O'Connor, A. & J. v. Kenner, K.

J-A21009-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

ANNETTE C. O'CONNOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES M. O'CONNOR : : : No. 62 MDA 2025 v. : : : KELLY E. KENNER : : Appellant :

Appeal from the Order Entered December 19, 2024 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 1988-6080C

BEFORE: PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E.* MEMORANDUM BY PANELLA, P.J.E.: FILED: SEPTEMBER 30, 2025

Kelly E. Kenner appeals from the order entered on December 19, 2024, in the Court of Comon Pleas of Luzerne County, imposing liability on her to pay taxes due on the funds paid to her by Appellee, James M. O’Connor, from the liquidation of his pension plan. After careful review, we affirm on the basis of the trial court’s well-reasoned February 20, 2025 opinion.

Kenner was awarded 50% of O’Connor’s pension plan pursuant to the property settlement agreement entered on August 20, 1990 in her parents’ ____________________________________________

• • Former Justice specially assigned to the Superior Court.

J-A21009-25

divorce action. On July 26, 2023, Kenner filed a petition for special relief seeking to have her share of the pension rolled into an IRA. On January 24, 2024, the court held a hearing on the petition, at which the parties stipulated, upon the suggestion of Kenner’s counsel, that the trial court retain jurisdiction over the issue of the tax consequences of the transfer. See N.T. Argument, 1/24/24, at 15, 21. The parties also stipulated that if the transfer of funds from O’Connor’s IRA to Kenner’s IRA constituted a taxable event, Kenner would bear responsibility for the tax. See id. at 11. On May 30, 2024, the court granted Kenner’s amended petition for special relief and awarded her $176,335.75. The order was silent on the issue of tax liability.

On July 24, 2024, O’Connor filed a petition for clarification of the May 30th order as it related to the tax consequences of the transfer. Kenner filed preliminary objections to O’Connor’s petition on July 25, 2024. On December 19, 2024, upon determining that it had retained jurisdiction to address the tax issue, the trial court ordered Kenner responsible for the tax consequences of the transfer.

Kenner timely filed a notice of appeal and a court-ordered concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed its opinion, pursuant to Pa.R.A.P. 1925(a), on February 20, 2025.

On appeal, Kenner presents the following questions for our review:

A. Did the trial court err in failing to rule on [Kenner’s] preliminary objections to [O’Connor’s] “Motion to Clarify” filed 47

-2-

J-A21009-25

days after the final order, and did the trial court commit reversible error in failing to sustain preliminary objections?

B. Did the trial court err in modifying an order beyond 30 days in violation of 42 Pa.C.S.A. [§ 5505]?

C. Did the trial court err in modifying and/or adding terms to a divorce decree from 1990 in violation of 42 Pa.C.S.A. [§ 5505]?

D. Did the trial court err in finding an oral stipulation when specific written stipulated facts were entered as an order without objection or challenge?

E. Did the trial court err in directing tax consequence opposite to Federal IRS Publication 504, and in violation of the Supremacy Clause of the U.S. Constitution?

Appellant’s Brief, at xvii-xviii (formatting altered; unnecessary capitalization and suggested answers omitted).1

Our standards of review of these issues are well-settled. “This Court will reverse the trial court’s decision regarding preliminary objections only where there has been an error of law or abuse of discretion.” Godlove v. Humes, 303 A.3d 477, 481 (Pa. Super. 2023). Similarly, a claim that a court erred in modifying an order or decree pursuant to 42 Pa.C.S.A. § 5505 raises a question of law. See Manufacturers and Traders Trust Co. v. Greenville ____________________________________________ 1 As a preliminary matter, we note that Kenner failed to cite to any authority

to support her third and fourth issues. While we could find waiver on this basis, we decline to do so where we rely on the trial court’s opinion, which provides a cogent review of these issues. See Santander Bank, N.A. v. Ansorage, 327 A.3d 259, 265 (Pa. Super. 2024) (observing failure of argument portion of appellant’s brief to conform to Rule 2119(a)’s requirement to provide citation of authorities and pertinent discussion thereof “constitutes waiver of the claim on appeal”) (citation and internal quotation mark omitted); Pa.R.A.P. 2101, 2119(a).

