Stevens, W. v. Stevens, K. ( 2019 )

J. S06033/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM D. STEVENS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KIMBERLY A. STEVENS, : No. 1542 EDA 2018
:
Appellant :
Appeal from the Decree Entered June 26, 2018,
in the Court of Common Pleas of Wayne County
Domestic Relations Division at No. 2012-30070
WILLIAM D. STEVENS, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1626 EDA 2018
:
KIMBERLY A. STEVENS :
Appeal from the Decree Entered June 26, 2018,
in the Court of Common Pleas of Wayne County
Domestic Relations Division at No. 2012-30070
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 20, 2019
In these consolidated cross-appeals, Kimberly A. Stevens (“Wife”) and
William D. Stevens (“Husband”) challenge the trial court’s equitable
distribution of the marital estate in the divorce proceedings between the
parties. After careful review, we affirm.
J. S06033/19
The record reflects that Husband initiated these proceedings by filing a
complaint in divorce on February 6, 2012. Husband’s claims for divorce and
equitable distribution proceeded before a master. Following two hearings and
the submission by the parties of proposed findings of fact, conclusions of law,
briefs, and relevant documents, the master filed a report and recommendation
wherein she made the following findings of fact:
1. The parties were married on October 26, 1985,
in Hawley, Wayne County, Pennsylvania.
2. This is the first marriage for both parties.
3. The Complaint in Divorce was filed on
February 6, 2012.
4. [Husband] contends the couple separated on or
about December 18, 2010.
5. [Wife] contends the couple separated on or
about May 15, 2011.
6. The parties have been married for over
25 years.
7. Both parties are and have been residents of the
Commonwealth of Pennsylvania in excess of six
months.
8. The couple has two adult children.
9. Husband is 53 years of age, [born in April 1963].
Wife is 52 years of age, [born in March 1964].
10. Husband is self-employed as the owner and
operator of W.D. Stevens, Inc.[,] which is a
construction company.
11. Wife owns a Century 21 franchise and is
employed as a real estate broker.
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12. During the marriage the parties accumulated
the following assets: a marital residence, two
commercial properties, motor vehicles, an FSC
brokerage account No[.] 3MA-75826,
Husband’s business, W.D. Stevens, Inc. and
Wife’s real estate business, Century 21 Select.
13. Throughout the marriage Husband maintained a
pre-marital account with FSC but sometime in
2011 and/or 2012 Husband transferred the FSC
account to a Morgan Stanley account. At the
time of the hearing, this account had an
approximate value of $404,217.21.
14. The marital residence, located at 1189 Goose
Pond Road, Lake Ariel, Paupack Township,
Wayne County, Pennsylvania, was appraised at
$578,000 in February of 2013, two years
post-separation. The marital residence is a
large residential home that sits on two parcels
totaling 2.2 acres.
[15.] The appraisal was performed by Peter Porter,
Hawley, Pennsylvania.
[16.] At the time of the hearing, Porter placed a
reduced value of $538,000 on the marital
residence due to problems with the roof and
heating system.
[17.] The marital residence is a large home of
approximately 5,000 square feet, with three
bedrooms, four baths, and a four car garage.
The marital residence is not a lakefront
property.
[18.] The marital residence is within a few hundred
feet of Lake Wallenpaupack [and] has lake
access, including a boat slip.
[19.] An appraisal of the marital residence was
performed by Gerald Romanik in September of
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2015. He placed a fair market value of
$771,600.00 on the residence.
[20.] The fair market value of the residence was
adjusted downward because it is not a lakefront
property.
[21.] There are two mortgages on the marital
residence with approximate date of separation
payoffs of $253,415 (Wells Fargo) and $35,000
(Gene Ruggiero).
[22.] Husband has had sole and exclusive possession
of the marital home since separation.
[23.] Since the date of separation, Wife has made
payments totaling $17,050.01 on the Ruggiero
loan.
[24.] Since the date of separation, Husband has
utilized $6,901.21 of marital funds to pay the
taxes and mortgage on the marital residence.
[25.] Husband has not made any rental payments to
Wife since the date of separation for his use of
the residence.
[26.] Husband has reduced the mortgage obligation
on the marital residence by more than $20,000.
