J-A01037-17
2017 PA Super 190
:
LEO JACKSON, JR., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
NADINE JACKSON, :
:
Appellant : No. 942 WDA 2016
Appeal from the Order June 1, 2016
in the Court of Common Pleas of Allegheny County
Family Division at No(s): FD 87-007382-006
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED JUNE 16, 2017
Nadine Jackson (Wife) appeals from the order dated June 1, 2016,
which made final the court’s May 3, 2016 order holding that Wife had waived
any claim for equitable distribution. For the reasons that follow, we vacate
the trial court’s order and remand for proceedings consistent with this
opinion.
The trial court set forth the relevant factual and procedural history as
follows.
Wife and [Leo Jackson, Jr.] (Husband) were married on
April 23, 1988. On November 12, 1999, Husband filed a
Complaint for Divorce with a claim for equitable distribution of
property. Wife did not file an Answer or Counterclaim to the
Divorce Complaint. On August 27, 2001, Wife filed a Counter-Affidavit under Section 3301(d) of the Divorce Code, checking
the box stating that she wished to claim economic relief. On
August 30, 2001, Husband filed a Notice of Intention to Request
Entry of 3301(d) Divorce Decree. The Notice provides that
“unless you have already filed with the court a written claim for
economic relief, you must do so by the above date or the court
* Retired Senior Judge assigned to the Superior Court.
J-A01037-17
may grant the divorce and you will lose forever the right to ask
for economic relief. The filing of the form counter-affidavit alone
does not protect your economic claims.” Wife never filed a
written claim for economic relief. On September 20, 2001,
Husband filed a Praecipe to Transmit Record in which he
indicated that equitable distribution was a pending, related
claim. On October 16, 2001, the [trial court] entered a
bifurcated divorce decree, retaining jurisdiction of “any claims
raised by the parties to this action for which a final order has not
yet been entered.”
Neither party filed an inventory nor were [any] equitable
distribution proceedings initiated. Fourteen years later, Husband
retired and Wife sought her marital share of his pension. On
April 8, 2015, Wife filed an inventory and asked the [trial court]
to require Husband to do the same. On May 28, 2015, Wife filed
a Motion for Special Relief, seeking to freeze Husband’s
retirement assets. Husband objected on the basis that Wife’s
claim was waived. There were no factual issues in dispute and
the [trial court] directed the parties to submit the issue on
briefs.
Following a review of the record, the brief[s] of the parties,
and applicable Pennsylvania law, the [trial court] found that Wife
waived her claim for equitable distribution to Husband’s pension.
Wife filed a Motion for Reconsideration which was granted. By
Order dated June 1, 2016, the [trial court] vacated its order
granting [re]consideration and entered the [May 3, 2016] order
as final.
Wife timely appealed, and, in response to an Order issued
pursuant to [Pa.R.A.P.] 1925(b), filed a Concise Statement of
Matters Complained of on Appeal[.]
Trial Court Opinion, 9/9/2016, at 2-3.
On appeal, Wife presents the following issues for our consideration,
which we have reordered for ease of disposition.
1. Whether the [trial court] erred in vacating its order granting
Wife’s motion for reconsideration and making final its order
dated May 3, 2016 where its opinion concluded Wife’s pursuit
of equitable distribution was barred by laches?
-2-
J-A01037-17
2. Whether despite the record revealing that Wife had filed for
economic relief, [did the trial court err] in determining that
she had not and therefore waived any claim for equitable
distribution rather than recognize that the intent of the
parties controlled when the bifurcated divorce decree as a
matter of law preserved equitable distribution when the [trial
court] retained jurisdiction over it which meant said economic
issues survived the decree which was on its face [] absent of
any fraud or defect requiring it be opened or vacated?
Wife’s Brief at 2 (unnecessary capitalization and suggested answers
omitted).
“Ordinarily, this Court reviews an order granting special relief for an
abuse of discretion. However, where, as here, an appeal presents a
question of law, our standard of review is de novo and our scope of review
plenary.” Raines v. Raines, 149 A.3d 375, 378 (Pa. Super. 2016)
(citations omitted).