-3-

J-A21009-25

Gastroenterology, SC, 108 A.3d 913, 917 (Pa. Super. 2015). We review a trial court’s decision concerning stipulations for an abuse of discretion. See Commonwealth v. Perrin, 291 A.3d 337, 342 (Pa. 2023). Finally, because an alleged violation of the Supremacy Clause presents a question of law, our standard of review is de novo, and our scope of review is plenary. See Caranci v. Monsanto Company, 338 A.3d 151, 167 (Pa. Super. 2025).

After our independent review of the record, the briefs of the parties, and the cogent opinion of the Honorable Tarah Toohil dated February 20, 2025, we conclude Kenner’s issues merit no relief. The opinion comprehensively disposes of the issues raised by Kenner and concludes that: (1) Kenner improperly filed preliminary objections to contest O’Connor’s petition for clarification; (2) the December 19th order did not modify the May 30th order where the parties agreed that the court could consider a petition concerning tax consequences at any time, see N.T. Argument, 1/24/24, at 15, 21; (3) the December 19th order did not modify the divorce decree where the parties stipulated in open court that Kenner would bear responsibility for the tax consequences of the transfer, see id. at 11, 12; (4) the court properly bound the parties to a stipulation that was made in open court and directly related to the issue before the court; and (5) the December 19th order did not violate the Supremacy Clause where it merely delineated reimbursement for the payment of taxes between the parties. See Trial Court Opinion, 2/20/25, at 4-8.

-4-

J-A21009-25

Accordingly, we affirm on the basis of the cogent February 20, 2025 opinion of the Honorable Tarah Toohil, which we have attached for the convenience of the parties.

Order affirmed. Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 9/30/2025

-5-

Circulated 09/10/2025 10:36 AM

r- 4

V $ ANNETTE C. O'CONNOR, : IN THE COURT OF COMMON PLEAS PLEAS Plaintiff : OF LUZERNE COUNTY ^ I ,

2-r Ro Vs. VS. CIVIL ACTION ACTION-LAW LAW • 7AMLMS M. O'CONNOR, JAMES Defendant

KELLY E. KENNER, KENNER, NO. 6080-C-1988 Intervenor/Appellant Intervenor/Appellant 62 MDA MDA.2025 2025

OPINION PURSUANT TO Pa.R.A.P PA.R.A.P 1925

PROCEDURAL FUSTORY PROCEDURAL HISTORY Kelly Kenner, Kelly Kenner, Intervenor/Appellant Intervenor/Appellant ("Kenner") ("Kenner") filed an appeal on December 24, 2024, from this Court's Order entered December 19, 2024. CWife") and Defendant ("Husband") Plaintiff ("Wife") CHusband") were married on May 14, 1983. Kenner is their daughter. daughter. The The above divorce action was was filed on November 28,1988_ 28,1988. The parties parties entered into aaProperty Settlement Agreement ("PSA") CTSA") on August 20, 1990. Paragraph 9 August 9of the PSA states:

Husband shall retain his pension plan currently in effect with Trent, Inc. The I

parties' daughter, parties' daughter, KELLY O'CONNOR, shall be named as a a 50% income

beneficiary of Husband's pension plan and shall, at Husband's death, be

entitled to fifty fifty (50%) (50%) percent percent of the value at the date of death. Also, if and

when Husband cashes the plan plan in or retires and begins to receive monthly

payments, Kelly will be entitled to 50% whenever the above takes place. payments,

Should Kelly Kelly predecease predecease Husband, her share will go to her heirs. The

parties agree parties agree to aaQualified Qualified Domestic Relations Order, if necessary, now or

