Domiano, K. v. Domiano, D. ( 2016 )

J-A22038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KIMBERLY A. DOMIANO IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID R. DOMIANO
Appellant No. 2001 MDA 2015
Appeal from the Decree October 15, 2015
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2004-41310
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 06, 2016
Appellant, David R. Domiano (“Husband”), appeals from the decree
entered in the Lackawanna County Court of Common Pleas, which granted
the parties a divorce and equitably distributed the parties’ marital property.
We affirm.
The relevant facts and procedural history of this appeal are as follows.
Husband and Kimberly A. Domiano (“Wife”) married on November 11, 1990.
Two children were born of the marriage. During their marriage, the parties
acquired from Husband’s mother the property on which the parties built a
marital home. On May 21, 1992, Husband’s mother transferred the property
solely to Husband.
Procedurally, Wife filed a complaint in divorce on October 29, 2004.
By order dated March 8, 2007, and filed on March 9, 2007, the court
J-A22038-16
appointed a Master. The Master was unable to hold an equitable distribution
hearing for several years due to Husband’s change in representation, as
Husband proceeded pro se and with counsel at different times, and
Husband’s bankruptcy proceedings. On August 26, 2010, the Master held an
equitable distribution hearing, at which Husband appeared pro se. The
Master filed a Report and Recommendation on April 17, 2013, distributing
the parties’ marital property. On April 26, 2013, Husband filed forty-seven
exceptions to the Master’s Report. On September 19, 2013, the court held
oral argument on Husband’s exceptions.
By order dated November 25, 2013, and filed on November 26, 2013,
the court denied all but five of Husband’s exceptions. The court remanded
the remaining five exceptions to the Master to allow the parties to present
additional evidence. On December 23, 2013, Husband filed a motion to have
the court certify the November 25, 2013 order for interlocutory appeal. The
court denied Husband’s motion by order dated March 7, 2014, and filed on
March 10, 2014.
On October 8, 2014, the Master held a remand hearing on Husband’s
remaining five exceptions. On March 17, 2015, the Master filed a Report
and Recommendation Following Remand. On April 6, 2015, Husband filed
exceptions to the Master’s March 17, 2015 Report and Recommendation.
The court held oral argument on Husband’s exceptions on July 16, 2015. By
order dated September 18, 2015, and filed on September 21, 2015, the
-2-
J-A22038-16
court denied all of Husband’s exceptions and accepted the findings of fact
and recommendations of the Master assigned to the issue of equitable
distribution.
On October 15, 2015, the court entered a final divorce decree. By the
October 15th decree, the court adopted the Master’s Report and
Recommendation dated April 17, 2013, the Master’s Report and
Recommendation Following Remand dated March 17, 2015, and the court’s
order dated September 18, 2015. On November 12, 2015, Husband filed a
timely notice of appeal. The court ordered Husband on February 9, 2016, to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b); Husband timely filed his statement on February 16,
2016.
Husband raises the following issues for our review:
WHETHER THE HONORABLE TRIAL COURT ABUSED ITS
DISCRETION OR COMMITTED AN ERROR OF LAW IN ITS
[DECREE] OF OCTOBER 15, 2015 BY DENYING
[HUSBAND’S] EXCEPTIONS AND ADOPTING THE MASTER’S
REPORT & RECOMMENDATION WHEN THE REPORT AND
RECOMMENDATION WAS FILED 2.5 YEARS (32 MONTHS)
AFTER THE HEARING, CONTRARY TO PENNSYLVANIA RULE
OF CIVIL PROCEDURE, RULE 1920.55-2?
WHETHER THE HONORABLE TRIAL COURT ABUSED ITS
DISCRETION OR COMMITTED AN ERROR OF LAW IN ITS
[DECREE] OF OCTOBER 15, 2015 BY DENYING
[HUSBAND’S] EXCEPTIONS AND ADOPTING THE MASTER’S
REPORT & RECOMMENDATION WHEN THE MASTER
DENIED [HUSBAND] DUE PROCESS BY FAILING TO ALLOW
[HUSBAND] AND IN LIMITING [HUSBAND’S]
PRESENTATION OF TESTIMONY AND EVIDENCE?
