McGinley, M. v. Philpott, P. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MOLLIE MCGINLEY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL J. PHILPOTT
Appellant No. 1251 MDA 2016
Appeal from the Order Entered July 11, 2016
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 10736 of 2013
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 31, 2017
Appellant, Paul J. Philpott (“Husband”), appeals pro se from the order
entered in the Luzerne County Court of Common Pleas, finalizing his divorce
from Appellee, Mollie McGinley (“Wife”). The parties’ marriage lasted fewer
than five months. Husband argues the court erred in its distribution of the
marital estate, and in its refusal to grant him alimony pendente lite (“APL”)
or spousal support during the proceedings. After a careful review of the
record, we affirm.
The facts and procedural history of this case are as follows. Husband
and Wife were married for fewer than five months. On September 10, 2013,
Wife filed a complaint in divorce, seeking equitable distribution of the marital
assets. Husband filed an answer and a counterclaim, seeking spousal
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support, APL, and alimony.1 Following a two-year separation, the court
issued an order stating that Husband and Wife met the residence
requirement in Pennsylvania’s divorce code, that the parties lived separate
and apart for over two years, and the marriage had been irretrievably
broken. The court appointed a Master in divorce to adjudicate the remaining
claims at issue, and the Master held a hearing.
In his report and recommendations, the Master recommended the
court enter a decree in divorce, based on the court’s own prior findings. The
Master also made the following findings in his report: Husband is employed
in various fields, and was evasive when the court questioned him about his
current income levels; Wife is employed as a radiologist; neither party
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1
Prior to Wife’s filing of the divorce complaint at issue in Luzerne County,
Husband filed a complaint for spousal support and APL in Lackawanna
County. Lackawanna County ultimately denied Husband’s request for spousal
support and APL following a hearing. Husband attempted to appeal the issue
to our Court, and we quashed the appeal as interlocutory. To the extent
Husband attempts to raise this issue to our Court in the instant appeal from
the divorce action in Luzerne County, this is procedurally erroneous and we
will not consider these arguments. The Luzerne County court stated in its
opinion that it could not rule on the merits of Husband’s issue due to res
judicata, given that Husband raised that identical issue and the court
entered an order denying it in Lackawanna County. “[I]t is well settled that
the doctrine of res judicata applies to prevent litigants from bearing the
burden of re-litigating the same issues with the same parties, and to
promote judicial economy.” In re N.A., 116 A.3d 1144, 1148 (Pa. Super.
2015) (citation omitted). Husband’s earlier choice not to coordinate the
actions under Pa.R.C.P. 213.1 means that he cannot now appeal his
Lackawanna County issue from this Luzerne County action. Following the
Luzerne County court’s grant of divorce, Husband was then able to appeal
from the dismissal of his prior Lackawanna County complaint for spousal
support and APL.
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identified material liabilities other than a loan on the vehicle Husband
retained; neither spouse contributed to the education or increased earning
power of the other spouse; Wife continued to provide medical insurance for
Husband; neither party acted as a homemaker and the parties acquired little
property during the length of the marriage; the parties did not establish a
set standard of living given the short length of the marriage; both parties
had ample income or the ability to secure ample income to provide for their
individual needs; and Husband had not paid any child support to Wife at the
time of the hearing. Based on these findings, the Master stated that were
the issue of APL or spousal support properly before him, he would find that
Husband was not entitled to either. Husband withdrew his claim for alimony
at the hearing.
