Fogle, R. v. Fogle, A. ( 2023 )

J-A22022-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
RANDALL FOGLE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANNETTE E. FOGLE :
:
Appellant : No. 65 WDA 2023
Appeal from the Decree Entered December 13, 2022
In the Court of Common Pleas of Somerset County Civil Division at
No(s): 2020-33141
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED: December 21, 2023
Appellant, Annette E. Fogle (“Wife”) appeals from the final divorce
decree entered on December 13, 2022. We affirm.
The trial court ably summarized the underlying facts of this case:
[Randall Fogle (“Husband”)] filed his complaint in divorce on
October 10, 2021. . . . On October 26, 2021, Wife filed her
answer and counterclaim for counsel fees, costs, expenses,
alimony, and alimony pendente lite. [During the September
27, 2022 equitable distribution hearing, the trial court heard
the following evidence:]
...
Husband and Wife married on June 23, 1979, in Somerset
County, Pennsylvania. Neither party was married previously.
Husband and Wife have three children together, ages 41, 40,
and 35. [The trial court] heard no testimony that either party
continues to be responsible in any way for any of their
children who are all emancipated. The parties began to live
separately on September 25, 2020. The marriage lasted for
approximately 41 years.
J-A22022-23
Husband is 64 years of age and Wife is 60 years of age.
Husband receives monthly injections as his cancer treatment
requires. Wife has type II diabetes that she manages with
medication. Neither parties' health conditions hinder their
ability to provide for themselves. The record does not show
that either party has contributed to the training, education,
or increased earning capacity of the other. Additionally,
neither party testified to having other vocational skills.
Outside of employment income, each party indicated they
have no additional opportunity to acquire capital assets or
income.
Husband has worked at Corsa Coal Corp. from 1981 to
present day, approximately 42 years in total. He was the
primary breadwinner for the family while working at various
positions for the company such as an apprentice, a foreman,
and a superintendent. He was also one of the nine miners
rescued from the Quecreek Mine accident. Wife was the
primary caregiver for their children during the marriage. She
worked at a Dollar General store for about three months
during the late 1980's or early 1990's, but had not been
employed until recently. Wife currently works part time as a
patient representative for Meyersdale Hospital.
The parties' standard of living while married was largely
middle class until approximately 2015 when Husband started
to make over six figures. Testimony revealed the parties took
vacations to places such as Canada, Mexico, the Dominican
Republic, and Africa. The family would also go on yearly or
bi-yearly camping trips or vacations to the beach.
Husband's total taxable income in 2021 equaled $181,810.
Husband testified that a recent management decision
changed both the location of where he works and his position
resulting in a decrease of his hourly rate from over $70 an
hour to $63. Husband receives health insurance and a 401(k)
through his employment. He currently resides in Grantsville,
Maryland. Husband makes $1,000 monthly rent payments to
Kathy Jenkins, with whom he now lives, as well as
contributions to utility bills. Husband also plans to retire on
February 7, 2023, when he turns 65. Husband testified that
he believes he will receive approximately $2,200 per month
from Social Security.
-2-
J-A22022-23
Wife testified that her average monthly gross pay from
Meyersdale Hospital was $1200. Wife did not submit a tax
return [or] a pay statement at the hearing, but testified that
she earns $15 an hour at her position. She currently works
approximately 25 hours a week. She also receives spousal
support of approximately $1,250.77 every two weeks or
$2,501.54 per month. Wife remains on husband's health
insurance, but she does have the opportunity to receive
health insurance at her current position for approximately
$140 per month. Wife is not Medicare eligible until she turns
65. Wife's monthly expenses include a mortgage payment of
approximately $200 per month, approximately $2,300 in
annual property taxes, homeowner's insurance, and a car
payment. Wife contends that she is unsure how she will
support herself if she loses spousal support because her
employment compensation "does not go very far." Wife
believes she can retire at age 67 and 8 months. Wife also
believes she is not eligible for Social Security, but conceded
that she can draw a "derivative benefit" from Husband's
Social Security when "he reaches social security age."
