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Getty v. Getty

Superior Court of Pennsylvania

October 15, 2019

JOHN WILLIAM GETTY, Appellant
v.
MICHELE SUDER GETTY, Appellee

          Appeal from the Order Entered December 17, 2018 in the Court of Common Pleas of Philadelphia County Civil Division at No(s): 099078473

          BEFORE: MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J. [*]

          OPINION

          STRASSBURGER, J.

         John William Getty (Husband) appeals from the order entered December 17, 2018, which denied his petition for declaratory judgment. We affirm.

         This case involves the application of an important[1] change in Pennsylvania law with respect to how pension plans are valued in divorce cases. Specifically, on January 28, 2005, the Pennsylvania legislature enacted legislation that overruled our Supreme Court's holding in Berrington v. Berrington, 633 A.2d 589 (Pa. 1993). In Berrington, a divided Pennsylvania Supreme Court held that

in a deferred distribution of a defined benefit pension, the spouse not participating may not be awarded any portion of the participant-spouse's retirement benefits which are based on post-separation salary increases, incentive awards or years of service. Any retirement benefits awarded to the non-participant spouse must be based only on the participant-spouse's salary at the date of separation.

633 A.2d at 594 (emphasis added).[2]

         On January 28, 2005, the Pennsylvania legislature passed subsection (c) of section 3501 of the divorce code in an effort to reverse Berrington and "adopt a coverture fraction methodology [designed] to include all postseparation enhancements except for postseparation monetary contributions by the employee spouse in the value of the pension." 23 Pa.C.S. § 3501 (comment to subsec. (c)). In other words, the pension was to be valued using the employee-spouse's salary as of the date of retirement, not as of the date of separation as in Berrington. The marital portion of the pension would be calculated by the use of a coverture fraction. See Smith v. Smith, 938 A.2d 246 (Pa. 2007). Moreover, on June 15, 2005, the legislature again amended subsection 3501(c) to provide that it was applicable to all proceedings pending on or after January 28, 2005.

         We now turn to the relevant factual and procedural history of the instant matter. Husband and Michele Suder Getty (Wife) married on July 12, 1980, separated on May 31, 1999, and Wife filed a complaint in divorce against Husband on July 19, 1999. On December 23, 2004, an order was entered by the trial court, which provided, in relevant part, that Wife was "awarded 65% of Husband's City of Philadelphia Municipal Employees Deferred Compensation Plan (the Plan)."[3] Order, 12/23/2004 at ¶ 1 (the Order). The trial court also ordered Wife to submit the Order to the Plan administrator for processing.

         On December 29, 2004, Husband filed a motion for reconsideration of the Order, arguing that Wife should not have been awarded 65% of the Plan, and if she were to be awarded 65%, the trial court should amend its order to clarify that "the 65% award should be of the marital portion of the Plan, not the entire plan." Motion for Reconsideration, 12/29/2004, at ¶ 3(b). In addition, on January 19, 2005, Husband filed a notice of appeal from the Order.

         On January 21, 2005, the trial court granted the motion for reconsideration in part. Specifically, the trial court amended the Order to provide that Wife should be awarded 65% of the marital portion of the Plan. Order, 1/21/2005, at ¶ 1 (Amended Order).

         On April 5, 2007, a panel of this Court quashed Husband's appeal. Specifically, this Court concluded that

the trial court's action in granting reconsideration rendered Husband's previously filed notice of appeal inoperative. Because the trial court granted reconsideration, the time for either party to file an appeal began to run anew on January 2[1], 2005, where the court's order entered on that date, in addition to granting reconsideration, also constituted the entry of the court's decision on reconsideration. Because the trial court's order granting reconsideration rendered Husband's notice of appeal inoperative and ...

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