J-A18014-19
2020 PA Super 66
DAVID MARK BROOKS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GAIL S. BROOKS :
:
Appellant : No. 1747 WDA 2018
Appeal from the Order Dated November 13, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): FD-13-003932-009
DAVID MARK BROOKS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GAIL S. BROOKS :
:
Appellant : No. 65 WDA 2019
Appeal from the Order Dated December 12, 2018
In the Court of Common Pleas of Allegheny County Family Court at
No(s): FD 13-003932-009
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
OPINION BY BOWES, J.: FILED MARCH 16, 2020
Gail S. Brooks (“Wife”) appeals from the November 13, 2018 order that
dismissed her petition to enforce the marriage settlement agreement (“MSA”)
she entered into with David Mark Brooks (“Husband”), upon the trial court’s
grant of Husband’s twenty-three exceptions to the hearing officer’s
recommendation. We affirm.
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Pursuant to the MSA, Husband was appointed custodian of ten college
savings accounts established for the parties’ three children. Seven of the
accounts were created in accordance with the Pennsylvania Uniform Transfers
to Minors Act (“PUTMA accounts”), and the other three are qualified tuition
plans established pursuant to 26 U.S.C. § 529 (“529 accounts”). Husband
agreed to manage the accounts “in strict accordance with all applicable
laws/regulations governing ‘custodial accounts,’ in a fiduciary capacity”
according to “his best, good faith, financial discretion.” MSA, 3/14/16, at 14.
Husband also agreed to supply Wife with complete account statements no
later than January 15 and July 15 of each year that the accounts existed. Id.
at 13.
On February 23, 2018, Wife filed a petition for special relief to enforce
these provisions of the MSA. Therein, Wife alleged that Husband failed to
provide her with the statement for one of the PUTMA accounts for youngest
daughter C.B. on January 15, 2018, and that one of the other statements
revealed that more than $38,000 was missing from the 529 account of
daughter M.B., who “was taking a break year.” Petition, 2/23/28, at ¶ 4. Wife
averred that, when questioned about the missing funds, Husband indicated
that he had transferred funds from M.B.’s 529 account to pay tuition for B.B.,
whose account contained insufficient funds to cover her tuition at the time.
See id. at ¶ 5. Based upon Husband’s purported failure to comply with the
MSA, Wife requested that the court order Husband to (1) deliver the missing
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statement to Wife, (2) execute documents to designate Wife as custodian of
the accounts, and (3) replace the missing $38,186.13.
The trial court referred the matter to a master, who held a hearing on
April 24, 2018. Thereafter, the master issued a report and recommendation
in which she found that Husband did not act in bad faith when transferring
money from M.B.’s account to B.B.’s, but that he did act wrongly in unilaterally
doing so. See Master’s Report, 5/11/18, at 4. The master further concluded
that Husband breached his duty to keep Wife informed of the accounts. Id.
The master recommended that, as a consequence, Husband should be
required to transfer custodial responsibility of the accounts to Wife; to replace
the money taken from the account; and to pay Wife $16,800 in counsel fees
by submitting $300 per month directly to Wife’s attorney for fifty-six
consecutive months. Id. at 5.
Husband timely filed exceptions to the master’s report and
recommendation. He specified twenty-three instances in which the master
erred, ranging from issues of law and contractual interpretation, to the
master’s factual findings or lack thereof. See Exceptions, 5/21/18, at ¶¶ 1-
23. Wife did not file exceptions. The parties filed briefs on the merits of
Husband’s exceptions, and on November 13, 2018, the trial court issued an
order granting all of Husband’s exceptions and dismissing Wife’s petition. Wife
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filed a timely appeal,1 and the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a).2 Wife presents the following questions for this Court’s
resolution:
1. The lower court erred and/or abused its discretion by
granting all 23 of [Husband]’s exceptions and dismissing [Wife]’s
Petition for Special Relief for enforcement of the parties’ marital
settlement agreement.
2. Does the marriage settlement agreement, as governed by
applicable state and federal law, permit [Husband] to “roll over”
529 funds from the college savings account of one child to the
college savings account of another child, without prior notice to
[Wife], and without a prior order of court in the absence of [Wife]’s
consent to the “rollover” of 529 funds?
3. The lower court erred and/or abused its discretion by
granting [Husband]’s exception that the master erred in finding
that [Husband] breached his obligation to keep Wife informed via
complete account statements as required and intended by the
language in the parties’ MSA.
