Fekety, M. v. Fekety, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MELINDA FEKETY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN FEKETY :
:
Appellant : No. 1344 MDA 2020
Appeal from the Decree Entered September 29, 2020
In the Court of Common Pleas of Tioga County Civil Division at No(s):
0289-FS-2018
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: DECEMBER 9, 2021
John Fekety (“Husband”) appeals from the Order equitably distributing
the marital assets of Husband and Melinda Fekety (“Wife”), which was made
final by the entry of the September 29, 2020, Divorce Decree. We affirm.
Husband and Wife were married in 1968. Relevant to the instant appeal,
Husband and Wife owned a home in Mainesburg, Pennsylvania (“the marital
residence”) and a home in Winter Haven, Florida (“the Florida property”).
Additionally, Husband had inherited two properties: a farm located on Wilson
Hill Road (the “Wilson Hill Road farm”), in Morris, Pennsylvania; and a home
located on Canada Road (the “Canada Road property”), in Covington,
Pennsylvania.
The parties separated in September 2018, when Wife left the marital
home and relocated to the Florida property. Wife filed a Divorce Complaint
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on December 4, 2018, citing mutual consent, irretrievable breakdown, and
indignities.1 Wife also requested equitable distribution of marital property,
alimony, alimony pendente lite, attorneys’ fees and costs of litigation.
Husband filed an Answer, contesting the divorce, and requesting a court order
directing the parties to engage in counseling. Husband separately filed a
Petition for Marriage Counseling on December 7, 2018. Wife filed an Answer
and a Motion to Dismiss. Following a hearing, the trial court denied Husband’s
Petition for Marriage Counseling.
On February 11, 2019, Husband filed a Petition for Exclusive Possession,
arguing that the parties should be required to share the Florida property until
equitable distribution is completed. After the trial court entered a Rule to
Show Cause why the Petition for Exclusive Possession should not be granted,
Wife filed an Answer, arguing that Husband’s intention was to harass and
inconvenience her. Wife also filed a Counter Petition for Exclusive Possession
and a Petition for Special Relief, to which Husband filed an Answer. Following
a hearing, the trial court denied Husband’s Petition for Exclusive Possession,
and granted Wife’s Counter Petition.
On January 2, 2020, the trial court ordered Wife to obtain appraisals of
the marital residence, the Wilson Hill Road farm, and the Canada Road
property, to be valued at both the date of acquisition and date of separation.
____________________________________________
1 See 23 Pa.C.S.A. §§ 3301(c), (d), and (a)(6), respectively.
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The Order also authorized Husband to obtain his own appraisals. The cost of
the appraisals was to be paid using one of the couple’s joint bank accounts.
On June 19, 2020, the trial court entered an Order scheduling trial.
The trial court conducted an equitable distribution hearing on September
18, 2020. On September 25, 2020, the trial court issued an Order equitably
distributing Husband and Wife’s assets, and entered a Divorce Decree. In its
Order, the trial court stated the following:
[Wife] is now 70 years of age. She describes her health as
declining, she is in need of a hip replacement, suffers from severe
arthritis, and has an issue with a kidney. [Husband] is 71 years
of age. He is under the care of a neurologist who has suggested
surgery. [Husband] suffered a significant injury with lasting
neurological consequences during a 2006 assault. Both parties
have retired from their prior occupations and are not expected to
return to work. Neither party testified to particular needs and
neither carries debt beyond month[-]to[-]month bills. Both
parties primarily rely upon Social Security for income. [Husband]
receives $860.00 per month, [Wife] $382.00. [Husband] receives
annual rent from the [Wilson Hill Road] farm of $4,500.00. He
also receives annual payments from the USDA under the
[Conservation Reserve] Program of $6,841.00. Finally, [Husband]
receives rent and royalty payments from Repsol Oil & Gas, which
totaled $9,683.00 in 2018[;] royalty payments have significantly
decreased and based upon deposits, reflects an average between
$100.00 and $150.00 per month. Neither party expects to inherit
additional property, nor does either party have retirement assets
in any form. Neither party is likely to acquire additional capital
assets from any source. Each party will likely be entirely reliant
on their Social Security Benefits and the assets described below
to support themselves for the rest of their lives.
The parties have accumulated substantial assets during
their marriage. A significant portion of the assets are in the form
of real estate[;] the balance is in cash on deposit at several banks.
