Lilove, C. v. Lilove, S. ( 2018 )

J-A20009-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
CHAVA SALLY LILOVE, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
SHAUL LILOVE,
Appellant No. 1236 WDA 2017
Appeal from the Order Entered July 27, 2017
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD-12-006972-017
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 24, 2018
Shaul Lilove (Husband) appeals from the July 27, 2017 trial court order
that granted some of Husband’s exceptions to a master’s report and
recommendation, relating to the equitable distribution of Husband’s and
Chava Sally Lilove’s (Wife) marital assets. The report also denied some of
Husband’s exceptions.1 After review, we affirm.
The master’s report provided the following, extensive history of the
case:
The parties hereto met at a matchmaking party in Crown
Heights/New York City. Husband is Israeli but was in New York
City attending Yeshiva.1 Wife was born and raised in Texas and
was in New York on business. After only a two[-]month courtship,
they married in Israel on March 13, 1991. They resided in Israel
____________________________________________
1 Likewise, the same order granted some of Wife’s exceptions to the master’s
report and denied others.
J-A20009-19
until 20072 when they moved to Pittsburgh. The decision to move
to the USA was decided for several reasons. Their daughter Chaya
had come to the USA with [Wife] and [her g]randmother when
she graduated high school and loved it. Husband was seeking
better employment opportunities, and Wife believed she would be
able to obtain better employment in the USA as well. The parties
separated on April 20, 2012. Wife filed for Divorce on that same
day.
1 Husband has dual citizenship. He became a US citizen in
2011 but has returned to Israel since separation.
2 There was an 11[-]month stay in Houston, Texas during
which time their second child, Gur, was born. But the
parties returned to Israel. Their [other children,] 1st[]
Mendel[,] 3rd Chaya, 4th Levi and 5th Israel were all born in
Israel. The four oldest children are now emancipated and
only Israel remains a minor. The child support from Israel
was reduced to $410/mo.[,] which is the [s]tate[-]ordered
guideline amount for one child.
The parties are CHABAD Hassidic Jews and researched cities
that would provide the family with an orthodox school for their
children and an orthodox community for synagogue, friends and
environment. Eventually, although neither had any family in
Pittsburgh, they decided that it offered what they were looking
for. With a gift of $10,000 from Husband’s [m]other, Wife moved
to Pittsburgh along with the two oldest boys in the Fall of 2007.3
She found the family a three bedroom, 2 bath townhouse on
Bartlett Street in Squirrel Hill, obtained furniture to prepare for
the arrival of the rest of the family, and the children began school.
Husband followed with the three younger children in late February
2008. The parties remained in this rental townhouse until 2009
when they purchased the house at 6327 Phillips Avenue in Squirrel
Hill.4 This is a 3,030 sq.ft. 6 bedroom, 2-1/2 bath home which
has been at the center of controversy since the parties separated.5
3 Throughout the parties’ marriage, they were dependent
upon either his parents or hers to provide necessary support
for them. When they lived in Israel, Husband’s Father
provided them with first [one] apartment and then a larger
condo. Meanwhile, Wife’s [m]other provided cash
transfusions into Wife’s bank account on a regular basis.
Even with family support, there were times that the parties
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were on Public Assistance and have shopped regularly at the
Squirrel Hill food bank.
4 Again, the parties depended on Husband’s [m]other and
Wife’s [m]other to purchase and furnish the house.
5 This house has no mortgage. Wife has done her best to
pay the taxes and upkeep, but the house is in need of
repairs both structural and cosmetic.
Wife discussed her work history in Israel and in the United
States. In Israel, Wife testified that her inability to speak fluent
Hebrew was a barrier to her getting jobs. However[,] [s]he did
have two good jobs during the time the parties lived in Israel.
Prior to marriage, Wife earned a degree in Public Relations from
the University of Texas in 1984. She also took several certificate
courses while she lived in Israel.
As previously mentioned, the parties are very orthodox.
Wife filed for the divorce in Pennsylvania. However, based on their
faith, Wife requested that Husband cooperate with her in obtaining
a “Get[,]” which is a religious divorce. Husband agreed and in
December 2012, the parties drove down to Baltimore to ask for a
Get from the Rabbi/authorities that were empowered to grant one.
They filled out all of the paper work and came back to Pittsburgh
and waited for the final documents to be sent from Baltimore to
Pittsburgh. In early January [of] 2013, Wife received notice from
their Rabbi that the Get had been received. She immediately went
down to the synagogue to pick it up. When Husband came home
from work that afternoon, Wife told him that she had the Get and
that he needed to leave the house. Under Jewish law, Husband
and Wife could no longer reside together in the same home as
they were no longer married, even if they lived in separate
bedrooms. Husband packed his bag and moved in with friends.
Husband had been working at Pinsker’s in Squirrel Hill for several
months prior to this separation. It was the best job he ever had
financially during the parties’ marriage, including their time in
Pittsburgh. But, instead of seeking an apartment in Pittsburgh,
he immediately quit his job at Pinsker’s and very shortly thereafter
moved back to lsrael.6, 7, 8
6 Based on the Get, Husband immediately remarried in
Israel, despite the fact that the [d]ivorce in Pittsburgh was
still pending. Even as of the date of the hearing, the parties
were still married to one another under Pennsylvania law.
7 Husband left all of his outstanding credit card bills behind.
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8 Husband left numerous unpaid debts when he left for
Israel. Fortunately[,] most were in his name alone so the
creditors could not come after Wife.
