Hess, R. v. Hess, J. ( 2019 )

J -S81025-18
2019 Pa. Super. 177
RODNEY S. HESS : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JUDY L. HESS
Appellant : No. 1251 MDA 2018
Appeal from the Decree Entered July 20, 2018
In the Court of Common Pleas of Columbia County Civil Division at
No(s): 2016 -CV -841 -DV
BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.
OPINION BY DUBOW, J.: FILED JUNE 03, 2019
Appellant, Judy L. Hess ("Wife"), appeals from the July 20, 2018 Divorce
Decree, which, inter alia, provided for the equitable distribution of the marital
assets of Wife and Appellee, Rodney S. Hess ("Husband"). She challenges the
court's consideration of Husband's SERS pension in its distribution of marital
assets. After careful review, we affirm.
The relevant factual and procedural history is as follows. Husband and
Wife married on April 10, 1999, which was a second marriage for both parties.
The couple was married for seventeen years and separated on July 22, 2016,
when Husband filed a Complaint in Divorce. Husband and Wife do not have
any children together; however, each party has adult children from a previous
marriage.
Husband is 64 years old and in good health. Husband currently works
part time at the Surplus Outlet in Briar Creek, Pennsylvania, unloading trucks
Former Justice specially assigned to the Superior Court.
J -S81025-18
and stocking freezers, and receives health insurance through this employer.
Husband served in the United States Air Force and National Guard prior to his
previous employment as a police officer and an installer for Direct TV.
Husband also worked for PennDOT, from which he retired in August of 2013.
On a monthly basis, Husband earns $600 from the Surplus Outlet, $1,062
from his Pennsylvania State Employee Retirement System ("SERS") pension,
which has been in pay status since August 2013, and $946 in Social Security
Benefits.
Wife is 51 years old and in good health. She has worked as a pharmacy
technician at Giant Markets since 2005, working an average of 32 hours per
week, and receives health insurance through this employer. Wife previously
worked as a school bus driver and in a factory. She is a high school graduate
and completed an additional two years of training to become a pharmacy
technician. Wife's gross income for 2016 was approximately $17,180 and for
2015 was approximately $19,843.
The marital property is comprised of a few vehicles, minimal debt,
retirement funds, and the marital residence valued at $101,000, which is
unencumbered by any mortgage or lien.
On March 29, 2018, after a Special Master's Hearing, the Master filed
a Report and Recommendations to the Court that recommended, inter alia,
awarding Wife 53% and Husband 47% of the marital assets and splitting the
-2
J -S81025-18
SERS pension equally.' On April 18, 2018, Husband filed Exceptions to the
Report.
On June 25, 2018, after reviewing briefs and hearing argument, the trial
court issued an Opinion and Order, which granted in part Husband's
Exceptions and, inter alia, ordered "an overall 55%-45% equitable division in
favor of Husband as to all assets other than the SERS pension, and a 65%-
35% division of the SERS pension" in favor of Husband. Trial Court Order and
Opinion, filed 6/25/18, at 11. On July 20, 2018, the trial court entered a Final
Decree in Divorce.
Wife timely appealed. Both Wife and the trial court complied with
Pa.R.A.P. 1925.
Wife raises the following issues on appeal:
I. Did the trial court misapply the law and abuse its discretion
when it determined that the [S]pecial [M]aster's calculation
of [Husband]'s income, which included [Husband]'s SERS
pension, was "double dipping[?"]
II. Did the trial court misapply the law and abuse its discretion
when it rejected the [S]pecial [M]aster's recommendations
and granted [Husband]'s exceptions?
Wife's Brief at 3 (some capitalization omitted).
Both of Wife's issues challenge the trial court's refusal to follow the
Special Master's Recommendations with respect to the distribution of
Husband's pension. We review a challenge to the trial court's equitable
' The Master also recommended that no alimony or counsel fees were due,
and neither party raised an Exception to those findings.
- 3 -
J -S81025-18
distribution scheme for an abuse of discretion. Brubaker v. Brubaker, 201
A.3d 180, 184 (Pa. Super. 2018) (citation omitted). "We do not lightly find an
abuse of discretion, which requires a showing of clear and convincing
evidence." Id. We 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." Carney v. Carney, 167 A.3d 127,
131 (Pa. Super. 2017). When reviewing an award of equitable distribution,
"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." Hayward v. Hayward, 868 A.2d
554, 558 (Pa. Super. 2005).