-3-
J-A22038-16
WHETHER THE HONORABLE TRIAL COURT ABUSED ITS
DISCRETION OR COMMITTED AN ERROR OF LAW IN ITS
[DECREE] OF OCTOBER 15, 2015 BY DENYING
[HUSBAND’S] EXCEPTIONS AND ADOPTING THE MASTER’S
REPORT & RECOMMENDATION WHEN THE MASTER’S
FINDINGS AND RECOMMENDATIONS REGARDING THE
VALUATION AND OWNERSHIP OF PROPERTY ARE NOT
SUPPORTED BY THE RECORD?
(Husband’s Brief at 4).
We review equitable distribution matters as follows:
Our standard of review in assessing the propriety of a
marital property distribution is whether the trial court
abused its discretion by a misapplication of the law or
failure to follow proper legal procedure. An abuse of
discretion is not found lightly, but only upon a showing of
clear and convincing evidence. 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.
Smith v. Smith, 904 A.2d 15, 18 (Pa.Super. 2006) (internal citations and
quotation marks omitted). “[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.” Childress v. Bogosian, 12 A.3d 448, 455-56 (Pa.Super. 2011)
(quoting Moran v. Moran, 839 A.2d 1091, 1095 (Pa.Super. 2003)). “[T]he
trial court can accept all, some or none of the submitted testimony in
determining the value of marital property.” Isralsky v. Isralsky, 824 A.2d
1178, 1185 (Pa.Super. 2003).
-4-
J-A22038-16
When a court endeavors to split marital property equitably, it must
take into consideration the factors delineated in Section 3502(a) of the
Divorce Code. Drake v. Drake, 555 Pa. 481, 725 A.2d 717 (1999); 23
Pa.C.S.A. § 3502(a) (stating factors which are relevant to equitable division
of marital property include: length of marriage; any prior marriage of either
party; age, health, station, amount and sources of income, vocational skills,
employability, estate, liabilities and needs of each party; contribution by one
party to education, training or increased earning power of other party;
opportunity for each party for future acquisitions of capital assets and
income; sources of income of both parties, including, but not limited to,
medical, retirement, insurance or other benefits; contribution or dissipation
of each party in acquisition, preservation, depreciation or appreciation of
marital property, including contribution of party as homemaker; value of
property set apart to each party; standard of living parties established
during marriage; economic circumstances of each party at time division of
property is to become effective; and whether party will be serving as
custodian of any dependent minor children). “The weight to be given to
these statutory factors depends on the facts of each case and is within the
court’s discretion. We will not reweigh them.” Busse v. Busse, 921 A.2d
1248, 1260 (Pa.Super. 2007), appeal denied, 594 Pa. 693, 934 A.2d 1275
(2007) (quoting Mercatell v. Mercatell, 854 A.2d 609, 611 (Pa.Super.
2004)). “We look at the distribution as a whole, in light of a trial court’s
-5-
J-A22038-16
overall application of the factors…. In addition we note…the trial court has
the authority to divide the award as the equities presented in the particular
case may require.” Busse, supra (internal citations and quotation marks
omitted). Equitable distribution must be equitable, but it need not be equal.
Williamson v. Williamson, 586 A.2d 967, 970 (Pa.Super. 1991).
In his first issue, Husband argues the Master violated Pa.R.C.P.
1920.55-2, requiring a report and recommendation within thirty days of the
Master’s receipt of the equitable distribution hearing transcript. The initial
Hearing occurred on August 26, 2010, but the Master did not issue his
Report and Recommendation until April 17, 2013, which was two and on-half
years later. Husband contends the delay prejudiced him because many of
the property valuations at issue may have changed between the date of the
hearing and date of the Master’s Report and Recommendation, citing Biese
v. Biese, 979 A.2d 892, 897, 899 (Pa.Super. 2009). Husband concludes the
court erred in accepting the Master’s initial Report and Recommendation of
April 17, 2013, and this Court should reverse the trial court’s decision and
remand this matter for a new equitable distribution hearing. We disagree.
Pennsylvania Rules of Civil Procedure governs challenges to a Master’s
report as follows:
Rule 1920.55-2. Master’s Report. Notice.