Husband provided no support for Wife or the 2 minor
children who remained with Wife when he went back to Israel.
Eventually Wife filed for support in the Israeli courts and began
receiving $820/mo. in child support about 15 months later. She
has received no alimony pendente lite or other support for herself
since this litigation began. Wife has survived on gifts from her
[m]other and several part-time jobs that she has managed to get.
In 2013[,] she worked part time as a media planner, a home
improvement salesperson at Sears and was a nanny for a local
lawyer two days a week caring for his 2 children and preparing
the family meals. In January 2014, Wife broke her ankle. This
was a severe injury and required surgery with plates, wires, and
[p]ins. It took her 6 months to recover, using physical therapy,
crutches and a wheelchair.
After Wife recovered from her broken ankle, she decided to
go back to school. She attended the California University of
Pennsylvania and eventually received a Master’s Degree in
exercise science and wellness coaching. She took out a $27,265
school loan but has been unable to make any payments to date.
She now owes $29,721.66. Her efforts to find a job in her new
field have been fruitless. She made applications to UPMC for 4
different positions as well as many additional applications to
possible employers, to no avail. She eventually entered into a
contractual relationship with Michael Zaretsky, owner of the
Greater Pittsburgh Wellness Club near the Fox Chapel Yacht Club.
If the Club finds a client for her, they get 50% of whatever she
makes. If she finds her own client, but uses their facility, she has
to pay them 20% of what she makes. So far, she has met with
just 1 client. Wife has also opened and registered a new business
called “Wellistics”, her new wellness coaching business[,] but has
had no business from it to date.
Husband professes to having little to no income at the
present time as he ostensibly takes care of his [m]other, who has
Alzheimers.9 Husband’s testimony reveals that his entire work
history is checkered with long periods of unemployment. When
the parties lived in Israel, Wife was the principle wage[]earner on
more than one occasion, despite being [m]other to 5 children.
After the family moved to the USA, Husband decided that he would
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shoot wedding videos. He limited his marketing to orthodox
Jewish weddings in Pittsburgh or elsewhere if he could obtain
work. Wife did his marketing and scheduling and tried to get as
many as possible. She prepared a Website called “Only Simchas
That Come[,]”10 which she marketed to newly engaged Jewish
couples. This business was not successful. He did obtain one
video assignment[,] which took him to Poland. The fee for the job
was $10,000. However, when all was said and done, he received
only $3,300 as the “employer” bought him a new video camera[,]
which he retained when the job was done. Husband said that his
clients were all “very fussy” and so it took him “a lot of time” to
edit and produce the product for his clients. The best job Husband
ever had was acquired just 6 months before the parties separated.
That job was at Pinsker’s store in Squirrel Hill. He was being paid
$15/hr. for a 40[-]hour week, which would have provided him with
gross earnings of $31,000/yr. if he had stayed. Instead, he quit
that job and went back to Israel[,] leaving Wife and the 2 minor
children to fend for themselves.11
9 This assertion that he takes care of his [m]other is belied
by the fact that he keeps returning to the USA each year for
very extended periods. In 2016[,] he came back to
Pittsburgh from May 17 through September 23rd and then
again from November 2016 through February 28, 2017. In
addition, Husband’s [m]other has a full-time caretaker
Mondays-Fridays[,] who is paid $1,620 via insurance. In
addition, Husband testified that his brother pays for all of
their [m]other’s expenses.
10 Simchas are happy occasions or blessings in Yiddish, like
weddings, bar/bat mitzvahs, baby namings, engagement
parties, [and] family events.
11 Husband testified that he paid [for] Chaya, their daughter,
to go back to Israel, but the evidence shows that it was Wife
who purchased the ticket for Chaya.
Husband testified that he earned approximately $800[,]
which he used to buy himself and Levi, the fourth son, [] cell
phones. He testified he voluntarily gave/gives $500/mo. to
Chaya, who is the parties’ emancipated adult daughter. In April
2013[,] he says he bought Levi and Israel clothes for Passover.
But until Wife filed for support in the Israeli courts, he sent her
nothing. He also testified that he “loaned” Mendel, the parties’
oldest son, $5,600 so that he could buy a car. No documentation
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of any sort confirms Husband’s testimony as to any of the above
“gifts” he made to the children.
Master’s Report and Recommendation, 3/20/17, at 2-5.
The master then noted that the marital residence and the increase in
Husband’s pension were the only two marital assets. The master
recommended that the house be sold “as is” with the proceeds divided 65%
to Wife and 35% to Husband. The personal property in the house was to
remain with Wife, but if any items were sold, the net amount was to be divided
60% to Wife and 40% to Husband. As for Husband’s Israeli pension,2 the
master recommended that Husband solely retain his interest since Wife was
to receive a greater percentage of the proceeds from the marital residence.
The master also responded to Wife’s request for retroactive alimony pendent
lite (APL), recognizing that Husband had never contributed to the support of
Wife since leaving in 2013. The master stated that she would grant this
requist, “but for the fact that Husband is returning to Israel and [Wife] will
never receive it.” Id. at 6. Moreover, the master explained that this denial
further supported the “disproportionate award in Wife’s favor in the equitable
distribution of the only marital asset here in the United States.” Id. Lastly,
the master recommended that Husband was to pay Wife’s counsel $3,500 in
legal fees she has incurred in pursuit of this divorce.
____________________________________________
2 No information about Husband’s pension was provided to the master, neither
the current value nor the value at the date of the parties’ marriage.
