HomeMy WebLinkAbout94-245 CIVILWARREN AMMAN,
Plaintiff
Vo
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JEAN S. AMMAN,
Defendant
NO. 94-245 CIVIL TERM
IN RE: DEFENDANT'S PETITION FOR CONTEMPT
OLER, J., December 18, 2001.
In this bifurcated divorce case, the parties were divorced on February 20,
1997,~ and economic issues were resolved by an agreement of record on June 9,
1998.2 On June 4, 1999, orders were entered directing Plaintiff husband to effect
certain transfers pursuant to the agreement.3
For disposition at this time is a petition for contempt filed by Defendant
wife based upon an alleged failure of Plaintiff husband to comply with the terms
of the orders.4 A hearing was held on Defendant's petition for contempt on
February 5, 2001.5
Based on the evidence presented at the hearing, Defendant wife's petition
for contempt will be denied but Plaintiff husband will be directed to pay interest at
the legal rate on certain amounts not paid at the due dates.
STATEMENT OF FACTS
The present divorce action was commenced on January 21, 1994.6 During
the course of the litigation, the parties entered into an agreement of record with
~ Decree in Divorce, February 20, 1997 (Oler, J.).
: See Order of Court, June 16, 1998 (Hoffer, P.J.).
~ Orders of Court, June 4, 1999 (Oler, J.).
4 Defendant's Petition for Contempt, filed September 11, 2000.
5 Pursuant to a request of Plaintiff's counsel, a transcript of the hearing was prepared and filed on
August 30, 2001. See Order of Court, February 5, 2001. Briefs and Proposed Findings of Fact
and Conclusions of Law have now been received from both parties.
6 S~'¢ Plaintiff's Complaint in Divorce, filed January 21, 1994.
respect to economic issues on June 9, 1998.7 Among other provisions, the
agreement contained the following:
1. The parties agree that from the husband's pension and/or
retirement plan from his previous employer there shall be
rolled over into wife's IRA an amount of money defined as
follows: 55 percent times the fraction of 17/22 times the
current value of the pension and/or retirement as of 6/1/98.
Should there be a need for a QDRO or any other documents to
effectuate this rollover, it shall be the responsibility of wife.
5. Husband shall pay unto wife the sum of $1,000.00
within 15 days of this date, plus an additional $1,000.00 by
September 30, 1998, and an additional $1,000.00 by December
31, 1998 for a total of $3,000.00. The initial $1,000.00 to be
paid within 15 days is part of escrow funds held by Steven
Howell, Esquire. The balance of the account is to be
distributed as determined by husband.
6. All other claims are waived, and whatever property is in
possession of that party remains the property of that party.
8 .... Each [party] will at the request of the other execute,
acknowledge, and deliver any and all instruments which may
be necessary or advisable to carry into effect this agreement
and to carry into effect the provisions contained herein,
including the waiver and relinquishment of interest, rights, and
claims.8
It appears that at the time of the parties' agreement approximately
$38,000.00 resided in an Individual Retirement Account of Plaintiff husband in a
company known as New England Financial.9 In addition, Plaintiff husband
apparently also had pension or retirement accounts elsewhere,l° The parties seem
7 See Order of Court, June 16, 1998 (attached transcript of agreement entered into before Divorce
Master).
8 Plaintiff's Exhibit A, Hearing, February 5, 2001 (hereinafter 's Exhibit ~.
9 N.T. 27, Hearing, February 5, 2001 (hereinafter N.T. __); see Plaintiff's Exhibit D.
l0 N.T. 27.
2
to agree that a total of $51,404.00 was due to Defendant wife from Plaintiff
husband under the roll-over provision of the June 9, 1998, agreement. ~
On April 6, 1999, Defendant wife filed a Petition for Contempt and/or
Other Sanctions, alleging that Plaintiff husband had failed to make two of the three
one thousand dollar payments, and that he had failed to roll over the
pension/retirement funds in the amount of $51,404.12 into Defendant wife's
IRA.~2 Plaintiff husband also filed a Motion for Contempt, on May 25, 1999,
alleging, inter alia, that Defendant wife had failed to turn over to Plaintiff certain
tangible personal property (in the form of three rings) and copies of income tax
~3
returns as required in the agreement.
