HomeMy WebLinkAbout01-4611 CivilARTHUR L. BRADSHAW, JR.,
Plaintiff
BARBARA KAY BRADSHAW,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
: NO. 01-4611 CIVIL TERM
: CIVIL ACTION-LAW
:IN DIVORCE
Hoffer, P.J.;
IN RE: Qualified Domestic Relations Order
Facts
Before the Court is the matter regarding the Qualified Domestic Relations
Order (QDRO) for the plaintiff, Arthur L. Bradshaw, and the defendant, Barbara
Kay Bradshaw. Both parties and their respective counsel met on June 3, 2003
for a settlement conference at the Divorce Master's office. At this conference,
the parties entered into a settlement agreement, which was signed the same day.
The settlement agreement provides that the "split will be accomplished through
QDRO giving fifty percent to each party of the disposable military income." The
agreement further states, "Plaintiff's counsel will prepare the QDRO and present
it to the Defendant's counsel for review within seven days of today's date."
Counsel for plaintiff prepared a QDRO and sent it to the defendant's counsel.
The defendant's counsel objected to the first two paragraphs on page two
of the proposed QDRO, and replaced the two paragraphs with other language.
On June 19, 2003, the Court signed a decree in divorce, divorcing the parties.
The parties have been unsuccessful in reaching an agreement concerning the
wording of the QDRO. As each party has proposed its own version of the
QDRO, the issue in this case is whether the proposed language of the QDRO
conforms to the written agreement signed by both parties at the Divorce Masters
office on June 3, 2003.
Discussion
The settlement agreement states that "the split will be accomplished
through QDRO giving 50% to each party of the disposable military income."
The plaintiff provided a QDRO stating that 50% of his pension, less the survivor
benefit plan deduction, be paid to wife. Wife wanted to include additional
language in the QDRO using the definition of "Disposable Retirement Pay."
The defendant argues that the request for change did not alter the
agreement of the parties as reached in the Divorce Master's office, although the
defendant concedes that the language which she is requesting was not even
discussed, let alone agreed to. As such, the plaintiff argues that the defendant's
QDRO contains language that does not conform to the written agreement signed
by the parties at the Master's office. The plaintiff also argues that the
defendant's proposed language is a departure from the language of the written
agreement because it changes the definition of "Disposable Retired/Retainer
pay."
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Congress passed the Former Spouse Protection Act1 which defines
disposable retired pay as the total monthly retired pay to which a member is
entitled, less amounts which "... (B) are deducted from the retired pay of such
member as a result of forfeiture of retired pay ordered by a Court Martial or as a
result of the waiver of retired pay required by law in order to receive
compensation under title 5 or title 38."
In the Cumberland County Common Pleas Court, the Honorable Judge
Bayley, in the case of Adams v. Adams,2 found that if the parties agree to a more
restrictive reading of definition of eligible military retirement pay than the one
recognized by the federal government, the Court will uphold the agreement of the
parties. However, in the present case, defendant concedes that there was not an
agreement. Therefore, when there is an absence of such agreement, the
language of the statute is controlling.3 The other matters raised by the defendant
are simply speculation on what would have been the result had the issue been
raised and negotiated.
Conclusion
The definition of Disposable Military Retirement Pay is established by the
Former Spouse Protection Act, unless modified by mutual agreement of the
~ 10 USCA §1408.
: This case was subsequently appealed to the Superior Court of Pennsylvania. See 1999 PA
Super 36.
~ See Mansell v. Mansell, 490 U.S. 581 (1989) and Levenduski v. Levenducski, 120 Dauphin
305 (2001).
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parties. The defendant has agreed that there was no agreement between the
parties. As such, the language of the plaintiff's proposed QDRO is accepted.
March 22, 2004
By the Court,
George E. Hoffer, P.J.
Robert J. Mulderig, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
For the Plaintiff
Lisa M. Greason, Esquire
PO Box 385
Carlisle, PA 17013
For the Defendant
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