As for equitable distribution of the parties’ assets, the Master made
additional recommendations, finding: the vehicle Husband retained had a net
value for purposes of equitable distribution of $12,166.00; Husband took
Wife’s personal, non-marital property for his own use and benefit, including
furniture Wife had purchased; the personal property Husband took from Wife
had a value of $8,206.00 when adjusted for depreciation; Wife had a
$10,100.00 increase in her bank accounts which should be regarded as
marital property, along with a $64.00 increase in her 401K account, and an
IMac computer valued at $1,000.00; Husband submitted no credible
evidence to show that Wife’s stock acquisition prior to the date of the
marriage should be considered marital property; the parties agreed that an
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engagement ring Wife sold would be placed in a 529 account for the benefit
of the parties’ son; Husband’s contention that he is entitled to a $966.67
refund related to his medical expenses that Wife paid for is without merit;
the marital estate should be distributed with 52% going to Husband and
48% to Wife; based on these calculations and the property each party has
retained, Husband owes Wife an equalization payment in the amount of
$3,973.28.
Husband filed exceptions to the Master’s report and recommendation.
Thereafter, the trial court denied Husband’s exceptions, adopted the
Master’s report and recommendation as an order of the court, and entered a
decree in divorce. Husband timely filed a notice of appeal and complied with
Pa.R.A.P. 1925(b).
On appeal, Husband argues a litany of issues, several of which are not
properly before us. We decline to address Husband’s spousal support and
APL claims, given our above footnote regarding the procedural improprieties
at issue here. Turning to Husband’s contentions regarding the equitable
distribution order, our standard of review in equitable distribution matters is
as follows.
It is well established that absent an abuse of discretion on the
part of the trial court, we will not reverse an award of equitable
distribution. [In addition,] [w]hen reviewing the record of the
proceedings, we are guided by the fact that trial courts have
broad equitable powers to effectuate [economic] justice and we
will find an abuse of discretion only if the trial court misapplied
the laws or failed to follow proper legal procedures. [Further,]
[t]he finder of fact is free to believe all, part, or none of the
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evidence and the Superior Court will not disturb the credibility
determinations of the court below.
Anzalone v. Anzalone, 835 A.2d 773, 780 (Pa. Super. 2003) (citation
omitted; brackets in original). “[A] master may be appointed to hear
ancillary economic claims prior to the entry of a divorce decree if grounds for
divorce have been established.” Raines v. Raines, 149 A.3d 375, 379 (Pa.
Super. 2016) (citation omitted).
There is no simple formula by which to divide marital property; the
method of distribution derives from the facts of the individual case. See
Gaydos v. Gaydos, 693 A.2d 1368, 1376 (Pa. Super. 1997). In fashioning
an equitable distribution award, the trial court must consider, at a minimum,
the eleven factors set forth in 23 Pa.C.S.A. § 3502, Equitable division of
marital property, (a) General rule. “The courts attempt to split property
equitably, instead of equally, taking into consideration such factors as length
of marriage, the contributions of both spouses, ages and health of each
spouse.” Taper v. Taper, 939 A.2d 969, 974 (Pa. Super. 2007) (citation
omitted). Moreover, a trial court may accept all, some, or none of the
submitted testimony in determining the value of marital property. See
Isralsky v. Isralsky, 824 A.2d 1178, 1185 (Pa. Super. 2003).
In his brief, Husband argues the trial court unreasonably compressed
the timeline for trial, and failed to permit him adequate opportunity for
discovery. Husband claims this procedural defect prejudiced him by unjustly
deflating his equitable distribution award. We disagree. Wife filed for divorce
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on September 10, 2013. Husband refused to consent to the divorce, and
thus proceedings in divorce did not resume until two years later, at which
time the court appointed the Master to hold a hearing. Prior to the hearing,
Wife’s counsel filed answers to all of Husband’s discovery requests and
provided requested documents. By contrast, Husband failed to provide
information on his own assets and earnings prior to and throughout the
hearing. Husband did not subpoena any person or records in order to expand
on the already provided discovery. Husband had ample opportunity to
independently verify Wife’s earnings and assets. Therefore, we cannot agree
with his present contention that he was unfairly rushed during the discovery
process.