The payoff of the Wells Fargo mortgage on the
marital residence as of August 2015 was
$234,275.55.
[27.] The net equity of the marital residence as of
date of separation was approximately
$289,585. The net equity of the marital
residence as of December of 2015 is similar
because Husband’s approximate pay down of
the mortgage principal is equal to Porter’s
amended valuation.
[28.] The valuation assigned to the marital residence
reflects that net equity.
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[29.] Since separation, Husband has maintained all
payments relative to the marital residence,
including all mortgage payments to Wells Fargo.
[30.] Husband built the marital residence on the
Goose Pond Road parcel which was originally
acquired for $100,000.
[31.] The commercial property, located at Routes 6 &
590, 6 Roosevelt Drive, Palmyra Township,
Hawley, Wayne County, Pennsylvania was
appraised at $584,000 in February of 2013.
[32.] The property was appraised by Peter Porter,
Hawley, Pennsylvania.
[33.] At the time of the hearing, Porter placed a
reduced value on the commercial property due
to problems with the roof. The value of the
commercial property as of December of 2015
was $576,000.
[34.] The commercial property consists of three
buildings: a residence, an office and a potential
rental unit which now sits empty except for
storage use by Wife.
[35.] The commercial property has a potential
monthly rent of $4,000 per month; $2,500 for
the office and $1,500 for the residence.
[36.] Wife has had exclusive use of the commercial
property since date of separation.
[37.] Wife uses the commercial property as
headquarters for her Century 21 real estate
office.
[38.] The commercial property was originally
acquired for $400,000 in 2007.
[39.] When the commercial property was acquired,
the parties entered into a purchase money
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mortgage with Wells Fargo, along with Wife’s
parents, the Gravinas.
[40.] The parties and the Gravinas originally both
invested $40,000 each in the purchase of the
commercial property.
[41.] When the Wells Fargo mortgage went into
default on the commercial property, the parties
purchased the interest in the Gravinas for $1.00
and a promise to eventually pay the Gravinas
$20,000.
[42.] The Routes 6 & 590 commercial property was
appraised at $391,300.00 in July of 2015 by
Gerald Romanik, Hawley, Pennsylvania.
[43.] Romanik utilized three approaches in appraising
the commercial property: the market date [sic]
approach, cost approach and income analysis.
[44.] At the time the mortgage was satisfied, the
commercial property had a fair market value of
$600,000.00.
[45.] Husband’s non-marital funds used to pay off the
mortgage on the commercial property came
from a loan against his brokerage account.
[46.] Wife has made payments in the amount of
$6,200.00 toward payoff of Husband’s loans.
[47.] In addition to the $6,200.00 paid by Wife, she
has also made a $750.00 monthly payment or a
total of $10,500.00 towards the margin loan
interest since October of 2014.
[48.] Husband has failed to apply Wife’s $750.00
monthly payment to the margin loan. Since the
date of separation, Wife’s total payments
toward the margin loan are approximately
$16,700.00.
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[49.] After separation, Wife convinced Husband to
take monies from his non-marital, pre-marital
brokerage account and pay off the Wells Fargo
mortgage on the commercial property.
[50.] Wife promised that she would repay Husband by
virtue of a mortgage with an interest rate of
7%[.] [O]n or about May 13, 2011, Husband
used $282,246 of his personal, non-marital,
pre-marital funds, together with joint funds of
$18,000 to pay off the Wells Fargo mortgage on
the commercial property.
[51.] The mortgage payoff totaled $300,246 on or
about May 13, 2011.
[52.] To accommodate the payoff, Husband took his
pre-marital stocks and bonds of approximately
$568,000 and deposited them in [the] FSC
account.
[53.] Wife convinced Husband that in paying off the
Wells Fargo mortgage on the commercial
property, Husband would have better
investment production.
[54.] Wife promised to secure Husband’s payoff of the
Wells Fargo mortgage with a mortgage on the
$282,264 withdrawal from Husband’s personal
pre-marital account.
[55.] Despite the fact that the parties were separated
at that time, Husband indicated that he
“trusted” Wife and believed that she would
reconcile the marriage and return to the marital
residence.
[56.] Wife calculated that her payments to Husband
on his loan of $282,264 would be $1,700.00 per
month.
[57.] This agreement between the parties was never
formalized and never reduced to a mortgage.
