Barry, S. v. Barry, W. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SUZANNE L. BARRY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
W. LYNN BARRY :
:
Appellant : No. 1218 WDA 2021
Appeal from the Order Entered September 14, 2021
In the Court of Common Pleas of Blair County Civil Division at No(s):
2018 GN 434
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY OLSON, J.: FILED: JUNE 6, 2022
Appellant, W. Lynn Barry (Husband), appeals from the order of equitable
distribution of marital property entered on September 14, 2021. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. Husband and Lynn Barry (Wife) married on April 25, 1981 1 and
separated on August 20, 2017. Wife eventually moved out of the marital
residence and currently resides with her siblings in a home owned by her older
brother. Husband remained in the marital residence where he currently lives
with the parties’ adult daughter and her three children.
On February 23, 2018, Wife filed a complaint for divorce. On August
16, 2019, the parties attended a hearing before a master. On September 26,
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1 At the time of this appeal, Wife is 63 years old and Husband is 65 years
old. The marriage produced three children who are now adults. Wife is a
receptionist at the Catholic Diocese of Altoona-Johnstown. Husband is a
self-employed carpenter.
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2019, the master issued a report and recommendation regarding the equitable
distribution of the marital estate. The master found “that a 50/50 division of
the marital assets would be appropriate.” Master’s Report, 9/26/2019, at 3.
The bulk of the parties’ marital estate consists of three adjoining parcels of
property: the marital residence, a rental home, and a vacant lot. The master
“recommended essentially that each party retain the [checking, savings, and
retirement] accounts and debts in his or her name, that the real estate be
awarded to Husband, and that Husband pay the sum of $53,458.33 to Wife
within ninety (90) days.” Husband’s Brief at 9.
Both parties filed exceptions to the master’s report and recommendation
and the trial court convened a hearing on March 6, 2020. On September 16,
2020, the court issued an order and opinion that denied the parties’ exceptions
and upheld the master’s recommendation concerning the equitable
distribution of the marital property. This appeal resulted.2
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2 Husband filed a notice of appeal on October 14, 2020. On November 2,
2020, the trial court ordered Husband to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Husband complied
timely on November 10, 2020. At that time, Husband also filed a motion for
the entry of a final decree in divorce. The trial court did not take action and,
therefore, Husband filed a praecipe to withdraw the appeal because, with no
final divorce decree, the equitable distribution decision was not appealable.
See Wilson v. Wilson, 828 A.2d 376, 378 (Pa. Super. 2003) (pre-divorce
order distributing marital property is interlocutory and unappealable;
appellate court lacks jurisdiction to review equitable distribution order until
order is rendered final by entry of divorce decree). Thereafter, the trial court
entered a divorce decree on September 13, 2021. Husband filed a notice of
appeal on October 13, 2021. On November 8, 2021, Husband filed a Rule
1925(b) concise statement. On December 21, 2021, our Prothonotary
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On appeal, Husband presents the following issues3 for our review:
I. Did the trial court err and/or abuse its discretion in averaging
the parties’ respective experts’ appraised values for the marital
residence and adjoining lot rather than accepting Husband’s
appraisal reports which were based on more accurate data?
II. Did the trial court err/and or abuse its discretion in awarding a
portion of the fair rental value of the marital residence to Wife
under all the facts and circumstances of this case?
III. Did the trial court err and/or abuse its discretion in failing to
give Husband credit for the expenses he paid after the parties’
separation for the rental property and vacant lot?
IV. Did the trial court err and/or abuse its discretion by ordering a
50/50 distribution of the marital estate when a proper
application of the equitable distribution factors set forth in 23
Pa.C.S.A. § 3502 to the facts of this case did not justify the
same given the parties’ respective financial circumstances, the
parties’ respective ages, and Husband’s inability to pay a
substantial financial settlement to Wife?
V. Did the trial court err and/or abuse its discretion in ordering
Husband to pay to Wife a financial settlement of $53,458.33
when the record reveals that he lacked the financial ability to
make such a payment and that said amount was not equitable
under all the facts and circumstances of this case?
VI. Did the trial court err and/or abuse its discretion in ordering
Husband to pay to Wife a substantial financial settlement within
90 days when the record reveals that he clearly lacked the
ability to do so?
Husband’s Brief at 4-5.
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received a letter advising this Court that the trial court relied upon the record
and its opinion and order entered on September 16, 2020 and no other opinion
was forthcoming.
3 We have reordered the issues presented for ease of discussion.
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All of Husband’s issues challenge the award of equitable distribution.
We adhere to the following standards:
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) (internal citations,
quotations, and brackets omitted).