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Both parties filed exceptions, some of which were granted by the trial
court. Pertinent to the issues raised in this appeal by Husband, we recognize
that Husband’s exceptions #3 and #8 were granted in part.3 Specifically, in
granting these two exceptions, the trial court stated:
Husband’s Exception #3 is GRANTED in part. Both parties
stipulated during the hearing that Wife was in possession of
marital assets consisting of an E*Trade account with a value of
$3,496 and a Citizens Bank account with a value of $5,735. These
marital assets shall be subject to distribution with 60% awarded
to Wife and 40% awarded to Husband based on the [m]aster’s
[r]ecommendation of the equitable distribution scheme. There
was testimony offered during the hearing that Wife received the
parties’ 2012 IRS tax refund for her expenses. The exact value of
said refund was unsupported by the [r]ecord. Therefore, this
asset is not subject to allocation.
. . .
Husband’s Exception #8 is granted in part. The Master erred in
awarding $3,500 in counsel fees to Wife. The award is hereby
reduced to $1,300, which represents a sanction against Husband
under 52 Pa.C.S.[] § 2503 for Wife’s representation regarding the
Israel proceedings and the jurisdiction motion Wife’s counsel
presented in Allegheny County in 2015.
____________________________________________
3 Husband’s exceptions #3 and #8 state:
3. The Master failed to value all marital assets, including the
marital home, the marital home’s fair rental value, the value of
marital personality and the value of marital funds in the
possession of plaintiff-Wife.
...
8. The Master’s award of attorneys’ fees in the amount of
$3,500.00 is contrary to the evidence and to Pennsylvania law.
Further, [H]usband is without means to pay the same.
Husband’s Exceptions to the Master’s Report and Recommendation, 9/21/17.
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Trial Court Order, 7/27/17, at 1-2.
Husband appealed to this Court from the July 27, 2017 order, raising
the following seven issues:
a. Did the trial court abuse its discretion by refusing to award
[Husband] a rental value/credit for the period of time the trial
court awarded exclusive possession to [Wife] of the marital
residence?
b. Did the trial court abuse its discretion by not providing a fair
and equitable distribution of marital residence and further
compound the err [sic] by issuing a self-contradicting order as
to the distribution scheme?
c. Did the trial court abuse its discretion by allowing [Wife] to
retain marital property without assessing its value and
withholding the same from the equitable distribution scheme?
d. Did the trial court abuse its discretion by sanctioning [Husband]
in the amount of $1,300.00 for participating in an Israeli
proceeding that [Wife] initiated?
e. Did the trial court abuse its discretion by ordering [Husband]
to pay a higher percentage of the repair costs for the marital
residence than his equitable share of the property?
f. Did the trial court abuse its discretion in denying [Husband’s]
request for a new trial as the result of not being provided a fair
and impartial hearing?
g. Did the trial court abuse its discretion by denying [Husband]
the opportunity to complete his cross-examination of [Wife]
and to impeach her through documents and inconsistent
statements?
Husband’s brief at 5-6.
The following principles guide our review:
Our standard of review in assessing the propriety of a
marital property distribution is whether the trial court
abused its discretion by a misapplication of the law or
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failure to follow proper legal procedure. An abuse of
discretion is not found lightly, but only upon a showing
of clear and convincing evidence.
Smith v. Smith, 904 A.2d 15, 18 (Pa. Super. 2006) (quoting
McCoy v. McCoy, 888 A.2d 906, 908 (Pa. Super. 2005)). As we
previously observed, in the context of an equitable distribution of
marital property, a trial court has the authority to divide the award
as the equities presented in the particular case may require.
Mercatell [v. Mercatell], 854 A.2d [609,] 611 [(Pa. Super.
2004)]. “In determining the propriety of an equitable distribution
award, courts must consider the distribution scheme as a whole.
We 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.” Morgante v.
Morgante, 119 A.3d 382, 387 (Pa. Super. 2015) (quoting Biese
v. Biese, 979 A.2d 892, 895 (Pa. Super. 2009)). “[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.” Moran v.
Moran, 839 A.2d 1091, 1095 (Pa. Super. 2003).
Cook v. Cook, 186 A.3d 1015, 1025-26 (Pa. Super. 2018).
We have reviewed the certified record, the briefs of the parties, the
applicable law, and the analysis provided by the Honorable Jennifer Satler of
the Court of Common Pleas of Allegheny County, dated October 12, 2017. We
conclude that Judge Satler appropriately and correctly disposes of the issues
raised by Husband and, accordingly, we adopt that opinion as our own and
affirm the order on appeal on that basis.
Order affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2018
- 10 -
Circulated 09/14/2018 03:27 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
fAMILYDIVISIO.N
,..
C.BAVA SALLYLILOYE,. No.i FI) J2-Q06972
Plaintiff,
v.
OPXNJ.ON
SHA..l)L LILOVE,
Defendant. BY:
HONORABLE JENNIFER -SATLEB._
507:f.Family Law Center
440 'Ross :St(�yt
Pittsburgh, PA 152J9
' COPIES,TO:
Prose- Bl�Jntiff:
6327 Phillips Avenue
Pittsburgh, FA 152.1;7
Counsel .for Defendant:'
Joseph Chester, :E.�q.
429 Fourth Avenue
Suite.1806
Pittsburgh, PA i52;l9:
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANiA
FAMILY DIVISION
CHAYA SALLY LIL.OVB, No.: :FD 12-.006972
Plaintiff;
v.