Husband also attempts to put forth several tangled claims regarding
Wife’s business assets and the value of certain marital property. Husband
protests Wife’s “willful withholding” of her personal financial information,
then uses the same allegedly withheld information to advance a claim that
the Master miscalculated the business assets eligible for equitable
distribution. Additionally, Husband asserts the Master erred by overvaluing
Husband’s vehicle, misreading bank statements, refusing to count a refund
issued to Wife for Husband’s medical expenses as marital property, rejecting
Husband’s testimony regarding the value of the parties’ wedding bands, and
asserting Husband retained nonmarital property belonging to Wife. Husband
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concludes the trial court erred by accepting the Master’s findings. We
disagree.
Instantly, the Master heard testimony from both parties regarding the
value of Wife’s partnership in her medical firm. See N.T., 2/24/16 at 77-80,
127-135. Both Husband and Wife also testified as to the value of Wife’s bank
accounts at the beginning and end of the marriage. See id. at 87-99, 135-
142. Husband claimed at the hearing that Wife disposed of over $20,000.00
in assets immediately following the conclusion of the parties’ marriage. See
id. However, in his testimony Husband merely speculated about the
necessity of certain expenses and disputed the math Wife’s attorney used to
calculate Wife’s bank balance increase during the duration of the marriage,
rather than providing any evidence to support his accusations. The Master
found Wife testified credibly about her income and her assets in her bank
account and at the firm. The Master also found Husband was unable to
substantiate his accusation that Wife concealed assets with any
documentation or other evidence. We agree with the Master’s assessment,
and decline to find any abuse of discretion in the court’s decision to adopt
these findings.
Similarly, Husband’s other issues lack merit. The notes of testimony
from the hearing belie Husband’s argument regarding the valuation of his
vehicle. Husband agreed the $10,384.00 lien value stated by Wife’s counsel
was “in the ballpark,” and failed to present additional information to show
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otherwise. Id., at 36. Using this agreed-upon value, as well as the
undisputed contributions each party provided at time of the vehicle’s
purchase, the Master calculated the marital property portion of the vehicle.
The Master found that both parties were unable to submit credible evidence
about the value of their respective wedding bands, and so it excluded these
from the equitable distribution calculations. The Master also found Husband
retained property that Wife purchased prior to the parties’ marriage, based
on receipts Wife submitted which gave details regarding the purchases.
Husband’s contentions to the contrary, including that Wife was not entitled
to the value of the nonmarital property Husband retained because she did
not make a “serious effort to reclaim” it, are not supported by the record.
See Husband’s Brief, at 47. Finally, the Master found Husband was not
entitled to a refund for medical expenses, as Wife paid nearly all of the
medical expenses for both parties.
In its Rule 1925(a) opinion, the court detailed, with extensive
references to the record, its reasons for adopting the Master’s findings. See
Trial Court Opinion, 9/22/16, at 5-12. With regard to these issues, we find
no abuse of discretion, misapplication of the law, or failure to follow
procedure by the trial court. See Anzalone, 835 A.2d at 780. Consequently,
we deny Husband’s requested relief, and affirm the trial court’s order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2017
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Circulated 03/16/2017 12:54 PM
flt.EB_ ~·-
PR01HOH0\AR)'
MOLLIE MCGINLEY, LUZ[RHE c9uHTY IN THE COURT OF COMMON
ri" ~i 5f,EAS OF LUZERNE COUNTY
Plaintiff il\i SEP 22 ':0 ' .
