Meske-Bremmer, B. v. Bremmer, E. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
BUNNI J. MESKE-BREMMER, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1889 MDA 2015
:
EDWARD C. BREMMER :
Appeal from the Order Entered September 28, 2015,
in the Court of Common Pleas of Columbia County
Domestic Relations Division at No. 1458-2011
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 10, 2016
Bunni J. Meske-Bremmer (“Wife”) appeals from the September 28,
2015 order entering a decree in divorce from Edward C. Bremmer
(“Husband”) and dismissing the parties’ exceptions to the master’s amended
report and recommendation incorporated therein. After careful review, we
affirm.
The relevant “findings of fact” were summarized in the master’s
February 23, 2015 amended report and recommendation and need not be
reiterated here. (See master’s report on remand, 2/23/15 at 2, ¶¶ 1-6.)
The parties were married on November 27, 1998, and separated on
September 23, 2011. On September 28, 2011, Wife filed a divorce
* Former Justice specially assigned to the Superior Court.
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complaint raising claims relating to, inter alia, equitable distribution of the
parties’ marital estate and alimony pendente lite. On October 28, 2011,
the trial court granted Wife exclusive possession of the marital residence and
precluded her from encumbering or selling marital property. (See trial court
order, 10/28/11 at ¶¶ 1, 4.) On February 5, 2013, Michael Dennehy, Esq.
(“Master Dennehy”), was appointed to address the parties’ claims, and a
hearing was ultimately conducted on April 29, 2014. Following the hearing,
Master Dennehy filed a report and recommendation on August 20, 2014.
(See master’s report, 8/20/14.) Thereafter, both parties filed exceptions to
Master Dennehy’s report and recommendation, and argument was scheduled
before the Honorable Brendan J. Vanston. Following argument, the trial
court determined that Master Dennehy had made several mathematical
errors that affected the equitable distribution scheme. Consequently, on
December 22, 2014, the trial court entered an order remanding this matter
with instructions to Master Dennehy to correct these errors and directing him
to file an amended report and recommendation. (See trial court order,
12/22/14) Specifically, the trial court noted as follows:
1. The Master made a mathematical calculation
error with respect to the parties’ equity in
certain realty. The correct amount of such
equity is $82,500.00 rather than $72[,]500.00.
2 The Master should have awarded [Wife’s]
401(K) fund to [Wife] in the correct amount of
$9,782.78, with an appropriated “offset” to
[Husband].
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3. The Master misstated the correct amount of
the mortgage balance[,] which should be
$33,782.78.
4. The Master should have utilized the “cash
Value” of [Wife’s] life insurance policy
($29,034.89) rather than it[]s “death benefit”
value ($117,099).
Id. at 1.
As noted, Master Dennehy complied with the trial court’s order and
filed an amended report and recommendation on February 23, 2015. Both
parties again filed exceptions, and argument was conducted on
September 23, 2015. Thereafter, on September 28, 2015, the trial court
entered an order dismissing the parties’ exceptions and adopting the
equitable distribution scheme set forth in Master Dennehy’s amended report
and recommendation. A decree in divorce was entered that same day. On
October 27, 2015, Wife filed a timely notice of appeal.1
On appeal, Wife raises the following issues for our review:
[A.] WHETHER THE TRIAL COURT ERRED IN NOT
FINDING THAT HUSBAND RECEIVED A
BENEFIT FROM THE INCREASE IN VALUE OF
WIFE’S PROPERTY AS THE INCREASE WAS
PLACED INTO THE EQUITABLE DISTRIBUTION
SCHEME?
[B.] WHETHER THE TRIAL COURT AND MASTER
ERRED IN NOT CONSIDERING ALL FACTORS
OF 23 PA.C.S.A. § 3502 AND IN ONLY
CONSIDERING THE CHANGE IN VALUE OF THE
MARITAL ESTATE IN DETERMINING EQUITABLE
DISTRIBUTION UPON REMAND?