When determining the propriety of an equitable distribution award, this
Court must consider the distribution scheme as a whole. Mundy v. Mundy,
151 A.3d 230, 236 (Pa. Super. 2016). "We do not evaluate the propriety of
the distribution order upon our agreement with the court's actions nor do we
find a basis for reversal in the court's application of a single factor. Rather,
we look at the distribution as a whole in light of the court's overall application
of the 23 Pa.C.S.[] § 3502(a) factors for consideration in awarding equitable
distribution. If we fail to find an abuse of discretion, the order must stand."
Harvey v. Harvey, 167 A.3d 6, 17 (Pa. Super. 2017) (citation and internal
brackets omitted). Finally, "it is within the province of the trial court to weigh
the evidence and decide credibility and this Court will not reverse those
- 4 -
J -S81025-18
determinations so long as they are supported by the evidence." Brubaker,
201 A.3d at 184 (citation omitted).
In her first issue, Wife avers that the trial court misapplied the law and
abused its discretion when it "failed to consider Husband's SERS pension as
income for purposes of equitable distribution." Wife's Brief at 8. Specifically,
Wife argues that the trial court erred in relying on support cases to conclude
that the Master's method of calculating the 50/50 distribution of the SERS
pension impermissibly used "the income from a marital asset [(the pension)]
to determine the percentage distribution of all of the marital assets, a type of
'double dipping.' Trial Ct. Order and Op. at 3. See Wife's Brief at 8, 10-11.
For the following reasons, we find no error in the trial court's equitable
distribution scheme.
"A trial court has broad discretion when fashioning an award of equitable
distribution." Brubaker, 201 A.3d at 184 (citation omitted). "In making its
decision regarding equitable distribution, the trial court must consider at least
the eleven factors enumerated in 23 Pa.C.S.[] § 3502(a)." Isralsky v.
Isralsky, 824 A.2d 1178, 1191 (Pa. Super. 2003). However, there is no
standard formula guiding the division of marital property and the "method of
distribution derives from the facts of the individual case." Wang v. Feng,
888 A.2d 882, 888 (Pa. Super. 2005) (citation omitted). While the list of
factors in Section 3502 serves as a guideline for consideration, the list is
"neither exhaustive nor specific as to the weight to be given the various
factors." Id. (citation omitted). Accordingly, "the court has flexibility of
- 5 -
J -S81025-18
method and concomitantly assumes responsibility in rendering its decisions."
Id. (citation omitted).
Section 3502 provides, inter alia, that upon request from either party in
a divorce action:
the court shall equitably divide, distribute or assign, in kind or
otherwise, the marital property between the parties without
regard to marital misconduct in such percentages and in such
manner as the court deems just after considering all relevant
factors. The court may consider each marital asset or group of
assets independently and apply a different percentage to each
marital asset or group of assets.
23 Pa.C.S. § 3502(a). Among other factors, Section 3502 requires a trial
court to consider the "sources of income of both parties, including, but not
limited to, medical, retirement, insurance, or other benefits." 23 Pa.C.S. §
3502(a)(6).
In Pennsylvania, "[t]he amount of pension funds accrued during
marriage is marital property and subject to equitable distribution." Hayward
v. Hayward, 808 A.2d 232, 237 (Pa. Super. 2002) (citation omitted).
Additionally, this Court has repeatedly held that an asset awarded in equitable
distribution may not be included in an individual's income for purposes of
calculating support payments. See Miller v. Miller, 783 A.2d 832,835-36
(Pa. Super. 2001) (holding that money received from the sale of an asset
awarded in equitable distribution may not be included in an individual's income
for purposes of calculating support payments); Rohrer v. Rohrer, 715 A.2d
463,466 (Pa. Super. 1998) (stating that this Court does not condone "double
-6
J -S81025-18
dipping," i.e., using the same revenue as a source for "support" and "equitable
distribution"); Berry v. Berry, 898 A.2d 1100, 1105 (Pa. Super. 2006)
(holding that a partnership accrual account was marital property and,
therefore, the trial court erred when it considered it to be income).
In this case, the Master considered all of the Section 3502 factors but
put emphasis on the parties' ages and the Husband's income, noting that
Husband's income from the SERS pension "leaves him with that much greater
income than Wife." Master's Report, filed March 29, 2018, at 10. Upon
considering Husband's Exceptions to the Master's findings, the trial court
opined:
First, in regards to the SERS pension, in the first instance, the
Master's calculation does not contemplate that the Master ordered
half of the SERS benefit, or $531.09/mo., to be distributed to
Wife. This results in Wife's monthly income increasing to
$2,184.67, while decreasing Husband's income to $2,126.59.