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[58.] Wife paid only $7,880 toward this obligation
through the end of 2011 and then stopped
paying anything at all.
[59.] The $282,264 paid toward the Wells Fargo
mortgage was purely from Husband’s funds,
having come from Husband’s FSC brokerage
account.
[60.] Through the time of the hearing, Husband had
approximately $353,383 in carrying charges
relative to the payoff of the mortgage on the
commercial property against a loan on
Husband’s margin account.
[61.] Because of the payoff of the Wells Fargo
mortgage on the commercial property, Husband
“owes” his brokerage account $282,264 plus
$55,811.09 in interest.
[62.] Prior to the payoff of the Wells Fargo mortgage,
Husband also sold one of his bonds and paid
$10,000 toward the marital Wells Fargo
mortgage to protect the property from a
mortgage foreclosure action.
[63.] Husband’s original FSC account, which he
transferred to Morgan Stanley, has only been in
Husband’s name and the assets primarily
predated the marriage.
[64.] Previous to the divorce proceedings, the parties
owned another commercial property in
Greentown, Greene Township, Pike County,
Pennsylvania.
[65.] That property was sold at a short sale on or
about 2014. The principal mortgage on that
property was discharged pursuant to a short
sale agreement with Wells Fargo, but the
balance on a line of credit secured against that
property remains to be paid.
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[66.] The balance of the Wells Fargo line of credit
obligation at the time of the hearing was
$58,446.00, with a per diem charge of
$9,441[.]24.
[67.] An original attempt to sell that property fell
through, however, and the $20,000.00 deposit
was disbursed to Wells Fargo and Pike County
Tax Claim Bureau; specifically, $12,029.30 to
Wells Fargo and $3,843.00 and $4,127.00 to
Pike County. Husband claims that Wife kept the
$5,000.00 for contents sold by the parties.
[68.] To delay a threat of foreclosure on that
property, Husband paid $10,000.00 to Wells
Fargo prior to the short sale.
[69.] The Greentown commercial property was sold at
short sale freeing the parties from the first
mortgage on that property. The short sale
agreement requires the parties to absorb that
debt.
[70.] The Ruggiero mortgage resulted from an
original $50,000.00 loan from Ruggiero to Wife
to buy her franchise and/or sales commission
obligations to Century 21.
[71.] At that time, Wife required approximately
$75,000.00 to pay her outstanding obligations
to Century 21.
[72.] Husband sold some of his stock and paid
$25,000.00 to this obligation.
[73.] Husband claims that Wife is responsible for the
$35,000.00 mortgage in favor of Ruggiero.
[74.] The parties previously divided savings and
checking accounts by agreement.
[75.] The parties have agreed to equitably divide their
vehicles.
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[76.] Husband claims that he will be responsible for
the Wells Fargo mortgage on the marital
residence in the approximate amount of
$253,415.00.
[77.] Husband claims that Wife is responsible for the
Gravina obligation.
[78.] Husband claims that Wife is responsible to him
for one half of the rental value of the Route 6 &
590 commercial property from January 2012 to
date, 51 months at $2,000.00 per month for a
total of $102,000.00.
[79.] Husband claims that Wife is responsible to him
for his payoff of the Wells Fargo mortgage on
the commercial property in the amount of
$282,246.00 plus $55,811.09 in interest he paid
on his margin loan over the past five years. This
totals $338,057.09.
[80.] Husband’s claims that Wife is responsible to him
for one half of the deposit monies from the
Greentown short sale, the $10,000.00 payment
against that matter by Husband and the
$10,000.00 payment against the parties’
commercial property in Hawley.
[81.] Husband’s previous FSC account, now identified
as the Morgan Stanley account, is a non-marital
asset. During the marriage, and to date of
separation, that account appreciated in an
approximate amount of $217,014.34. The
parties agree on that figure.
[82.] Husband claims Wife should assume the
MasterCard charge-off.
[83.] The parties agree to equally assume the
$10,000.00 Gumble Bros. bill.
[84.] Wife’s earning capacity was increased during
the marriage as the result of first becoming a
realtor and then becoming a broker.
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[85.] At the time of the hearing, the parties are in
similar, average to good health.
[86.] Husband will continue to run his construction
business under the name W.D. Stevens, Inc.