Exceptions. Final Decree
(a) After conclusion of the hearing, the master shall:
(1) file the record and the report within;
-6-
J-A22038-16
(i) twenty days in uncontested actions or;
(ii) thirty days from the last to occur of the receipt of
the transcript by the master or close of the record in
contested actions;
(2) immediately serve upon counsel for each party, or, if
unrepresented, upon the party, a copy of the report and
recommendation and written notice of the right to file
exceptions.
(b) Within twenty days of the date of receipt or the date
of mailing of the master’s report and recommendation,
whichever occurs first, any party may file exceptions to the
report or any part thereof, to rulings on objections to
evidence, to statements or findings of fact, to conclusions
of law, or to any other matters occurring during the
hearing. Each exception shall set forth a separate
objection precisely and without discussion. Matters not
covered by exceptions are deemed waived unless, prior to
entry of the final decree, leave is granted to file exceptions
raising those matters.
Pa.R.C.P. 1920.55-2(a)-(b). “[T]his rule requires a party who is dissatisfied
with a master’s report to file exceptions to the report, or waive any such
objections.” Lawson v. Lawson, 940 A.2d 444, 450 (Pa.Super. 2007),
appeal denied, 597 Pa. 718, 951 A.2d 1165 (2008) (quoting Benson v.
Benson, 515 A.2d 917, 919 (Pa.Super. 1986)). Matters not addressed by
exceptions are deemed waived “unless, …leave is granted to file exceptions
raising those matters.” Pa.R.C.P. 1920.55-2(b). See also Hayward v.
Hayward, 868 A.2d 554, 561 (Pa.Super. 2005) (holding party must make
exception to hearing officer’s report to preserve issue for appeal).
As to Husband’s first issue, the trial court stated:
-7-
J-A22038-16
The Master’s delay in the filing of his Report and
Recommendation is clear, and no explanation is offered by
the Master for said delay. However, it is clear from the
testimony that this is a very complicated case with
contradicting, conflicting, and often times vague
testimony. Unfortunately, the delay was not brought to
this [c]ourt’s attention until the exceptions were initially
filed on April 26, 2013. Without the ability to intervene or
inquire prior to that date, this [c]ourt does not view
rejecting the report in its entirety on the basis of delay
alone as an appropriate remedy. As such, this [c]ourt will
not disturb the findings and conclusions based on delay
alone and the exception is denied.
(Trial Court Opinion at 3). We accept the court’s reasoning. Moreover,
Husband’s reliance on Biese, supra, is misplaced because Biese did not
address Rule 1920.55-2. Rather, in Biese, this Court determined the
master did not comply with 23 Pa.C.S.A. § 3501(a.1) in finding an increase
in the value of marital property. This Court stated 23 Pa.C.S.A. § 3501(a.1)
“indicate[s] that if the property in question decreases in value from the time
of separation until the time of the Master’s hearing, the value at the time of
the Master’s hearing should be used only if there was an extended period of
time between separation and the Master’s hearing.” Biese, supra, 979
A.2d at 899. Husband’s reliance on Biese is also flawed because Biese
addressed the passage of time between separation and the Master’s hearing,
not the delay from the date of the hearing to the date of the Master’s Report
and Recommendation. Even if we look at the passage of time between
appointment of the Master and the first hearing, the Master attributed the
delay to Husband’s multiple changes in representation and his bankruptcy
-8-
J-A22038-16
proceedings. Thus, we conclude Biese is inapposite.
Additionally, we note Rule 1920.55–2(a)(1)(ii) sets forth a thirty-day
deadline for the Master to file a report after receipt of the hearing transcript,
not a thirty-day timeframe from the date of the hearing. Assuming a
violation of the rule in this case, “the court at every stage of any such action
or proceeding may disregard any error or defect of procedure which does not
affect the substantial rights of the parties.” Pa.R.C.P. 126. Husband does
not explain exactly how the value of the marital property changed between
the date of the initial Master’s hearing and the date of the Master’s Report
and Recommendation; Husband merely states, “As a result of this significant
delay…many of the valuations of property…may have either increased or
decreased in value. Natural disasters, erosion and other unknown factors
could have and probably did” diminish property values. (Husband’s Brief
at 21) (emphasis added). Husband fails to substantiate the suggested
consequence of the delay between the hearing and the Master’s Report and
Recommendation, and his arguments are tenuous at best. See Pa.R.C.P.