4. The lower court erred and/or abused its discretion by
granting [Husband]’s exception that the master erred in failing to
____________________________________________
1 The trial court subsequently entered an order, dated December 12, 2018,
that purported to amend the November dismissal order to clarify its finality.
See Order, 12/17/18, at ¶ 2. Since the parties’ divorce and the ancillary
economic claims were fully resolved in 2016, we conclude that the November
13, 2018 order dismissing Wife’s petition to enforce the MSA was final and
appealable. Accord Schultz v. Schultz, 70 A.3d 826, 828-29 (Pa.Super.
2013) (explaining that denial of request to enforce a prior order is an
appealable order if the order sought to be enforced was a final order). Further,
Wife does not argue that the December order effectuated any substantive
change, and we discern none. Therefore, we determine that Wife’s issues are
properly before us at 1747 WDA 2018, and dismiss the appeal filed at 65 WDA
2019 as duplicative.
2 The trial court did not order Wife to file a statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b), and none was filed.
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find that the Marital Settlement Agreement did not require notice
or permission to transfer funds from an account.
5. The lower court erred and/or abused its discretion by
granting [Husband]’s exception that the master erred in finding
that the language on page 54 of the IRS publication 970 states
that the trustee must receive an instruction from the beneficiary
of the account directing the trustee to change the name of the
beneficiary of the account to that of his brother (or in this case,
sister).
6. The lower court erred and/or abused its discretion by
granting [Husband]’s exception that the master erred in finding
that it was wrong for [Husband] to unilaterally determine that he
could move funds from one child’s account to another’s without
any permission to do so.
7. The lower court erred and/or abused its discretion by
granting [Husband]’s exception that the master erred in finding
that [Husband] breached his obligation to keep Wife informed via
complete account statements as required and intended by the
language in the MSA.
8. The lower court erred and/or abused its discretion by
granting [Husband]’s exception that the master erred in finding
that [Husband], under paragraph 5.B.ii(d) of the MSA, failed to
comply with his affirmative obligation to Wife and his daughters,
[M.B.] and C.B.
9. The lower court erred and/or abused its discretion by
granting [Husband]’s exception that the master erred in finding
that Husband’s actions were intentional.
10. The lower court erred and/or abused its discretion by
granting [Husband]’s exception that the master erred in finding
that Husband went around the strict fiduciary requirements
governing the actions of a trustee/guardian with respect to his two
younger daughters.
11. The lower court erred and/or abused its discretion by
granting [Husband]’s exception that the master erred in failing to
find that Husband, as custodian of the accounts, had the right to
manage the accounts in strict accordance with all applicable
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law/regulations governing the accounts as set forth in paragraph
5.B. iii of the MSA.
12. The lower court erred and/or abused its discretion by
granting [Husband]’s exception that the master erred in
recommending that Husband transfer to Wife full custodial
responsibility for the 529 and PUTMA accounts for C.B. and the
remainder funds in the 529 account for [M.B.]
13. The lower court erred and/or abused its discretion by
granting [Husband]’s exception that the master erred in
recommending that Wife shall manage these funds from this time
forward.
14. The lower court erred and/or abused its discretion by
granting [Husband]’s exception that the master erred in
recommending that Husband shall pay the sum of $38,186.13
back into [M.B.’s] 529 account via a loan or any other means so
that [M.B.] has the opportunity to pursue her education without
the necessity of taking out school loans.
15. The lower court erred and/or abused its discretion by
granting [Husband]’s exception that the master erred in
recommending that if there is any money remaining in [B.B.]’s
529 account, that money will be transferred back into [M.B.]’s
account and shall be applied towards the $38,186.13 debt.
Wife’s brief at 5-9 (unnecessary capitalization omitted). 3
We begin with our standard of review. Interpretation of the MSA is a
question of law governed by contract principles. See, e.g., Melton v.
Melton, 831 A.2d 646, 653 (Pa.Super. 2003). Consequently, we apply de
novo, plenary review. See Stamerro v. Stamerro,
889 A.2d 1251, 1257
(Pa.Super. 2005). However, “the trial court is the sole determiner of facts
____________________________________________
3 Wife’s fifteenth question is not addressed in the argument portion of her
brief. As Wife has opted to abandon this claim of error, we decline to address
it.
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and absent an abuse of discretion, we will not usurp the trial court’s fact-
finding function.” Id. (internal quotation marks omitted). Further, we are
bound by the trial court’s credibility determinations. See
id. at 1257-58.