The company was started on or about 1988.
[87.] Wife will continue to run her Century 21 Select
real estate business. The business was started
in 1993 and expanded on or about 2010 when
Wife received her brokerage license.
[88.] The parties stand relatively equal regarding the
general criteria for equitable distribution.
[89.] The parties have no life insurance but have
health insurance.
[90.] The parties have agreed that the marriage is
irretrievably broken and have submitted the
required affidavits and waivers of notice of entry
of decree in divorce. The same have been
tendered to the Master at the time of the
hearing.
[91.] Husband claims the tax lien against G&S
Enterprise is an obligation of Wife.
[92.] There is no supportable claim from either party
for counsel fees.
[93.] There is no supportable claim for either party for
alimony.
[94.] In addition to the liabilities addressed above,
the parties also accumulated the following
debts:
a) Credit card debit [sic] in Husband’s
name $24,000.00
b) Credit card debt in Wife’s name
$10,000.00
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c) The Gravina loan in the amount of
$20,000.00
Report and recommendation of divorce master, 6/14/16 at 2-7.
Following the findings of fact in the master’s June 14, 2016 report and
recommendation, the master set forth her equitable distribution
recommendation. Both parties filed exceptions to the June 14, 2016 master’s
report and recommendation. In response, the trial court entered an order
remanding the case to the master for a rehearing to consider all enumerated
factors under 23 Pa.C.S.A. § 3502(a) of the Divorce Code relevant to the
equitable division of the marital property and directing the master to comply
with Pa.R.Civ.P. 1920.54(c).1 (Order of court, 10/11/16.)
On remand, the master did not take additional testimony. Rather, she
submitted a revised report and recommendation that set forth the considered
enumerated factors under Section 3502 and complied with Rule 1920.54(c).
(Report and recommendation of divorce master, 11/17/17.) The master
recommended that a divorce be granted and that any request for alimony,
counsel fees, costs, and expenses be denied. (Id. at 4, ¶¶ 1-3.) The master
also made the following equitable distribution recommendation:
4. Wife shall be deeded the Routes 6 & 590
commercial property and shall assume full and
complete liability and responsibility for the
premises.
1 Rule 1920.54(c) requires the master’s report to contain a separate section
captioned “Division of Property” and divided into two parts that list marital
property and non-marital property. Pa.R.Civ.P. 1925.54(c).
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5. ASSETS
Husband Wife
Marital Home 538,000.00 Commercial properties 576,000.00
W.D. Stevens, Inc. 25,000.00 50% Increase in Brokerage
50% increase in Acct. 108,507.00
Brokerage Acct. 108,507.00 Century 21 Select franchise 25,000.00
___________ ___________
$671,507.00 $708,707.00
DEBTS
Husband Wife
Mortgage on marital 253,415.00 Gravina loan 20,000.00
residence
Loan from Brokerage 141,000.00 Ruggiero mortgage 35,000.00
acct.
Greentown Line of Credit 29,223.00 Greentown Line of Credit 29,223.00
Loan from Brokerage acct. 141,000.00
Payment for Greentown taxes 10,000.00
__________ __________
$423,638.00 $235,223.00
Wife shall reimburse Husband $55,016.00:
$ 29,223.00 Greentown Line of Credit
$ 141,000.00 loan from Husband’s brokerage account
$ 10,000.00 payment made by Husband for Greentown taxes
$ 180,223.00
less $ 108,507.00 one-half of the post-marriage, pre-separation
appreciated value of Husband’s brokerage
account
less $ 16,700.00 Wife’s payments toward commercial loan
$ 55,016.00
6. Wife will make payments to Husband in the
amount of $1,700.00 monthly at 7% until the
amount of $55,016.00 is paid in full. Wife may
refinance the loan and pay it off sooner without
penalty.
7. Wife shall reimburse Husband for the
$10,000.00 Husband paid to keep the
Greentown property from sheriff’s sale.
8. Wife shall assume responsibility of $29,223.00,
half of the outstanding Greentown Line of
Credit.
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9. Wife shall assume the Ruggiero mortgage of
$35,000.00 as her sole responsibility.
10. Wife shall assume the Gravina $20,000.00 loan.
11. Husband shall assume responsibility of
$29,223.00, half of the outstanding Greentown
Line of Credit.