126. Therefore, Husband’s first issue merits no relief.
In his second issue, Husband argues the Master violated Husband’s
due process rights because the Master did not allow and/or limited
Husband’s presentation of testimony and evidence during the August 26,
2010 Master’s hearing. Husband contends the Master repeatedly assured
Husband he would have an opportunity to testify. Husband claims when the
-9-
J-A22038-16
hearing turned to his case, the Master limited Husband’s testimony to
responses to the Master’s and Wife’s counsel’s respective questions.
Husband avers he suffered prejudice because he was unable to present
testimony and evidence freely. Husband concludes the court erred in
accepting the Master’s initial Report and Recommendation of April 17, 2013,
and this Court should reverse the trial court’s decision and remand this
matter for a new equitable distribution hearing. We disagree.
As to Husband’s second issue, the trial court stated:
[Husband] appeared at the initial hearing pro se.
Throughout the proceeding, the Master advised [Husband]
about his right to present evidence and/or testimony, (N.T.
8-26-10 p. 85, 135, 151-152, 156, 158, 159-160, 161,
166-167). A careful review of the record does not support
[Husband’s] assertion that he was denied the opportunity
to present additional testimony and/or evidence.
Furthermore [Husband] fails to identify what specific
testimony or evidence he was prevented from presenting,
as such this exception is denied.
(Trial Court Opinion at 4). The record supports the court’s decision. On
appeal, Husband continues his general assertions but fails again to specify
what testimony or evidence he could not offer. On this basis, we could
consider this issue waived. See Coulter v. Ramsden, 94 A.3d 1080, 1088
(Pa.Super. 2014), appeal denied, ___ Pa. ___, 110 A.3d 998 (2014) (stating
appellate arguments which are not appropriately developed are waived).
Accordingly, Husband’s second issue merits no relief.
In his final issue, Husband argues the record does not support the
Master’s findings of ownership and valuation of certain marital property.
- 10 -
J-A22038-16
Specifically, Husband asserts the Master incorrectly determined the
ownership and valuation of real property including the West Wyoming
property, the Salem Township property, the Scranton property, the Pocono
Summit property, the Jessup property, and fifteen lots used for billboard
advertising. Husband insists he testified he did not own the Scranton
property, the Pocono Summit property, the Jessup property, and fifteen
advertising lots. Husband submits Wife presented no deeds establishing
Husband owned these parcels; and the Master based the valuation of these
properties on Wife’s belief of their estimated value. Husband claims, as to
the fifteen advertising lots, Wife did not present evidence of the location of
billboards on the lots or any agreement establishing Husband rented the lots
for outdoor advertising to support the Master’s valuation of these lots.
Husband contends the Master incorrectly attributed the value of the Pocono
Summit property to Husband, individually, and the value of Husband’s stock
in McClure Enterprises, Inc. Husband avers that the business valuation of
McClure Enterprises, Inc. that he presented included the value of the Pocono
Summit property. Husband also submits the Master improperly found the
value of the marital residence by averaging the parties’ respective appraisals
of the property. Husband claims the Master ignored several of the
property’s adverse conditions when determining the value of the marital
residence. Husband asserts the Master improperly failed to grant Husband a
credit for Husband’s payment of real estate taxes and homeowners’
- 11 -
J-A22038-16
insurance for the marital residence after the parties separated. Husband
avers the Master erred by not crediting Husband the fair rental value of
Wife’s occupation of the marital residence and closing costs on the sale of
the marital residence. Finally, Husband contends the Master erred by finding
an Affidavit of Value of $500.00 on reversionary interests of the Erie
Lackawanna Railroad in several municipalities as proof of Husband’s
ownership of undocumented properties. Husband submits that even though
Husband’s name appears on a quit-claim deed as grantor regarding a portion
of some of these undocumented properties, Husband did not own these
properties. Husband concludes the court erred in accepting the Master’s
initial Report and Recommendation of April 17, 2013, and this Court should
reverse the trial court’s decision and remand this matter for a new equitable
distribution hearing. We disagree.
Preliminarily, we observe generally that issues not raised in a Rule
1925 concise statement of errors will be deemed waived. Lineberger v.
