HomeMy WebLinkAbout95-6358 CivilROSE M. FULTON,
Plaintiff
ROBERT K. FULTON,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION -- LAW
:
:No. 95-6358 CIVIL TERM
: IN DIVORCE
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., April 12, 1999.
In this action to enforce a marital settlement agreement,~ Defendant husband has
appealed to the Pennsylvania Superior Court from an order of this court which directed
Defendant to pay to Plaintiff wife the sum of $20,000.00 and to turn over to Plaintiff certain
household goods, pursuant to the agreement. The order appealed from provided as follows:
AND NOW, this 14th day of January, 1999, upon
consideration of Plaintiff's Petition To Enforce Property
Settlement and Separation Agreement, and following a hearing,
it is ordered and directed as follows:
1. Within 45 days of the date of this order,
Defendant shall cause Plaintiff to receive the sum of
$20,000.00 net, by whatever means he finds most
convenient.
2. Within 45 days of the date of this order,
Defendant shall either
(a) fumish to Plaintiff all the following:
the hutch and contents not belonging to
Defendant; dishes from Plaintiff's grandmother
(with the exception of a cake dish); a table
from the basement of the marital home; a trunk
and its contents not belonging to Defendant;
and a Fostoria vase; or
(b) pay to Plaintiffthe sum of $1350.00;
See Act of December 19, 1990, P.L. 1240, § 2, 23 Pa. C.S. § 3105(a).
(c) provided, that in the event that
Defendant does not furnish to Plaintiff all of
the said items of personalty but does furnish
the hutch, he shall receive a credit of $1200.00
on the sum provided for in paragraph 2(b) of
this order.
The bases for the appeal of Defendant from this order of court have been stated in his
statement of matters complained of on appeal as follows:
1. The Court permitted parol evidence relating to
Plaintiff's interpretation of paragraph 3 and 8 of the parties'
Property Settlement and Separation Agreement.
2. The Court's order improperly modifies the parties'
Property Settlement and Separation Agreement contrary to [23 ]
Pa. C.S. §3105(C)2 in the following manner:
a. The Court Order provides for payment by
Defendant of $20,000.00 net to Plaintiff;
b. The Court Order modifies the source from
which Defendant is to pay Plaintiff;
c. The Court Order modifies the time period in
which the sum agreed upon is to be paid to Plaintiff;
and
d. The Court Order shifts the tax consequences
from Plaintiff as set forth in the agreement to
Defendant.
3. The Court erred in relying upon Plaintiff's value of
2 Section 3105(c) of the Divorce Code provides as follows:
In the absence of a specific provision to the contrary
appearing in the agreement, a provision regarding the
disposition of existing property rights and interests between the
parties, alimony, alimony pendente lite, counsel fees or expenses
shall not be subject to modification by the court.
Act of December 19, 1990, P.L. 1240, § 2, 23 Pa. C.S. § 3105(c).
the personal property as it is based upon Defendant's estimate
which lacked a proper foundation.
4. The Court erred in determining that Defendant was
responsible for the items of personal property failing to reach
Plaintiff's possession.
This opinion in support of the court's order is written pursuant to Pennsylvania Rule
of Appellate Procedure 1925(a).
STATEMENT OF FACTS
Plaintiff, Rose M. Fulton, and Defendant, Robert K. Fulton, were married on
September 10, 1976.3 They separated on November 1, 1995,4 and were divorced on July 1,
1998.5
A marital settlement agreement between the parties, dated April 27, 1998, was
incorporated but not merged into the divorce decree.6 The agreement provided, inter alia,
that Defendant husband would receive title to the marital home at 1037 Wayne Avenue,
Carlisle, Cumberland County, Pennsylvania, and would assume responsibility for expenses
relating thereto, including a mortgage and home equity loan.7 It provided further that
Defendant husband would refinance the loan obligations relating to the property8 and would,
at that time, pay to Plaintiff wife the sum of $5000.00 ("which represents a portion of her
3See Complaint under Section 3301(c) or 3301(d) of the Divorce Code, paragraph 4,
filed November 6, 1995.
4 N.T. 5, Hearing, January 14, 1999 (hereinafter N.T. __).
Sld.
6 Decree in Divorce, July 1, 1998.
7 Plaintiff's Exhibit 1 (Property Settlement and Separation Agreement), paragraph 3,
Hearing, January 14, 1999 (hereinafter Plaintiff's/Defendant's Exhibit ).
8Id.