SHAUL LILQVE,
Defendant,
Opinion
SATLER,J. October 11,; 2017
Defendant .appeals th.i$ .Court's Order dated July 1,7; 2CH7 stemming from Defendant's
Exceptions and Plaintiff's ··cross-Ex<;:�ptions regarding equitable distribution of the parties'
marital estate, Defendant submitted the. following Err.or$ via a Notice of Appeal and Concise.
Statement of Matters Complained of on Appeal filcd.SeptemberZl., 20.17:
1. Thy trial court erred In denying..Defendant's request fora new trial.oas Defendant was
notprovided. a fair.and Impartial hearing. · ·
2, The trial court erred in denying Defendant's ·r�quesf for art award of xent owed for
periods .of time that he was out ofpossession of the mariI�l residence .due to: a grant of
.exclusive possession, . ··
3. The trial court erred by allowing Plaintiffto retain.marital property whbouf assessing
.its value .and subjectingif to equitable distribution under. the di$trJbµtfon scheme.
4. The· trial -eeurt erred �Y' dGny1ng_ Defendant .a fair and equitable distribution scheme
based upon 'the evidence. of.record and issuing a self-contradicting award scheme as to the
marital residence.
5., The trial court erred by denying Defendant an opportunity to complete' his cross-
examination of Plaintiff and to impeach her through documents and' .Inconsistent
statements,
6. Tbe trial court erred in assessingpenalties in the: amount of $1,.300 against Defendant
for Plaintiff's representation. in Israel for proceedings: that she iniriated.
7, The trial court erred 'in ordering Defendant to pay 50% of the· repair]s] costs of the·
marital, residence, · · .. ··
Each ofthese errors will, be addressed .in turn.
1. Tobe. trial court .erred iii dehying Defendant's request.for.a new trial, as Defendant was. not
provided a fair and impartial hearing:
On Exceptions, Husband argued that .the Master's Report and Recommendation .s.bquld,°b.e.
rejected and. a new hearing-should be set. 'because Jh� Report was the result of bias. Husband
argued that fh.�'. 'Master 'improperly testified as a witness OJI. behalf of ·ww�· in 'violation of
Pennsylvania Rule bf Evidence .6QS. Wife; argued 'that the Master was. p�rmi.tt.�q to· examine, a'
wi tness under Pennsy 1 va ilia. Rufo of .EvJd.�riGe 61.4 .and' any statements madeby the M�st�f '91) 'the
Record do not represent Impartiality-or bias.
Duringthe Hearing, the M��ter madethe followingstaternents.on Record:
Attorney Koblinsky; "I. just want to g�t on tile record since they called 'you a pol ygamisf
in pretrialsiaterrrents," ·
Master: "No, .I said ih Pennsylvania be would be considered a polygamist because he
i�gc1.Ily married to· his Wife
remarried: under the .laws of. another ·cotihlfy while he.was .still
here in Allegheny-County." ·
'Transcript 2/9/17; 'p. 88 .
. Master: "To t! court' that had no Jurisdiction: over the property in Pennsylvania .or th�
:wu� -. No jurisdiction," . ..
Attorney J{qbHnky: ·"B.ut she. came into the };ra,�.H court, To claim that.Israel (ll�..not have
ju.ris.dictton over Chava is.not true. 'She came 'info. the Israel �OJ.Ht and' said, my client-"
· Master: '''J know what your position. Xt\ wrong, Mr. Koblinsky. It's .toJ�Uy wrong; So
' don 't: pursue -it. If you think I 'm cu tting. you. ·off Without- giving you a ·chan:ee, lo 'present .it;
I then· you can.file exceptions on' ii." · ·
I
'Transcript 2/7/17, p. 272.
Attorney Koblinsky: "I wouldjust: note for jhe .record+"
AttorneyGlasser: ''.r:,l'Q, you .don'tget to note anything for the record."
Master! "You can't.note: anythingfor the· record."
. Attorney Kobl.fosb: "I -arn not getting, the same courtesies, 'that weregiven .to Mr. (jJa.�SYX
' on 'Juesday by either Mr. Glasser (rorn rne or- by the 'Court while J was' questioning
witnesses, .I'm Just making that for the record."!
Transcript 2/9/17, p. 142.
Attorney Kobylinski: And .are you anticipating this will be a full-time.job?
· Wife:·No.
Attorney, Kobylinski: So, you' would. .only sell :part time?
1
·Wife: I don't know wbat would be. offered.. I would have to see what the offer is .and :hQW
'it.fils "in.
Masters.I can 'tellyou, 'When you become an insurance agent; tfi�y give yo.u .a minimum
monthly draw. Bllt you.are expected to· sell..And ifyou .don'tsell, you are eventually pay
that back. ·So, if you dotr'tworkat 1t,ifyou don'talreadyhavelinedupan entireworld of
people »'ho- want to help yousell insurance, i!1i not the way to- make money: , .. Otherwise,
., i.'t's ·a. hard slot. Because 'if you look irr the phone 'book, there are. il zillion insurance age.l)'ts:
all in Allegheny County already, And you will be starting.out fresh.
Wife.; Thank you.
Transcript. 2/7/17, p·. 2·18.
'' .. . .
"While not .capable pf exact. definition, the basic elements of': procedural due process are·
' .
adequate 'notice, opportunity to be heard, and the chance 'to defend oneself before a. fair and
impartial tribunal having· jurisdiction .of the case." Commw. V. Thompson, 281 A.29' 8.56; 858
(Pa. 1971). The aforementioned statements were extraneous and had 110 bearing oii the equitable
.
distribufion hearing or its' outcome .. "the statements themselves did not �.xbibh .a bias Ma failure.