Although Wife states and argues fourteen individual questions to this
Court, the two issues that the trial court discussed in its Pa.R.A.P. 1925(a)
opinion addressed them all. Those issues are whether Husband breached: (1)
any of his obligations in managing the children’s accounts, or (2) his duty to
keep Wife informed through supplying account statements.4 See Trial Court
Opinion, 2/12/19, at 2, 4.
We first consider whether Husband’s act of moving money from one
child’s 529 account to that of another constituted a breach of the MSA.
Relevant to this issue, the MSA provides as follows:
5. Both parties recognize they established with marital income
prior their June 4, 2013 separation date, ten (10) presently
existing accounts for the express purpose of providing for their
three (3) daughters’ undergraduate college education expenses
(collectively the “College Savings Accounts”).
A. Those College Accounts are as follows:
i. [529 account held by Husband for B.B.]
ii. [529 account held by Husband for M.B.]
iii. [529 account held by Husband for C.B.]
iv. [PUTMA Account for M.B.]
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4 We remind Wife that the statement of questions involved is to “state
concisely the issues to be resolved . . . without unnecessary detail.” Pa.R.A.P.
2116(a). Moreover, “[t]he statement will be deemed to include every
subsidiary question fairly comprised therein.” Id. As such, stating such a
volume of specific, yet overlapping, questions was neither necessary nor
appropriate.
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v. [PUTMA Account for C.B.]
vi. [PUTMA Account for M.B.]
vii. [PUTMA Account for C.B.]
viii. [PUTMA Account for B.B.]
ix. [PUTMA Account for C.B.]
x. [PUTMA Account for M.B.]
B. Regarding the College Savings Accounts, Wife and
Husband stipulate as follows:
i. The College Savings Accounts shall be deemed
to belong to [B.B.], [M.B.,] and [C.B.], respectively;
consequently, the College Savings Accounts are not
part of their “marital estate”.
....
iii. As the Custodian of these College Savings
Accounts, in strict accordance with all applicable
laws/regulations governing “custodial accounts”, in a
fiduciary capacity, Husband shall have the right to
manage the College Savings Accounts in his best,
good faith, financial discretion.
MSA, 3/14/16, at 13-14.
Before we address Wife’s arguments concerning Husband’s alleged
breach of these provisions, an examination of the differences between PUTMA
accounts and 529 accounts is warranted. “The purpose of PUTMA is to provide
an inexpensive, easy way for giving property to minors.” Radakovich v.
Radakovich, 846 A.2d 709, 717 (Pa.Super. 2004). To make such a transfer,
in the context of money, one must pay or deliver the funds “to a broker or
financial institution for credit to an account in the name of the transferor, an
adult other than the transferor or a trust company, followed in substance by
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the words: ‘as custodian for (name of minor) under the Pennsylvania Uniform
Transfers to Minors Act.’” 20 Pa.C.S. § 5309(a)(2).
A transfer of funds into a PUTMA account constitutes an irrevocable gift
to a minor, with the property becoming “indefeasibly vested” in the account’s
beneficiary. 20 Pa.C.S. § 5311(b). The custodian of the PUTMA account may
only use the property for that minor’s benefit, and manages the minor’s
property until she reaches the age of twenty-one, at which time the custodian
must deliver the property and any proceeds to the beneficiary. See
Sternlicht v. Sternlicht, 876 A.2d 904, 910 (Pa. 2005). Hence, regardless
of the parties’ MSA, the funds in a PUTMA account would not have been part
of the marital estate because they are owned by their beneficiaries, not
Husband or Wife as donors or Husband as the custodian.
A 529 account, on the other hand, is a mechanism for tax-deferred
savings for educational expenses. See 2019 IRS Publication 970, “Tax
Benefits for Education,” at 57 (hereafter “Publication 970”). While the
contributions to 529 accounts are “treated as a completed gift to the
beneficiary,” 26 U.S.C. § 529(c)(2)(A)(i) (emphasis added), “unlike PUTMA
accounts, 529 Plans remain the property of the account holder[.]” Slicing Up
the Pie: Property Distribution in Pennsylvania at 39 (David L. Ladov ed., PBI
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Press, 3d ed. 2016) (hereafter “Property Distribution”).5 As such, the
designated beneficiary of a 529 account may be changed, or money in a 529
account for one beneficiary may be rolled over to the 529 account of another
beneficiary. See Publication 970, supra at 60-61.
Further, 529 accounts are marital assets that may be rolled over from
one spouse to the other upon divorce. See Property Distribution, supra at
39. However, instead of distributing the 529 plans through settlement
agreement or litigation of economic claims, “the parties may agree to maintain
them for the purposes for which they were intended, i.e., the support and
education of the children.” Id. “In other words, these accounts, though
technically marital assets, may be exempted from the estate by the consent
of the parties.” Id.