12. Husband is not entitled to carrying fees and
interest on the margin loan or Wells Fargo loan.
13. Husband shall be deeded the marital residence
and shall assume full and complete liability and
responsibility of the Wells Fargo mortgage.
14. The parties shall divide the vehicles as
stipulated.
15. The parties shall divide any personal property
as stipulated.
16. Wife shall retain her Century 21 Select franchise
and real estate business.
17. Husband shall retain W.D. Stevens, Inc., his
construction business.
18. Neither party shall be entitled to any rental
credits of set-offs relative to their current
residences.
19. Each party is to assume any and all debt and/or
other liabilities which are in their respective
names not addressed in this recommendation,
including their credit cards.
20. Each party will cooperate in the transferring of
any titles, deeds, or legal documentation so a
transfer can be successfully effectuated. Any
transfer fees to effectuate any transaction will
be equally shared by the parties.
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21. Any fees beyond the initial Master’s $500.00 fee
shall be divided equally between Husband and
Wife.
Report and recommendation of divorce master, 11/17/17 at 5-6.
The record reflects that Husband and Wife both filed exceptions to the
November 17, 2017 master’s report and recommendation. By order entered
on May 2, 2018, the trial court denied all exceptions. On May 21, 2018, Wife
filed a notice of appeal of the trial court’s May 2, 2018 order denying
exceptions to this court at No. 1542 EDA 2018. On May 31, 2018, Husband
then filed a notice of appeal of the same order to this court at No. 1626 EDA
2018.2
On June 15, 2018, this court entered an order directing Wife to show
cause within ten days as to the finality and appealability of the May 2, 2018
order because, even though the parties’ economic claims had been resolved,
a divorce decree had not yet been entered. On June 21, 2018, this court
entered an order directing Husband to show cause within 10 days as to the
finality and appealability of the May 2, 2018 order with respect to his
cross-appeal. On June 29, 2018, this court quashed the appeal docketed at
2 On May 21, 2018, the trial court ordered Wife to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Wife filed her
Rule 1925(b) statement on June 12, 2018. On June 6, 2018, the trial court
ordered Husband to file a Rule 1925(b) statement. Husband filed his
statement on June 15, 2018. On August 28, 2018, the trial court filed two
separate “statement of reasons.” One “statement of reasons” addressed
Wife’s Rule 1925(b) issues, and one “statement of reasons” addressed
Husband’s Rule 1925(b) issues.
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No. 1626 EDA 2018. On July 2, 2018, counsel for both parties filed with this
court correspondence and a copy of their joint praecipe to enter final decree
in divorce court that they filed on June 26, 2018 with the Wayne County
Prothonotary. The docket entries reflect that the trial court entered the
divorce decree on June 26, 2018. By order entered July 12, 2018, this court
reinstated the appeal at No. 1626 EDA 2018. On July 13, 2018, this court
discharged the rule to show cause at No. 1542 EDA 2018.3 Therefore, these
consolidated cross-appeals are now ripe for our review.
Wife raises the following issues:
[1.] Did the Honorable Trial Court err and abuse its
discretion in the overall equitable distribution
scheme when it failed to take into consideration
the economic circumstances of the parties at the
time of the Master’s Hearing and Argument,
specifically, Husband’s access to a sizeable
brokerage account and family trust?
[2.] Did the Honorable Trial Court err and abuse its
Discretion by adopting the appraisal conducted
by Peter Porter of the marital residence when
the wrong square footage was used and the
value of the home was reduced by the entire
replacement cost of the roof and furnace?
[3.] Did the Honorable Trial Court err and abuse its
discretion by adopting the appraisal conducted
3 The record reflects that on July 11, 2018, Wife filed a notice of appeal of the
divorce decree at No. 2070 EDA 2018, and on July 13, 2018 Husband filed a
notice of appeal of the divorce decree at No. 2071 EDA 2018. On August 13,
2018, Husband and Wife filed a joint motion to consolidate the appeals at
Nos. 1542 and 1626 EDA 2018 with the appeals of the divorce decree at
Nos. 2070 and 2071 EDA 2018. This court dismissed the cross-appeals at
Nos. 2070 and 2071 EDA 2018 as duplicative and denied the joint motion for
consolidation as moot.