Moreover, we have previously determined:
The finder of fact is entitled to weigh the evidence presented and
assess its credibility. The fact finder is free to believe all, part, or
none of the evidence and the Superior Court will not disturb the
credibility determinations of the court below.
In determining whether a court has abused its discretion, we do
not usurp the trial court's duty as finder of fact. The trial court's
findings, if supported by credible evidence, are binding upon a
reviewing court and will be followed. An abuse of discretion must
be established by clear and convincing evidence.
Miller v. Miller, 744 A.2d 778, 787 (Pa. Super. 1999).
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Husband asserts in his opening claim that both parties presented expert
appraisals of the marital properties4 and the master erred by averaging those
appraisals. Id. at 26-30. As such, Husband contends that “a careful review
of the appraisers’ testimony and reports makes abundantly clear that the
values reached by Husband’s appraiser [] were based on far more accurate
data and should therefore have been accepted by the [m]aster as more
reliable than the values reached by Wife’s appraiser[.]” Id. at 27.
Regarding property valuation in equitable distribution cases, this Court
has stated:
The Divorce Code does not include a specific method of valuing
assets. We have previously held that the court must exercise its
discretion, relying upon the estimates and inventories submitted
by both parties, the records of purchase prices, and appraisals. In
determining the value of marital property, the court is free to
accept all of the testimony, portions of the testimony, or none of
the testimony regarding the true and correct value of the
property. […T]he trial court act[s] within its discretion in assigning
equal weights to the testimony of [] two experts, and averaging
the two figures to arrive at an estimated fair market value of the
marital home.
Aletto v. Aletto, 537 A.2d 1383, 1389 (Pa. Super. 1988) (internal citations
and quotations omitted).
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4 Husband explains:
[T]he primary issue in this case is the appropriate division and/or
distribution of the parties’ three adjoining parcels of real estate.
These include the former marital residence, a vacant lot beside
the residence, and a rental property, all located on East
Wopsononock Avenue in Altoona, [Pennsylvania].
Husband’s Brief at 20. The properties appear to be unencumbered.
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Here, the master averaged the property appraisals presented by
Husband and Wife because of “a significant disparity between the appraisals
provided by each parties’ expert appraiser.” Trial Court Opinion, 9/16/2020,
at 7. The trial court determined that the record supported the master’s
decision to average the appraisals because one expert “based his appraisals
on comparable structures in inferior neighborhoods while [the other expert’s]
appraisals were based on comparable structures in quieter, nicer
neighborhoods.” Id. The trial court concluded that there was no abuse of
discretion because the master “weighed the testimony, photographs, and
financial situations of the parties [and] found it appropriate to average the
two appraisals together to arrive at the net value for the marital” estate. Id.
at 11. Based upon our standard of review, our review of the certified record
and applicable law as set forth above, we agree and conclude that it was not
an abuse of discretion to average the appraisals submitted by the parties in
valuing the real properties included within the marital estate. As such,
Husband is not entitled to relief on this issue.
Husband’s next two issues pertain to the master’s award of fair rental
value of the parties’ marital estate and Husband’s claim of offsetting credits
for maintaining the properties, so we will examine them together. Husband
argues that it was an abuse of discretion “in awarding Wife the sum of
$3,500.51 as her share of the fair value of the marital residence” because she
left of her own volition and Husband did not “take any action to bar Wife from
the home or interfere with her return” and, thus, “Wife was never
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dispossessed from the marital residence[.]” Id. at 31 (internal quotations
omitted). Additionally, Husband asserts:
The evidence also showed that while Wife’s living expenses are
minimal, Husband bears all the expenses of the utilities,
maintenance, repairs, taxes and insurance for the marital
residence. It should be noted that Husband never sought
reimbursement for these expenses incurred for the residence, but
merely enumerated the expenses, together with the other
relevant factors, to demonstrate that awarding a portion of the
fair rental value was not warranted under the circumstances of
this case.
Id. at 32.
We have found:
it is within the discretion of the trial court to grant rental value as
a part of equitable distribution. The award of rental value is within
the sound discretion of the trial court. The basis of the award of
rental value is that the party out of possession of jointly owned
property (generally the party that has moved out of the formal
marital residence) is entitled to compensation for her/his interest
in the property.
Generally, parties have an equal one-half interest in the marital
property, and thus the dispossessed party will be entitled to a
credit for one-half of the fair rental value of the marital home.
This Court has discussed the analysis for deciding whether to
award rental credit:
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.
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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 her/his ownership interest which is generally
one-half. Finally, we note that whether the rental credit is
due and the amount thereof is within the sound discretion
of the court of common pleas.