In summary, while a custodial account created pursuant to PUTMA is not
part of a marital estate subject to equitable distribution, because the money
was indefeasibly vested in the minor at the time it was deposited into the
account, 529 account funds are owned by the account holder, and remain in
the marital estate absent an agreement otherwise.
Here, as quoted above, the MSA specified that the parties agreed not to
divvy up the children’s 529 account funds, but instead excluded the funds
____________________________________________
5 There is a dearth of case law on equitable distribution and 529 plans.
However, Wife, Husband, and the trial court all cite this PBI publication as
authority that supports their respective positions. See Wife’s brief at 22-23;
Husband’s brief at 21; Trial Court Opinion, 2/12/19, at 2-3.
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from marital estate so that they would be used for the original purpose - the
girls’ college education. Father remained the account holder, and was tasked
with managing them in good faith and in accordance with the law. As detailed
above, putting the MSA aside, Husband’s transfer of funds among the 529
accounts was well within the bounds of the applicable law. The question we
must decide is whether the legally-permissible transfer violated the MSA.
Wife’s arguments on this front are voluminous. First, she contends that
the MSA converted the 529 account assets into the assets of each account’s
beneficiary; in other words, that it converted the 529 accounts into PUTMA
accounts. See Wife’s brief at 23-24. Wife attempts to buttress this position
by citing 26 U.S.C. § 529(c)’s indication that a contribution to a 529 plan is
treated as a completed gift to the beneficiary. See Wife’s brief at 24. Thus,
Wife posits, when the MSA appointed Father to manage the children’s money,
he became a trustee. Id. at 24-26. Wife maintains that, as trustee of M.B.’s
529 “trust” account, of which Wife was also a settlor, the Uniform Trust Act
stripped Husband of any authority to revoke or modify it without her consent
and the consent of M.B. Id. at 28, 35-36 (citing 20 Pa.C.S. §§ 7740, 7740.1).
Given this misfeasance by Husband, Wife concludes, the court should have
ordered Husband to repay the funds into M.B.’s account and to relinquish
management of all of the accounts to Wife. Id. at 38-41
We disagree. The MSA did not convert the 529 accounts into PUTMA
accounts. There is no indication that the parties agreed to effectuate an
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irrevocable transfer to M.B. of the assets of her 529 account by conveying the
funds to Husband “as custodian for [M.B.] under the Pennsylvania Uniform
Transfers to Minors Act,” which is necessary under 20 Pa.C.S. § 5309(a)(2).
Nor was a trust created, as the MSA did not indicate that Husband would hold
the funds “as trustee.”6 See 20 Pa.C.S. § 7731(1), (2).
Rather, just as 26 U.S.C. § 529(c)(2)(A)(i)’s provision that 529 plan
contributions are “treated as” completed gifts for tax purposes does not
remove ownership of the assets from residing in the account holder, who may
opt to withdraw it and face the tax consequences, the MSA’s language
“deeming” the 529 assets to belong to the parties’ children for purposes of
removing the assets from the marital estate did not serve to transfer legal
ownership of each account to its respective beneficiary.7 We find the language
of the MSA to indicate that, although the rest of the marital estate was being
divided upon the parties’ divorce, the status quo would continue as to the 529
accounts. That status quo was that Husband remained free to manage the
accounts in any manner that both complied with the laws governing 529
accounts and was undertaken “in his best, good faith, financial discretion.”
MSA, 3/14/16, at 14.
____________________________________________
6 We note that the special master correctly indicated that Husband was not a
trustee of the 529 accounts. See N.T., 4/24/18, at 74-75.
7 Indeed, the special master indicated that, while the assets of M.B.’s PUTMA
accounts belonged to M.B., “the 529 account[ is] to be used for her benefit,
but [it is] not her money[.]” N.T., 4/24/18, at 48.
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The trial court offered the following explanation of why Husband’s
actions did not breach any duty he owed under the MSA:
[Husband]’s strategy managing the 529 accounts [was] to move
funds from one child to another as needed. . . . [Husband]
transferred M.B.’s 529 funds to pay for B.B.’s college tuition, but
this does not breach the MSA. [Husband] reasons B.B. was in
immediate need of college funding, whereas M.B. was not because
she was taking a break from post-secondary education. M.B. was
not participating in post-secondary education and B.B. had
insufficient funds in her 529 account at the time [Husband]
transferred the $38,186.13. [Husband]’s decision to transfer the
529 funds complies with the intended purpose of the accounts set
forth in the MSA.