By one order, entered by agreement, on June 4, 1999, (a) the requests for
findings of contempt were deemed withdrawn, (b) Plaintiff husband was directed
to pay $2,000.00 to Defendant wife by July 4, 1999, (c) the parties were directed
to exchange certain items of tangible personal property by June 9, 1999, and (d)
the court noted that Plaintiff husband had represented that $43,404.12 had been
rolled over into Defendant wife's IRA.TM This order also noted the following:
The parties are in agreement that an additional sum is
owning by the Plaintiff to the Defendant in the form of a
transfer of further moneys into Defendant's IRA, but the exact
amount to be transferred is in dispute because of a
disagreement as to whether a sum in addition to the $51,404.00
indicated in the parties' agreement[~51 should be payable to the
Defendant as a result of an increase in value of the property
and the effect, if any, of a possible penalty or charge for
withdrawal from the Plaintiff's IRA of the money to be
~ See N.T. 31.
~: Defendant's Petition for Contempt and/or Other Sanctions, filed April 6, 1999, paragraphs 4-6.
~3 Plaintiff's Motion for Contempt, filed May 25, 1999, paragraph 6.
14 Order of Court, June 4, 1999. As it developed, although Plaintiff husband had directed New
England Financial to proceed with this roll-over transaction, it had not occurred (and never did
occur in that form). N.T. 94; see N.T. 10-11; infra notes 27-37 and accompanying text.
~5 See supra note 1 land accompanying text.
3
received by the Defendant. These latter two matters shall be
the subject of a hearing held on this date.~6
Following the hearing, a second order dated June 4, 1999, was entered,
adjudicating the issue regarding the balance of the funds to be rolled over into
Defendant wife's IRA, inter alia.~7 In pertinent part, this second June 4, 1999,
order provided as follows:
2. Any increase or decrease that has taken place in the
value of Defendant's share of Plaintiff's pension and/or
retirement plan as fixed in the parties' agreement of June 9,
1998, shall accrue to the benefit of or reduce to the detriment
of Defendant.
3. Any financial charge which may be imposed by
Plaintiff's pension and/or retirement plan for the rollover of
funds into the Defendant's iRA shall be shared equally by the
parties.
4. Subject to the terms of the preceding two paragraphs,
Plaintiff shall cause the rollover of funds to Defendant's iRA
provided for in the parties' aforesaid agreement to be
completed within ten days of today' s date.~8
On September i i, 2000, Defendant wife filed the Petition for Contempt sub
judice. 19 The petition averred that, although Plaintiff husband had caused the sum
of $48,410.15 to be rolled over into Defendant's iRA, he had refused to roll over
the balance of what was due under the 1998 agreement and the June 4, 1999,
orders of court.2°
16 Order of Court, June 4, 1999, paragraph 5. This order also relegated to the hearing an issue
regarding an alleged obligation on the part of Defendant wife to supply to Plaintiff husband a
copy of a certain tax return. Id. paragraph 6.
~7 The order also adjudicated an issue regarding an alleged obligation on the part of Defendant
wife to supply to Plaintiff husband a copy of a certain tax return. Order of Court, June 4, 1999,
paragraph 1.
~8 Order of Court, June 4, 1999.
19 Defendant's Petition for Contempt, filed September 11, 2000.
:0 Defendant's Petition for Contempt, filed September 11, 2000, paragraphs 5-6.
4
In response to the petition, the court issued a rule to show cause upon
Plaintiff husband, returnable at a hearing.2~ The evidence at the hearing on
Defendant wife's petition for contempt established, to the court's satisfaction, the
following facts:
The parties entered into the aforesaid marital settlement agreement on June
9, 1998.22 Pursuant to this 1998 agreement, in January of 1999 Defendant wife
opened an IRA with the Vanguard Retirement Resource Center for the purpose of
receiving the rollover funds from Plaintiff husband's pension and/or retirement
plan.~3
By letter dated January 21, 1999, counsel for Defendant wife advised
counsel for Plaintiff husband of the establishment of this account for receipt of the
funds.24 Having heard nothing in response, on April 6, 1999, Defendant wife filed
the initial petition for contempt and other relief, referred to above.25
On April 8, 1999, counsel for Plaintiff husband acknowledged his receipt of
the information about the Vanguard IRA.26 By letter dated May 21, 1999, Plaintiff
husband directed that a partial distribution in the amount of $43,404.12 be made
from the IRA which he maintained with New England Financial to Defendant
wife.27 His communication to the company described the transaction as a "marital
distribution."~8
:~ Order of Court, September 13, 2000. The hearing was initially scheduled for November 2,
2000, but was subsequently continued by agreement of counsel until February 5,2001. Order of
Court, November 1, 2000.