Lee v. Lee, 978 A.2d 380, 385–386 (Pa. Super. 2009) (quotations omitted),
citing Trembach v. Trembach, 615 A.2d 33, 36 (Pa. Super. 1992).
Initially, we reject Husband’s suggestion that Wife was not dispossessed
from the marital residence. As made clear in Lee and Trembach, the award
of fair rental value is available to “the party out of possession of jointly owned
property” and also described as “the party that has moved out of the formal
marital residence.” Lee, supra. Here, there is no dispute that Wife moved
out of the marital residence. Moreover, upon review of her report, it is clear
that the master considered (in great detail) and ultimately granted Husband
credit against the rental value for payments made to maintain the marital
property:
Husband provided an accounting of expenses associated with
maintaining the residence. Husband replaced the water heater.
The cost of the parts was $348.00 plus fourteen hours of his time.
The hot water system was replaced with parts previously
purchased for the rental property. Husband repaired the furnace
at the marital residence with replacement parts. New parts were
unavailable because the furnace is obsolete. Husband was
required to convert gas lines and water lines and install the flue in
order to repair the furnace. The 2017 taxes were in the amount of
$254.39 for the county, $320.43 for the school district and
$416.19 for the city ($82.58 per month). The 2018 taxes were in
the amount of $357.49 for the county, $393.82 for the school and
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$467.15 for the city ($101.54 per month). The 2019 taxes were
in the amount of $357.49 for the county, $365.75 for the school
and $467.15 for the city ($99.19 per month). The homeowners
insurance in 2017 and 2018 was $50.53 per month and the
homeowner's insurance in 2019 was $52.35 per month.
For the period from August 20, 2017 to October 20, 2019 Husband
paid taxes in the total amount of $2,540.79. For the period from
August 20, 2017 to October 20, 2019, Husband paid homeowners
insurance in the total amount of $1331.98. The fair rental value
based upon the expert opinions will be established at $687.50 per
month. ($725.00 + $650.00 = $1,375.00 ÷ 2 = $687.50).
Husband is entitled to credit for expenses paid on behalf of Wife
in the amount of $74.48 per month. ($2,540.77 for taxes +
$1331.98 for insurance = $3,872.75 ÷ 26 months = $148.95).
Wife's share or half of $148.95 is $74.48. Wife's share of the fair
rental value of $687.50 adjusted for Husband's expenses would
be in the amount of $269.27 ($687.50 ÷ 2 = $343.75 - $74.48 =
$269.27). The fair rental value which Wife can claim is $269.27 x
26 months = $7,001.02. The calculation will be adjusted to one
half or $3,500.51 because the parties' daughter and grandchildren
also live in the house. Finally, Husband shall be afforded credit
for the water heater maintenance which was $348.00. Wife's
share was $174.00 ($348.00 ÷ 2).
Master’s Report, 9/26/2019, at 11-12. The master thoroughly examined
Husband’s expenses in maintaining the marital residence after the parties
separated and offset those expenses against the fair rental value allocated to
the property. We discern no abuse of discretion in awarding Wife fair rental
value for the parties’ marital residence.
With regard to post-separation expenses paid on the rental property and
vacant lot, Husband avers, in sum:
The [m]aster and the court below granted Wife 50% of the
adjusted value of the parties’ rental property and vacant lot, but
failed to credit Husband with the expenses he incurred in
connection with the maintenance, repairs, taxes and insurance for
these properties, he should have been afforded a credit for the
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expenses he incurred in the maintenance and preservation of
these marital assets.
Husband’s Brief at 33.
We find this issue waived for failing to develop the argument, provide
legal citations, or point to the place in the record where Husband provided
evidence of the expenses he allegedly incurred. See Pa.R.A.P. 2119(d)
(“When the finding of, or the refusal to find, a fact is argued, the argument
must contain a synopsis of all the evidence on the point, with a reference to
the place in the record where the evidence may be found.”); see also Milby
v. Pote, 189 A.3d 1065 (Pa. Super. 2018) (“We shall not develop an argument
for an appellant, nor shall we scour the record to find evidence to support an
argument; instead, we will deem [the] issue to be waived.”). Husband does
not give a synopsis of the expenses for which he now claims credit nor does
he point to the record where he presented the evidence. Accordingly, we find
this issue waived. Regardless, on this issue, the trial court agreed with “the
[m]aster’s decision not to credit [Husband] for taxes and insurances paid on
the rental and vacant lot properties” because “the [m]aster considered those
expenses in the ultimate distribution scheme.” Trial Court Opinion,
9/16/2020, at 17. Husband does not refute this finding and we otherwise
discern no abuse of discretion, as discussed below, when we analyze the
overall equitable distribution scheme in response to Husband’s final three
appellate issues.