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by Peter Porter of the commercial property
when Mr. Porter is not a certified commercial
appraiser and failed to utilize the income
approach?
[4.] Did the Honorable Trial Court err and abuse its
discretion in finding that there was clear and
convincing evidence that Husband did not
intend the mortgage payoff of the commercial
property to be a gift but rather a loan to Wife
when the payoff was substantially less than the
appraised fair market value of the property?
[5.] Did the Honorable Trial Court err and abuse its
discretion in requiring Wife to make payments
to Husband in the amount of $1.700.00 monthly
at 7% interest when the current interest rate is
substantially lower?
Wife’s brief at 3-5.
Husband raises the following issues:
1. Whether the Trial Court erred as a matter of law
and/or abused its discretion in failing to award
Husband the monies Husband paid to satisfy the
mortgage on the parties’ commercial property
and the ongoing carrying charges to do so?
2. Whether the Trial Court erred as a matter of law
and/or abused its discretion in failing to award
Husband rental payments for the parties’
commercial property?
3. Whether the Trial Court erred as a matter of law
and/or abused its discretion in entering an
Order imposing an improper and discriminate
equitable distribution award?
Husband’s brief at 5.
The parties’ claims involve equitable distribution. A trial court has broad
discretion when fashioning an award of equitable distribution. Dalrymple v.
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Kilishek, 920 A.2d 1275, 1280 (Pa.Super. 2007). Our standard of review
when assessing the propriety of an order effectuating the equitable
distribution of marital property is “whether the trial court abused its discretion
by a misapplication of the law or failure to follow proper legal procedure.”
Smith v. Smith, 904 A.2d 15, 19 (Pa.Super. 2006) (citation omitted). We
do not lightly find an abuse of discretion, which requires a showing of clear
and convincing evidence. Id. This court will not find an “abuse of discretion”
unless the law has been “overridden or misapplied or the judgment exercised”
was “manifestly unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence in the certified record.” Wang v. Feng, 888
A.2d 882, 887 (Pa.Super. 2005). In determining the propriety of an equitable
distribution award, courts must consider the distribution scheme as a whole.
Id. “[W]e measure the circumstances of the case against the objective of
effectuating economic justice between the parties and achieving a just
determination of their property rights.” Schenk v. Schenk, 880 A.2d 633,
639 (Pa.Super. 2005) (citation omitted).
Moreover, it is within the province of the trial court to
weigh the evidence and decide credibility and this
Court will not reverse those determinations so long as
they are supported by the evidence. We are also
aware that a master’s report and recommendation,
although only advisory, is to be given the fullest
consideration, particularly on the question of
credibility of witnesses, because the master has the
opportunity to observe and assess the behavior and
demeanor of the parties.
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Childress v. Bogosian, 12 A.3d 448, 445-446 (Pa.Super. 2011) (quotation
marks and internal citations omitted).
Wife first complains that the trial court erred in adopting the master’s
recommendation with respect to the overall equitable distribution scheme
because the master failed to consider the economic circumstances of each
party; specifically, Husband’s access to a non-marital brokerage account.4
The record belies Wife’s claim.
When considering the factors set forth in the Divorce Code regarding
equitable division of marital property, the master addressed Factor 10, which
is the “economic circumstances of each party at the time the division of
property is to become effective.” 23 Pa.C.S.A. § 3502(a)(10). The master
concluded that:
[Husband and Wife] had substantial assets but also
had substantial debt. The parties have good
businesses and a stream of income to sustain them.
Husband has a pre-marital account with Morgan
Stanley. At the time of the hearing, this account had
an approximate value of $404,217.21.
Report and recommendation of divorce master, 11/17/17 at 3. Because the
record clearly demonstrates that the master considered the economic
4 We note that although Wife’s question presented on this issue includes a
reference to Husband’s family trust, Wife’s argument on this issue makes no
reference to Husband’s family trust.
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circumstances of the parties, including Husband’s non-marital brokerage
account, this claim lacks merit.5
Wife next complains that the trial court erred in adopting Peter Porter’s
appraisal of the marital residence because he used the incorrect square
footage and reduced the home’s value by the full replacement cost of the roof
and furnace.
