
    Leo JACKSON, Jr., Appellee v. Nadine JACKSON, Appellant
    No. 942 WDA 2016
    Superior Court of Pennsylvania.
    Argued January 11, 2017
    Filed June 16, 2017
    
      Mary B. Sheats, Pittsburgh, for appellant.
    Sheila M. Ford, Pittsburgh, for appellee.
    BEFORE: BOWES, OLSON, and STRASSBURGER, JJ.
    
      
       Retired Senior Judge assigned to the Superior Court.
    
   OPINION BY

STRASSBURGER, J.:

Nadine Jackson (Wife) appeals from the order dated June 1, 2016, which made final the court’s May 3, 2016 order holding that Wife had waived any claim for equitable distribution. For the reasons that follow, we vacate the trial court’s order and remand for proceedings consistent with this opinion.

The trial court set forth the relevant factual and procedural history as follows.

Wife and [Leo Jackson, Jr.] (Husband) were married on April 28; 1988. On November 12, 1999, Husband filed a Complaint for Divorce with a claim for equitable distribution of property. Wife did not file an Answer or Counterclaim to the Divorce Complaint. On August 27, 2001, Wife filed a Counter-Affidavit under Section 3301(d) of the Divorce Code, checking the box stating that she wished to claim economic relief. On August 30, 2001, Husband filed a Notice of Intention to Request Entry of 3301(d) Divorce Decree. The Notice provides that “unless you have already filed with the court a written claim for economic relief, you must do so by the above date or the court may grant the divorce and you will lose forever the right to ask for economic relief. The filing of the form counter-affidavit alone does not protect your economic claims.” Wife never filed a written claim for economic relief. On September 20, 2001, Husband filed a Praecipe to Transmit Record in which he indicated that equitable distribution was a pending, related claim. On October 16, 2001, the [trial court] entered a bifurcated divorce decree, retaining jurisdiction of “any claims raised by the parties to this action for which a final order has not yet been entered.”
Neither party filed an inventory nor were [any] equitable distribution proceedings initiated. Fourteen years later, Husband retired and Wife sought her marital share of his pension. On April 8, 2015, Wife filed an inventory and asked the [trial court] to require Husband to do the same. On May 28,2015, Wife filed a Motion for Special Relief, seeking to freeze Husband’s retirement assets. Husband objected on the basis that Wife’s claim was waived. There were no factual issues in dispute and the [trial court] directed the parties to submit the issue on briefs.
Following a review of the record, the brief[s] of the parties, and applicable Pennsylvania law, the [trial court] found that Wife waived her claim for equitable distribution to Husband’s pension. Wife filed a Motion for Reconsideration which was granted. By Order dated June 1, 2016, the [trial court] vacated its order granting [reconsideration and entered the [May 3,2016] order as final.
Wife timely appealed, and, in response to an Order issued pursuant to [Pa. R.A.P.] 1925(b), filed a Concise Statement of Matters Complained of on Appeal.]

Trial Court Opinion, 9/9/2016, at 2-3.

On appeal, Wife presents the following issues for our consideration, which we have reordered for ease of disposition.

1. Whether the [trial court] erred in vacating its order granting Wife’s motion for reconsideration and mak- . ing final its order dated May 3, 2016 where its opinion concluded Wife’s pursuit of equitable distribution was barred by laches?
2. Whether despite the record revealing that Wife had filed for economic relief, [did the trial court err] in determining that she had not and therefore waived any claim for equitable distribution rather than recognize that the intent of the parties controlled when the bifurcated divorce decree as a matter of law preserved equitable distribution when the [trial court] retained jurisdiction over it which meant said economic issues survived the decree which was on its face [] absent of any fraud or defect requiring it be opened or vacated?

Wife’s Brief at 2 (unnecessary capitalization and suggested answers omitted).

“Ordinarily, this. Court reviews an order granting special relief for an abuse of discretion.. However, where, as here, an appeal presents a question of law, our standard of review is de novo and our scope of review plenary." Raines v. Raines, .149 A.3d 375, 378 (Pa. Super. 2016) (citations omitted).

Wife first contends the trial court erred in finding her pursuit of equitable distribution was barred by the doctrine of laches. A review of the record reveals that Wife’s issue stems from the trial court’s 1925(a) opinion, wherein the court stated it was unaware of any precedent which “permits a party who waived her right to equitable distribution to force adjudication of the opposing party’s claim to his detriment a decade later.” Trial Court Opinion, 9/9/2016, at 5. Wife is attacking a straw man. We fail to see how the trial court’s passing remark in its 1925 opinion can be construed as a finding that Wife is barred from-raising her claim under the doctrine of laches. Further, neither the June 1,2016 order nor the May 3, 2016 order contains any reference to such a finding. Rather, the trial court’s May 3 order focuses on the fact that Wife had failed to file for economic claims, and thus she waived her claims.