vs. CIVIL ACTION-DIVORCE
PAUL PHILPOTT,
Defendant
No. 10736 OF 2013
1251 MDA 2016
MEMORANDUM PURSUANT TO PA.R.A.P. 1925 (a)
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Plaintiff filed a complaint in Divorce on September 10, 2013 seeking a claim for
equitable distribution under Section 3301 (c) and (d) of the Divorce Code. On October 4, 2013,
the Defendant, filed an Answer and Counterclaim seeking claims for Spousal Support, Alimony
Pendente Lite and Alimony. On December 21, 2015, this Court appointed a Master in Divorce
with respect to the claims for divorce, equitable distribution, Alimony Pendente Lite, Attorneys
Fees, Costs and Expenses, and Alimony. A Master's hearing was held on February 24, 2016 at
9:00 a.m. comprising approximately four and one-half hours of testimony. The Defendant
elected to proceed Pro Se in the Master's hearing. A Master's Report was filed on March 22,
2016. On April 8, 2016, the Defendant filed Exceptions to Master's Report and Recommendation
and filed a Brief in Support of the Exceptions on May 31, 2016. On April 28, 2016, Plaintiff
filed her Answer to Defendant's Exceptions to Master's Report and Recommendation in
Divorce. On July 11, 2016, this Court entered a Decree in Divorce, denied the Defendant's
Exceptions to Master's Report and Recommendation and adopted the Master's Report and
Recommendation as an Order of Court. On July 25, 2016, Defendant filed a Notice of Appeal.
1
On July 27, 2016, this Court entered an Order directing the Defendant to file ofrecord and serve
on the Trial Judge a Concise Statement of Matters Complained of on Appeal. On August 11,
2016, the Defendant filed his Statement of Matters Complained of on Appeal.
The parties were married on March 11, 2013 in Jamaica and subsequently separated five
(5) months later on August 7, 2013 (N.T. 2/24/16 at 10-11). Both parties were thirty-six years of
age at the time of the Master's Hearing. (Id at 11-12). The Plaintiff, at the time of the hearing,
was employed as a radiologist at Radiological Consultants, Inc. and the Defendant was employed
in various fields including a real estate agent, a consultant and a contractor. Id.
II. DISCUSSION
Defendant's Statement of Matters Complained of on Appeal consisted of thirty-three
(33) matters raised by the Defendant. This Court will not list these matters verbatim since many
of these matters are lengthy and redundant. The court will, however, summarize Defendant's
areas on Appeal which are as follows:
1. The Defendant claims that the Lackawanna County Court of Common Pleas
improperly denied his spousal Support and Alimony Pendente Lite and that the
Luzerne County Court supported the opinion of the Lackawanna County Court.
2. The Defendant claims that his medical expenses were paid by the Plaintiff in June of
2013 and that Plaintiff was reimbursed $900.00 which should be subject to equitable
distribution;
3. The Defendant claims that the Court did not consider the disparity of the parties'
earning capacity in making its award of equitable distribution.
4. The Defendant claims that the Court did not award the proper percentage of equitable
distribution to the parties.
2
5. The Defendant claims that the Court did not grant him the proper discovery of
relevant assets.
6. The Defendant claims that the Court misapplied the law by not obtaining information
regarding the increase in value of the Plaintiff's interest in accounts receivable in her
medical partnership.
7. The Defendant claims that the Court improperly valued Plaintiff's wedding band and
improperly precluded him from obtaining receipts for the wedding band to prove its
value.
8. The Defendant claims that the Court improperly found that the value of the Plaintiff's
wedding band is of similar value to the Defendant's wedding band.
9. The Defendant claims that the Court improperly valued Defendant's automobile and
failed to give Defendant credit for the loan toward the vehicle.
10. The Defendant claims that the trial court exceeded its authority by including the non-
marital furniture kept by Defendant as part of equitable distribution and by assigning
the furniture a value.
11. The Defendant claims that the Court miscalculated the increased value of the
Plaintiff's bank account.
With respect to the first matter, the Defendant claims that the Lackawanna County Trial
Court improperly denied his spousal support and alimony pendente lite and that the Luzerne
County trial court supported the opinion of the Lackawanna County Trial Court. This Court
finds that the appeals regarding spousal support and alimony pendente lite are barred by res
judicata in light of the prior Order entered by the Lackawanna County Court of Common Pleas
over which Luzerne County Court has no jurisdiction or opportunity to make a judicial
3
determination. Therefore, the appeals pertaining to spousal support and alimony pendente lite
should have been filed in the Court of Common Pleas of Lackawanna County after the Divorce
was granted in Luzerne County since these matters were heard and addressed in Lackawanna
County.