in the future, to give effect to the above. 11

1/0

On August On August 27, 1990, a 27, 1990, aDivorce Decree was Divorce Decree was entered entered which which stated that the stated that the agreement between agreement between the parties was the parties incorporated in was incorporated in the decree. the decree. On July 26, On July 2023, Kenner 26, 2023, Kenner filed filed a aPetition for Special Petition for Special Relief referencing aa Relief referencing Qualified Qualified Domestic Relations Order Order (QDRO) (QDRO) dated October 2, 1991, in which Kenner requested 50% of the Trent Kenner requested Trent Pension named in the PSA. Since the QDRO was never accepted by the plan, accepted by Kenner filed an Amended Petition for Special plan, Kemer Relief, Relief, indicating indicating that that Husband's Husband's retirement retirement Plan Plan was terminated, and was terminated, and she she was was entitled to 50% entitled of the 50% of the plan. plan. The matter came The matter came before the the undersigned for hearing on January 24, 2024, at which time which time Husband and Kenner Husband and were represented Kenner were by counsel, represented by counsel, and and Wife appeared pro pro se. se. During During the the course of the hearing, hearing, counsel referred to to certain matters matters as as stipulations. The Court entered an order on April 22, 2024, which adopted the stipulations. The stipulation of the stipulation of the parties. By Order By Order entered May 20, entered May 20, 2024, 2024, the Court Court granted granted Kenner's Amended Petition for Special Petition for Special Relief and Ordered Husband Relief and Husband to pay Kenner Kenner 50% 50% ofof the Trent Plan or $176,335.75. Plan or $ 176,335.75. The The Order Order did did not not include include aadetermination determination as as to the the party party responsible responsible for the the consequences consequences of the the tax on on the the funds funds to be paid to Kenner. On July On July 24, 24, 2024, 2024, Husband Husband filed filed aaPetition Petition for for Clarification Clarification of of the May May 30, 2024, Order 2024, Order seeking seeking to have Kenner responsible for any tax consequences on the Kemner responsible the funds transferred to her pursuant pursuant to the May 31, 2024 Order. On July July 25, 25, 2024, 2024, Kenner filed Preliminary Objections to Husband's Petition for Clarification. Husband did not file aaresponse or brief in opposition to the Preliminary Objections. Objections. This This Court Court issued issued the the Order on December December 19, 2024 2024 which which granted the the request request in Husband's Petition for Clarification.

STATEMENT STATEMENT OF OF MATTERS COMPLAINED OF MATTERS COMPLAINED OF ON APPEAL ON APPEAL Kenner following as Kenner submits the following grounds for error in this as grounds this Court's December December 19, 2024, 19, 2024, Order: Order:

1. The Trial Court erred by 1. The by failing to rule on Kenner's Preliminary Objections and Objections and Brief, Brief, which which were deemed admitted by deemed admitted by Luz. Luz. Co. Co. Local Rule 1028 (c) Rule 1028 (e) and in failing (c) (e) failing to sustain the Preliminary Objections where where Husband failed to file file aabrief brief in opposition to to the the Preliminary Preliminary Objections. Objections. 2. The Trial 2. Trial Court's Order of December 19, 2024 violated 42 Pa.C.S.A. Pa.C.S.A. §$ 5505, 5505, in that that it modified the May 30, 2024 modified the 2024 Final Order after Final Order after 30 days when Husband when Husband did did not not file file an appeal within thirty an appeal thirty (30) days (30) days ofof the Final the Final Order and the Trial Court did not grant Order grant reconsideration of that Order. 3. The Trial Court 3. Court erred by modifying the August 27, 1990 Divorce Decree by modifying which incorporated which incorporated the August 20, the August 20, 1990 1990 Properly Property Settlement Settlement Agreement Agreement agreement did not delineate a in that the agreement atax consequence. 4. The The Trial Court erred in finding finding aa "Stipulation", " Stipulation", where. where the January 24, 2024 transcript transcript was not entered es as an exhibit, nor did it take judicial notice of the transcript, transcript, and where the April 22, 2024 Order did not contain a contain astipulation stipulation of tax consequences; consequences; andand there was was no colloquy of the parties parties under oath. 5. The Trial Court violated the Supremacy Supremacy Clause of the United States Constitution by Constitution by ordering consequences contrary to Federal IRS Rules ordering tax consequences and regulations and and regulations and by determining a by determining atax tax consequence consequence without the the authority authority to do do so.