1
Wife and the trial court have complied with Pa.R.A.P. 1925.
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[C.] WHETHER THE TRIAL COURT AND MASTER
ERRED IN NOT ORDERING A LARGER
DISTRIBUTION OF THE MARITAL ESTATE TO
WIFE AFTER CONSIDERATION OF ALL
FACTORS OF 23 PA.C.S.A. § 3502 AND
REMAND?
[D.] WHETHER THE TRIAL COURT AND MASTER
ERRED IN NOT CONSIDERING WIFE’S LARGE
CONTRIBUTIONS TO THE COLORADO
PROPERTY AND NOT DISTRIBUTING THAT
ASSET ON A DIFFERENT PERCENTAGE?
[E.] WHETHER THE TRIAL COURT AND MASTER
ERRED IN NOT INCREASING THE AMOUNT AND
DURATION OF ALIMONY AS THE TRIAL COURT
AND MASTER DID NOT REVIEW THE FACTORS
REQUIRED IN 23 PA.C.S.A. § 3701(B) AND
ONLY CONSIDERED THE SMALL PERCENTAGE
CHANGE IN THE SIZE OF THE MARITAL
ESTATE AND THUS MADE NO CHANGE?
Wife’s brief at 5 (capitalization in original; emphasis omitted).
The trial court has broad discretion in fashioning equitable distribution
awards, and proper appellate review dictates that we overturn such an
award only if the trial court has abused that discretion. Wang v. Feng, 888
A.2d 882, 887 (Pa.Super. 2005). “To assess whether the trial court abused
its discretion, we must determine whether the trial court misapplied the law
or failed to follow proper legal procedure.” Id. (citations omitted). “An
abuse of discretion is not found lightly, but only upon a showing of clear and
convincing evidence.” McCoy v. McCoy, 888 A.2d 906, 908 (Pa.Super.
2005) (internal quotation marks omitted).
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We begin by addressing Wife’s issues A, B, and D. Specifically, Wife
argues that Master Dennehy erred “in not finding that Husband received a
benefit from the increase in value of Wife’s property”[;] “in only considering
the change in value of the marital estate in determining equitable
distribution upon remand”[;] and “in not considering Wife’s larger
contributions to the Colorado property and not distributing the asset on a
different percentage.” (Wife’s brief at 12, 14, 21). We disagree.
The Divorce Code does not specify a particular method of valuing
assets. The divorce master and trial court must exercise discretion and rely
on the estimates, inventories, records of purchase prices, and appraisals
submitted by both parties. Smith v. Smith, 653 A.2d 1259, 1265
(Pa.Super. 1995), appeal denied, 663 A.2d 693 (Pa. 1995).
In determining the value of marital property,
the court is free to accept all, part or none of the
evidence as to the true and correct value of the
property. Where the evidence offered by one party
is uncontradicted, the court may adopt this value
even though the resulting valuation would have been
different if more accurate and complete evidence had
been presented. A trial court does not abuse its
discretion in adopting the only valuation submitted
by the parties. Absent a specific guideline in the
divorce code, the trial courts are given discretion to
choose the date of valuation of marital property[,]
which best provides for “economic justice” between
parties.
Baker v. Baker, 861 A.2d 298, 302 (Pa.Super. 2004), appeal denied, 918
A.2d 741 (Pa. 2007) (citations and internal quotation marks omitted).
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Wife’s claims hinge in large part on the credibility judgments of
Master Dennehy. We have consistently explained that the finder-of-fact is
entitled to weigh the evidence presented and to assess its credibility,
believing all, part, or none of it. Smith v. Smith, 904 A.2d 15, 20
(Pa.Super. 2006). Where, as here, a master “observed and heard the
testimony and demeanor of various witnesses,” we give the master’s
findings the fullest consideration. Anderson v. Anderson, 822 A.2d 824,
830 (Pa.Super. 2003).
