Regula, R. v. Regula, A. ( 2015 )

J-A23027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RENEE L. REGULA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ANDREW S. REGULA
Appellee No. 1396 WDA 2014
Appeal from the Order August 4, 2014
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 08-004511-006
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 25, 2015
Renee Regula (“Wife”) appeals from the August 4, 2014 order the
Court of Common Pleas of Allegheny County distributing the parties’ marital
property and ordering Andrew S. Regula (“Husband”) to pay Wife alimony
and counsel fees. After our review, we affirm in part and reverse in part.
The parties were married in 1999 and separated in 2009. Husband,
age 43, and Wife, age 44, are the parents of one minor child, born in 2006.1
Husband is employed in medical equipment sales at Medtronic; he earns in
excess of $250,000 per year. Wife had worked as a hairstylist earning
____________________________________________
1
Wife has primary custody of the parties’ child, who attends a charter school
in the city of Pittsburgh.
J-A23027-15
approximately $51,000 per year, but reduced her hours when the parties’
child was born. She has not worked since 2011.2
From the date of separation, Husband enjoyed exclusive occupancy of
the marital home. His girlfriend moved into the marital home one month
after the parties separated. In September 2011, Husband ceased paying the
mortgage, real estate taxes and homeowner’s insurance ($2,551.58
monthly). At the time of the hearing before the Special Master, the marital
residence was in foreclosure. However, the court issued a stay and the
property eventually sold for $427,000. Wife received net proceeds of the
sale for purposes of paying off a tax lien related to the liquidation of her IRA,
which left her with $164 from the sale.
The Master recommended a 60/40 distribution in favor of Wife. The
Master found Husband was in possession of, or benefited from, the
following:
Merit Medical 401(k): $ 98,442
Marital Home: Fair Market Rental ($77,700)
Dissipation ($57,975) $135,675
Household Goods/Furniture: $ 10,000
TOTAL BENEFIT TO HUSBAND $244,117
The Master found Wife was in possession of, or benefited from, the
following:
____________________________________________
2
Wife was assigned an earning capacity of $26,707, which she has not
challenged
-2-
J-A23027-15
Pathfinder Federal Credit Union: $ 19,450
American Funds IRA $ 38,599
House proceeds: $ 10,425
TOTAL $ 68,474
Less liabilities:
Chase Credit Card: $ 8,806
2011 Tax lien on IRA proceeds: $10,261
TOTAL - $19,067
TOTAL BENEFIT TO WIFE: $49,407
Thus, the Master determined that the marital estate totaled $293,524,
($244,117+$49,407), that Wife was entitled to 60% of the marital estate, or
$176,114.40, and, therefore, Husband must pay Wife $126,707.40
($126,707.40+$49,407=$176,114.40).3 The Master noted that Husband
enjoys retirement benefits, medical benefits, car subsidies, and other
perquisites of his employment, and he has significantly greater sources of
income and is in a better position than Wife to acquire future capital assets.
The Master also noted that both parties are in good health, and that
Wife has primary custody of the parties’ child. The Master recommended
Husband pay 88% of the child’s tuition and extra-curricular activities costs,
____________________________________________
3
The Master determined Husband took out $40,000 in loans from the Merit
Medical IRA during the parties’ separation, without Wife’s consent, and, in
January 2010, he liquidated the account. Husband’s 401(k) and Wife’s IRA
were both depleted at the time of the hearing.
-3-
J-A23027-15
and that he pay Wife $2,000 in alimony each month for two years and
$10,000 in counsel fees. Both parties filed exceptions.
The trial court, in an order dated August 4, 2014, granted in part and
denied in part the parties’ exceptions, reducing the value of Husband’s Merit
Medical 401(k) from $98,442 to $48,827, reducing the fair rental credit from
$77,000 to $38,500, and ordering Husband to pay $300 each month toward
arrears. The court also determined that Husband was not responsible for
private school tuition.
Wife filed this timely appeal, and she raises the following claims for
our review:
1. The trial court entered an erroneous finding and
committed an abuse of discretion in determining that
the marital value of Husband’s Merit Medical 401(k) is
$48,827, and not $98,442 as recommended by the
Master;
2. The trial court entered an erroneous finding and
committed an abuse of discretion in denying Wife’s
Cross Exception to the Master’s Report #2, which
asserted that $42,250.00, of capital gains realized by
Husband from his investment of marital funds derived
from Merit Medical 401(k) withdrawals, should have
been identified as marital property and therefore
included as subject to equitable distribution;
3. The trial court entered an erroneous finding and
committed an abuse of discretion in determining that
the fair market value of the rental credit assigned to
Husband be set at $38,500, or one-half of $77,700 as
had been determined by the Master.
Our standard of review is well settled:
-4-
J-A23027-15
A trial court has broad discretion when fashioning an
award of equitable distribution. 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. We do not
lightly find an abuse of discretion, which requires a
showing of clear and convincing evidence. 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. 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.