I . .
to xe1ain impartial on the 'part of the Master. Both. 'parties.' due ,ptoces� rights were honored
.
duringthe 'hearing. This Courtfound.that the Master. did. noterror 01,- this, point.
2. The.trial court erred in denyingDefendant's request foran .award of rentowed for periodsof
time that.he was out ofpossession of the, marital residence due .toa ·grant of exclusive possession.
I •
I
Husband argued .on Exceptions that he. was entitled to rental credit for the-periods, of time.
I
During this exchange, Attorney Koblinsky was interrupting: Attorney Glasser's .. direct
qamiriatiort ·of Wlfe. Attorney Glasser was questioning Wife about t.be equitable .distribution
petitio�,.she. filed When Attorney ·Koblinsky wantedto put the Petit.ion:'s· date oh the Record •.
that he was out of possession of the-marital residence. It has been .eslablished that ''it. is Within
'
the· discretion of the (ria.i courf.to,$pint rental value as a partofequitable distribution." Trembach
v. Trembach, 615 A.2d 33,. ;,7' (Pa. 'Super. Ct. .1992) .. In- Trembath, the: Cou rt stated, "The bas.is- of
Ihe award of rental value. .is that: the p��!Y out .ofpossession of jointly owned _prqp�rty (generally
the party that has moved out of. the former .marital residence) .is entitled to compensation for
h�r/,his interest in the property," Id-. The -Court went on fo explain;
.fh.$J, the general rnJe 'is that the dlspossessed -patty is entitled lo acredit: for
the fair teiita't value .ofJ.pintly held maritakpropertyagainsra partyinrpossession 9.t 0:1.c�t
property, provided there: are no: equitable. defenses to the credit. Second,
the renta] creditis based upon, aha therefore 'limited :bJ·,. the extent of the·
dispossessed party's. interest 'in the. property..Generally.', .in regard to themarltalhome, the:
parties' have al) equal.one-half interest In the marital 'property, It 'follows, :th.yrefor�,: that
'ln cases jnvolving the. rnarita] 'home. that the .dispossessed party. w1H 'be· enffiJe·a to
.a. creditfor one-half of the fair rental value of the marital home,' Third; 'the. rental value :fo
limited tothe period Qf time during which '; aparty is dispossessed and the otherpartyis.It;
actual or constructive possession of the. property, Fourth, the party Jp possession .is
entitled to .a.credit against the rental value (or payments.made to .maintain the: property QQ
behalf of. the .dispossessed spouse. Generally, in regard ro the former marital residence,
payments made .on behalf of the .dispossessed spouse' will be one-half of the expenses
including debt service. on the :property. Thi�: is so.because equity places a ·presu_rop(iQn
upon · the dispossessed spouse- of responsibility for; expenses to the. exjen; of her/his
ownership interest, Which Is .generally one-half. Finally, w� note: that whether
the rental creditis due .and the amount: thereof ls within the sound discretion ofthe CPWt
o.f; common pleas.
Trembacii, ·615 A.2o at.�7,(interrial citations omitted).
"WbJI� each .rarty js ·entitled "to ii:1-s· or herequitableshare ·of .maii_ti,t.1 property, fricfo_qfog
'
the fair rental value.of t,l:1� marital residence, the trial court..need..not co·m_pu t� that equitable .share
.
as a credit to the non-possessory
.
spouse,
.
_qs long as the total distribution scheme
.is equitable, In equitably distributing-the fair rental Value between the parties, the trialcourt must
considerthe efforts .of each. p�_rly to preserve ·tbat asset." Scheeman v: Scheeman, 615 A,2d. 13'69
(l:'a.. S.upet. ,et. l99_2).
Wff..e. testified that .she remained in.the marital residence, one of the parties" only assets,
after Husband returned to Israel ·�t the end of 20J2; Trabscrlpt -'2J7/l7; p. 28,.29. Husband'
.
attempted to argue ih�.t he was excluded from· the .marital residence, _and. therefore should have
been given rental credit. !t�t::· Record, however, shows that Husband was only- excluded from. the
marital residence after he· abandoned Wife and the children· cit the end "bf December .2012
following the obtainment. of .a Ghet.2 Transcript 2/7/l 7; p; 28�29, Husband 'fled to Israel. and
never .returned to the marital residence, Transcript 217/17.; p. -29. in JuJy 2013, Judge Cozza
granted.interim exclusive possession 'to Wife 'based on the .fi:J�i that Husband had Jeft the, country
and moved to Israel. Although there. .is no ·mortgage on the residence, Wife'.s residence in the
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home likely. keptthehome in better shape thanit.would have been if both parties abandoned. th�
property, Given· the .overall dl§.ti:.ib�ition: scheme; the lack Qf alimony; and Husband's
abandonment of the marital residence, this Court denied Husband's Exception. finding that the
Master acted within her discretion in not awarding Husband rental credit
3.. The trial court erred by allowing Plaintiff to retain, marital property without .assessing its value
and, subjecting it to equitable distribution under the distribution scheme.
the Master "included the marital residence, Husband's pension and the property in the.
marital: residence in the marital estate. Husband filed Exceptions ·argu_ing Ihat the Master failed ·10
a�sign a value .. tq: marital property in Wife's possession and failed. to include certain propeffy. in
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the overall distribution of the marital estate. Specifically, Husband argued th_at Wife was :i1J
possession bf marital property in. the· 'form of foio separate bank accounts.meither of which were
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included .in the· overall distribution .. Husband a_rgue·d that ·Wi.fe. was in 'possession of the-parties"
2012·.ll�S tax refund, which.was not 'included .in the marital estate. Husband also argued that
Wife created a business, ,a value. for whi9.h was 'unassigned. Lastly, Husband argued that the
Master erred in failing toassign a valueIo the personal ·propeqy within· the marital residencethat
2 A Ghei is a divorce by Jewish Law. Transcript
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2/7/i 7,. P. .. 28'.