Eventhough this Court still finds the appeal relating to spousal support and alimony
pendente lite is within the jurisdiction of the Court of Common Pleas of Lackawanna County,
this Court supports the findings made by the Court of Common Pleas of Lackawanna County. In
the event that the Superior Court disagrees with the trial court and finds that the appeals on
spousal support and alimony pendente lite should be addressed by this Court, this Court finds
that the Defendant should not be entitled to spousal support or alimony pendente lite. Pursuant to
Pa.R.C.P. 1910.16-5 (b)(8), the support guidelines state as follows:
(b) Factors. In deciding whether to deviate from the amount of
support determined by the guidelines, the trier of fact shall consider:
(8) in a spousal support of alimony pendente lite case, the duration
of the marriage from the date of marriage to the date of final separation; ...
In this case, the parties were only married for five (5) months. The Explanatory
C9mment-2005 to Pa.R.C.P. 1910.16-5 (b)(8) explains the significance of a short marriage and
the reason for having this guideline. The Comment states as follows:
... Subsection (b)(8) permits the court to consider the length of the
marriage in determining the amount and duration of a spousal support or
alimony pendente lite award. The primary purpose of these provisions is to
prevent the unfairness that arises in a short-term marriage when the obligor
is required to pay support over a substantially longer period of time than the
parties were married and there is little or no opportunity for credit for these
payments at the time of equitable distribution.
In addition to the marriage being of short duration, the Court finds the Defendant to be a
highly educated individual with a significant earning capacity. The record indicates that the
4
Defendant has an earning capacity of$80,000.00-$100,000.00. The Defendant was also very
evasive regarding his current income. For instance, when asked on cross examination how many
days per week he works in construction, he responded "six days per week". When asked how
much he earns per week, he responded, "I don't know." When asked by opposing counsel, how
could Defendant not know his income since Defendant has an MBA, Defendant's response was,
"I just didn't do the calculation, so I don't know. You didn't request this information prior to
trial, so I can't-provide it." N.T.2/24/16 at 175. The Court finds that the Defendant was hiding his
income and was not cooperative in disclosing his earnings. The Court also finds that based on the
Defendant's testimony, Defendant is not diligently attempting to secure gainful employment
compatible with his earning capacity. Therefore, based on the above reasons, this Court finds the
Defendant is not entitled to spousal support or alimony pendente lite.
With respect to the second matter, the Defendant claims that his medical expenses were
paid by the Plaintiff in June of 2013 and that Plaintiff was reimbursed $900.00 which should be
subject to equitable distribution. TI1e Court finds that Defendant's medical expenses are to be
addressed as part of Defendant's spousal support or alimony pendente lite, if any. However,
Defendant would not be entitled to obtain a refund on the medical expenses since he is not
entitled to receive spousal support or alimony pendente lite. In the event, the refund money is to
be considered in equitable distribution, the Court finds that the percentage distribution awarded
in this matter is fair and equitable. Furthermore, the Plaintiff in this matter paid for the majority
of the marital bills, including medical related coverages. Also, the Defendant did not provide
any child support to the Plaintiff for the parties' child. Therefore, the Court finds that the
Defendant should not be entitled to any of the reimbursement money for the medical expenses.
5
With respect to the third matter, the Defendant claims that the Master and Court did not
consider the disparity of the parties' earning capacity in making its award of equitable
distribution. Plaintiff testified that her yearly income is approximately $275,000.00 per year.
(N.T. 2/24/16 at 3) The Defendant has a current history of earning $80,000.00 to $100,000.00
per year. The Court finds that Defendant's employment is sporadic in the area of real estate
sales, contracting and consulting. The Court also finds Defendant to be evasive regarding the
amount of money he was earning within the past year or two. This Court acknowledges that the
hearing in divorce was conducted by a Master. The Master is the appropriate fact finder in this
case since the Master is present and able to observe and assess the testimony presented and the
credibility of the witnesses. See Childress v. Bogosian, 12 A.3d 448, 455-56 (Pa. Super. 2011).