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Husband’s last three issues overlap, so we will examine them together.
Generally, Husband argues that the trial court abused its discretion by
upholding the master’s decision to divide the marital estate 50/50 and
requiring Husband to make a lump sum payment to Wife within 90 days of the
decision. Husband’s Brief at 14-20. More specifically, Husband claims that
the master and the trial court failed to consider the disparity in the parties’
income and economic circumstances, that “the parties’ adult daughter and her
three children reside with Husband at the former marital residence, and
Husband bears the majority of expenses as a result[,]” and that Husband is
responsible for repairs necessary for both the marital residence and the rental
property. Id. at 14-22. Husband maintains that “the parties in this case have
little in the way of liquid assets to permit either party from buying out the
marital interest of the other party in real estate.” Id. at 34. He contends
that “[t]here is no indication whatsoever in the record in this case that
Husband has any means of making a significant payment to Wife within the
ninety-day time limit [] and neither the [m]aster nor the lower court
suggested how this could be accomplished.” Id. at 34-35. As a result,
Husband “submits that the lump sum payment to be paid Wife should be
drastically reduced and that a significant time period be afforded to make
payments.” Id. at 25-26. “In the alternative, Husband posits that the
property should remain in joint names for a significant period of time to afford
him an opportunity to make improvements, sell one or more of the properties,
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and/or obtain financing to make whatever payment the court finds fair and
reasonable to pay Wife.” Id. at 26.
When deciding equitable distribution, the master and the trial court must
consider:
[T]he length of the marriage; any prior marriages; age, health,
skills, and employability of the parties; sources of income and
needs of the parties; contributions of one party to the increased
earning power of the other party; opportunity of each party for
future acquisitions of assets or income; contribution or dissipation
of each party to the acquisition, depreciation, or appreciation of
marital property; value of each party's separate property;
standard of living established during the marriage; economic
circumstances of each party; and, whether the party will be
serving as custodian of any dependent children.
Mercatell v. Mercatell, 854 A.2d 609, 611 (Pa. Super. 2004), citing 23
Pa.C.S.A. § 3502(a)(1-11). “The weight to be given to these statutory factors
depends on the facts of each case and is within the court's discretion.” Id.
(citation omitted).
We discern no abuse of discretion in ordering a 50/50 split in equitable
distribution. Here, the master and trial court carefully considered each of the
aforementioned equitable distribution factors. The parties were married for
37 years. Both Husband and Wife are currently in their 60s and still employed.
When examining the respective incomes of the parties, the master determined
that Husband undervalued his annual income and, essentially, considered the
parties’ income comparable. See Master’s Report, 9/26/2019, at 16
(“Husband's 2018 US Individual Income Tax Return reflects business income
in the amount of $9,847.00. On cross-examination, Husband testified that an
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individual who receives payment as cash may not report same. Husband
testified that he deducts expenses including gas for the truck and office and
home expenditures. As a result, his income is higher than the amount set
forth as business income on the tax returns.”). Our review of the record
confirms this as Husband testified that his annual income was, in fact, higher
than he reported on his taxes. N.T., 8/16/2019, at 159. There is no dispute
that both parties have little debt or individual assets and that each party has
a modest retirement account. Both parties agreed to assume their own debt,
individual assets, and retirement accounts. As a result, and as Husband
acknowledges, the bulk of the martial estate consists of the three
aforementioned parcels of property. Husband expressed interest in
maintaining possession of all three properties. N.T., 8/16/2019, at 139-141;
156. As a result, Wife is entitled to her 50% share of the value of those
properties. Hence, we discern no abuse of discretion in ordering Husband to
make a lump sum payment to Wife. Moreover, Husband is not entitled to an
offset because his adult daughter and her children currently reside with him
in the marital residence. The master and the trial court were statutorily
required to consider only whether Husband was serving as custodian of any
dependent children, which he is not. Finally, with regard to the 90-day
requirement, the trial court determined that after reviewing “the [m]aster’s
recommendations regarding the distribution of marital property as well as the
parties’ arguments, it is [the trial c]ourt’s [o]pinion that there have been a
number of delays which ha[ve] provided [Husband] substantial additional time
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to make financial arrangements[,]” finding the master’s recommendations
“fair and equitable.” Trial Court Opinion, 9/16/2020, at 19. We agree. Ninety
days was enough time to obtain financing or sell one or more of the properties.
Accordingly, we discern no abuse of discretion in ordering Husband to make a
lump sum payment to Wife within 90 days. As such, Husband’s final three
interrelated appellate issues fail.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2022
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