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was distributed to Wife,
2J t�a. ·CS.A. §3501; defines marital propert y as '"all property acquired by either' party
during· the .marriage 'and the increase '.jll value of" any- non-marital property."
In regards ·to· the E*Trade account and, Citizens bank account, .the '_p-arties· stipulated as
follows. during. the. hearing:
Attorney QI assen "So, we would stipulate that at the time- of .separation, 'Wife. had the
following assets .in her: possession, An. -'E:'5':trad_e .account wit}} a value of $t49.6. A Citiz_ens
account with a value of $5/7.35. That.was a.bank.accQllIJ(.>)Transcri.pt:2/7/i 7; p. 73..
Attorney Glasser; '·'That;�· a .stipulation. bo we agree on those (hiogs?" "Transcript 2/1ti\
p. 74,
Attorney .:Ko_b_li'nsky: '!Yes," Transcript 2!7i17, P. ".7.4,,
Despite this stipulation; the Master faJ\�cJ to include the. value-of the E'*Ti-�de account.and the·
.Citizeris bank: account inthe.marital' estate as. �Q asset.distributed to Wife.,
As to·the./2012 tax return, '\Vif� testified thatshe retained.the parties' ·2012.IRS .inecme
tax return. Transcript 217/.i.7" p. 254. Wife, however, was. unable to state to. the exact amount she:
received. Transcript 2/7/.11., p, 254. She testified that it was around $7,000; Transcript 2/7/17-,:.P.·-
2$5. Neither' party offered evidence of the actual. value of the income tax return. Transcript
2/7/17: p. _255. Given this lack of substantiating evidence, .It was' not error. ·On 'the
.earl bf th�
Master' to exclude this value.from tlre.marital estate,
Wife created.a business-during the· marriage called Main Event, LLC, wnich was .s.iill 'in .
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existence -at the. time ,oft.he hearing•. Transcript 2/7/17, p. '148·, ·W·ife: testified.ihowever, that even
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though .the business was. registered, .it never- generated .an Income or profit Transcript -2/7/17� p.
148,. Wlfe,;acknowledge.d that 'there 'i!va
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website for the business, but,:jf fa not active. Transcript.
2/7/17., ·p, _1'4$. Wife. explained' that she,·do�& .no: pay· an .annual regisjration fee, Transcript 2/7/J:1,
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p; )49. !Bas�d on. Wife's testimony, this Court . found that the Master did not error 'in. failing to
.include Wife'�· business in the marital estate because H has not ,g�nera.ted income Jot Wffe.
Further, neither partyoffered exp·err testimony regarding what the· value ofthe business could be,
Ultirnately, this: Court enteredthe followlng Orderon Husband 's Exception regarding; the
accounts, Wife'sbusiness.rand the tRS 'tax refund:
Husband's. Exception .#3·is GRANTED in part. Both parties :stipul<,1,ty:d during the hearing
that Wife was in. possession: of marital assets consisting of an E*Trade account with, a·
value of :$3A96 .and a Citizens· Bank account with a value of $5;635. The�� marital assets
shall be subject to distribution with 60% awarded to Wife and 40%. awarded to Husband
based on the Master's Recommendation of the equitable .distribution scheme, there was
, .testimony offered during the heating that Wife .received the parties' 20i2 lRS. tax -refund
for her expenses, The exact value of said refund was unsupported by the, Record,
Therefore, this asset is not subject to, allocation.,
July 27, 2017 -OrdcrofCourt.
With regards 'to .the marital property 'Wife. retained, W{f�. testified that when the· parties
purchased the marital r��idence·, they bought: Vario�s. furniture pieces from ,garate sales -and
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estate. sales.as well as a Jew· stores, Transcrip! 2/7./17> .P· 297/307.. Wife stated that porch table
and chairs were purchased. for under one hundred dollars, Trail�qipt 2/7117; p. 305·. Wife. also
stated that theparties, purchased furniture for the masterbedroom from an estate sale .. Transcript
"2/7iFJ-,. p. 3.06. There was a bed .and desk ·pµ,rciuised. from Costco .and .Staples •. Tran script _2/7i17,
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p. Jot Lastly, a Gauch and coffee table were 'purchased. through a: furniture.. store for .one
thousandtwo hundred dollars. Transcri pt 2/7/17, p. ;307. Wife explained thatany other furniture.
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in the home came from the parties" previous residence Qr was ib the. marital ptoper�y upon
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purchare'. Transcript 2/7117, p. 30t 'Based onthis testimony, thy Master.Recommended:
AH of the personal, property in the marital residence shall remainwith. Wife{m use .in her .