In divorce cases, the Master is in the best position to weigh the evidence presented and to assess
the credibility of the witnesses. Fonzi v.Fonzi, 430 Pa. Super. 95, 633 A.2d 634 (1993). A
Master's Report and Recommendation should not be lightly disregarded. Arcure v. Arcure, 219
Pa. Super. 415, 281 A.2d 694 (1971).
With respect to the fourth matter, Defendant claims that the Court did not award the
proper percentage of equitable distribution to the parties and failed to value marital property. The
Court finds that all marital assets were properly valued and that the Plaintiff provided appropriate
documentation for valuation of the assets. In the case at bar, the Defendant was awarded a slight
majority of the estate with the Plaintiff receiving 48% of the estate and the Defendant receiving
52%. The Master and Court considered and weighed all the factors in equitable distribution
enumerated in 23 Pa. C.S.A. Section 3502 (a).
It is clearly within the discretion of the Court to equitably divide marital property.
Central to equitable distribution is the recognition that equitable does not automatically mean
6
equal. Marinello v. Marinello, 354 Pa. Super. 471, 512 A.2d 635 (1986). A fifty/fifty division
must not be presumed, Powell v. Powell, 395 Pa. Super. 345, 577 A.2d 576 (1990), rather the
factors set forth in the Divorce Code (23 Pa. C.S.A. § 3502 (a)) must be examined and analyzed
by the Master and the Court. The weight to be given the factors is exclusively within the
discretion of the Court Sergi v, Sergi, 351 Pa. Super.384, 516 A.2d 33 (1986). It is the public
policy of the Commonwealth through the Domestic Relations Code to effectuate economic
justice between the parties who are divorcing and to insure a fair and just determination in
settlement of their property rights. (23 Pa.C.S.A.§3102 (a) (6))
It is also within the discretion of the Court, in evaluating marital property, to accept all
testimony or portions of testimony or none of the testimony at all regarding the true and correct
value of property. Aletto v. Aletto, 381 Pa.Super, 230, 537 A.2d 383 (1988). Yet, in making a
valuation of marital property, the record should support the Court's determination of value, and
the testimony of the parties and their experts, if any, may provide that support in the record.
Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985).
Appellate courts have allowed a trial court to make a determination of value even when
the only evidence presented was testimony by the parties. The Master and the Court were forced
to make findings based solely on the credibility of that testimony. Bold v. Bold, 358 Pa. Super. 7,
516 A.2d 741 (1986).
Equitable distribution is within the discretion of the trial court and its decision will not be
disturbed absent an abuse of that discretion. Gee v. Gee, 314 Pa. Super. 31, 460 A.2d 358
(1983); Harasym v, Harasym, 418 Pa. Super. 486, 614 A.2d 742 (1992). The legislative
guidelines of the Divorce Code must be applied to determine whether there has been an abuse of
discretion. Barnhart v. Barnhart, 343 Pa. Super. 234, 494 A.2d 443 (1985). Such an abuse is
7
not found lightly, but only_ upon the showing of clear and convincing evidence. Braderman v,
Braderman, 339 Pa. Super. 185, 488 A.2d 613 (1985). The Defendant had objected to all the
values of assets assigned by the Master in this case which will be discussed separately below in
in Defendant's matters of objections.
With respect to the fifth matter of objection, Defendant claims that the Court did not
grant him the proper discovery of relevant assets. The Court finds that all evidence was properly
presented by the Plaintiff for review by the Defendant and was properly answered by the
Plaintiff. At the hearing, the Master specifically asked the Defendant whether from the time the
divorce was filed up until the day of the hearing he had subpoenaed records or anyone to testify
to substantiate his arguments. The Defendant responded, "no." N.T. 2/24/16 at 134.