We now turn to Wife’s remaining issue on appeal, namely, whether the trial court erred in holding Wife waived her claims for equitable distribution. Wife asserts that, she is entitled to pursue economic claims against Husband by virtue of the fact that: (1) Husband filed a divorce action raising a claim for equitable distribution; (2) Wife filed a counter-affidavit pri- or to the entry of the decree checking the box indicating that she wished to claim economic relief; and (3) the parties entered into a bifurcated divorce, wherein the trial court retained jurisdiction over claims raised by the parties for which a final order had yet to be entered. Wife’s Brief at 8-22. Wife further argues that the trial court incorrectly found that her only remedy to pursue economic claims was to file a petition to open or vacate the divorce decree. Id. at 19. Wife argues that she has never attempted to open ■ or vacate the decree, and her filings sought only to’ distribute equitably the sole marital asset of the parties, Husband’s pension. “This request was predicated upon the fact' that the economic claims of the parties survived the divorce through their bifurcated de-creet.]” Id. For this reason, Wife argues, a petition to open or vacate a decree was unnecessary. Id.

The trial court offered the following response to Wife’s arguments:

Wife did not file a counterclaim or a separate petition raising claims. The parties did not file inventories or conduct discovery in contemplation of equitable distribution. Wife did not petition the [trial court] to appoint a master less than [thirty] days after entry of the divorce decree. Wife did not file a petition to vacate or open the divorce within thirty days. Wife does not offer any explanation for her failure to follow the rules of civil procedure, or for the passage of fourteen years before she petitioned the court. Wife argues that it was Husband’s choice to bifurcate the divorce and have the [trial court] separately adjudicate his claim for equitable distribution. Pa.R.C.P. 1920.52(d) states that “in all cases the court shall enter a decree separately adjudicating each claim raised.” Wife contends that the marital property, in this ease Husband’s pension, remains in custodia legis because Husband elected not to amend the divorce complaint to withdraw the claim for equitable distribution. He is not prejudiced by the passage of time because he was aware that his claim was still pending.
Wife contends it was not necessary for her to file a Petition to Open/Strike the Divorce Decree within thirty days because she is not seeking to set aside the decree. The decree left open the issue of economic relief. According to Wife, she is entitled to proceed with a claim timely raised and preserved, over which this [trial court] retained jurisdiction following divorce and for which there has been nó order adjudicating the claim. ...
Pennsylvania Rules of Civil Procedure require that explicit language appear in the Notice of Intention to Request Entry of 3301(d) Divorce Decree and the Affidavit under 3301(d) advising the parties that they must preserve economic claims by formally filing them with the court prior to entry of a divorce decree or they will forever lose those claims. Pa.R.C.P. 1920.72, 1920.73. The [trial court] retained jurisdiction over claims raised by the parties for which no final order has been entered. Wife raised no economic claims. There is no precedent of which the [trial court] is aware that permits a party who waived her right to equitable distribution to force adjudication of the opposing party’s claim to his detriment a decade later.
For the foregoing reasons, the [trial court] determined that Wife waived a claim for equitable relief.

Trial Court Opinion, 9/9/2016, at 4-6.

We disagree with the trial court’s conclusions. First, the plain language of the applicable statute requires the opposite result. “Upon the request of either party in an action for divorce or annulment, the court shall equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such percentages and in such manner as the court deems just after considering all relevant factors.” 23 Pa.C.S. § 3502 (emphasis added). The statute clearly states that equitable distribution may be invoked by the request of either spouse. Thus, Husband’s claim, which was never withdrawn, was still pending disposition when Wife filed her inventory seeking a share of Husband’s pension.

Furthermore, Pa.R.C.P 1920.17(b) sets forth the procedure in which a party may withdraw a claim for equitable distribution. A claim may be withdrawn only “by written consent of both parties filed with the court, or [ ] after filing and serving on the other party a written notice that the party intends to withdraw the claim of equitable distribution 20 days after service of the notice.” It so follows that a claim filed by one party may be relied upon by the other during the pendency of proceedings, and it is only when both parties agree or the non-filing party is giving the opportunity to file his or her own, may a claim be withdrawn.

Second, this Court is unaware of any precedent which mandates that both parties must file, by petition or counterclaim, a request for equitable distribution, in order to preserve a claim for equitable distribution. Rather case law suggests that an equitable distribution claim made by one party to a divorce is sufficient. See, e.g., Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358, 360 n.2 (1983) (“Appellee’s petition for equitable distribution of property required the court to equitably dispose of all the rights and interests of the parties in all of the marital property.”) (emphasis in original).