.new: residence . .If she sells .. �JJ:Y of the furniture or furnishings, after any- costs associated
with the sale have been recouped, the· net shall. be divided 60% to Wife and 4()% to
Husband, The Master failed ro assign a value -to the .pr�peny :tl\�t was awarded.to Wife,
In light .of the value of the ·pr.operry, 'the. distribution scheme as, ·a whole, the fact- that the
parties' .minor child remains w.1th Wife, and the caveat that a1ty sale proceeds are to be shared
with Husband, there was no error on 'the part ofthe .Master.irr t.his Recommendation,
:4',: The· 1tti�l court erred 'by denying Defendant a· f�ir and equitable. d.b;trib.tHi61,1,&�heme. based upon
the evidence of :re<;:ord 'and issuing .a.self-contradicting award scheme as· to themarital residence,
The Master Recommended t_hat the sale proceeds from. i6e marital residence be. d)yided,
6$% 'to Wi�e and 35% to Husband. the Master· further Recommended that; if' Wife sells-any of
the personal property in the· marital residence, 'the-proceeds shall be, divided ,60% to Wife and
AO% �ci Husband. The: other marital asset subject to -distribution was Husband's Israel pension/a
value, of which was unable to be assigned, Husband ·.was. :awaraed tfos ·entire a$stt1.n ligfu bf H1e·
disproportionate _perce_ntag� of 'the house proceeds. Following the Master's Recommendation,
Husband filed Exceptions arguing that. the distribution was not fair or equitable and. .self-
contradicting-given the differentpercentages' for the asse.ts .
Equitable distribution is governed by.23: Pa.. C.S.A. ·�3$02, which provides:
(�). General.rule. Upon the, request .ofeither party in .an .actiou.for. divorce or annulment,
the. court shall eqtJh.ably divide, distribute -or .assign, in kind. or otherwise, tbe.· marital
prop�rty between theparties without regard to marital.misconduct in suchpercentages
and in such manner as 'the .court deems. just .after' .considerlng .all relevant factors. The
court .may consider each marital asset or group .qf assets independently and .. apply a,
I different percentage. toeach maritalasset or group of assets, Factors whi.�h are· relevantto
'the equitable division of marital 'property ·indude the following:
(1). The length -of the marriage,
(2) Any prior marriage of eitherparty .
. (3) The age, health, .station, amount arid sources of .incorne, vocational skills;
employability, estate, liabilities and needs ·of eachofthe parties, ·
.(4) The· contribution by one party, to the: education, training or increased. earning
power of the otherparty.
{�)'Thy. opportunity of each party for future acquisitions. of 'capital. assets and
Income ..
($)-The. sources of income ·of both parties, including, but no; limited to, medical,
retirement, insurance .or other benefits,
(7)Th� .conjribution or dissipation of each party in the, acquisition; preservation,
depreciation-or appreciation ·of 'the· ma_rifaL-piop�xty; including the -contribution of-
a party as homemaker. · ·
(8)'Thy,yalµe of the property set apart to each party.
. (9) The. standard ofIiving of the parties established during the marriage.
:(10) The· economic circumstances of each' party at the time the division,_ of
property i_s. to become effective.
(10.I} The· Federal, :S_tate and focal 'tax .ramifications associated with each
asset to. be: divided, distributed .or assigned, Which rarnifications need 'not
be Immediate.and certain...
(102) The: expense' of sale> transfer. -or 'liquidation associated w1t,h a-
particufar -�sset, which.expense .need not. be immediateand Gerta in.
(1.l) ·W{i!;!Jher the party wil] be :Serving as· the CU$t99fan of any dependent minor
children; · · ··
2:l �J>a. C.S.A. §3502.
When. determining the appropriate distribution scheme, "the- ·court must .not presume
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a 50/50 distribution but.must considerall reJevantfactotsYAndt:rsQn. v.Anderson, 822' A2P 8_241.
826 (P�. Super. CL 2003),
First.Husband argues that the self-contradicting nature of'the Master's. Recommendation
was an abuse. of discretion, The relevant statute specifically states when determiningequitable,
distribution of martial assets, "The court may consider each marital asset. or group.. of .assets.
independently and a.pply .a different percentage. to, each marital asset ·ot.group of assets." 23 Pii.
(:.5.A... §3502-. A.s such, the Master's' use; o.( Qi_ff�r1ngJiercerttagy!>· was not. ah .abuse -of.discrejion.
Husband also argued that lhe Master failed.to properlyexplain the consideration of each
factor: under Section 35.02-. The statute, however, merely provides· the relevant factors 'to be,
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considered, The parties were married on March 13, 199i and 'separated April 20, 2012.
Trans?ript-2/7/17, p. 6. After -separation, Wife obtained a. 'Master's Degree. in exercise science
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and wellness coaching; which is burdened by a $29, 72L66 student Joan: Tr<).IJ$cdpt2/7/17, p. 34;
36. Wife' has been unable to obtain full-time employment in n.et field. Transcript 2/7/J 7, p .. 35-.
Husband testified to having.little to no income, as.he ls taking care of hi� A.lzheimel's burdened
mother. Transcript .2/9/1.7;, p. 71-80. Husband does. not possess a higher education that· would
assist .irr obtaining future employment or assets, Further, Husband's employment history is
inconsistent. Transcript 2/9/17, p. 71-80. Neither party testified to possession of assets outside of
the marital estate. Ne}th�l. party contributed to the education .or ·traiiiin� o.f the other, Wife
arguably has a greater opportunity· for the: acqulsition of:inGome;. however; she .has been .u.nab.Ie to:
obtain employment. in her field since obtaining: the degree, The marital estate: is smal)
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considering the ·dJ1.rntion =of the· marriage. :Jt consists mainly ofthe marita] residence, which. Jsto
by .sold .by the parties, ;in.cl Husband's. Israel pension, .avalue of which could not be assigned.