Wyeth, 894 A.2d 141 (Pa.Super. 2006). The Rule 1925 statement must be
specific enough for the trial court to identify and address the issue(s) an
appellant wishes to raise on appeal. Id. “[A] [c]oncise [s]tatement which is
too vague to allow the court to identify the issues raised on appeal is the
functional equivalent of no [c]oncise [s]tatement at all.” Id. at 148. If a
concise statement is too vague, the court may find waiver and disregard any
argument. Id. See Commonwealth v. Hill, 609 Pa. 410, 428, 16 A.3d
- 12 -
J-A22038-16
484, 494 (2011) (stating, “Rule 1925(b) waivers may be raised by the
appellate court sua sponte”). See also In re L.M., 923 A.2d 505 (Pa.Super.
2007) (applying Rule 1925 waiver standards in family law context).
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. Litmans v. Litmans, 673 A.2d 382, 387 (Pa.Super. 1996)
(citing Aletto v. Aletto, 537 A.2d 1383 (Pa.Super. 1988)). “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.” Litmans, supra
(quoting Holland v. Holland, 588 A.2d 58, 60 (Pa.Super. 1991), appeal
denied, 528 Pa. 611, 596 A.2d 158 (1991)). Accord Smith v. Smith, 653
A.2d 1259, 1267 (Pa.Super. 1995), appeal denied, 541 Pa. 641, 663 A.2d
693 (1995) (stating if one party disagrees with other party’s valuation, it is
objectant’s burden to provide court with alternative valuation). A trial court
does not abuse its discretion in adopting the only valuation submitted. Id.
See also Baker v. Baker, 861 A.2d 298 (Pa.Super. 2004), appeal denied,
591 Pa. 694, 918 A.2d 741 (2007).
Pennsylvania law makes clear:
An equitable distribution scheme may include an award, to
the non-possessing spouse, of one-half of the rental value
of the marital residence, when possessed exclusively by
the other spouse during the parties’ separation. However,
we have also upheld deductions from rental value awards
for the non-possessing spouse’s share of expenses related
- 13 -
J-A22038-16
to preserving the marital residence (i.e., mortgage,
insurance, taxes, maintenance). [T]he award of rental
value is within the sound discretion of the trial court.
Gaydos v. Gaydos, 693 A.2d 1368, 1377 (Pa.Super. 1997) (en banc)
(internal citations omitted). This Court has discussed the analysis for
awarding a fair rental value credit as follows:
First, 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 there are no equitable defenses to the
credit. Second, the rental credit is based upon, and
therefore limited by, the extent of the dispossessed party’s
interest in the property[.] … Third, the rental value is
limited to the period of time during which a party is
dispossessed and the other party is in actual or
constructive possession of the property. Fourth, the party
in possession is entitled to a credit against the rental value
for payments made to maintain the property on behalf of
the dispossessed spouse. Generally, in regard to the
former marital residence, payments made on behalf of the
dispossessed spouse will be one-half of the expenses
including debt service on the property. This is so because
equity places a presumption upon the dispossessed spouse
of responsibility for expenses to the extent of…his
ownership interest which is generally one-half.
Lee v. Lee, 978 A.2d 380, 385-86 (Pa.Super. 2009) (quoting Trembach v.
Trembach, 615 A.2d 33, 37 (Pa.Super. 1992)).
Nevertheless, a fair rental value credit is not mandatory. Middleton
v. Middleton, 812 A.2d 1241, 1248 (Pa.Super. 2002) (en banc) (holding
court’s failure to credit husband for one-half fair rental value of marital
residence was not abuse of discretion even though husband voluntarily and
generously paid mortgages and expenses of marital home in excess of court
- 14 -
J-A22038-16
ordered amount for period of ten years; trial court’s ultimate equitable
distribution award reflected consideration of factors under Section 3502(a)
and was supported by record; trial court’s overall distribution scheme of
50/50 division of marital assets was equitable); Schneeman v.
Schneeman, 615 A.2d 1369, 1377 (Pa.Super. 1992) (explaining while each
party is entitled to equitable share of marital property, including fair rental
value of marital residence, trial court need not compute that equitable share
as credit to non-possessory spouse, as long as total distribution scheme is
equitable).