Herein, the record reflects that Master Dennehy relied on the plethora
of exhibits submitted by the parties, as well as the testimony of each party
at the April 29, 2014 hearing, in determining the value of the parties’ marital
property. (See “Plaintiff’s Exhibits from Special Master Hearing,” Nos. 1-4,
6-14, 21-22A; “Defendant’s Exhibits from Special Master Hearing,”
Nos. 1-20; notes of testimony, 4/29/14 at 36-60, 94-139.) The trial court
found that “the testimony of the parties was often inconsistent” and
Master Dennehy “was in the best position to judge the credibility of [the]
witnesses[.]” (Trial court opinion, 11/10/15 at 2.) We similarly decline to
upset the credibility determinations of the fact-finder. “[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.
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(Pa.Super. 2003) (citation omitted). Accordingly, Wife’s claims challenging
Master Dennehy’s valuation of the parties’ marital assets must fail.
Wife also challenges the final equitable distribution scheme adopted by
the trial court in issues B and C. Specifically, Wife argues that the trial court
and Master Dennehy erred “in not considering all the factors of
[Section 3502,]” and “in not ordering a larger distribution of the marital
estate to Wife after consideration of all factors of [Section 3502] and
remand.” (Wife’s brief at 14, 18.) For the following reasons, we disagree.
This court has repeatedly explained that, “[i]n determining the
propriety of an equitable distribution award [], we must consider the
distribution scheme as a whole.” Schenk v. Schenk, 880 A.2d 633, 643
(Pa.Super. 2005). “We also remain cognizant that 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.” Id. (citation omitted). “[T]he trial court has the authority
to divide the award as the equities presented in the particular case may
require.” Teodorski v. Teodorski, 857 A.2d 194, 199-200 (Pa.Super.
2004) (citation and internal quotation marks omitted). “Further, when a
court divides the marital property, it must do so only after considering ‘all
relevant factors,’ including eleven specific factors listed in the Divorce Code.”
Id., citing 23 Pa.C.S.A. § 3502.
Pursuant to 23 Pa.C.S.A. § 3502(a), when
fashioning equitable distribution awards, the trial
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court must consider: the length of the marriage;
any prior marriages; age, health, skills, and
employability of the parties; sources of income and
needs of the parties; contributions of one party to
the increased earning power of the other party;
opportunity of each party for future acquisitions of
assets or income; contribution or dissipation of each
party to the acquisition, depreciation or appreciation
of marital property, value of each party’s separate
property, standard of living established during the
marriage; economic circumstances of each party and
whether the party will be serving as custodian of any
dependent children.
Mercatell v. Mercatell, 854 A.2d 609, 611 (Pa.Super. 2004) (citation
omitted). “The weight to be given to these statutory factors depends on the
facts of each case and is within the [fact-finder’s] discretion.” Schenk, 880
A.2d at 643 (citations omitted).
Instantly, we find the master expressly considered all of the relevant
factors in recommending a 50%-50% division of the parties’ marital
property. (See master’s report, 8/20/14 at 11; master’s report on remand,
2/23/15 at 6.) Those factors included Husband’s higher earning capacity,
the fact that the parties did not have children, and the parties’ “substantial
non-marital assets[,]” including Husband’s retirement account and Wife’s
“own separate residence with substantial equity[.]” (Master’s report,
8/20/14, at 10-11.) The master also considered the moderate duration of
the marriage; the parties’ respective ages, skills, and good health; and their
economic circumstances and liabilities. (Id.) Additionally, the master took
note of the fact that Wife’s father made substantial gifts to her in the form of
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cash and other property, the majority of which “were used by the parties
during the marriage or were invested into the marital residence” owned
solely by Wife. (Master’s report on remand, 2/23/15 at 6; see also
master’s report, 8/20/14 at 10.) The trial court agreed with the
recommended distribution scheme, concluding that it was “fair and equitable
under the circumstances.” (Trial court opinion, 11/10/15 at 2.)