·wmi remains in the mat-ital residence where she 'isthe primary custodian ofthe parties' .minor.
child'., Transcdpf2/7/.l\ p. 12. The parties' emancipated children have also temporarily taken.
'residencewith Mother in the 'United 'States. Ti'ansctipt:2/7/11, P.· 12. The Master explained when,
makingher Recommendation that she "has reviewed all of the fa�torn set forth fo.'Sectfon 2$0)
of the Pennsylvania Divorce Code of 1980 as amended." Upon review of the. Record and the.
factors provided in Section 2503, \hii;. Court determined th_aJ there was. no error in. the Master's
distributlon scheme as Recommended.
S. the trial court erred by denying Defendant .an opportunity to complete his. cross-examination
pf Plaintiff.and to impeach .her through documents .and' inconsistent. statements,
: Husband filedthefollowingexception to the 'Master's· Reportand Recommendation:
' The Master refused .to permi]: defendant-Husband to establish plaintif{Wi.'.fe· had, perjured
I herself: .Plaintiff--Wjfe. offered, unsolicited testimony .about the rarity of her 'international
I travels, when. defendantul'Iusband demanded her to .allow 'inspection of he! passports after
serving 'her with proper notice, the. Master sustained plaintiff. Wife's. objection,
Husband failed to file Exceptions asserting that he· was unable to complete his .cross-
examination, A� such; this.issuehas beenwaived,
On Exceptions, Defendant argued that the Master committed reversible. error by failing to·
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permit Defendant to inspect Plaintiff's passport: and question her regarding the same after .she
testified to 'traveling only on limited occasions.
Pennsylvania Rule of Civil Procedure '.23.4.3 provides:
(a) A party may compel the attendance of anotherparty or, an officer or managing agent:
thereof for trial or bearing by serving upon that party a. notice to attend substantially
in . the form· prescribed by R"1le. 234.7.. The notice, shall be served reasonably in
advance of the date lJP.9.n which attendance is required, The 'notice may 'also require
the. party to produce documents or things;
fa. R.C.P; '2J4 ..
In Sm.Ith, .a credit card holder was given 48 hours nonce. via facsimile to .appear In a debt
collector's trial. It.was determined that said notice.was unreasonable..Commw. Fin. Systems, Inc.
v. Smith, rs A_.3.d 492, 500· (Pa . .Su_pet Q, :2011)·. The Court; stated, • "At a minimum, the floors on the two levels need to be
changed!' Transcript 2/7/171 p. 100. Wife explained that the plaster walls were in need of repair.
Transcript 2/7/17, p. 101. Wife also stated, "There are structural problems. There is some water
that's leaking from the basement. So, there are repairs and I've actually done some of those
repairs, but they came back. So the water is 'teaking. Those would be the bare minimum. The
kitchen could use new, some type of cabinets. They are falling a paper. That would be able to
sell. But I would at least want the bare minimum. The paint, the plaster, the carpeting."
Transcript 2/7/17, p. 101-102. Wife stated that she would be willing to split the cost of the
repairs with Husband upon sale. Transcript 2/7/171 p. 102.
In response, the Master stated, "Usually what we do ls we suggest that all repairs that are
suggested by the realtor as necessary to maximize the sale price.en the house should be attended
to." Transcript 2/7/17, p. 102. Despite this statement, the Master recommended that the house be
sold "as-is." 23 Pa. C.S.A. §3323 provides, "In all matrimonial causes, the court shall have full
equity power and jurisdiction and may issue injunctions or other orders which are necessaryto
protect the interests of the parties." 23 Pa. C:S.A. '§3502·task� the court with .equitabjydividing,
distributing or �ssignins,the. marital property between the parties in such percentages-and in such,
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manner as the court deems.just:
This Court determined t_fo1tthe Master abused her discretion in Recommending that.the
marital residence be sold "as-is." tn order to 'maximize profits obtained from the sale of tb.�
marital property and protect the. financial, interest of the parties, this Court.found 'that the parties
should follow the· recommendations of a real estate .Professional regarding.repairs, This would
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ftu1;1rantee that the. parties" maximize profits from the 'sale of the marital residence, which
comprises .a majority of. the patties! marital, estate. As such, this Courtordered:'
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Wffe?s Cross-Exception #i is GRANTED. Whhin "45 days. following, the entry o a.
:&voice: decree, in this matter .and Jfos. Order. becoming, final, the parties .shall agree upor» a
realtor to list· the marital 'residence for sale and follow the recommendations of said
realtor' inGiuding 0:1�-- suggested fis.t.i�g. price of the property If any repairs, - as.
.recommended ·by the. realtor, heed to be· made on. .the marital residence 'in. .ordcr to
maximize the sale .price Qf the property ,. said; repairs shall be completed, Both parties shall
share equally in the costsof the: repairs, ··
Irr the Interest of equi�Y., the· repairs were Ordered. to be· sp,Ht between the parties. The
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property: was marital .and utilized by both panics and their' children UJJ.W Husband opted to leave
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the Vnit�d States and return to Israel. Exclusive possession was .granted to W1fe only after
Husbandhad voluntarily left the country, abandoning the marital residence.
BY Tf-_IE 'COU.RT:'·
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H_ONORABLE J°E;NNIFER, $ATLER