Wife first contends the trial court erred in finding her pursuit of
equitable distribution was barred by the doctrine of laches. A review of the
record reveals that Wife’s issue stems from the trial court’s 1925(a) opinion,
wherein the court stated it was unaware of any precedent which “permits a
party who waived her right to equitable distribution to force adjudication of
the opposing party’s claim to his detriment a decade later.” Trial Court
Opinion, 9/9/2016, at 5. Wife is attacking a straw man. We fail to see how
the trial court’s passing remark in its 1925 opinion can be construed as a
finding that Wife is barred from raising her claim under the doctrine of
laches. Further, neither the June 1, 2016 order nor the May 3, 2016 order
-3-
J-A01037-17
contains any reference to such a finding.1 Rather, the trial court’s May 3
order focuses on the fact that Wife had failed to file for economic claims, and
thus she waived her claims.
We now turn to Wife’s remaining issue on appeal, namely, whether the
trial court erred in holding Wife waived her claims for equitable distribution.
Wife asserts that she is entitled to pursue economic claims against Husband
by virtue of the fact that: (1) Husband filed a divorce action raising a claim
for equitable distribution; (2) Wife filed a counter-affidavit prior to the entry
of the decree checking the box indicating that she wished to claim economic
relief; and (3) the parties entered into a bifurcated divorce, wherein the trial
court retained jurisdiction over claims raised by the parties for which a final
order had yet to be entered. Wife’s Brief at 8-22. Wife further argues that
the trial court incorrectly found that her only remedy to pursue economic
claims was to file a petition to open or vacate the divorce decree. Id. at 19.
Wife argues that she has never attempted to open or vacate the decree, and
her filings sought only to distribute equitably the sole marital asset of the
parties, Husband’s pension. “This request was predicated upon the fact that
the economic claims of the parties survived the divorce through their
1
There is no discussion of any prejudice to Husband. Prejudice is a
prerequisite for laches. See Sprague v. Casey, 550 A.2d 184, 187 (Pa.
1988) (“[I]n order to prevail on an assertion of laches, [a respondent] must
establish: a) a delay arising from petitioner’s failure to exercise due
diligence; and, b) prejudice to the respondents resulting from the delay.”).
-4-
J-A01037-17
bifurcated decree[.]” Id. For this reason, Wife argues, a petition to open or
vacate a decree was unnecessary.
Id.
The trial court offered the following response to Wife’s arguments:
Wife did not file a counterclaim or a separate petition
raising claims. The parties did not file inventories or conduct
discovery in contemplation of equitable distribution. Wife did not
petition the [trial court] to appoint a master less than [thirty]
days after entry of the divorce decree. Wife did not file a
petition to vacate or open the divorce within thirty days. Wife
does not offer any explanation for her failure to follow the rules
of civil procedure, or for the passage of fourteen years before
she petitioned the court. Wife argues that it was Husband’s
choice to bifurcate the divorce and have the [trial court]
separately adjudicate his claim for equitable distribution.
Pa.R.C.P. 1920.52(d) states that “in all cases the court shall
enter a decree separately adjudicating each claim raised.” Wife
contends that the marital property, in this case Husband’s
pension, remains in custodia legis because Husband elected not
to amend the divorce complaint to withdraw the claim for
equitable distribution. He is not prejudiced by the passage of
time because he was aware that his claim was still pending.
Wife contends it was not necessary for her to file a Petition
to Open/Strike the Divorce Decree within thirty days because
she is not seeking to set aside the decree. The decree left open
the issue of economic relief. According to Wife, she is entitled to
proceed with a claim timely raised and preserved, over which
this [trial court] retained jurisdiction following divorce and for
which there has been no order adjudicating the claim. …
Pennsylvania Rules of Civil Procedure require that explicit
language appear in the Notice of Intention to Request Entry of
3301(d) Divorce Decree and the Affidavit under 3301(d) advising
the parties that they must preserve economic claims by formally
filing them with the court prior to entry of a divorce decree or
they will forever lose those claims. Pa.R.C.P. 1920.72, 1920.73.