Instantly, in his court-ordered Rule 1925(b) statement, Husband failed
to include any issue regarding ownership and valuation of the Jessup
property, a credit to Husband for closing costs on the sale of the marital
residence, and Husband’s ownership of reversionary interests of the Erie
Lackawanna Railroad property. Likewise, Husband failed to include these
issues in his exceptions to the Report and Recommendation of April 17,
2013, or his exceptions to the Report and Recommendation Following
Remand of March 17, 2015. See Rule 1920.55-2(b). Accordingly, Husband
waived these claims for our review. Thus, we will give them no further
attention.
With respect to Husband’s remaining claims in his third issue, the
court reasoned:
At the initial Master’s Hearing conducted on August 26,
2010, [Wife] testified she obtained two appraisals of the
- 15 -
J-A22038-16
marital home by John Foley, a state certified real estate
appraiser. [In 2005 and 2008,] Mr. Foley appraised the
marital home and the surrounding land at $500.000.00. A
letter from John Foley & Associates dated August 24, 2010
was introduced at the hearing. The letter reaffirms Mr.
Foley’s opinion regarding the value of the property as
provided in his two earlier appraisals. A second appraisal
from J. Conrad Bosley was introduced by [Husband],
appraising the marital home at $335,000.00. Both [Mr.
Foley’s letter and Mr. Bosley’s appraisal] are included in
the list of the Master’s exhibits filed on April 24, 2013.¹
The Master determined the value of the marital home and
the land to be $427,500.00. He arrived at this figure by
taking the average of the [parties’ respective] appraisals.
¹ One issue affecting the value of the home is
whether a part of the in-ground pool and/or deck are
located on [Husband]’s mothers property.
Additionally, the testimony revealed that [Husband]’s
mother conveyed the property on which the marital
home is located to [Husband] without [Wife]’s
knowledge in 1991, shortly after the parties were
married.
In determining value, the Superior Court has ruled “The
trial [c]ourt must exercise its discretion and rely on the
estimates, inventories, record of purchase prices, [and]
appraisals submitted by the parties.[”] Verholek v.
Verholek, 741 A.[2d] 792, 796 (Pa.Super. 1999) [(en
banc)]. Continuing, the Verholek Court stated “the court
is free to accept all, none[,] or portions of the testimony
regarding the true and correct value of…property.” Id. []
Finally, “the court may reject evidence offered by both
parties in favor of its own valuation method.” Id. In its
discretion, a trial court may take the average of appraisals
submitted by the parties. See Aletto v. Aletto, 537 A.2d
1383, 1389 (Pa.Super. 1988).
In his…claim regarding the Master’s valuation of the
marital [residence], [Husband] alleges the Master relied on
“stale” property values in determining equitable
distribution. The above-reference[d] letter submitted by
[Wife] from John Foley & Associates is dated August 24,
2010. In this letter, Mr. Foley stated that in his opinion,
- 16 -
J-A22038-16
his two earlier appraisals of the marital home are still valid
as of August 2010. Notably, the appraisal submitted by
[Husband] of J. Conrad Bosley is from 2007. In addition to
the appraisals, the parties offered testimony about
circumstances that affect the property’s value. [Husband]
failed to provide any testimony and/or evidence to
establish that any of the appraisals are stale or no longer
valid. In considering all of the testimony and evidence
presented, the Master was free to accept or reject the
appraisals and/or corresponding testimony. This [c]ourt
will not disturb the Master’s findings and as such the
exceptions related to the value of the marital home are
denied.
* * *
The next…allegations of error concern the “West Wyoming
property”. …
* * *
[Husband] testified he owns 1.3 acres of land in West
Wyoming, PA. Without producing any documentation
relative to the property, [Husband] testified that the real
estate taxes are $100.00 a year and that he paid the taxes
himself. [Wife] testified she was familiar with the West
Wyoming property and that she and [Husband] had
previous conversations about the property. She testified
the tax bill would come in and “they’d be paid you know, it
wasn’t that we were looking to sell it….” [Wife] offered an
opinion regarding the value of the property at
$100,000.00. She testified that she calculated the value of
real estate by considering “what properties around it are
worth.” In addition, she relied on her knowledge in
general of “what properties have been selling for” and how
they had been increasing in value. Finally, she testified
she did some research regarding the value of some of the
properties. The Master accepted her opinion as to the
West Wyoming property and included it in his conclusions.