3
equity in the marital home").9 This provision of the agreement read as follows:
(3) The parties are the owners of certain real estate with
improvements thereon erected known as 1037 Wayne Avenue,
Carlisle, Cumberland County, Pennsylvania.
Wife agrees within thirty (30) days 0fthe signing of this
Agreement to convey said real estate to Husband by special
warranty deed. Husband shall assume full responsibility for all
household expenses including, but not limited to the mortgage
to Financial Trust (now Keystone Financial), and the Dauphin
Deposit home equity loan, liens of record, utility bills, insurance
and real estate taxes in connection with said property. With
regard to all such expenses, Husband hereby agrees to hold Wife
harmless and indemnify her from any loss thereon.
Further, Husband agrees to refinance said loan
obligations by June 15, 1998. At the time of refinancing,
Husband will pay to Wife the sum of $5,000.00, which
represents a portion of her equity in the marital home.l°
The agreement also provided that Defendant Husband would pay Plaintiff wife the
additional sum of$20,000.007x The provision of the agreement dealing with the $20,000.00
sum read as follows:
(8) In exchange of her equitable share of the marital
portion of the remaining interest in the real estate and Husband's
retirement and pension accounts, Husband shall pay to Wife the
sum of $20,000.00. This shall be paid in a qualified Domestic
Relations Order from Husband's 401K Plan at Capital Blue
Cross. Both parties shall cooperate to effectuate a transfer of
these funds as quickly as possible.~2
o
9/d.
Id., paragraph 8.
Plaintiff's Exhibit 1 (Property Settlement and Separation Agreement), paragraph
4
The agreement also contained the following provision, respecting certain personal
property:
(6) The parties hereto mutually agree that they have
effected a satisfactory division of the fumiture, household
furnishings, appliances, tools and other household personal
property between them, except for the following items, which
shall go to Wife:
A. Hutch and contents not belonging to
Husband.
B. Baby pictures.
Co
Daughter's toys.
Picture above the couch.
E. Grandmother's cake dish and dishes.
F. Fostoria vase.
G. Bowl and picture on the TV.
H. Jewelry box.
I. Toys in the attic.
J. Trunk and its contents not belonging to
Husband in spare bedroom.
K. Desk and desk chair in bedroom and its
contents not belonging to husband. (Desk belonged to
Wife -- made by father approximately 3 8 years ago).
L. Old table in basement.
M. Christmas and Easter decorations and
items in attic.
N. Wife's personal effects in boxes in attic.
O. Wife's remaining clothing and other
toiletries.
The exchange of personal property to Wife shall take
place within sixty days of the signing of this Agreement.~3
The agreement contained an integration clause.TM
Notwithstanding the agreement, Defendant did not provide the $20,000.00 payment,
nor, according to Plaintiff's testimony, did Plaintiff receive all of the personalty promised
to her.is With respect to the $20,000.00 payment, a representative of Defendant's 401K plan
advised the parties that, because of tax withholding requirements, a payment of $20,000.00
to Plaintiff from the fund would require an actual withdrawal of $25,000.00.~6 With respect
to the personalty, the items listed in the court's order were not received by Plaintiff,
according to her.~7
Plaintiff's Petition To Enforce Property Settlement and Separation Agreement was
filed on October 9, 1998. A hearing on the petition was held on January 14, 1999.
At the hearing, Defendant's counsel objected to the receipt ofparol evidence as to the
meaning of paragraph 8 of the marital settlement agreement, contending that "paragraph
eight, dealing with the 401K plan, is not ambiguous. It is clear as to how much is to be
~3 Id., paragraph 6.
14 Paragraph 20 of the agreement read as follows:
This agreement constitutes the entire understanding
between the parties and there are no covenants, conditions,
representations, or agreements, oral or written, of any nature
whatsoever, other than those herein contained.
Id., paragraph 20.
See N.T. 23-25.
16 Plaintiff's Exhibit 4 (Letter dated October 9, 1998, to Johnna J. Deily, Esq., from
Ellen M. Ellwanger). This letter is attached to this opinion as Appendix A.
~7 N.T. 23-25.