The record reflects that Mr. Porter, Husband’s expert, calculated that
the parties’ marital residence consisted of 3,900 square feet of usable living
space. (Notes of testimony, 12/16/15 afternoon session at 118.) In arriving
at this calculation, Mr. Porter did not include the square footage of the
unfinished basement and the attic. (Id. at 119.) The record further reflects
that Mr. Porter testified that the most recent re-inspection of the residence
“showed evidence of failure of the roof shingles.” (Notes of testimony,
12/16/15 morning session at 10.) Additionally, Mr. Porter “was informed by
the owner that one of the boilers or furnace had also failed, need to be
replaced.” (Id. at 11.) Mr. Porter testified that the shingle and furnace
failures would diminish the value of the residence “in the range of Thirty Five
to Forty Thousand,” resulting in an appraised value of $538,000. (Id. at
5 We note that in her argument on this issue, Wife further complains that the
master’s equitable distribution scheme failed to promote economic justice
because the master used a deflated value for the marital residence, which was
ultimately awarded to Husband, and an inflated value for the Routes 6 & 590
commercial property, which was ultimately awarded to Wife. Wife raises these
claims in her Issue Nos. 2 and 3, and we dispose of them in our discussion of
those issues.
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11-12.) Mr. Porter arrived at the replacement costs by obtaining estimates
from a building contractor. (Id. at 40.)
Gerald Romanich,6 Wife’s expert, testified that he appraised the home
based on 5,312 square feet. (Notes of testimony, 12/16/15 afternoon session
at 5.) When asked where he got that figure from, Mr. Romanich responded
that “I got that number from [Wife.]” (Id.) Mr. Romanich further testified
that he would not have reduced the value of the home for the full replacement
costs of the roof and furnace because “[c]ost is not synonymous with value.”
(Id. at 9.) As such, Mr. Romanich would have reduced the value of the home
by 50 percent of the replacement costs. (Id. at 9-10.) Mr. Romanich’s
appraised value of the home was $771,600. (Id. at 5.)
The trial court adopted the master’s recommendation that Mr. Porter’s
appraised value be assigned to the marital residence, which appraised value
is supported by the evidence. Because it was in the province of the trial court
to weigh the evidence and decide the credibility of the parties’ experts, we will
not reverse the determination.
Wife next complains that the trial court erred in adopting Mr. Porter’s
appraisal of the Routes 6 and 590 commercial property
(“commercial property”) for three reasons. First, Wife contends that
Mr. Porter’s appraisal “contradict[s]” the master’s finding of fact that the
6We note that the record contains conflicts with respect to the correct spelling
of Wife’s expert’s surname. We will utilize “Romanich” throughout this
memorandum.
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“commercial property was appraised at $391,300.00 in July of 2015 by
Gerald [Romanich], Hawley, Pennsylvania.” (Wife’s brief at 20.) To the extent
that Wife claims that this finding of fact precluded the trial court from adopting
the master’s recommendation that Mr. Porter’s appraisal of the commercial
property be used, Wife is mistaken. This finding of fact merely set forth
Mr. Romanich’s appraised value of the commercial property, just as another
finding of fact set forth Mr. Porter’s appraised value of the commercial
property.7 Therefore, this claim lacks merit.
In her second and final assignments of error on this claim, Wife contends
that the trial court erred in adopting Mr. Porter’s valuation because he is not
certified as a commercial appraiser and he failed to use the income approach
to value the property. (Wife’s brief at 20-21.) Wife cites to no authority –
and we are aware of none – for her seeming proposition that a commercial
valuation must be performed by a commercial appraiser who must use the
income approach to valuation. Rather, Wife merely attacks Mr. Porter’s
credibility. Once again, because the record supports Mr. Porter’s valuation, it
was for the trial court to decide his credibility, and we will not reverse that
determination.
7 We note that the June 14, 2016 report and recommendation of divorce
master employs an incorrect numbering sequence. In that report,
Mr. Romanich’s appraised value of the commercial property is set forth on
page 4 at paragraph 36. Mr. Porter’s appraised value of the commercial
property is set forth on page 4 at paragraph 26.
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Wife next complains that the trial court erred in finding that there was
clear and convincing evidence that Husband’s mortgage payoff on the
commercial property was a loan to Wife, as opposed to a gift.