The 529 accounts were created after the birth of each child
and funded during and after the marriage. The 529 funds were
primarily obtained as gifts from [Husband]’s parents and
grandparents. [Husband] and his family continued to contribute
to the 529 funds post separation. . . . The MSA establishes
[Husband] as the 529 account holder and grants him the
discretion to transfer funds appropriately from one child to
another without obtaining instruction or consent from the original
beneficiary. Similarly, the MSA does not explicitly state [Husband]
must obtain [Wife]’s consent to move funds from one beneficiary
to another, and the MSA does not state a court order is necessary
to do so either. [Husband] does not have the same discretion to
transfer funds among the children’s PUTMA accounts, but PUTMA
funds were never transferred. Therefore, [Husband] has properly
managed each of the children’s college savings accounts pursuant
to the MSA.
Trial Court Opinion, at 3-4 (citation omitted).
We agree. Although the MSA constrained Husband’s authority to use
529 plan funds for anything other than educational expenses, it did not alter
Husband’s authority to continue using his best judgment to address the
children’s ongoing educational needs. Based upon our review of the law
detailed supra, as well as the certified record before us, we conclude that the
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trial court properly applied the law and exercised its discretion to hold that
Husband’s management of the children’s college funds did not constitute a
breach of the MSA. No relief is due.
Wife’s other allegations of Husband’s breach of the MSA concern his
alleged failure to comply with his duty to keep Wife informed about the
accounts. Specifically, the MSA imposes the following responsibilities upon
Husband in this regard:
c. For so long as these College Accounts continue to exist, for
each such College Account, on a semi-annual basis (i.e. by no later
than January 15th AND July 15th of every applicable year, with
“time expressly being of the essence”), Husband shall have the
explicit affirmative obligation to provide Wife with a complete
account statement.
d. If Husband subsequently fails to comply with his affirmative
obligation described in Paragraph 5(B)(ii)(c) above, then this shall
constitute a default by Husband of his obligations incident to this
AGREEMENT, thereby entitling Wife:
....
II. To additionally present a Petition for Special Relief to
this Court, requesting that Husband be required to execute
all documents necessary to designate Wife as the
“Custodian” of all such College Savings Accounts (in lieu of
Husband).
MSA, 3/14/16, at 13-14.
Wife’s initial complaint was that Husband failed to provide her with a
statement in January 2018 for one of C.B.’s PUTMA accounts. See N.T.,
4/24/18, at 40. However, Husband testified that, when preparing for the
hearing, he discovered the existence of more detailed statements for the 529
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accounts than the ones he had been providing to Wife. Specifically, the 529
accounts are Scholars Choice 529 accounts Husband obtained through his
broker, Wells Fargo. Id. at 114. He had provided to Wife the statements
that he obtained from Wells Fargo, which contained only summary account
balances. Id. Subsequently, Husband learned that Scholars Choice itself has
a website with more detailed information. Id. at 115. However, Husband had
neither received the more detailed statements in the mail nor received notice
of their availability. Id. On appeal, Wife latches upon this testimony to argue
that Husband conceded that he breached his MSA obligations. See Wife’s
brief at 29-30.
The trial court addressed Wife’s position as follows.
[Wife] argues [Husband] failed to supply a certificate of deposit
(“CD”) statement in January 2018 for [C.B.’s] PUTMA account
[referenced in paragraph 5(A)(vii) of the MSA]. However, there
was no statement to provide in January 2018 because it no longer
existed. The CD matured in July 2017 and the funds moved into
C.B.'s [PUTMA account referenced in paragraph 5(A)(v) of the
MSA]. [Wife] was provided with statements showing the increase
in value of [the latter account] from the CD maturation. [Wife]
does not contest any other instances where [Husband] has failed
to provide statements for the PUTMA and 529 college savings
accounts. In fact, the record reflects [Husband] has sent [Wife]
complete Wells Fargo statements before January 15th and July
15th of each year. Therefore, [Husband] did not breach his
obligation to provide [Wife] with account statements pursuant to
the MSA.
Trial Court Opinion, at 4-5.
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Again, we find the trial court’s determination to be legally sound and
supported by the record. As such, Wife’s remaining arguments entitle her to
no relief.
Appeal at No. 65 WDA 2019 dismissed. Order affirmed at No. 1747
WDA 2018.
Judge Musmanno joins the opinion.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2020
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