DISCUSSION DISCUSSION 1. Failure to Respond Respond to Preliminary Preliminary Objections Objections Pa.R.CivP. 1028(c) provides Pa.R.Ci.P. 1028(c) that a provides that a Preliminary Objection may be filed by any by any party party to any pleading. pleading. (Emphasis added) According According to to Pa.R.Civ.P. Pa.R.Civ.P. 1017, 1017, pleadings pleadings in an an action action are are limited to:

(1) a (1) acomplaint complaint and and an an answer answer thereto, thereto, (2) areply (2)a reply if the answer contains new matter, aa counterclaim or aa cross-claim, t

(3) acounter-reply (3)a counter-reply if the reply to a a counterclaim or cross-claim cross--claim contains new matter,

V

(4) a (4) apreliminary preliminary objection objection and and aaresponse response thereto. thereto.

pleading the Rules of Civil Procedure do not include aa In its definition of pleading petition or petition or motion. Custom Designs & Manufacturing Co., Inc. Inc.%. V. Atlantic States Insurance Co., Atlantic Co., 40 Pa. Pa. D. & C. 5th D. & 468,474 5" 468, 474 (Lack. (Lack. Co. August 28,2014; August 28, 2014; CDI-Infrastructure, LLC v.v Navtech, le., Inc., 2013 WL 1845859 (Comb. 1845859 (Curb. Co. April 17, 17, 2013). 2013). Moreover, Preliminary Moreover, Objections should not be sustained solely on Preliminary Objections the ground that the ground that the preliminary objections the preliminary objections are are uncontested. Joloza v uncontested. Joloza v. Commonwealth, Department Commonwealth, Department of Transportation, Transportation, 958 A.2d 1152, 1155 (Pa.Cmith.2008), citing (Pa.Cmlt.2008), citing SehyIliII Schuylkill Navy Navy •v Langbord, Langbord, 728 728 A.2d A.2d 964, 964,965 965 (Pa.Super. 1999).

The December The December 19, 19, 2024 2024 Order Order considered considered Kenner's Kenner's Preliminary Preliminary Objections and by Objections implication, denied those Preliminary Objections, when it by implication, granted granted Husband's Petition for Clarification. Since those Preliminary Objections were not Objections were not the appropriate procedural the appropriate vehicle to contest procedural vehicle contest the the Petition their-denial Petition for Clarification, their denial was was correct.

2. Modification of May 30 30,;2024 Order Kenner contends that the trial court court modified its May 30, 30, 2024 Order, Order, after more than thirty thirty (30) days passed and where Husband did not file an (30) appeal and the appeal trial court the trial court did.not did-not grant grant reconsideration, reconsideration, in violation of in violation of 42 42 Pa.C.S.A. §$ 5505. Pa.C.S.A. 5505. That section section provides: provides: Except as Except as otherwise provided provided or prescribed prescribed by law, a a court upon upon • notice to notice the parties to the parties may may modify or rescind any modify or any order 30 order within 30 days after its entry, days entry, notwithstanding the prior termination of any term of of court, court, if no appeal if no appeal from such order from such order has has been taken or been taken or allowed. After expiration expiration of thirty thirty (30) days, (30) days, the trial court loses its broad modify, and the discretion to modify, the order can can be opened or vacated vacated only upon upon a a showing of extrinsic fraud, lack ofjurisdiction over the subject matter, aa showing fatal fatal defect apparent apparent on the face of the record record or some other other evidence evidence of

q. 9

extraordinary justifying intervention by the court. extraordinary cause justifying court. Stockton v. Stockton, 698 A.2d 1334, 1337 1337 (Pa. Super- 1997)- (Pa. Super.1997). Our Our Superior Superior Court in Mfrs. && Traders Tr. Tr Co. v. • Greenville Gastroenterology, SC, 108 A.3d Gastroenterology, 913, 921 (Pa.Super.2015) A.3d913,921 (Pa.Super.2015) stated: In addition to equitable power to its equitable power to to reconsider an otherwise final order after 30 30days, aacourt has inherent power to amend its records, records, `to to correct mistakes of the the clerk or other other officer of the court, inadvertences of counsel., or supply defects of counsel, defects or omissions in the record at any time.' See also Graffia v. Thomas, 'Thomas, 2024 WL 5245284, 1497 WDA2023 WDA 2023 (Pa.Super. filed (Pa.Super. fled December 30, 2024).; 2024).'