In her argument on this issue, Wife relies on Biese v. Biese, 979 A.2d
892 (Pa.Super. 2009). Wife’s reliance, however, is misplaced. In Biese, this
court reiterated the rule that where a spouse places separate property in joint
names, the law presumes a gift to the entireties absent clear and convincing
evidence to the contrary. Id. at 896 (citation omitted). Here, Wife does not
allege that Husband placed separate property in joint names; rather, Wife
alleges that Husband used separate property to pay off a mortgage on
property that was owned by Husband, Wife, and Wife’s parents. (Wife’s brief
at 22.) Therefore, Biese has no application.
Wife also contends that the payments she made to Husband were not
payments toward any loan obligation she had to him, but were merely her
contributions to marital debt. (Id. at 24.) Although the record reflects that
Wife testified that she never entered into mortgage loan agreement with
Husband, it also reflects that Husband testified that the parties agreed that
Wife would pay a mortgage to Husband. (Notes of testimony, 12/16/15 at
97-98, 130.) Clearly, the parties’ testimony conflicted. Once again, then, it
was for the trial court to decide credibility, and we will not reverse that
determination on appeal.
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Wife finally complains that the trial court erred when it required her to
pay her debt to husband by making monthly payments of $1,700 at a
7 percent interest because the current interest rate is 4 percent and “the
interest rate must be in line with current rates.” (Wife’s brief at 25-26.) The
record, however, reflects that Husband testified that the parties agreed that
Husband would hold the mortgage and wife would pay 7%.” (Notes of
testimony, 9/9/15 at 66.) Because the record supports the determination, we
will not disturb it on appeal.
Having disposed of Wife’s issues, we now address Husband’s complaints.
In his first assignment of error, Husband contends that the trial court erred or
abused its discretion by not awarding him the monies he paid to satisfy the
mortgage on the commercial property, together with carrying charges.
Husband’s argument on this issue contains excerpts from testimony regarding
Wife’s promise to pay back the loan and pay “whatever [she] could toward the
margin interest.” (Husband’s brief at 17.) Husband sets forth no meaningful
legal argument to support his claim that the trial court erred or abused its
discretion. As we have explained,
[w]hen briefing the various issues that have been
preserved, it is an appellant’s duty to present
arguments that are sufficiently developed for our
review. The brief must support the claims with
pertinent discussion, with references to the record and
with citations to legal authorities. We will not act as
counsel and will not develop arguments on behalf of
an appellant. Moreover, when defects in a brief
impede our ability to conduct meaningful appellate
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review, we may dismiss the appeal entirely or find
certain issues to be waived.
In re R.D., 44 A.3d 657, 674 (Pa.Super. 2012) (internal citations and
quotation marks omitted); see also Pa.R.A.P. 2119.
Husband’s failure to sufficiently develop his legal argument on this issue
impedes our ability to conduct meaningful appellate review. Therefore,
Husband waives this issue on appeal.
Husband next complains that the trial court erred “and/or abused its
discretion in failing to award him rental payments for Wife’s use of the
commercial property.” (Id. at 18.) Husband’s three-sentence argument on
this issue renders this claim incapable of meaningful appellate review.
Therefore, Husband waives this issue on appeal.
Finally, Husband claims that the trial court erred and/or abused its
discretion by imposing an “improper and discriminate equitable distribution
award; specifically, that Wife is “effectively being given 66% of the assets,”
which is an injustice. (Husband’s brief at 19-20.) Husband failed to raise this
issue in his exceptions to the master’s report.8 Therefore, Husband waives
8 We also note that Husband failed to raise this issue in his Rule 1925(b)
statement, and the trial court did not address it in its “statement of reasons”
pertaining to Husband.
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the issue on appeal.9 See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/19
9 We further note that even if Husband had preserved this issue with the trial
court, it would be waived for failure to advance a legal argument capable of
meaningful appellate review. See Pa.R.A.P. 2101. In his brief on this issue,
Husband expresses his dissatisfaction with the equitable distribution scheme,
rehashes what occurred below, identifies what he perceives as inequities, and
offers suggestions as to how this court could correct those perceived
inequities. Husband fails, however, to set forth a cogent legal argument that
supports a finding of error or an abuse of discretion.
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