Trial Court Opinion, 12/12/22, at 2-5 (citations omitted).
The trial court concluded that the total value of the marital estate was
$1,032,954.60. Id. at 13. The trial court also concluded that “a near 50/50
split is the most just distribution of the marital property.” Id. at 14. The trial
court reasoned, however, that, “[b]ecause Husband has several months to
work before retirement [and because] Husband makes substantially more
income than Wife,” the most just distribution of assets “will be to award
Husband most of the physical assets while awarding Wife most of the liquid
assets.” Id. Therefore, the trial court awarded Wife the majority of the liquid
assets, for a total award to Wife of $519,596.03 and Husband the majority of
the physical assets, for a total award to Husband of $513,358.57. Id. at 18.
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J-A22022-23
Further, as is relevant to this appeal, the trial court denied Wife’s request for
alimony. Id. at 19.
On December 12, 2022, the trial court entered its final property
distribution and divorce decree in this matter. Trial Court Decree, 12/12/22,
at 1. Wife filed a timely notice of appeal. She raises one claim to this Court:
When [Wife] was married for [41] years, has limited earning
capacity, cannot maintain the marital status and lifestyle, and
[Husband] was the financial provider, did the [trial] court err
by denying the alimony claim of [Wife]?
Wife’s Brief at 3.
We have reviewed the briefs of the parties, the relevant law, the certified
record, and the opinion of the able trial court judge, the Honorable Scott P.
Bittner. We conclude that Wife is not entitled to relief in this case, for the
reasons expressed in Judge Bittner’s December 12, 2022 opinion. Therefore,
we affirm on the basis of Judge Bittner’s opinion and adopt it as our own. In
any future filing with this or any other court addressing this ruling, the filing
party shall attach a copy of Judge Bittner’s December 12, 2022 opinion.
12/21/2023
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J-A22022-23
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Received 617/2023 11 :50:21 AM Superior Court
Circulated � se
11/21/2023 �fSfrict
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A PM
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Filed 6/5/2023 11:50:00 AM Superior Court,Western District
· £'65WD 2023
RANDALL FOGLE, ) IN THE COURT OF COMMON
) PLEAS OF SOMERSET COUNTY,
) PENNSYLVANIA
Plaintiff,
)
v. )
) NO. 14I DIVORCE 2020
)
ANNETTE FOGLE, )
) DIVORCE
Defendant. ) EQUITABLE DISTRIBUTION
_,
Certified to bc true and -
e
c.
correct copy of te original
Documcnt on file in
this offiec.
For Plaintiff: Terry Graffius, Esq.; Johnstown, PA e-
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For Defendant: Andrew Snyder, Esq; Somerset, PA
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Prothon~try
Hearing Date: September 27, 2022 -..
Ul
MEMORANDUM
This memorandum concerns the divorce of Plaintiff Randall Fogle ("Husband") and
Defendant Annette Fogle ("Wife) and the equitable distribution of their marital property. The
matter is before the Court pursuant to Husband's Complaint in Divorce and Amended
Complaint in Divorce filed against Wife on October 10, 2021, and October 4, 2021,
respectively. After a divorce and equitable distribution trial held on September 27, 2022, the
Court now issues the following Memorandum and accompanying divorce and property
distribution decrees.
I. FACTUAL AND PROCEDURAL HISTORY
Randall Fogle ("Husband") and Annette Fogle ("Wife") were married on June 23,
1979, in Somerset County, Pennsylvania. Husband and Wife have three children together, ages
41, 40, and 35. The marriage lasted approximately 41 years.
DEC 1 0 2022
Husband filed his Complaint in Divorce on October I 0, 2021, requesting a Decree of
Divorce. On October 26, 2021, Wife filed her Answer and Counterclaims for counsel fees,
costs, expenses, alimony, and alimony pendente lite. On December 21, 2021, we issued a case
management order scheduling a divorce hearing for June 24, 2022, and required the parties to
submit pretrial statements as well as an inventory. The parties complied with the case
management order, but due to scheduling conflicts, we rescheduled the divorce hearing twice.