:: Plaintiff's Exhibit A.
:3 N.T. 39. The account's number was 992-641-3374. Plaintiff's Exhibit B-1.
:4 Plaintiff's Exhibit B-1.
:5 Defendant's Petition for Contempt and/or Other Sanctions, filed April 6, 2001.
:6 N.T. 40-41.
:7 Plaintiff's Exhibit B. This account had obviously increased in value since the parties'
agreement on June 9, 1998.
:8 Plaintiff's Exhibit B.
5
The $43,404.12 figure represented part, but not all, of the amount
acknowledged by Plaintiff husband to be due to Defendant wife.29 (Plaintiff
husband intended to leave a balance of about $4,000.00 in this particular
account,3° because he "wanted some extra money in there.''3~) The amount
actually due to Defendant wife following the 1998 agreement, as noted previously,
was $51,404.00 for the rollover32 and $2,000.00 for the balance due of the
$3,000.00 cash payments.33
The hearing on Defendant's initial petition for contempt was, as noted
previously, held on June 4, 1999. The petition resulted in the two orders dated
June 4, 1999, referred to above.
On June 14, 1999, New England Financial responded to Plaintiff husband's
communication of May 21, 1999, advising that it would require a Qualified
Domestic Relations Order to effect the "marital distribution" directed by Plaintiff
husband.34 As it happened, Defendant wife discovered at some point that certain
tax and other advantages would be realized if the transfer were made between
funds within the New England Financial company as opposed to from a fund in
that company to the Vanguard IRA which she had opened.35 Consequently, she
decided not to utilize the Vanguard IRA; unfortunately, the record is unclear as to
when this change of intent was communicated to counsel for Plaintiff husband.36
No funds, in any event, were transferred to Plaintiff wife's Vanguard IRA and
Plaintiff husband's direction as to such a transfer was not pursued.37
29 N.T. 96.
30 N.T. 95-96.
3~ N.T. 95.
3: See supra note 11 and accompanying text.
33 N.T. 75.
34 Plaintiff's Exhibit D.
35 N.T. 41, 61-63.
36 N.T. 61-63.
37 See N.T. 61-63.
6
On September 8, 1999, Plaintiff husband paid Defendant wife the
$2,000.00 which remained to be paid of the $3,000.00 figure provided for in the
1998 agreement and which he had been previously directed to pay by July 4,
1999.38
On January 6, 2000, the sum of $48,410.00 was transferred from Plaintiff
husband's IRA with New England Financial to Defendant wife's IRA with the
same company.39 No immediate tax consequences, penalties, commissions or fees
were associated with this intra-company transfer between qualified pension
plans.4° This represented the entire amount in Plaintiff husband's New England
Financial account at the time,4~ but not the full amount due to Defendant wife
under the June 4, 1999, orders.
A meeting of the minds did not occur with respect to the extent of the
additional money due to Defendant wife in connection with the roll over, under the
June 4, 1999, orders.42 Although Plaintiff husband had been, in the court's view,
less than expeditious in fulfilling his obligations under the June 9, 1998,
agreement immediately after its occurrence, the court can not find that he acted in
bad faith with respect to arriving at a total roll-over figure acceptable to both
parties in the period following, and in accordance with, the June 4, 1999, orders.43
On September 11, 2000, Defendant wife filed the petition for contempt sub
jttdJce.44 The petition averred that Plaintiff husband had failed to effect the roll-
over of the balance of the funds due, after consideration of the $48,410.00 paid,
38 N.T. 75; Order of Court, June 4, 1999.
39 N.T. 6-8.
40 N.T. 6-7, 90-91.
41 N.T. 90-91.
42 See, e.g., N.T. 48, 59; Plaintiff's Exhibits F-l, F-2, F-3; Defendant's Exhibits 2-3.
43 S~?e Plaintiff's Exhibits F-l, F-2, F-3; Defendant's Exhibits 2-3.
44 Defendant's Petition for Contempt, filed September 11, 2000.
7
under the June 4, 1999, orders of court into Defendant wife's iRA.45 The petition
did not specify the amount of this balance.