Furthermore, pursuant to Pa.R.C.P. 1920. 74, when a Master in Divorce is appointed, an
averment is made in the Motion that discovery is complete as to the claims for which the
appointment of Master is appointed. The Court also finds that during the hearing, the Defendant
would not accept Plaintiff's answer as to her accounts receivable not being purchased. Defendant
kept insisting that her accounts receivable were purchased and that evidence was withheld from
him. Id. at 129. The Court finds that proper discovery occurred and that it was Defendant who
did not take the necessary steps to substantiate the value of Plaintiffs assets.
With respect to the six matter of objection, Defendant claims that the Master and Court
misapplied the law by not obtaining information regarding the increase in value of the Plaintiffs
interest in accounts receivables in her Medical Partnership. The Defendant, as stated above, kept
insisting that the Plaintiff had purchased her accounts receivable. When Plaintiff was questioned
regarding that issue, she testified that she did not purchase any accounts receivable; however,
Defendant was not satisfied with her answer and kept insisting that she did purchase accounts
8
receivable without substantiating his accusation. The Court further finds that the Defendant was
confusing Plaintiffs income with assets. The Plaintiff was advanced money in her practice
which she has not yet earned and had to pay back the money, all of which was income to the
Plaintiff and reflected on her tax return. There was no purchase of accounts receivable by the
Plaintiff. N.T. 2/24/16 at 77-80; 129-133. The Court finds that Defendant's claim was entirely
unsupported by the record. The Divorce action was filed September 10, 2013. Between the filing
date of the Divorce and the date of the hearing, February 24, 2016, Defendant had ample
opportunity to gather evidence to support his claim. The Defendant did not call any witnesses in
support of his claim, nor did the Defendant introduce any documentation to support his claim.
Furthermore, Defendant did not take any depositions of witnesses to substantiate his claim.
Therefore, the court finds that Plaintiffs accounts receivable in her employment were properly
considered.
With respect to the seventh matter of objection, The Defendant claims that the Court
improperly valued Plaintiffs wedding band and improperly precluded him from obtaining
receipts for the wedding band to prove its value. At the hearing, Defendant submitted an
appraisal of a ring purchased three and one-half years ago; however, the Defendant was not able
to substantiate that the appraisal presented pertained to Defendant's ring. Furthermore, the
Defendant did not submit an appraisal reflecting the current value of Plaintiffs ring. Therefore,
the Defendant was not able to represent the current value of the ring. Id. at 155-157.
With respect to the eight matter objection, the Defendant claims that the Court
improperly found that the value of the Plaintiffs wedding band is of similar value to the
Defendant's wedding band. It was clear from the parties' testimony that no credible evidence
was presented by either party as to the current value of their wedding bands. Plaintiff testified
9
that she has her wedding band and Defendant claimed that his wedding band was taken by
Defendant's mother. Defendant claimed that he had taken his wedding ring off and placed the
ring in Plaintiff's robe. Then he testified that his mother-in-law came to their apartment and took
Plaintiff's robe. However, Defendant testified that his mother-in-law did not know that the ring
was in the robe. Nevertheless, the Defendant did not present any evidence as to the value of his
ring which was clearly not in his possession based on his testimony. Id. at 160-162. As a result,
neither party presented proof of the current value of their wedding rings. In valuing a marital
asset, the current value of the marital assets, or the value at the time of trial should be used.
Sutliffv. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988).