On September 27, 2022, we held the hearing and subsequently took the matter under
advisement to determine the issues before the Court including the equitable distribution of the
parties' marital property. This Memorandum and Order follows.
II. § 3502 Factors
The purpose of equitable distribution in divorce proceedings is to "effectuate economic
justice" between the parties and allow a fair and just distribution of their property rights. 23
Pa.C.S. $ 3102(a)(6). To reach this objective, the Court utilizes specific factors found in the
Divorce Code. See 23 Pa.C.S. $ 3502.'
Husband and Wife married on June 23, 1979, in Somerset County, Pennsylvania. Hr'g
Tr., 8-9. Neither party was married previously. Id. at 9. Husband and Wife have three children
together, ages 41, 40, and 35. Id, at 9. We heard no testimony that either party continues to be
' Under $ 3502, relevant factors for our consideration include: (I) the length of the marriage; (2) prior marriages
of the parties; (3) age, health, station, amount and sources of income, vocational skills, employability, estate,
liabilities and needs of each of the parties; (4) the contribution by one party to the education, training or
increased earning power of the other party; (5) the opportunity of each party for future acquisitions of capital
assets and income; (6) the sources of income of both parties, including, but not limited to, medical, retirement,
insurance or other benefits; (7) the contribution or dissipation of each party in the acquisition, preservation,
depreciation or appreciation of the marital property, including the contribution of a party as homemaker; (8)
the value of the property set apart to each party; (9) the standard of living of the parties established during the
marriage; (10) the economic circumstances of each party at the time the division of property is to become
effective; (I0.I) tax ramifications; (I0.2) expense of sale, transfer or liquidation associated with a particular
asset, which expense need not be immediate and certain; and (II) whether the party will be serving as the
custodian of any dependent minor children.
2
responsible in any way for any of their children who are all emancipated. The parties began to
live separately on September 25, 2020. Id. at 78. The marriage lasted for approximately 41
years. Id, at 46.
Husband is 64 years of age and Wife is 60 years of age. Id. at 12, 78. Husband receives
monthly injections as his cancer treatment requires. Id. at 13. Wife has type II diabetes that she
manages with medication. Id. at 87. Neither parties' health conditions hinder their ability to
provide for themselves. Id. at 10, 128. The record does not show that either party has
contributed to the training, education, or increased earning capacity of the other. Additionally,
neither party testified to having other vocational skills. Outside of employment income, each
party indicated they have no additional opportunity to acquire capital assets or income. Id. at
54, 69, 93.
Husband has worked at Corsa Coal Corp. from 1981 to present day, approximately 42
years in total. Id. at IH, 41. He was the primary breadwinner for the family while working at
various positions for the company such as an apprentice, a foreman, and a superintendent. Id.
He was also one of the nine miners rescued from the Quecreek Mine accident. Id. at 124. Wife
was the primary caregiver for their children during the marriage. Id. at 90. She worked at a
Dollar General store for about three months during the late 1980's or early 1990's, but had not
been employed until recently. Id. at 89, 96. Wife currently works part time as a patient
representative for Meyersdale Hospital. Id. at 90--91.
The parties' standard of living while married was largely middle class until
approximately 2015 when Husband started to make over six figures. Id. at 46. Testimony
revealed the parties took vacations to places such as Canada, Mexico, the Dominican Republic,
3
and Africa. The family would also go on yearly or bi-yearly camping trips or vacations to the
beach. Id. at 48, 95.
Husband's total taxable income in 2021 equaled $181,810. PI's Ex. A. Husband
testified that a recent management decision changed both the location of where he works and
his position resulting in a decrease of his hourly rate from over $70 an hour to $63. Hr'g Tr.,
12. Husband receives health insurance and a 40 1(k) through his employment. Id. at 30, 44. He
currently resides in Grantsville, Maryland. Id. at 57, 122. Husband makes $1,000 monthly rent
payments to Kathy Jenkins, with whom he now lives, as well as contributions to utility bills.