The real estate assets include[:] 1) the marital residence …,
purchased by the couple in 1970; 2) [the Florida property,
purchased] several years ago; 3) [the Wilson Hill Road farm],
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inherited by [Husband] in 2004; and 4) [the Canada Road
property], inherited by [Husband] in 2003. Appraisals were made
of the three properties in Pennsylvania and admitted as part of
the hearing. The martial residence has a current appraisal value
of $145,000.00[;] the Wilson Hill Road farm has a current value
of $808,000.00 and appraised as worth $339,000.00 at the time
[Husband] received it. The Canada Road property was valued at
$145,000.00 at [Husband’s] acquisition and is now valued at
$180,000.00. The only value presented for [the Florida property]
is based on a Comparative Market Analysis indicating a value of
$79,900.00. Based upon the evidence submitted, the total value
of real estate is $1,212,900.00[;] of this, $484,000.00 is the value
of the properties gifted to [Husband] at the time he received them.
The balance of the property possessed by the litigants is in
the form of deposit accounts. Based upon the evidence presented,
the parties held the following accounts in September 2018 (time
of separation)[:] 1) a joint account at Center State Bank [] with
a balance of $77,201.00; 2) an account in [Wife’s] name at Center
State Bank with a balance of $61,413.00 []; 3) a joint account at
First Citizens Community Bank (FCCB) with a balance of
$56,526.00 []; 4) a joint account at C&N bank with a balance of
$56,366.00 []. These accounts had an aggregate balance of
$251,506.00, al of which would be marital property. Transfers
were made by each party[,] and [Husband] apparently opened
individual accounts at FCCB and C&N[,] between December 2018
and February 2019[,] using funds from the above accounts.
[Wife] transferred $31,000.00 from the joint Center State account
to the joint account at FCCB. She also transferred $41,000.00
from the joint Center State account to her own Center State
account in December 2018. [Wife] testified, credibly in the
determination of [the trial c]ourt, that she has not otherwise
transferred or withdrawn funds from the accounts in Pennsylvania.
[Husband] has had control and use of the Pennsylvania accounts
since separation. … [T]he parties sold rental property and the
proceeds of the sale, which are clearly [m]arital [p]roperty[,] have
been deposited in these accounts, and are included as the now
existing funds, which total approximately $204,079.00.
Having considered the evidence, the [trial c]ourt determines
that the value of the marital estate now available for distribution
is $932,979.00. This valuation includes the values of the [marital
home] and [the Florida property], the increase in value of the
inherited properties ([$]504,000.00), and the funds remaining in
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the deposit accounts ($204,079.00). Given the circumstances
addressed above, including the fact that [Husband] will retain
nearly $500,000.00 in separate property, the marital estate shall
be divided with [Wife] receiving fifty-seven and one-half (57.5%)
percent of the marital estate, or $536,463.00. The distribution of
the marital estate recognizes the fact that [Husband] indicated he
wished to retain the farm and his mother’s home. These inherited
assets have significantly increased in value[,] and a forced sale
would likely result in substantial tax implications and incur
significant selling costs.
Order, 9/25/20, 2-4 (unnumbered).
The trial court awarded Wife sole ownership of the Florida property, the
individual and joint accounts at Center State Bank, the joint account at FCCB,
and the joint account at C&N Bank. Id. at 4 (unnumbered). Further,
[t]he remaining balance due to [Wife] shall be payable by
installment or lump sum, no later than September 1, 2021. The
lump sum payable to [Wife] shall be adjusted, based upon the
actual funds remaining in the bank accounts awarded to her. The
lump sum shall be calculated by deducting $79,900.00[, the value
of the Florida property,] and the actual balances in the above
accounts from the total award of $536,463.00.
Id. The trial court denied Wife’s request for attorney fees and alimony. Id.
at 5 (unnumbered). Additionally, the trial court awarded Husband sole
ownership of the marital home, the Canada Road property, the Wilson Hill
Road farm, and his individual accounts at FCCB and C&N Bank. Id.
On October 22, 2020, Husband filed a Motion for Reconsideration,
challenging the distribution scheme. Husband filed a Notice of Appeal on the
same date. The trial court denied Husband’s Motion for Reconsideration on
November 11, 2020. Husband subsequently filed a court-ordered Pa.R.A.P.
1925(b) Concise Statement of errors complained of on appeal.
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Husband now raises the following issues for our review:
1. Whether the trial court abused its discretion in determining the
increase in value of non-marital assets acquired during the
marriage[?]
2. Whether the court’s findings (opinion) support[] the equitable
distribution of the majority of the liquid assets to [Wife?]