Based upon the evidence presented at the hearing, the balance of the
amount due in connection with the roll over to Defendant wife's iRA, after
consideration of the $48,410.00 previously paid, was $8,648.29.46 in this regard,
the court found Plaintiff husband's testimony credible as to the increase in value
of Plaintiff husband's pension/retirement accounts from June 9, 1998, until June 4,
1999, in the approximate amount of $10,280.00.47 By agreement of the parties,
Plaintiff husband was directed to pay the (uncontested) sum of $8,648.29 to
Defendant wife at the conclusion of the hearing on Defendant's petition for
contempt sub judice. 48
in accordance with the foregoing factual findings, the following order,
declining to find Plaintiff husband in contempt but awarding interest at the legal
rate to Defendant wife for moneys retained by Plaintiff husband beyond the dates
provided for in the June 4, 1999, orders of court is entered:
ORDER OF COURT
AND NOW, this i8th day of December, 2001, upon consideration of
Defendant wife's petition for contempt, following a hearing, and for the reasons
stated in the accompanying opinion, it is ordered and directed as follows:
i. Defendant wife's request that Plaintiff husband be held
in contempt is denied.
2. Within 20 days of the date of this order, Plaintiff
husband shall pay to Defendant wife:
45 Defendant's Petition for Contempt, filed September 11, 2000, paragraph 6.
46 N.T. 72-73, 76; Defendant's Exhibit 5.
47 N.T. 73; see Defendant's Exhibits 4-5 (Defendant wife's 55% share of this figure calculated to
be $5,654.44) .
48 Order of Court, February 5,2001.
a. Interest at the legal rate from July 4, 1999,
until September 8, 1999, on the sum of
$2,000.00;
b. Interest at the legal rate from June 14,
1999, until January 6, 2000, on the sum of
$57,058.29;
c. Interest at the legal rate from January 6,
2000, until payment was, or is, made by Plaintiff
husband to Defendant wife on the sum of
$8,648.29; and
d. The aforesaid sum of $8,648.29 (which
was previously to be paid), to the extent that such
amount has not already been paid.
BY THE COURT,
Steven Howell, Esq.
619 Bridge Street
New Cumberland, PA 17070
Attorney for Plaintiff
P. Richard Wagner, Esq.
2233 North Front Street
Harrisburg, PA 17110
Attorney for Defendant
s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
9
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WARREN AMMAN,
Plaintiff
Vo
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JEAN S. AMMAN,
Defendant
NO. 94-245 CIVIL TERM
ORDER OF COURT
AND NOW, this 18th day of December, 2001, upon consideration of
Defendant wife's petition for contempt, following a hearing, and for the reasons
stated in the accompanying opinion, it is ordered and directed as follows:
1. Defendant wife's request that Plaintiff husband be held
in contempt is denied.
2. Within 20 days of the date of this order, Plaintiff
husband shall pay to Defendant wife:
a. Interest at the legal rate from July 4, 1999,
until September 8, 1999, on the sum of
$2,000.00;
b. Interest at the legal rate from June 14,
1999, until January 6, 2000, on the sum of
$57,058.29;
c. Interest at the legal rate from January 6,
2000, until payment was, or is, made by Plaintiff
husband to Defendant wife on the sum of
$8,648.29; and
d. The aforesaid sum of $8,648.29 (which
was previously to be paid), to the extent that such
amount has not already been paid.
11
12
BY THE COURT,
Steven Howell, Esq.
619 Bridge Street
New Cumberland, PA 17070
Attorney for Plaintiff
P. Richard Wagner, Esq.
2233 North Front Street
Harrisburg, PA 17110
Attorney for Defendant
J. Wesley Oler, Jr., J.
13