Id. at 151--52. Husband also plans to retire on February 7, 2023, when he turns 65. Id. at 12
Husband testified that he believes he will receive approximately $2,200 per month from Social
Security. Id. at I 50.
Wife testified that her average monthly gross pay from Meyersdale Hospital was
$1200. ld. at 92. Wife did not submit a tax return nor a pay statement at the hearing, but testified
that she earns $I5 an hour at her position. Id. at 127. She currently works approximately 25
hours a week. Id. at 9L. She also receives spousal support of approximately $1,250.77 every
two weeks or $2,501.54 per month. Id. at 121. Wife remains on husband's health insurance,
but she does have the opportunity to receive health insurance at her current position for
approximately $140 per month. Id. at 87, 92. Wife is not Medicare eligible until she turns 65.
Id. at 87. Wife's monthly expenses include a mortgage payment of approximately $200 per
month, approximately $2,300 in annual property taxes, homeowner's insurance, and a car
payment. Id. at 80, 82, 121. Wife contends that she is unsure how she will support herself if
she loses spousal support because her employment compensation "does not go very far." Id. at
93. Wife believes she can retire at age 67 and 8 months. Id. at 123. Wife also believes she is
4
not eligible for Social Security, but conceded that she can draw a "derivative benefit" from
Husband's Social Security when "he reaches social security age." Id. at 96, 128.
The parties have asked us to consider various items for equitable distribution, including
the marital residence, several vehicles, a 40(k), individual retirement accounts, certificates of
deposit, life insurance, gemstones, firearms, bank accounts, and a commemorative canoe. We
discuss both the date of separation and the valuation of these assets in the following section.
Husband requested a 50/50 distribution while Wife requested a greater than 50/50
distribution in her favor. Id. at 40, 153. Since the separation, Wife has retained possession of
the property at 890 Fogletown Road in Berlin, Pennsylvania ("Marital Residence"). Wife
retains possession of all but one vehicle while Husband has possession of one vehicle, some
firearms, and personal belongings. Id, at 113. The parties have not brought to our attention any
potential tax ramifications of distribution. Further, the parties have not identified any expense
of sale, transfer or liquidation associated with a particular asset. Finally, the equitable division
of the Corsa Coal 40I(k) will require a qualified domestic relations order {QDRO).
III. VALUATION OF MARITAL PROPERTY
"The trial court has [the] discretion... to value the marital property at either the time
of separation or the time of trial to obtain an equitable result, but valuation is made as of a date
certain." Huber • Etkin, 58 A.3d 772, 779 n.6 (Pa. Super. 2012) (citation omitted). "The same
date need not be used for all assets." Smith v. Smith, 904 A.2d 15,18(Pa. Super. 2006) (citation
omitted).
Prior to discussing marital assets and the valuation of each, the parties made three
stipulations. First, the parties agreed that they sold five acres of land to their children and split
the proceeds evenly, Hr'g Tr., 4. Second, the parties agreed that they sold a camper or "fifth
5
wheel" for $45,000 and split the proceeds evenly. Id. at 5. Third, the parties agreed to the
authenticity of several documents entered at the hearing so that any disagreements that would
arise would pertain to the value of the asset. Id. at 6.
The assets and liabilities considered for equitable distribution include: (I) the Marital
Residence and mortgage, (2) vehicles and auto loans, (3) Husband's 401(k), (4) financial
investments such as certificates of deposits, individual retirement accounts, and life insurance,
(5) gemstones, (6) firearms, (7) bank accounts, and(8) a commemorative canoe. Our valuation
and distribution of the aforementioned assets and liabilities follows after we address the date
of separation.