Biese v. Biese, 979 A.2d 892, 895 (Pa. Super. 2009); see also Morgante
v. Morgante, 119 A.3d 382 (Pa. Super. 2015). Under section 3502(a) of
the Divorce Code, 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.” 23 Pa.C.S.A. § 3502(a).
Moreover, it is within the province of the trial court to weigh the evidence
and determine credibility; this Court will not reverse those determinations so
long as they are supported by the evidence. Childress v. Bogosian, 12
A.3d 448, 455–56 (Pa. Super. 2011) (internal citations omitted). 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
-5-
J-A23027-15
of credibility of witnesses, because the master has the opportunity to
observe and assess the behavior and demeanor of the parties. Id.In her first claim, Wife argues that the court erred in concluding that
the marital value of Husband’s 401(k) is $48,827, and not $98,442 as
determined by the Master. The trial court determined that Husband testified
that, prior to separation, he withdrew $30,000 from the Merit Medical 401(k)
for home repairs in order to prepare the home for sale. He also testified that
he liquidated the account and was taxed $19,615 on the withdrawal. 4 Wife
offered no evidence to contradict this testimony. The court, therefore,
accepted Husband’s unrebutted testimony and determined that Husband’s
401(k) was properly valued at $48,827 ($98,442 less the marital loan of
$30,000 and less the federal income tax liability of $19,615).
In determining the value of marital property, the court must rely on
the evidence submitted by both parties, and it is free to accept all, part, or
none of the testimony as to the true and correct value of property. Smith
v. Smith, 653 A.2d 1259, 1265-66 (Pa. Super. 1995); Aletto v. Aletto,
537 A.2d 1383 (Pa. Super. 1988). Further, “[w]here the evidence offered by
one party is uncontradicted, the court may adopt this value although the
resulting valuation would have been different if more accurate and complete
____________________________________________
4
See 23 Pa.C.S.A. § 3502(a)(10.1)(federal, state and local tax ramifications
associated with each asset to be divided, distributed or assigned, is a
relevant consideration in equitable distribution determination).
-6-
J-A23027-15
evidence had been presented.” Holland v. Holland, 588 A.2d 58, 60 (Pa.
Super. 1991); see also Anzalone v. Anzalone, 835 A.2d 773, 784 (Pa.
Super. 2003). In the instant case, the trial court did not abuse its discretion
in accepting Husband’s unrefuted testimony with respect to the Merit Medical
401(k).
Next, Wife argues that the trial court erred or abused its discretion in
failing to include as marital property $42,250 in capital gain realized from
the investment of funds Husband withdrew, post-separation, from his Merit
Medical 401(k) account. Husband testified that he liquidated his 401(k)
account and received $44,365.89; he invested $35,955 and made a profit of
$42,250, which he included on his tax return as capital gain. The capital
gain was not included in the marital assets subject to distribution.
Wife contends, “[c]learly, the capital gain was directly generated as a
result of investments made with marital funds[.]” Appellant’s Brief, at 17.
She argues that this gain is “property acquired in exchange for marital
assets” and is marital property under 23 Pa.C.S.A. § 3501(a)(4),5 and,
therefore, should have been subject to equitable distribution. Her argument,
____________________________________________
5
(a) General rule.--As used in this chapter, “marital property” means all
property acquired by either party during the marriage and the increase in
value of any nonmarital property acquired pursuant to paragraphs (1) and
(3) as measured and determined under subsection (a.1). However, marital
property does not include: . . . (4) Property acquired after final separation
until the date of divorce, except for property acquired in exchange for
marital assets. 23 Pa.C.S.A. § 3501(a)(4) (emphasis added).
-7-
J-A23027-15
however, has as its premise the fact that the profit was made from the use
of marital funds. This is not what the court, or the Master, determined. The
Master’s report states: “[I]n 2010, Husband earned $177,423/yr. plus
capital gains of $42,250 from non-marital stock options.” Master’s Report
and Recommendation, 12/17/13 at 3 n.5 (emphasis added). The trial court
agreed with the Master’s report and recommendation, stating that these
capital gains were “were from non-marital stock options and thus not marital
property.” Trial Court Opinion, 11/3/14, at 5-6. The fact that the court
went on to state that “[p]ost-separation gains from investments on his
marital portion of the 401(k) do not constitute property acquired in
exchange for marital assets[]” does not, as Wife argues, constitute a
manifest error of law. Though not artfully stated, the court’s use of the term
“marital portion” clearly referred to the non-marital stock options. We find
no error or abuse of discretion. Childress, supra; Biese, supra.Finally, Wife argues that the court erred and abused its discretion in
decreasing the fair rental value of the marital home from $77,000 to
$38,500. We agree.