6
distributed and how it is to be distributed.''ts According to Defendant's counsel,
The interpretation is squarely within the four comers in
that there was an agreement under paragraph three that
[Plaintiff] would receive $5000.00 subsequent to [Defendant]
refinancing, which has already been done. That has already
been taken care of. Paragraph eight though indicates that
[Plaintiff] will receive $20,000.00 payable through a QDRO
from his 401K. And paragraph [el of the QDRO then indicates
... ["P]ursuant to the divorce decree entered on July 1, 1998, the
[A]ltemate [P]ayee shall receive a retirement benefit from the
program in an amount of the lesser [of] paragraphs [(1)or (2)]
.... ["] One or two are the amounts as follows: either the amount
that's actually in the program or $20,000.00. Clearly she's to
receive it as a Qualified Domestic Relations Order to an
alternate payee.
If she subsequently decided to take it as cash, certainly
it shouldn't be my client's burden, under the agreement, to pay
for any tax consequences .... ~9
Plaintiff's counsel argued to the contrary, that the court
will need to listen to the oral testimony as to the terms of the
agreement because paragraph three of the agreement as well as
paragraph eight of the agreement are the crux of the entire
equitable distribution of the parties' marital property. I believe
that since it is ambiguous as to the treatment, especially with the
wording of the QDRO that was prepared by Defendant's
attorney, that [the court] will need to hear testimony as to what
the terms were and what the understanding of those terms were
at the time of the negotiating with the property settlement
agreement as well as at the time of the signing of the
agreement?
The Qualified Domestic Relations Order which precipitated the response from the
~8 N.T. 6.
19 N.T. 14-15.
2o N.T. 7.
7
representative of Defendant's 401K plan provided that Plaintiff was to receive "20,000.00
payable out of[Defendant's] vested Account balance.''2~ It provided further that this amount
was not to "be credited or debited with any earnings, losses and investment management
and/or administrative fees fi.om this date to the date of distribution which are attributable to
such amount.''22
The court permitted parol evidence to be introduced on the subject of the meaning of
the contractual provision respecting the $20,000.00 commitment of Defendant.23 Plaintiff
testified as to the negotiation process which led to the provision, indicating that she,
Defendant, her counsel and Defendant's prior counsel had met in her attorney's office:24
Q Okay. Continue.
A We discussed the property and how we were going
to split that, and also we had both provided documentation of
our assets and any accounts we had. Everything was tallied up,
and it was supposed to be divided 50/50. Robert said that he
would only refinance the house for an extra $5000.00, and that
left $20, 000.00 that he owed me, and he said that the only way
he would pay that would be out of his retirement.
Q Okay. Rose, was it your understanding that the
50/50 share that you were to receive, Mr. Fulton would have to
pay you $25,000.00 to offset what he was already keeping?
A Exactly.
Q So you were willing to sign over your interest in
the home, is that correct?
A Yes.
2~ Qualified Domestic Relations Order, July 29, 1998.
22/rd. A copy of the Qualified Domestic Relations Order is attached to this opinion
as Appendix B.
23 N.T. 15.
24 N.T. 15-16.
Q
You were willing to waive his retirement?
Yes.
Q It was your understanding that you would receive
how much?
A
$25,000.00.25
Q Now when we were at the four-party conference,
you had negotiations with Mr. Fulton as to how the $25,000.00
was to be paid, is that correct?
A Yes.
Q And what was your understanding of how that was
to be paid out?
A How I wanted it to be or --
Q How you wanted to be first?
A Well, I had hoped that he would refinance the
property for the full $25,000.00 and I would be paid that way,
but he said that he could only manage to refinance it for an
additional $5000.00, and so I cooperated and signed it [the
house] over and was to get the $20,000.00 from the retirement
plan.
Q Did we discuss at the time of the four-party
conference that he had sufficient funds in his retirement plan or
in his 401K plan that would enable him to pay you the
$20,000.00?
A Yes.26
With respect to the personal property, Plaintiff testified that she and Defendant agreed
2s N.T. 16-17.
26 N.T. 18.
9
that he would deliver the items required to her parents' home?
A Bob did not want me to come to the house and
pick up the property, so he agreed that he would deliver it to my
parents' house.
Q Where do your parents live?
A 411 North Bedford Street, Carlisle.
Q How far away is that in relation to your home?
A A mile and a half, two miles.
Q Okay. Continue.
A I asked him in that meeting if he would please
deliver it to their side porch and make sure that it was delivered
in good weather, and he agreed to do that. But the boxes and
things that he did deliver, he put on the front porch of the house.
We did get a number of boxes and items.
THE COURT: Did they all come at once?