A. Date of Separation
Before equitably distributing the marital property, we must determine the date of
separation, The date of separation is presumed to be the date of the filing and serving of a
divorce complaint, "unless an earlier date can be substantiated through the presentation of
evidence confirming an earlier date." McCoy v. McCoy, 888 A.2d 906, 912 (Pa. Super. 2005);
See 23 Pa.C.S.A. $ 3103 (definition of "separate and apart"). The date of separation is
important because we use it to determine whether property is marital or non-martial. Marital
property is "all property acquired by either party during the marriage and the increase in value
of any nonmarital property acquired pursuant to paragraphs (1) and (3)." 23 Pa.C.S.A. $ 3501.
Some examples of nonmarital property include "[p]roperty acquired by gift" and "[p]roperty
acquired after final separation until the date of divorce." 23 Pa.C.S.A. 5 3501(a)(3)-(4).
Marital property is subject to the Court's equitable distribution while nonmarital property is
not subject to equitable distribution. See 23 Pa.C.S.A. $ 3502.
6
Here, each party offered testimony regarding the date of separation. Husband testified
that the date of separation took place in October 2020. Hr'g Tr., 9. Husband filed his Complaint
in Divorce on October 10, 2020. Conversely, Wife testified that she believed the specific date
of separation was September 25, 2020, because "that's the day he told me in the garage that he
had an attorney and he was filing for divorce, and he packed up and left." Id. at 78. Husband
did not challenge or question Wife's assertion that September 25, 2022, was the date of
separation. We find this to sufficiently establish evidence of an earlier date of separation rather
than the default presumption of filing and serving of the complaint in divorce. Therefore,
September 25, 2020, is the date of separation. Consequently, property acquired after this date
is nonmarital property and not subject to equitable distribution.
B. Marital Residence
Husband introduced an appraisal completed by Scott Boyer Appraisals for the Marital
Residence which valued the property at $240,000. Id. at 22, 141. The property is encumbered
by a mortgage in the amount of $20,155.71 as of a September 21, 2021, statement. PI.'s Ex. H.
Therefore, the net equity of the Marital Residence is $219,844.29. Thus, the amount to be
divided among the parties by way of equitable distribution for the Marital Residence is
$219,844.29.
C. Vehicles, Boat and Trailer, and 2009 Carry-on Trailer
There are four vehicles that the parties have asked us to consider for purposes of
equitable distribution;: a 2018 Dodge Ram 2500, a 2019 Toyota Highlander, a 2006 Suzuki LT-
A700XK6 KingQuad, and a 20 l3 Arctic Cat Prowler 700 HDX. The parties have also asked
us to equitably divide a Sea Nymph boat and trailer and a 2009 Carry-on trailer. The 2018
Dodge Ram 2500 and 2019 Toyota Highlander are jointly titled, but the record is not clear
7
regarding which parties are on the titles of the 2013 Arctic Cat , 2006 Suzuki, sea nymph boat
and trailer, and 2009 Carry-on trailer.
Husband introduced evidence for values of the 2018 Dodge Ram 2500, 2013 Arctic
Cat Prowler 700 HDX, and 2006 Suzuki LT-A700XK6 KingQuad. The 2018 Dodge Ram's
private sale value according to Kelly Blue Book is $42,467.00. PI's Ex. J. The 2018 Dodge
Ram is currently financed and has an outstanding loan balance of $22,406.56. PI.'s Ex. K.
Thus, the net equity of the 2018 Dodge Ram is $20,060.44. Husband next introduced a National
Automobile Dealers Association ("NADA") estimate for the 2006 Suzuki, and according to
that estimate, its retail value is $2,165. PI.'S Ex. L. Husband then introduced a NADA estimate
for the 2013 Arctic Cat Prowler showing a retail value of $5,740. Pl.'s Ex. M. Wife neither
objected nor introduced contrary evidence to contest the values of these vehicles.