…
As stated above, the Master must consider the evidence
and documentation presented at the hearing. As such, a
Master is afforded discretion in determining which evidence
- 17 -
J-A22038-16
to accept and which evidence to reject. See Verholek[,
supra at] 796. Value may be based on “estimates,
inventories, records of purchase prices, and appraisals
submitted by [the] parties.” [Id.] As such this [c]ourt will
not disturb the findings and conclusions of the [M]aster
and these exceptions are denied.
* * *
The next…allegations of error concern a property in Salem
Township. …
At [the Master’s initial hearing], [Husband] testified he
owns eighteen (18) acres of land in Salem Township. …
[Husband] testified he pays the taxes, but he did not
provide any documentation regarding the tax bills. He
guessed the property taxes to be “a couple hundred dollars
a year.” He said that he gets the money to pay the taxes
from “wherever,” including borrowing money from his
mother. He did not have any documents to establish any
borrowed sums of money. [Husband] testified he sold an
easement on the property in 2004 for $16,000.00. He
could not recall what he did with the money, either
keeping it for himself or using it to pay household bills
and/or tuition. [Wife] testified the Salem Township
property is worth $127,000.00. She said she was aware
that he owned the property and that taxes were being paid
on the property. She testified [Husband] received $16,700
for the easement and she did not receive any of the
money. Neither [Husband] nor [Wife] introduced any
exhibits relating to the value of the Salem Township
[p]roperty.
As stated above, the Master is free to accept “all, none, or
portions of the testimony regarding the true and correct
value of property.” Verholek[, supra] at 796. The
Master considered and accepted [Wife]’s valuation of
$127,000.00, as it was the only evidence of value offered.
The Master also disregarded [Husband’s] testimony about
borrowing money from his mother to pay the property
taxes. Both determinations are within the Master’s sound
discretion and will not be disturbed by this [c]ourt, as such
these exceptions are denied.
- 18 -
J-A22038-16
[Husband] next alleges the Master erred “in determining
that the Pocono Summit property is valued as marital
property being retained by [Husband], while also valuing
said asset as part of [Husband]’s interest in McClure
Enterprises.” … [Wife] testified about land owned by
[Husband] in Pocono Summit, Monroe County. She
estimated the value of that property to be $45,000.00.
The Master included this property in the valuation of
[Husband]’s interest in McClure Enterprises.
As stated above, the Master was free to accept “all[, none,
or portions] of the testimony” regarding the value of the
Pocono Summit [p]roperty. [See Verholek, supra at
796.] In addition he was free to base his value
determination on testimony, evidence appraisals, etc. The
Master clearly accepted the testimony of [Wife] as
credible, as such the exception is denied.[1]
Next, [Husband] alleges the Master erred “in determining
that [Husband] has interest[s] in at least 15 lots in
Monroe, Luzerne and Lackawanna counties.” In addition,
he alleges the Master erred “in determining [Husband]
receives rental income from billboards on fifteen (15) lots”
in “determining that ‘outdoor advertising sites’ were owned
____________________________________________
1
In the Report and Recommendation of April 17, 2013, the Master notes
Husband has an eight percent (8%) interest in McClure Enterprises;
Husband’s interest in McClure Enterprises is valued at $17,297.80. See
Report and Recommendation, April 17, 2013, at 4. McClure Enterprises, Inc.
includes the Pocono Summit property. Id. at 9. The Master’s equitable
distribution summary also attributes the Pocono Summit property value in
full ($45,000.00) personally to Husband but also includes it as part of the
value of Husband’s interest in McClure Enterprises. Id. at 17. In essence,
the Master assigns to Husband an additional eight percent (8%) of the
Pocono Summit property value, which amounts to $3,600.00. The total
amount of the marital property subject to equitable distribution is
$1,014,750.80. Id. Considering the distribution scheme as a whole in light
of the overall value of the marital estate, we conclude the Master’s
misapplication of an additional $3,600.00 to Husband’s share of the marital
property is de minimis, as it represents only about 0.0035 of the entire
marital estate, and it is unworthy of further proceedings. See Busse,
supra; Williamson, supra.
- 19 -
J-A22038-16
by [Husband]” and “in attributing a value for ‘[o]utdoor
[a]dvertising sites’ as marital property subject to equitable
[distribution.”]