The [trial court] retained jurisdiction over claims raised by the
parties for which no final order has been entered. Wife raised no
economic claims. There is no precedent of which the [trial court]
is aware that permits a party who waived her right to equitable
-5-
J-A01037-17
distribution to force adjudication of the opposing party’s claim to
his detriment a decade later.
For the foregoing reasons, the [trial court] determined that
Wife waived a claim for equitable relief.
Trial Court Opinion, 9/9/2016, at 4-6.
We disagree with the trial court’s conclusions. First, the plain
language of the applicable statute requires the opposite result. “Upon the
request of either party in an action for divorce or annulment, the court
shall equitably divide, distribute or assign, in kind or otherwise, the marital
property between the parties without regard to marital misconduct in such
percentages and in such manner as the court deems just after considering
all relevant factors.” 23 Pa.C.S. § 3502 (emphasis added). The statute
clearly states that equitable distribution may be invoked by the request of
either spouse. Thus, Husband’s claim, which was never withdrawn, was still
pending disposition when Wife filed her inventory seeking a share of
Husband’s pension.
Furthermore, Pa.R.C.P 1920.17(b)2 sets forth the procedure in which a
party may withdraw a claim for equitable distribution. A claim may be
withdrawn only “by written consent of both parties filed with the court, or []
after filing and serving on the other party a written notice that the party
2
We are cognizant that this rule was adopted during the pendency of this
case. Nevertheless, it is well-settled that “[u]nless the Supreme Court
specifies otherwise, a rule or an amendment to a rule shall apply to actions
pending on the effective date.” Pa.R.C.P. No. 52(c).
-6-
J-A01037-17
intends to withdraw the claim of equitable distribution 20 days after service
of the notice.” It so follows that a claim filed by one party may be relied
upon by the other during the pendency of proceedings, and it is only when
both parties agree or the non-filing party is giving the opportunity to file his
or her own, may a claim be withdrawn.
Second, this Court is unaware of any precedent which mandates that
both parties must file, by petition or counterclaim, a request for equitable
distribution, in order to preserve a claim for equitable distribution. Rather
case law suggests that an equitable distribution claim made by one party to
a divorce is sufficient. See, e.g., Gee v. Gee, 460 A.2d 358, 360 n.2 (Pa.
1983) (“Appellee’s petition for equitable distribution of property required the
court to equitably dispose of all the rights and interests of the parties in all
of the marital property.”) (emphasis in original).
Third, appellate decisions in cases involving different but analogous
situations also support our rejection of the trial court’s determination. See
Brickus v. Dent, 5 A.3d 1281, 1288 (Pa. Super. 2010) (finding that even
though Father had initiated the action by filing a petition for modification
seeking to decrease his monthly payments, “the hearing officer had the
authority to increase Father’s support obligation in accordance with the
amended state support guidelines, even in the absence of a cross petition by
Mother.”). See also Shoup v. Shoup,
364 A.2d 1319, 1322, n.5 (Pa.
1976) (“Once one of the parties has moved for judgment on the pleadings,
-7-
J-A01037-17
the court may enter judgment in favor of either the plaintiff or the
defendant.”).
Similarly, if any party to a civil action timely requests a jury trial, the
right is preserved as to all parties; each party need not separately make the
demand. See Pa.R.C.P. 1007.1 (a), (c)(1) (“In any action in which the right
to jury trial exists, that right shall be deemed waived unless a party files and
serves a written demand for a jury trial not later than twenty days after
service of the last permissible pleading. … A demand for trial by jury may
not be withdrawn without the consent of all parties who have appeared in
the action.”) (emphasis added).
For the foregoing reasons, we hold that the trial court erred in finding
Wife waived her claim for equitable distribution. As such, upon remand, the
trial court shall allow the parties to proceed through the equitable
distribution process.
Order vacated. Case remanded for proceedings consistent with this
opinion. Jurisdiction Relinquished.
Judge Olson joins.
Judge Bowes files a concurring opinion.
-8-
J-A01037-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2017
-9-