Husband testified that the Sea Nymph fishing boat and trailer is worth $1,000, and the
2009 Carry-on trailer used to haul "a side-by-side or something on it" is worth S500. Hr'g Tr.,
29--30, Wife did not provide contrary testimony or evidence to suggest these values were
inaccurate,
Wife introduced evidence for the value of the 2019 Toyota Highlander. According to
Kelly Blue Book, the vehicle's trade in value is $41,275. Def.'s Ex. I. Wife also confirmed
that this vehicle is financed and has an outstanding loan balance of $21,882.04. Def.'s Ex. 2.
Thus, the net equity of the 2019 Toyota Highlander is $19,392.96. Although Husband did
inquire as to the difference between private party value and trade-in value, no contrary
valuation evidence was submitted. Hr'g Tr., 13I.
Neither party argued that any of the vehicles, Sea Nymph boat and trailer, or 2009
Carry-on trailer were nonmarital property. Thus, the equity of these vehicles is subject to
8
equitable distribution. Id. at I02. Adding the above values together, we find that the amount to
be divided among the parties by way of equitable distribution for all vehicles, boat, and trailers
is $48,858.40.
D. Husband's 401(k)
Husband began working at Corsa Coal Corp. in 1981 and is currently employed by the
company. Id. at H. Husband contributes to a 401(k) through his employment, and he agrees
that the 401(k) is marital property subject to equitable distribution. Id. at 154. Husband
introduced a June 30, 2022, statement from his 40l(k) account revealing a balance of
$482,873.36. PI.'s Ex. N. He further testified, which was supported by the same June 2022
statement, that he made three contributions to the 40l(k) after the date of separation in the
amounts of $6,084 (total 2022 contribution), $11,171 (total 2021 contribution), and $19,500
(total 2020 contribution). PI.'s Ex. N; Hr.'g Tr., 31. As mentioned previously, property
acquired after separation is not subject to equitable distribution.
These wages were eamed after the date of separation and subsequently contributed to
the 401(k), thus precluding equitable distribution. A closer look, however, reveals that the 2020
contribution of $19,500 occurred during the entire year of 2020. Hr'g Tr., 62. The parties
separated on September 25, 2020. This means approximately nine months of the 2020
contributions is marital property. Thus, the actual amount not subject to equitable distribution
in 2020, because it was made after the date of separation, is $3,516.49. See Pl's Ex. N. This
represents the dollar amount contributed to the 401(k) that took place between October I, 2020,
and December 31, 2020. As a result, the total amount of contributions made after the date of
separation is $20,771.49. Therefore, we must subtract $20,771.49 from the total 401(k) balance
because it is not subject to equitable distribution. Consequently, the value of Husband's 401(k)
9
to be divided amongst the parties in equitable distribution via an appropriate QDRO is
$462,101.87.
E. Financial Investments
The parties have six financial investments that are subject to equitable distribution.
There are two Commonwealth Financial Network ("CFN") individual retirement accounts
("IRA"), two Prudential whole life insurance policies. and two certificates of deposit (CD"),
Pl.'s Ex.'s 0, P, Q, R; Def.'s Ex. 3, 6. One CD is through First National Bank and a second
CD is through First People's Community Federal Credit Union ("People's").
Husband introduced a June 2022 statement showing a CFN IRA valued at $95,738.75.
Pl.'s Ex. P. He then introduced a June 2022 statement showing a joint CFN IRA valued at
$32,571.58. Pl. 's Ex. Q. Husband also introduced his Prudential life insurance policy through
a July 12, 2022, letter indicating a net cash value of $54,919.59. PI's Ex. 0. Wife introduced
her Prudential life insurance policy through a June 11, 2021, account balance printout showing
a net cash value of $6,273.71. Def.'s Ex. 3, Husband also submitted a First National Bank
("FNB") CD truth-in-savings disclosure demonstrating a value of $34,170.59. PI's Ex. R.
Though Wife testified that the account has been closed, Husband acknowledged that the value
is subject to equitable distribution. Hr'g Tr., 66, 105. Lastly, Wife introduced two People's CD
statements with the most recent statement dated September 2021, showing a value of
$10,611.62. Def.'s Ex. 6.