The spouse who is out of possession must be compensated for his or
her rights and interests in the marital property. Schmidt v. Krug, 624 A.2d
183 (Pa. Super. 1993); Trembach v. Trembach, 615 A.2d 33, 37 (Pa.
Super. 1992); Hutnik v. Hutnik, 535 A.2d 151, 154 (Pa. Super. 1987).
Here, the parties purchased the marital home in January 2009; Wife and the
parties’ child moved out the following month. Husband’s girlfriend moved in
-8-
J-A23027-15
with him shortly after Wife left, and she remained in the house with him until
the house sold in June 2013. Wife made claims for fair rental value, as well
as for dissipation of the asset.
The Master determined that the net proceeds realized from the sale of
the house “were negatively impacted by the penalties, interest and costs
associated with Husband’s failure to pay the expenses of the house during
his residence therein and the mortgage foreclosure expenses.” Master’s
Report, supra, at 3. Wife’s expert real estate appraiser, Matt Stepanovich,
opined that the fair rental value of the property (5 bedrooms/3.5
bathrooms) was $3,700 per month. The Master determined Stepanovich
was credible. Thus, since Wife was out of possession for 21 months after
Husband ceased paying the mortgage, the benefit to Husband was $77,700
($3,700 x 21 = $77,700). Based on the 60/40 split, the Master
recommended Wife be awarded $46,620.
In his exceptions, Husband argued that Wife was not entitled to any
rental credit since she vacated the new house after only 36 days, leaving
him with all the obligations. However, the Master calculated the fair rental
value for the 21 months that Husband did not meet those obligations.
Master’s Report, supra at 5.
The trial court states that the Master “gave Wife credit of $77,700, or
100%, of the fair market rental value[.]” Trial Court Opinion, supra at 6. It
then went on to explain the four-step procedure for determining whether the
-9-
J-A23027-15
dispossessed party is entitled to a credit for the fair rental value of jointly
held marital property against a party in possession:
1. dispossessed party is entitled to credit, provided there are
no equitable defenses;
2. rental credit is based upon and limited by extent of parties’
interest in the property (generally ½);
3. fair rental value is limited to the time party is dispossessed
and other party is in actual or constructive possession;
4. party in possession is entitled to credit for payments made
to maintain the property
Trembach v. Trembach, 615 A.2d 33, 37 (Pa. Super. 1992).
After our review, we remand for a recalculation. Although we agree
with the trial court’s statement that Wife was not entitled to 100% of the fair
rental value, the Master awarded Wife 60% of that value ($46,620), as the
fair rental value of $77,700 was included as an asset in the marital estate.
Further, when the trial court reduced the value by half, to $38,850, it did
not, as far as we can tell from the court’s August 4, 2014 order and its
opinion, effectuate a one-half credit to Wife. If that value was simply
plugged into the prior $77,700 value, then Wife is not receiving the credit
she is due. The general rule is that the dispossessed party is entitled to a
credit for the fair rental value of jointly held marital property against a party
in possession of that property, provided that there are no equitable defenses
to the credit. Trembach, supra. The proper methodology for granting the
dispossessed spouse a credit for rental value is to deduct Wife’s share of the
rental value, here, $38,850, from Husband’s ultimate distribution of the
- 10 -
J-A23027-15
marital estate. See Butler v. Butler, 621 A.2d 659 (Pa. Super. 1993),
aff'd in part, rev'd in part on other grounds, 663 A.2d 148 (Pa. 1995). See
also 23 Pa.C.S.A. § 3502(a)(7).
Further, that value represents foregone revenue; it is not a marital
asset. Including it in the marital estate artificially inflates the value of the
marital estate and awards Husband 40% of that value. Here, Husband was
in exclusive possession and did not financially maintain the residence for
those 21 months on which the value was based. Therefore, not only is
Husband not entitled to a portion of that value (which occurred here), he is
not entitled to any deductions in Wife’s credit because he did not financially
maintain the former marital residence for those 21 months. Cf. Ressler v.
Ressler, 644 A.2d 753, (Pa. Super. 1994) (awarding wife $5,600 as fair
rental value for time wife was out of possession, without deductions for
payments husband made on loan secured by marital residence, was not
abuse of discretion where payments were not on original mortgage, but on
home equity loan taken out to enable husband to purchase new vehicle).
Further, contrary to the court’s statement that Wife was “awarded
$47,957 for dissipation,” Trial Court Opinion, supra at 7, that amount as
well was included in marital assets prior to the 60/40 equitable distribution
split.
For these reasons, the order is affirmed in part, reversed in part, and
remanded for recalculation. The court of common pleas is directed to carry
- 11 -
J-A23027-15
out what limited proceedings it deems necessary to settle the issues of fair
rental value and dissipation and to enter an appropriate order.
Affirmed in part; reversed in part and remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2015
- 12 -