3. Whether the court’s finding that a forced sale would result in
substantial tax implications and incur significant selling costs
(factor 10.2) is contradicted by the direction to pay the balance of
$253,528 within one year[?]
Husband’s Brief at 8.
In his first claim, Husband argues that the trial court erred in accepting
the appraiser’s opinion of increased value on the appraised properties. Id. at
16. Husband emphasizes the appraiser’s testimony that no improvements
had been made on the two inherited properties, i.e., the Wilson Hill Road Farm
and the Canada Road property. Id. at 17. Husband also argues that, though
the appraiser stated that the value increase was based on the oil and gas
“boom,” the oil and gas leases were not renewed after 2011. Id. Husband
contends that “[t]he appraiser[’]s testimony fails to support the increased
value testified to with regard to the inherited properties.” Id. at 18.
We begin with the following standard of review:
We review a challenge to the trial court’s equitable distribution
scheme for an abuse of discretion. We do not lightly find an abuse
of discretion, which requires a showing of clear and convincing
evidence. 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.
… If we fail to find an abuse of discretion, the order must stand.
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… [I]t is within the province of the trial court to weigh the evidence
and decide credibility and this Court will not reverse those
determinations so long as they are supported by the evidence.
Conner v. Conner, 217 A.3d 301, 309 (Pa. Super. 2019) (citations and
quotation marks omitted).
In its Opinion, the trial court set forth the relevant law concerning the
equitable distribution of the increased value of nonmarital assets, addressed
Husband’s claim, and concluded that it lacks merit. See Trial Court Opinion,
12/23/20, at 2-5. In particular, the trial court credited the appraisal submitted
by Wife’s expert, and noted that Husband had failed to complete and submit
his own appraisal. Id. at 3. We discern no abuse of the trial court’s discretion
in this regard, and affirm on the basis of its Opinion as to Husband’s first claim.
See id. at 2-5.
In his second claim, Husband asserts that the trial court abused its
discretion in awarding Wife a majority of the liquid assets. Husband’s Brief at
18. Husband notes that his health has declined. Id.
Preliminarily, we observe that this claim is largely underdeveloped, and
is unsupported by citation to relevant case law. See Pa.R.A.P. 2119(a)
(providing that the argument shall include “such discussion and citation of
authorities as are deemed pertinent.”). Significantly, beyond a cursory
statement that “23 Pa.C.S.[A.] § 3502 sets forth the factors to be considered
in Equitable Distribution of Property[,]” Husband’s Brief at 16, Husband does
not provide any discussion of the factors, or specify how he believes the trial
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court erred in evaluating them. Husband’s claim is therefore waived. See
Hayward v. Hayward, 868 A.2d 554, 558 (Pa. Super. 2005) (concluding that
appellant’s failure to cite any pertinent authority in support of his argument
resulted in waiver of his claim).
Even if Husband had adequately developed this claim for our review, we
would conclude that it lacks merit, for the reasons stated by the trial court in
its Opinion. See Trial Court Opinion, 12/23/20, at 5-6. In particular, the trial
court noted that Husband had requested to keep a majority of the real
property, and the trial court granted his request. Id. at 5; see also Order,
9/25/20, at 4 (unnumbered) (wherein the trial court indicated that Husband
wished to retain the Wilson Hill Road farm and the Canada Road property).
In his third claim, Husband challenges the trial court’s determination
that a forced sale of property was not warranted. Husband’s Brief at 19.
Husband claims that to pay the amount due to Wife, he would have to sell the
Wilson Hill Road farm. Id. Husband argues that, based on the increase of
value determination, “the [trial c]ourt is for all intents and purposes forcing a
sale of the property in contradiction of its Order” equitably distributing the
marital assets. Id. at 20; see also id. (claiming, again, that the increase of
value determination is unsupported by the evidence).
This claim is likewise unsupported by adequate discussion or any citation
to relevant case law, and therefore, is waived. See Pa.R.A.P. 2119(a);
Hayward, supra. Further, even if Husband had developed this claim, we
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would conclude that it lacks merit for the reasons stated by the trial court in
its Opinion. See Trial Court Opinion, 12/23/20, at 6-7. In particular, the trial
court stated that a forced sale of the real property “would result in substantial
tax implications and incur selling costs.” Id. at 7.
Based upon the foregoing, we affirm the Order equitably distributing
Husband and Wife’s marital assets.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/09/2021
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Circulated 11/19/2021 10:32 AM