THE WITNESS: No. It was spread out over many
weeks
Plaintifftestified, as noted previously, that she did not receive many of the items she
had been promised? Among the items not received was a certain hutch, according to her
testimony? She placed the value of the items which had not been delivered at between
$1,200.00 and $1,500.00, noting that Defendant had estimated the value of the hutch at
$1,200.00 on an inventory of tangible personal property which he had prepared.3~
27 N.T, 25.
28 N.T. 25-26.
29 See supra text accompanying note 17.
30 N.T. 23.
3~ N.T. 31-32.
10
In connection with the $20,000.00 payment, Defendant testified at the hearing that the
intent of the parties at the four-party conference was to divide the marital property 50/50.32
This intention, according to his testimony, produced the figures of $5,000.00 and
$20,000.00.33
Q :Was there a discussion at the four-party
conference regarding the $25,000.00 refinance?
A No, sir.
Q I'm, sorry?
A No, sir. And the $20,000.00 was to come out of
my 401K plan at work, which was suggested by her counsel.
Q Did she agree to that?
A Yes.
Q Now under the terms of your 401K, do you know
when you're eligible to receive benefits?
A I'm not really sure.
Q Okay. Was there a discussion at the four-party
conference as to whether that $20,000.00 from the 401K would
be in cash or retirement benefit or what type of discussions, if
any, were there?
A There was no discussions as to how -- what kind
of money we was talking. There was to be $20,000.00 to be
from my 401K payable to her.34
Q In your calculations, with the $20, 000.00 coming
out of your 401K and the 5000 from the refinance, how close to
the 50/50 --
32 N.T. 49.
33 Id.
34 N.T. 48-49.
11
A That was it. That was it.
Q That was 50/50?
A (Witness nodded head affirmatively.) Along with
the personal items that we already talked about?
In connection with the personalty, Defendant testified that he had delivered to the
residence of Plaintiff's parents in Carlisle all of the items required, with the exception of a
toy rifle? The excepted item he had not been able to locate, according to his testimony??
Defendant conceded that he had estimated the value of the hutch on a schedule which he had
prepared at $1,200.00.38
Following the hearing, the court entered the order recited at the beginning of this
opinion. Defendant's appeal from the order was filed on February 2, 1999.
DISCUSSION
With respect to the interpretation of contracts, it has been said that "[t]he primary
object in the interpretation of any writing is to ascertain and effectuate the intent of the
parties. Where the words of a contract are clear and unambiguous, its meaning is to be
ascertained in accordance with its plainly expressed intent." Warren v. Greenfield, 407 Pa.
Super. 600, 607, 595 A.2d 1308, 1312 (1991) (citation omitted). "[Al written contract must
be construed as a whole and the parties' intentions must be ascertained from the entire
instrument .... "Harrity v. Medical College of Pennsylvania Hospital, 439 Pa. Super. 10, 21,
653 A.2d 5, 10 (1994).
When the terms of a written contract are clear, [a court]
will not rewrite it to give it a construction in conflict with the
3s N.T. 49.
36 N.T. 52.
37 Id.
38 N.T. 54.
12
accepted and plain meaning of the language used. Conversely,
when the language is ambiguous and the intention of the parties
cannot be reasonably ascertained from the language of the
writing alone, ... the admission of oral testimony [is authorized]
to show both the intent of the parties and the circumstances
attending the execution of the contract.
Id. at 20-21,653 A.2d at 10 (citations omitted).
"A contract is ambiguous when it is reasonably capable of different interpretations."
Morgan v. First Pennsylvania Bank, 373 Pa. Super. 408, 416, 541 A.2d 380, 384 (1988).
In accordance with these principles, the parol evidence rule generally "prohibits the
admission of oral evidence to vary or contradict a written contract .... "House of Pasta, Inc.
v. Mayo, 303 Pa. Super.298, 312, 449 A.2d 697, 704 (1982). Stated with more particularity,
the parol evidence rule is as follows:
The parol evidence rule states that, absent fraud, accident, or
mistake, parol evidence of a prior or contemporaneous oral
agreement is not admissible to alter, vary, modify, or contradict
terms of a contract which has been reduced to an integrated
written instrument.
Kehr Packages, Inc. v. Fidelity Bank, N.A., 710 A.2d 1169, 1172 (Pa. Super. Ct. 1998).
"[T]he purpose of the parol evidence rule is to preserve the integrity of written
agreements by refusing to permit the contracting parties to attempt to alter the import of their
contract through the use of contemporaneous oral declarations." Id. at 1173.