Beyond that, the Master's method uses the income from a marital
asset (a pension in active pay status for years prior to separation)
to determine the percentage distribution of all the marital assets,
a type of "double dipping." This begs the chicken or the egg
conundrum: When relative incomes, presently and in the future,
is the major factor in driving the determination of the percentages
in equitable distribution, how does one know the end result
incomes of the parties (after equitable distribution) and apply this
factor without first determining the percentage distribution of the
pension asset already in pay status? Posing the question
illustrates the impossibility of solving the equation.
***
The aversion to considering pension income, where the pension
has been equitably distributed, has been extended to
considerations of alimony in addition to spousal support. The
idiosyncrasy of considering the pre -equitable distribution pension
- 7 -
J -S81025-18
income for equitable distribution, where that pension is already in
pay status, before one knows the post -equitable distribution
income to be left to each party, illustrates the "double dipping"
aversion should be applied in the present case.
Trial Ct. Order and Op. at 3-4.
This Court has long held that marital property subject to equitable
distribution may not be included in an individual's income for purposes of
calculating support payments, and has characterized such as "double
dipping." See Miller, 783 A.2d at 835-36; Rohrer, 715 A.2d at 466; Berry,
898 A.2d at 1105. Here, although there was no support ordered, the trial
court analogously characterized the Master's inclusion of Husband's SERS
pension in Husband's "amount" of income calculation for purposes of
determining equitable distribution to be a type of "double dipping" and refused
to follow the Master's recommendation. Instead, the trial court declined to
include the SERS pension, which is marital property subject to equitable
distribution, in Husband's "amount" of income calculation when making the
equitable distribution determination. We discern no error.
As stated above, there is no standard formula guiding the division of
marital property and a trial court has "flexibility of method" when making its
determination "from the facts of the individual case." See Wang, 888 A.2d
at 888. Moreover, we do not "find a basis for reversal in the court's application
of a single factor" but rather look at the distribution as a whole in light of the
court's overall application of the Section 3502 factors. See Harvey, 167 A.3d
at 17.
-8
J -S81025-18
The trial court engaged in a proper analysis of the Section 3502 factors,
including review of the source and amount of income that each party was
receiving, and found that "[t]he only factors of any weight are in Husband's
favor. This bodes in favor on an overall 55%-45% equitable division in favor
of Husband as to all assets other than the SERS pension, and a 65%-35%
division of the SERS pension." Trial Ct. Order and Op. at 11.
Our review of the record reveals that the record supports the trial court's
findings. Accordingly, we find no abuse of discretion.
In her second issue, Wife presents two arguments. She first avers that
the trial court misapplied the law and abused its discretion by improperly
analyzing a number of the Section 3502 factors when equitably distributing
the marital property. Wife's Brief at 8. Wife argues that the trial court failed
to consider Husband's part time employment as income when considering the
Section 3502 factors. Id. at 15.
In presenting this argument, Wife does not cite any legal authority or
engage in a discussion of the specific income totals to which she is referring
pursuant to Pa.R.A.P. 2119. Instead, Wife engages in a general discussion of
how the trial court erred when it considered when Husband is entitled to retire
and failed to consider when, and if, Wife is able to retire. Wife's Brief at 15-
16. Accordingly, to the extent that Wife asserts that the trial court erred when
it failed to consider Husband's part time employment as income, we find this
argument to be underdeveloped and, therefore, waived. See Pa.R.A.P. 2119
(describing briefing requirements); Hayward, 868 A.2d at 558 (finding that
- 9 -
J -S81025-18
husband waived issue when he failed to cite pertinent authority and engage
in a specific discussion of error with citation to record).
Wife next argues that in calculating its equitable distribution award, the
trial court failed to consider that Husband has possession of the only capital
asset in the marriage, the marital residence valued at $101,000. Wife's Brief
at 18. Additionally, she argues that the trial court failed to consider that Wife's
income fluctuates year to year, Wife only has one source of income, and Wife
made a significant contribution to the marital estate. Wife's Brief at 17-21.
Wife is essentially challenging the weight that the trial court placed on
different evidence when analyzing the Section 3502 factors to reach its
determination. Our review of the record reveals that the trial court engaged
in an analysis of the Section 3502 factors in making its equitable distribution
determination and the record supports the trial court's findings. We decline
to reweigh the evidence and find no abuse of discretion. See Brubaker, 201
A.3d at 184.
Decree affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 06/03/2019
- 10 -