior may retire from the office
after attaining the age and meeting the service requirements,
whether continuous or otherwise, of subsection (c) and shall,
during the remainder of his lifetime, receive an annuity
equal to the salary he was receiving at the time he retired.
(b) (1) Any justice or judge of the United States appointed
to hold office during good behavior may retain the office but
retire from regular active service after attaining the age
and meeting the service requirements, whether continuous or
otherwise, of subsection (c) of this section and shall,
during the remainder of his or her lifetime, continue to
receive the salary of the office if he or she meets the
requirements of subsection (e)
(2) In a case in which a justice or judge who retires under
paragraph (1) does not meet the requirements of subsection
(e), the justice or judge shall continue to receive the
salary that he or she was receiving when he or she was last
in active service or, if a certification under subsection (e)
was made for such justice or judge, when such a certification
was last in effect. The salary of such justice or judge shall
be adjusted under section 461 of this title.
28 U.S.C.A. § 371. Husband urges this Court to
characterize his Judicial Income as a "salary
guarantee," rather than a retirement benefit subject to
equitable distribution, based on Adams v. Comm'r of
Internal Revenue, 841 F.2d 62 (3d Cir. 1988).
Husband's Brief at 24-26; see also U.S. v.
Hatter, 532 U.S. 557 (2001).
Adams decision is "an appeal by the
Commissioner of Internal Revenue from a decision of the Tax
Court allowing certain deductions for contributions to
individual retirement accounts (IRA)," pursuant to
Section 219 of the United States Code. Adams, 841
F.2d at 63; see also 26 U.S.C.A. § 219
(effective to Dec. 31, 1996) (current version at 26 U.S.C.
§ 219 (effective March 23, 2018)). Although
Adams is not on point, Husband cites its discussion
of Section 371 as authority for finding that Husband's
Judicial Income is not a retirement plan. The Adams
court stated: "Thus, we cannot regard 28 U.S.C.
§§ 371(a), 371(b) and 372(a) as establishing a
retirement plan for judges. Further, we cannot possibly
regard the provisions of the Constitution itself providing
for lifetime appointments to be a retirement plan."