A great deal of testimony was offered at both the initial
hearing and the remand [hearing], which was held on
October 8, 2014. In the initial hearing, [Wife] testified
[Husband] owned various parcels of land on which
billboards were located. She based her estimation in part
on conversations she had with [Husband]. The billboard
rentals generated income, in the form of checks made
payable to [Husband]. She estimated there to be fifteen
(15) such properties. The rental income checks came in
on a regular basis and were used to the support the family.
A deed evidencing a billboard rental agreement was
admitted into evidence as [Wife]’s Exhibit # 3 at the
remand hearing.
On remand, [Husband] testified he did not own fifteen (15)
outdoor advertising sites. He was asked about the
contract that had been produced by [Wife] that had been
entered into by him and Patrick Outdoor Media. He denied
receiving any funds from that lease and testified that the
contract no longer exists. …
Initially, the Master valued ownership in these rental
agreements at $72,000.00. Upon remand, the Master did
not disturb his original findings and conclusions. In
evaluating the testimony of both [Wife] and [Husband], he
found [Wife]’s testimony credible.
As stated above, a Master may accept “all, none, or
portions of the testimony regarding a true and correct
value of the property.” Verholek[, supra at] 796. In this
instance, the Master, based on his credibility
determinations and case law, came to the conclusion
[Husband] owns and benefits from the billboard leases, as
such these exceptions are denied.
Next, [Husband] alleges the Master erred in “attributing a
value for land in the Green Ridge section of Scranton,
Pennsylvania as marital property subject to equitable
distribution.” At the [initial Master’s] hearing, [Wife]
testified [Husband] sold a piece of property that he owned
- 20 -
J-A22038-16
which was located in the Green Ridge area of Scranton.
[Wife] had read about the transaction in the newspaper.
[Wife] valued the property at $65,000.00.[2]
The Master accepted [Wife]’s testimony as credible and
included the property in his findings of fact. This
determination by the Master is appropriate based on the
evidence presented. It is within his sound discretion. See
Verholek[, supra]. As such this exception is denied.
* * *
Next, [Husband] alleges the Master erred “in failing to take
in to consideration that [Husband] paid the real estate
taxes and insurance for the property valued as marital
property and in failing to attribute any responsibility for
said expenses to [Wife].” At the [initial Master’s] hearing,
[Husband] testified he is under a court order to pay
$614.00 per month in child support. In addition, he is
court-ordered to pay one-half of the annual tuition at
Wyoming Seminary. He testified he doesn’t actually pay
the tuition, either his mother or brother-in-law pay it for
him. [Wife] testified she is the primary caretaker for the
minor children and she has been since the separation. She
testified the only contribution to household and
childrearing expenses she receives from [Husband] is the
court-ordered child support. She further testified a
significant portion of her child support check is used to pay
an outstanding [D]iscover bill, pursuant to an agreement
between the parties. Due to the conflicting testimony, the
Master made a credibility determination [and] chose to
believe [Wife]’s testimony. The Master is tasked with
achieving equitable justice. In light of the above
testimony and evidence presented, as well as applicable
law, this [c]ourt will not disturb the Master’s findings. As
such this exception is denied.
Next, [Husband] alleges the Master erred “in failing to
attribute a fair market rental value on [Wife]’s exclusive
____________________________________________
2
Testimony that Husband sold the property presupposes his ownership of
the property.
- 21 -
J-A22038-16
use of the marital residence.” The matter of fair market
rental value, however, is within the trial court’s discretion
and “is not mandatory.” Middleton v. Middleton, 812
A.2d 1241, 1248 (Pa.Super. 2002) [(en banc)] (citations
omitted). For reasons discussed in evaluating [Husband’s
claim regarding payment of real estate taxes and
insurance on the marital property], this [c]ourt will not
disturb the findings and conclusions of the Master. As
such this exception is denied.
(Trial Court Opinion at 4-6, 9-14, 18-19) (some internal footnotes and all
citations to record omitted). The record supports the court’s decision.
Husband’s challenges to the Master’s findings of credibility and consideration
of evidence merit no relief. See Childress, supra; Litmans, supra.
Likewise, Husband’s objections to the specific items in the overall
distribution of marital property fail to demonstrate the distribution is
inequitable. See Busse, supra. Accordingly, we affirm.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2016
- 22 -