Wife’s contentions on appeal merely challenge the weight to be
accorded the various factors, and as discussed, this matter is within the
province of the fact-finder, Master Dennehy, and not the appellate court.
See Schenk, 880 A.2d at 643; Moran, 839 A.2d at 1095. Herein,
Master Dennehy and the trial court gave due consideration to all of the
factors set forth in Section 3502 in arriving at an equitable distribution
scheme which, as a whole, achieved a just determination of the parties’
marital property. Accordingly, we find no abuse of the trial court’s discretion
in adopting Master Dennehy’s February 23, 2015 amended report and
recommendation.
Wife’s fifth and final issue relates to the trial court’s award of alimony.
Specifically, Wife argues that “[t]he trial court and Master [Dennehy] erred
in not increasing the amount and duration of alimony as the trial court did
not review the factors required in 23 Pa.C.S.A. § 3701(b) and only
considered the small percentage change in the size of the marital estate
. . . .” (Wife’s brief at 24; issue E (capitalization omitted).)
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We conduct our review of this issue according to the following
standard:
The role of an appellate court in reviewing
alimony orders is limited; we review only to
determine whether there has been an error of law or
abuse of discretion by the trial court. Absent an
abuse of discretion or insufficient evidence to sustain
the support order, this Court will not interfere with
the broad discretion afforded the trial court.
Smith, 904 A.2d at 20 (citation omitted).
In determining the nature, amount, duration, and manner of payment
of alimony, the following 17 factors set forth in Section 3701(b) must be
considered:
(1) The relative earnings and earning capacities of
the parties.
(2) The ages and the physical, mental and
emotional conditions of the parties.
(3) The sources of income of both parties,
including, but not limited to, medical,
retirement, insurance or other benefits.
(4) The expectancies and inheritances of the
parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education,
training or increased earning power of the
other party.
(7) The extent to which the earning power,
expenses or financial obligations of a party will
be affected by reason of serving as the
custodian of a minor child.
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(8) The standard of living of the parties
established during the marriage.
(9) The relative education of the parties and the
time necessary to acquire sufficient education
or training to enable the party seeking alimony
to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either
party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties
during the marriage. The marital misconduct
of either of the parties from the date of final
separation shall not be considered by the court
in its determinations relative to alimony,
except that the court shall consider the abuse
of one party by the other party. As used in
this paragraph, “abuse” shall have the
meaning given to it under section 6102
(relating to definitions).
(15) The Federal, State and local tax ramifications
of the alimony award.
(16) Whether the party seeking alimony lacks
sufficient property, including, but not limited
to, property distributed under Chapter 35
(relating to property rights), to provide for the
party's reasonable needs.
(17) Whether the party seeking alimony is incapable
of self-support through appropriate
employment.
23 Pa.C.S.A. § 3701(b); see also Isralsky v. Isralsky, 824 A.2d 1178,
1188 (Pa.Super. 2003).
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In the instant matter, Master Dennehy determined “that an award of
twelve (12) months of alimony [to Wife] in the amount of [$800.00] per
month would be appropriate under [Section] 3701 of the Divorce Code.”
(Master’s report on remand, 2/23/15 at 6.) In support of this conclusion,
Master Dennehy noted that Wife has a “substantial separate non-marital
residence” and that the parties’ marriage “was only of moderate duration.”
(Id.) Master Dennehy also directed the parties to his analysis in the initial
August 20, 2014 report and recommendation, wherein he reviewed the
Section 3701(b) factors at great length. (Id.; see also master’s report,
8/20/14 at 11-13.)
Following our careful review, we conclude that Master Dennehy
adequately examined the specific facts of this case and properly analyzed
the appropriate statutory factors in Section 3701 in determining Wife’s
reasonable needs and Husband’s ability to pay. The record supports
Master Dennehy’s findings, and therefore, we conclude that the trial court
did not abuse its discretion in adopting his alimony recommendation.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2016
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