In the sub judice, the case sub judice, the the trial trial court court was presented with with aa factual pattern patter where counsel for where counsel for the the parties, parties, in in the presence of the presence of their their clients, clients, specifically agreed specifically agreed without any equivocation, equivocation, that Kenner would be responsible for any taxes on the portion responsible portion of Husband's retirement plan which she received. In addition, the the stipulation stipulation of the parties adopted by the the court court on April paragraph 9 April 22, 2024, in paragraph 9states: "the Court retains jurisdiction over this matter in the event tax consequences require court intervention." intervention."' The parties that the Court could consider a parties contemplated that a petition regarding regarding tax consequences at any any time. The Order dated December 19, 2024 was not a 30, 2024 Order, but rather a change or modification of the May 30, a a determination on an issue which was reserved by the Court and by agreement of the parties.

In addition, if the Order dated December 19, 2024 is considered aa modification of an Order after 30 30days, days, the the present situation presents with extraordinary extraordinary cause to modify modify the December 30, 2024 order to conform with

'Pennsylvania Superior' Court Decisions filed after May 1, 2019, may be cited for their 'Pennsylvania persuasive value pursuant to Superior Court 0.P. O.P. 65.37. Kenner's Counsel suggested Kerner's 2 suggested that that the Court retain retain jurisdiction in the the event there is a a tax tax issue. 1/24/2024 Transcript, pages 14-15. 5 5

16Z)

the parties' the parties' stipulation stipulation that that Kenner Kenner would be responsible responsible for for any any taxes on on the distribution of Husband's Husband's pension pension to to her.

3. The Trial Court's Order Improperly Improperly Modified the August 27, 1990 divorce decree divorce decree because because the the Property Property Settlement Settlement Agreement Agreement did did not not Delineate Delineate a a Tax Consequence Tax Consequence The issue The of taxes issue of taxes was was a a major major part of the part of the hearing on January hearing on January 24, 24, 2024, regarding 2024, Kenner's Amended regarding Kenner's Amended Petition Special Relief. During Petition for Special During the course of course of the hearing, Kenner's counsel hearing, Kenner's counsel stated stated on on more more than one occasion, than one occasion, that Kenner would be responsible that responsible for taxes on the portion of the retirement funds funds received. 1/24/2024 Transcript, page 1/24/2024 Transcript, 11. page 1l. In Wayda Wayda v v. Wayda, Way da, 576 A.2d 1060, 1067 1067 (Pa.Super. 1990), the Court stated: Court stated: Parties are free to bind themselves by stipulation on all matters affecting the not affecting jurisdiction and the jurisdiction and prerogatives prerogatives of the the court, and the court has the power power to those stipulations...any stipulations ... any matters involving individual rights involving rights or obligations of parties may be subject of subject of stipulation...parties stipulation—parties may bind themselves may bind themselves byby stipulations so long stipulations long as they they do not affect jurisdiction of of [the] court and provided provided stipulations stipulations are not in contravention of peremptory peremptory statutory requirements. The PSA PSA and divorce decree decree did did not provide provide for the payment payment of taxes. During litigation Kenner During Kenner agreed toto be responsible for the the taxes taxes on on the money money she received from her father's pension pension plan. The agreement waswas made by stipulation, during stipulation, during the course of the course of a acontested contested proceeding. proceeding. That That agreement any other should like any should be enforced. 4. Error Finding a Bror in Finding aStipulation Stipulation When the Transcript of the January 24, 2024 Hearing was not Entered into Evidence 2024 Hearing Evidence or or Judicial Judicial Notice Not Taken of the Taken of the Transcript and there Transcript and there was no Colloquy of no Colloquy of the Parties Parties As previously indicated, the previously indicated, the parties parties are free to enter are free enter into into a stipulation a stipulation binding themselves binding to themselves to an agreement. agreement. In Foote Foote v• Maryland Casualty