With respect to the credibility of witnesses, the rule applicable to cases where a court
is acting as the trier of fact is that "the trial court ... is the sole determiner of the credibility
of witnesses. The fact-finder is free to believe all, part, or none of the evidence .... "McClain
v. McClain, 693 A.2d 1355, 1360 (Pa. Super. Ct. 1997).
In the present case, in connection with the $20,000.00 commitment of Defendant, the
parties' agreement did not expressly address the issue of Defendant's inability to produce
from his 401K plan a net sum of $20,000.00 without a withholding by the plan administrator
13
of an additional sum for taxes. It was, in the court's view, a contingency which had not been
anticipated by the parties.
Considering the agreement as a whole, the court was of the view that the basic intent
of the parties was that Plaintiff receive the total sum of $25,000.00 in settlement of her
interest in the marital estate, and that the source of this money was incidental to that purpose
rather than determinative of it. The parol evidence which was received regarding the parties'
intent did not serve to vary the terms of the contract, but to confirm and effectuate the desired
result. Nothing in the court's order purported to rule upon the tax consequences of the
transaction, and the order afforded Defendant the option of providing the funds promised
from any source.
In connection with the personal property, the issue was basically one of credibility,
which the court resolved in favor of Plaintiff. The valuation placed upon the hutch was
consistent with the testimony of Plaintiff and an earlier statement by Defendant, and was
based upon the best evidence which the parties presented on the subject.
For the foregoing reasons, the court entered the order dated January 14, 1999, from
which Defendant has appealed.
Johnna J. Deily, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiff
James K. Jones, Esq.
7 Irvine Row
Carlisle, PA 17013
Attorney for Defendant
14
BlueCross BlueSl4deld
Association
October 9, 1998
An AssociaQon of
Independent Blue Cross
and Blue Shield Plans
225 North Michigan Avenue
Chicago, Illinois 60601-7680
Telephone 512.297.6000
h ttp ://www.bluecares.com
Ms. Johnna J. Deily
Attorney at Law ~
26 W. High Street
Carlisle, PA 17013
Re: Fulton v. Fulton - Qualified Domestic Relations Order (QDRO
Dear Ms. Deily:
This is in response to your letter dated October 5, 1998 regarding the tax
treatment of the QDRO benefit to be paid to Rose Fulton as the Alternate Payee
of Robert Fulton.
We are enclosing the following information for your reference:
IRS Notice 97-11
IRS Publication 575. General Information - Qualified Domestic Relations Order
Special Tax Notice Regarding Program Pa)merits
As indicated in the IRS Notice, a QDRO cannot designate who will be liable for
the taxes owed when retirement benefits are paid. Also, the Program's Special
Tax Notice is enclosed which is based on the IRS safe harbor explanation of the
information required by Internal Revenue Code Section 402(0. As the Program
administrator, we are required to provide a written explanation to recipients of
distributions eligible for rollover treatment.
Page 4 of the Special Tax notice provides that the rules that apply to payments to
employees also apply to former spouses who are "alternate payees". Under the
IRS rollover rules that apply to employees and alternate payee's, certain
distributions from qualified retirement plans are considered "eligible rollover
distributions". If an eligible rollover distribution is paid directly to an alternate
payee (and not rolled over to another qualified retirement program or individual
retirement account (IRA)), then 20% of the amount is to be withheld for taxes.
Ms. Fulton should consult with a tax advisor before she elects to receive this
distribution.
In response to your October 5 letter, if Ms. Fulton elects to have the QDRO
distribution paid directly to her and does not elect a direct rollover to a qualified
plan or IRA, then 20% will be withheld and sent to the IRS to be credited toward
her tax liability. Her payment will be 80% of $20,000 or a net payment of
$16,000. Alternatively, if she elects a direct rollover of the QDRO distribution to a
qualified plan or IRA, a payment of $20,000 will be made from the Program and
APPENDIX A
Ms. Johnna J. Deily
October 9, 1998
Page 2
Ms. Fulton will be able to defer the taxes until a later date when she withdraws
the funds.
If the Alternate Payee does not intend to roll over the QDRO distribution and it
was agreed that she would receive the net amount of $20,000, then the QDRO
would need to be amended. In order to receive a net check amount of $20,000,
the amount of the retirement benefit specified in the QDRO should be $25,000.
If you intent to amend the QDRO, we will need a certified copy after it has been
entered into the court.
Should you have any questions regarding this matter, please let me know.
