HomeMy WebLinkAbout1999-5129 Civil
Y ASMIN ERNE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
99-5129 CIVIL
ROCCO T. ERNE,
Defendant
IN DIVORCE
IN RE: OPINION PURSUANT TO RULE 1925
The defendant, Rocco T. Erne, has filed an appeal from our order of December 17, 2004.1
Our most recent order seeks to give effect to our earlier order of September 2, 2004, which
interpreted the marital settlement agreement of the parties. Our opinion, in support of the order
of September 2, 2004, sets out the background of the case and explains our understanding of the
parties' marital property settlement agreement. We will not reiterate those matters here.
In our order of September 2, 2004, we directed actuarial expert, Harry Leister, to prepare
a domestic relations order which would provide to the plaintiff her interest in the defendant's
pension. Our understanding of that interest, based upon the agreement of the parties, was in the
amount of$139,500 as against the present value of the pension of$301,937. A monthly
payment, even of fifty percent ofMr. Erne's pension, however, will not meet his obligation
under the agreement in light of the fact that his exercise of a so-called "V A Waiver" has lowered
the amount of disposable retired pay eligible for distribution. Our orders in this case have simply
assured that the difference is made up in an alimony order which makes adjustments for
increases in the V A Waiver. It also gives the plaintiff the benefit of her share of any cost-of-
living adjustments made in the pension.
1 Also pending in the Superior Court is his appeal from our order of September 2, 2004. The
underlying issues in both appeals are the same and the matters have been consolidated for
briefing and argument by the Supreme Court in its order of February 17, 2005.
NO. 99-5129 CIVIL
In the hearing leading up to our order of September 2,2004, Mr. Leister testified that he
had correctly valued the pension and that the figure used by the parties was accurate. In
subsequent letters to the court, Mr. Leister calculates the amount of alimony and other
adjustments necessary to give effect to the agreement of the parties. No hearing was held with
respect to these questions and, in fact, the math employed by Mr. Leister does not appear to be a
source of contention in this case. Nonetheless, and for the purpose of a better understanding of
how these calculations were reached, we have entered an order making Mr. Leister's letters of
November 11th and November 15th a part of the record of this case.
In his statement of matters complained of on appeal the defendant reiterates in his
complaint that we erred in directing the defendant to pay the difference between the amount
payable directly from the defendant's military pension and the total amount calculated by the
joint expert as the proper amount due. Our reasons for such an order were set out in our opinion
of November 5,2004.
The defendant also complains that we should have made no order with respect to ongoing
adjustments for cost-of-living and for any increase in the defendant's V A Waiver. It is clear,
however, that such adjustments are necessary to assure that the plaintiff continues to receive the
precise percentage of the defendant's pension which has been determined, by agreement, to be
hers.
The defendant also contends that we erred in ordering payments to continue during the
"joint lives of the parties." Such an order is, however, a natural consequence of the parties'
agreement to divide the defendant's military pension.
2
NO. 99-5129 CIVIL
The defendant also complains that we entered a domestic relations order without his
signed consent. If the defendant had consented, it is doubtful that this matter would be on
appeal. Such court orders are, in any event, permitted in precisely this type of case. See
Haywardv. Hayward, 2005 WL 248966 (Pa.Super.) 2005 Pa.Super. 44.
March 10, 2005
Kevin A. Hess, 1.
Carol 1. Lindsay, Esquire
F or the Plaintiff
Ann V. Levin, Esquire
F or the Defendant
:rlm
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