With respect to the ninth matter of objection, The Defendant claims that the Court
improperly valued Defendant's automobile and failed to give Defendant credit for the loan
toward the vehicle. In this case, both parties presented evidence as to the fair market value of
Defendant's vehicle, namely a 2013 Infiniti JX35. The court accepted the NADA "trade in"
value of the vehicle presented by the Plaintiff versus the Kelly Blue Book value and Edmunds
book value presented by the Defendant. The "trade in" value of Husband's vehicle was
$31,550.00. There was a lien against the vehicle. Therefore, $10,384.00 was deducted from the
value contrary to Defendant's assertion that he was riot given credit for the loan toward the
vehicle. The remaining value was $21, 166. 00. However, Defendant had applied $9 ,081.84
toward the purchase of his vehicle. He received this sum for his 2005 Saab and this amount was
reduced from the remaining value, for a net figure of $12,166.00 assigned to Defendant.
With respect to the tenth matter of objection, the Defendant claims that the trial court and
Master exceeded its authority by including the non-marital furniture kept by Defendant as part of
equitable distribution and by assigning the furniture a value. The Plaintiff had purchased
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furniture prior to the marriage for $11,722.00. One year after purchasing the furniture, Husband
removed the furniture from their apartment without Plaintiff's permission and kept the same
during the separation period. Plaintiff represented that the furniture value would have
depreciated by 30% and that the furniture kept by the Defendant should be assigned the sum of
$8,206.00. The court finds that in light of Defendant keeping the furniture for his benefit and
enjoying the use of the same during the separation, the value of furniture should be assigned to
Defendant. Furthermore, by Defendant taking Plaintiff's furniture without her permission and
enjoying the use of such furniture during separation, Defendant prevented and excluded Plaintiff
from using the furniture for her benefit. The Defendant needs to compensate the Plaintiff for her
loss and make the Plaintiff whole again since he interfered with her exclusive use of her pre"
marital asset. Pursuan~ to 23 Pa.C.S.§3501 (a.l), the increase in value of any norunarital
property is calculated from the date of marriage to either the date of final separation or the date
as close to the hearing on equitable distribution as possible, whichever date results in a lesser
increase. As stated above, the Defendant in this case had the exclusive use and benefit of
Plaintiff's furniture and removed the same without her permission.
With respect to the eleventh matter of objection, the Defendant claims that the Court
miscalculated the increased value of the Plaintiff's bank account, Pursuant to 23 Pa.C.S. §3501
(a.l), the increase in value of any norunarital property is calculated from the date of marriage to
either the date of final separation or the date as close to the hearing on equitable distribution as
possible, whichever date results in a lesser increase. Prior to the marriage, Plaintiff had a bank
account with Wells Fargo and Capital One ING Direct titled in her name. Plaintiff testified and
presented evidence reflecting the value of both accounts at the time of marriage as $146,23 7. 85
At the time of separation, it was $156,337.92, resulting in an increase in value of approximately
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$10,100.00. Defendant argued that there was an additional $20,000.00 that was not taken into
account. Id at 86-98. Defendant argued that he had an exhibit with the proper calculations;
however, he did not have·it in his possession because he did not print the exhibit. While the
Plaintiff introduced both of her exhibits for the accounts substantiating the increase in value of
both accounts, Defendant, on the other hand, was making arguments without presenting any
evidence for the Master's review. Id at 137-139. Therefore, the increase in value of Plaintiff's
accounts was properly valued by the Plaintiff with proof of documents.
III. CONCLUSION
In conclusion, the Court properly considered the factors in equitable distribution and
properly allocated the percentage of distribution based on the parties' ages, health, the parties'
incomes, earning capacities, opportunity of each party for future acquisition of capital assets and
income and which party served as the primary custodian of their minor child.
THE OFFICES OF JUDICIAL RECORDS BY THE COURT,
& SERVICES OF LUZERNE COUNTY,
PENNSYLVANIA SHALL GIVE NOTICE
OF THIS ORDER TO ALL PARTIES
PURSUANT TO PA. R,C,P 236 L
COPIES TO:
Brian J. Cali, Esquire
Attorney for Plaintiff
103 East Drinker Street
Dunmore, PA 18512
Paul Philpott
Pro Se
41 E. Walnut Street
Kingston, PA 18704
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