Third, appellate decisions in cases involving different but analogous situations also support our rejection of the trial court’s determination. See Brickus v. Dent, 5 A.3d 1281, 1288 (Pa. Super. 2010) (finding that even though Father had initiated the action by filing a petition for modification seeking to decrease his monthly payments, “the hearing officer had the authority to increase Father’s support obligation in accordance with the amended state support guidelines, even in the absence of a cross petition by Mother.”). See also Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319, 1322, n.5 (1976) (“Once one of the parties has moved for judgment on the pleadings, the court may enter judgment in favor of either the plaintiff or the defendant.”).

Similarly, if any party to a civil action timely requests a jury trial, the right is preserved as to all parties; each party need not separately make the demand. See Pa.R.C.P. 1007.1(a), (c)(1) (“In any action in which the right to jury trial exists, that right shall be deemed waived unless a party files and serves a written demand for a jury trial not later than twenty days after service of the last permissible pleading. ... A demand for trial by jury may not be withdrawn without the consent of all parties who have appeared in the action.”) (emphasis added).

For the foregoing reasons, we hold that the trial court erred in finding Wife waived her claim for equitable distribution. As such, upon remand, the trial court shall allow the parties to proceed through the equitable distribution process.

Order vacated. Case remanded for proceedings consistent with this opinion. Jurisdiction Relinquished.

Judgment Entered.

Judge Olson joins.

Judge Bowes files a concurring opinion.

CONCURRING OPINION BY

BOWES, J.:

I concur with the learned majority insofar as it concludes that the trial court erred in precluding Nadine Jackson (“Wife”) from asserting her right to the marital portion of the pension Leo Jackson (“Husband”) earned while he was employed as a Pennsylvania State Trooper. Thus, I join in my esteemed colleagues’ decision to remand the matter so the parties can litigate the unresolved question concerning the equitable distribution of that marital asset.

I write separately to clarify an imprecision regarding whether Wife waived her economic claims by failing to level them prior to the entry of the divorce decree. To be clear, I believe Wife’s economic claims are, in fact, waived. However, since Husband’s request for equitable distribution remained open when Wife filed the inventory listing only the pension’s marital value, I agree with the majority that she can argue her entitlement to that asset. Nevertheless, to the extent that the majority’s holding can be read as a broad pronouncement that one party’s request for equitable distribution preserves all remaining economic claims as to both parties, I am constrained to disagree. As I outline infra, the essential component of this case that allows Wife to assert her right to the pension benefits fifteen years after the entry of the divorce decree is not the fact that Husband requested equitable distribution but, rather, that Husband’s claim was never resolved.

I briefly reiterate the relevant procedurally history. Recall that Husband requested equitable distribution in his divorce complaint, which pleaded:

Plaintiff and Defendant have acquired property during their marriage which is marital property within the meaning of the Divorce Code.
WHEREFORE, Plaintiff prays this Court to equitably divide, distribute and assign the marital property of the parties.

Divorce Complaint, 11/12/99, at 2.

Wife responded with a counter affidavit wherein she noted her intent to assert an unspecified economic claim. However, she neglected to file any formal economic claims in a counterclaim or a separate pleading. Thus, the only request for equitable distribution that was filed in this ease, and the only economic claim that was raised and preserved for the trial court’s review, related to the entreaty Husband leveled in his divorce complaint.

Thereafter, on September 20, 2001, Husband filed a praecipe to transmit the record for the entry of a divorce decree. That form indicated that the “Equitable distribution of property” was a pending related claim. Praecipe to Transmit Record, 9/2/01. The ensuing divorce decree entered on October 16, 2001, bifurcated the termination of the bonds of matrimony from the outstanding economic claims. Specifically, it provided, “The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered.” Divorce Decree, 10/16/01.

For the next fourteen years, the issue of equitable distribution remained unresolved as Husband neglected to pursue the economic claim that he asserted in his divorce complaint and preserved in the bifurcated divorce decree. On April 8, 2016, Wife effectively revived Husband’s dormant request by filing an inventory of marital property that listed the marital portion of Husband’s pension and retirement benefits as the only marital asset. See Inventory and Appraisement, 4/8/15, (unnumbered page three) (“Marital Portion of Husband’s pension and retirement benefits/savings/annuity from his employment with the Pennsylvania State Police[.]). As Husband filed a timely request for equitable distribution in his divorce complaint and that claim remained open when Wife filed her inventory seeking the marital portion of his pension, I agree that she can pursue her entitlement to that asset in equitable distribution.