Company, 409 Company, 409 Pa. Pa. 307, 307, 186 A.2d 255, 186 A.2d 258 ((1962), 255, 258 1962), our our Supreme Supreme Court stated: This Court has held that whatever does not affect the jurisdiction of jurisdiction of the court or the court or the the due order of due order of business and business and convenience convenience of of the the court court is capable of is capable of arrangement arrangement between between the the parties or their parties or their counsel, and an counsel, and an agreement agreement byby them them will will become become the law of the case case (citing (citing cases)(emphasis added). Any Any matter which which involves involves the the individual individual rights rights or obligations of the parties parties inter se may properly be made the subject of aa may properly stipulation between stipulation them. between them. In Dinenna v. Dinenna, Diena, 2023 WL 5097224, No. 312 MDA 2022, (Pa.Super August 9, 2023), (Pa.Super filed August 2023), the Court enforced an agreement agreement where where wife's counsel stated the agreement agreement on the record and counsel for both husband and wife expressed expressed their consent to the language language.on on the record. See v Black, also Black v. Black, 206 206 Pa. Pa. 116, 116, 55 A. 847 847 (1903) (1903) where where the court held an agreement made in open agreement open court is effective.

During the During the hearing hearing on on January 24, 2024, the 24, 2024, the Court Court asked asked counsel: counsel:

The The Court: Okay. Okay. So are those So are those two two further further stipulations? stipulations? a taxable event from dad to daughter's IRA, One is if it is a daughter will bear and be responsible daughter responsible for the tax. Was that astipulation? that a stipulation? Mx: Mr. Cali: Yes, that's a a stipulation. Ms. Yurchak: Yeah, that has to be. The Court: And then Stipulation Stipulation 7 7would be that daughter would reimburse father for the tax liability. Mr. Cali: Cali: If the government taxes the government taxes him as as a result of a result of the the transfer to to----- Ms. Yurchak: Yurchak: But I I think think that that the stipulation that the first stipulation that she's responsible she's responsible takes care of takes care of both.... both.... 1/24/2024 Transcript, Transcript, page 11.

7 7

The above language language is clear. Counsel agreed agreed in open court with the clients present, clients present, that Kenner would that Kenner would be responsible for the be responsible the taxes because of taxes because of the the transfer of transfer pension funds of pension funds to her and to her and she she would would reimburse reimburse husband. husband. stipulation was in open The stipulation open court during the initial hearing before the court on court on Kenner's Kenner's Amended Amended Petition for Special Petition for Special Relief. The proceeding Relief. The proceeding was was not in an unrelated case in an unrelated court. The stipulation directly related related to the issues issues before the court. before the court.

5. The Trial Court's December 19, 2024, Order violated the Supremacy of the Clause of the United States Constitution United States Constitution

effect of The effect of the December 19, the December 19, 2024 Order requires 2024 Order requires Kenner Kenner to bebe responsible responsible for payment payment of taxes on on funds paid to her as aaresult of the liquidation of Husband's pension liquidation pension plan. plan. That Order isis the result of her agreement in the agreement the form form of aastipulation. stipulation. The The order order does not interpret any any Federal Statute or or regulation. regulation. The Supremacy Supremacy Clause of the United States Constitution prohibits States from States enacting laws from enacting laws contrary contrary to to the the federal government's laws. federal government's laws. Specifically, it Specifically, provides that the laws of the United States "shall be the it provides supreme law supreme law of of the the Land;... any Thing in the any Thing Constitution or the Constitution or Laws Laws of of any any State to State to the contrary notwithstanding." the contrary notwithstanding." See Mak v See Kiak v. Crown Crown Equip. Equip. Corp., Corp.a 989 A.2d 385, 390 (Pa.Super. 385, 390 (Pa.Super. 2010). 2010). The The December December 19, 19, 2024 2024 does does not not affect the the person person who has has to pay taxes to to the United States Government. The The order requires requires payment payment between the parties parties depending depending on who has to pay pay the United States Government.

CONCLUSION CONCLUSION The December December 19, 19, 2024 2024 Order was was entered by the Court Court to effectuate the agreement of agreement of the the parties. parties. It is respectfully submitted is respectfully that the submitted that the Order Order is is not not an abuse abuse of discretion and should be affirmed.

The Offices The Offices of of Judicial Records and Services is Directed to file this Opinion, give notice to the parties give parties pursuant pursuant to Pa.R.Civ.P. 236 and transmit the same to the Prothonotary Prothonotary of the Superior Court. tho Superior I BY THE COURT,

• ''.S' Judge Judge Tarah Toohil

•

•

•

F / I