Sincerely,
Ellen M. ~El'lwang~r
Manager, Benefits Compliance and 401(k) I~rograms
National Employee Benefits Administration
cc: Mr. Robert K. Fulton (w/o enclosures)
1037 Wayne Avenue
Carlisle, PA 17013
Ms. Rose M. Fulton (w/enclosures)
411 North Bedford Street
Carlisle, PA 17013
Mr. John W. Weigel, Esquire (w/enclosures)
7 Irvine Row
Carlisle, PA 17013
Ms. Chris Miceli (w/o enclosures)
Capital Blue Cross
ROSE M. FULTON,
Plaintiff
VS.
ROBERT K. FULTON,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-6358 CIVIL
IN DIVORCE
QUALIFIED DOMESTIC RELATIONS ORDER
THIS CAUSE coming on to be heard for the purpose of entry of a Qualified Domestic
Relations Order as defined in 26 U.S.C. Section 414(p) and 29 U.S.C. Section
1056(d)(3), the court on ~',.s [,.., '}_ ~ 1998, having entered a
judgement of this court relating to the provision of marital property rights of a former
spouse of the Participant;
THE COURT FINDS AND IT IS HEREBY ORDERED AS FOLLOWS:
A. For purposes of this Order, the "Participant" is Robert K. Fulton, who is an employee
of Capital Blue Cross or one of its affiliates; the "Alternate Payee" is Rose M. Fulton; the
"Program" to which this Order applies is the Employee Savings Plan.
B. On July 1 , , 1998, the Court has entered a divorce decree pursuant
to Section 3301(c) of the Pennsylvania Divorce Code. This Order relates to the provision
of marital property rights of Rose M. Fulton, as Alternate Payee, who is the former
spouse of Robert K. Fulton, who is a Participant in the Program to which this Order
applies.
C. The name and last known mailing address of the Participant are Robert K. Fulton,
1037 Wayne Avenue, Carlisle, Pennsylvania 17013. The date of birth of the Participant
is May 8, 1950, and his Social Security number is 189-40-3781.
D. The name and last known mailing address of the Alternate Payee are Rose M. Fulton,
411 North Bedford Street, Carlisle, Pennsylvania 17013. The date of birth of the
Alternate Payee is December 17, 1946, and her Social Security number is 193-36-4823.
APPENDIX B
E. Pursuant to the divorce decree entered on July 1 , 1998 , the Alternate
Payee shall receive a retirement benefit from the Program in the amount of the lessor of
(1) or (2), where (1) and (2) are the amounts set forth below:
(1) The amount of the Participant's vested Account balance on the date of
distribution, less the total outstanding balance of any participant loans under the Program
on such date.
(2) $20,000.00 payable out of the Participant's vested Account balance.
F. The amount set forth in E.(2) above shall not be credited or debited with any earnings,
losses and investment management and/or administrative fees from this date to the date of
distribution which are attributable to such amount.
G. The amount to be paid hereunder shall be paid to the Alternate Payee in any form or
forms of payment available under the Program, as elected by the Alternate Payee.
H. The amount to be paid to the Alternate Payee hereunder shall commence to be paid to
her as soon as administratively feasible followir;g the acceptance of this Order as a
Qualified Domestic Relations Order by the Program administrator
I. Nothing in this Order:
(1) requires the Program to provide any type or form of benefit, or option, not
otherwise provided in the Program;
(2) requires the Program to provide increased benefits (determined on the basis of
actuarial value); or
(3) requires the payment of benefits to the Alternate Payee which are required to
be paid to another alternate payee under another order previously determined to be a
qualified domestic relations order.
J. Both the Participant and the Alternate Payee shall have the duty to notify the
administrator of the Program in writing of any change in his or her respective mailing
addresses subsequent to the entry of this Order.
K. It is intended by the parties that this Order will qualify and be determined to be a
qualified domestic relations order as defined by Section 414(p) of the Internal Revenue
Code of 1986 and Section 206(d)(3) of the Employee Retirement Income Security Act of
1974 (ERISA).
L. The Court retains jurisdiction to establish or maintain this order as a qualified
domestic relations order; provided, however, no amendment of this Order shall contain a
requirement with respect to the Plan of a type described in Paragraph (1), (2) or (3),
above.
DARED this ~ day of ~ OI ..) , 199 ~'
Approved as to form and content:
Jo)~a 3'. ,D/~dy, E~quire
At'forney for Plaintiff
/J~hn Wesley Weig~l III, Esquire.
Attorney for Defendant