On the other hand, had Wife sought any forms of economic relief other than the equitable distribution of marital property that Husband previously requested, e.g., alimony, counsel fees, costs and expenses, those novel claims undoubtedly would have been precluded. See Pa.R.A.P. 1920.31(c) (“The failure to claim spousal support, alimony, alimony pendente lite or counsel fees and expenses prior to the entry of a final decree of divorce or annulment shall be deemed a waiver thereof unless the court expressly provides otherwise in its decree”). To the extent that the majority’s holding suggests that one party’s request for equitable distribution preserves all remaining economic claims as to both parties, existing case law belies that premise. In fact, we need look no further than our discussion in Melton v. Melton, 831 A.2d 646, 651. (Pa.Super. 2003), a case that the trial court and Husband both cite, albeit for a different, principle.

In Melton, the husband requested equitable distribution and counsel fees, the wife neglected to file a counterclaim, and the trial court entered a bifurcated divorce decree. Thereafter, the wife filed a claim for alimony. Husband moved to strike .the alimony claim as untimely filed, which, the trial court denied. Instead,, the trial court permitted the wife to assert her alimony claim nunc pro tunc and ultimately awarded her $1,808 a month.

This Court reversed the trial court’s order permitting the untimely claim for alimony and vacated the concomitant alimony award. As a predicate to our discussion that the trial court erred by allowing the wife to assert an untimely alimony claim without opening or vacating the divorce decree pursuant to 23 Pa.C.S. § 3332, we observed that the wife’s claim was waived because she failed to raise it in a counterclaim for alimony pursuant to Pa.R.C.P. 1920.15. See id. at 651. Specifically we reasoned,

[T]he divorce decree stated that “any existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending”; and “the court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered.” ... Appellant raised a claim for equitable distribution, but Wife did not raise a counterclaim for alimony pursuant to Pa. R.C.P. 1920.15. Thus, Appellant’s -claim for alimony is waived.

Id.

Hence, in contrast to the comprehensive scope of preservation that may be drawn from the majority’s waiver analysis, our jurisprudence unequivocally holds that certain economic claims, such as alimony, counsel fees, and litigation expenses, are subject to waiver if they are not asserted prior to- the entry of the divorce decree. At most, a request for- equitable distribution authorizes the trial court to divide the entire marital estate. It does not preserve any ancillary claims .that were not specifically asserted.

In sum, unlike my colleagues, I agree ■with the esteemed trial court’s observation that Wife’s failure to assert an independent claim for equitable distribution waived any economic claims that she attempts to assert at this late juncture. Nevertheless, I recognize that the unique procedural posture of this case permits Wife to assert a right to the marital portion of the pension as a component of Husband’s unresolved request for equitable distribution. Hence, I agree with the majority’s holding that the trial court erred in rejecting Wife’s request to resolve the still open question regarding the distribution of the only marital asset — Husband’s pension benefit. , 
      
      . There is no discussion of any prejudice to Husband. Prejudice is a prerequisite for laches. See Sprague v. Casey, 520 Pa. 38, 550 A.2d 184, 187 (1988) ("[I]n order to prevail on an assertion of laches, [a respondent] must establish: a),a delay arising from petitioner’s failure to exercise due diligence; and, b) prejudice to the respondents resulting from the delay.’’).
     
      
      . We are cognizant that this rule was adopted during the pendency of this case. Nevertheless, it is well-settled that "[u]nless the Supreme Court specifies otherwise, a rule or an amendment to a rule shall apply to actions pending' on the effective date.” Pa.R.C.P. No. 52(c).
     
      
      . I also join the majority's characterization of Wife’s laches argument and its concomitant rejection of that assertion.
     
      
      . The counter affidavit that the majority references provides, in pertinent part, as follows:
      (b) I wish to claim economic relief which may include alimony, division of property, lawyer’s fees or expenses or other important rights.
      I understand that in addition to checking (b) above, I must also file all of my economic claims with the Prothonotary in writing and serve them on the other party. If I fail to do so before the date set forth on the Notice of Intention to Request Divorce Decree, the divorce decree may be entered without further notice to me, and I shall be unable thereafter to file any economic - claims.
      Wife’s Counter-Affidavit, 8/27/01.
     
      
      . As-the trial court never resolved the economic claim that was excepted from finality in the bifurcated divorce decree, Wife was not required to file a petition to open or vacate the divorce decree pursuant to § 3332. Stated another way, since equitable distribution was not addressed, there is no issue as to finality that Wife must overcome, For the identical reason, Wife's claim does not implicate what effectively is the ■ five-year statute of limitations on motions to vacate a divorce decree. See 23 Pa.C.S. § 3332 ("A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent upon the face of the record must be made within five years after entry of the final decree”).
     