Neither party made the Court aware of any tax implications or financial consequences
of withdrawing, closing, or transferring these funds to accomplish equitable distribution. Thus,
adding these six. financial investment values together, the amount to be divided amongst the
parties in equitable distribution is $234,285.84.
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F. Gemstones
The parties purchased numerous gemstones over the course of their marriage that they
now wish to have equitably distributed. Husband introduced appraisal reports completed by
Universal Gemological Laboratory, Inc. spanning a timeframe from 2009 t0 2011. PI.'s Ex. U.
The parties own a total of 12 gemstones and each has its own appraisal report. Id. The aggregate
value of all 12 gemstones is $54,765. Wife testified, however, that "there was an opal that I
cannot find." Hr'g Tr., 1HO. The appraisal values the opal stone at $6,290. PI's Ex. U. Wife
further testified that Husband has in his possession "two zircons that Mr. Fogle made into
rings." Id. at 108. When asked whether he had some of the gemstones "made into custom
jewelry made for your wear" Husband replied "I had some, yes." Id. at 60. He later recanted
when asked "it's your testimony here today that you don't have any of those gemstones" to
which he replied "not that I know of." Id. Wife's testimony in conjunction with Husband's
inconsistent testimony lead us to believe Husband is in possession of two Zircon rings. Wife
has possession of the remaining nine gemstones. Therefore, because an opal gemstone is
missing, the amount to be divided among the parties by way of equitable distribution of eleven
gemstones is $48,475.
G. Firearms
The parties each testified to having firearms in their possession. Id. at 68-69, 113--14.
Upon Husband's departure from the Marital Residence, he took several firearms with him and
acquired more from his sister. Id. at 68. In total, Husband has 46 firearms and had each
appraised by Mountain State Auction Services. Pl.'s Ex. T. The total value of the firearms in
Husband's possession is $26,050. Id. Husband also testified, and Wife agreed, that Husband
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obtained some of the firearms in his possession through inheritance from his father. Hr'g Tr.,
at 69. The total value of nonmarital firearms is $14,300. PI's Ex. T.
Conversely, Wifealso has possession of several firearms. Hr'g Tr., 1H3--14. She has I5
firearms and had each appraised by Hoovers Outfitting. Def.'s Ex. 5. The total value of the
firearms in Wife's possession is $2,880. Id. Wife also testified, "I only want my two pistols.
That's it." Hr'g Tr., 142. Wife specified that she wanted the "two handguns that are mine..
[t]he Browning Buckmark .22... [a]nd the SIG Sauer [P238]." Id. at 11516. "The rest do
belong to Randy." Id. at I15. Husband did not object to this request. The combined value of
the handguns that Wife is requesting is $525. See Def.'s Ex. 5. Because we must subtract the
value of the nonmarital firearms from the total value of firearms, the amount to be equitably
distributed between the parties is $17,600.
H. Bank Accounts
The parties also have a joint bank account. Hr'g Tr., 24-25. Husband introduced a
statement showing a FNB checking account with a balance of $1,759.20. PI.'s Ex. I. This joint
bank account is subject to equitable distribution. Thus, the amount to be equitably distributed
from the FNB joint checking account is $1,759.20.
Wife also testified that she has a savings account with FNB. Hr'g Tr., 96, 132. She
stated the balance was approximately $I 0,000. Id. at 95. Wife submitted no documentation of
this account. Her testimony revealed that a substantial portion of the account balance originated
from the sale of the camper. See id, at 95--96. The parties already stipulated that these funds
were previously equally divided when the camper was sold. Thus, there is no need for this
Court to equitably distribute the already divided funds from the camper. Because (I) there was
no documentation submitted evidencing the existence of Wife's FNB savings account; (2) the
value she testified to is similar to that in Wife's People's CD account, causing confusion when
Wife stated "savings" but may have meant "CD"; and (3) a substantial portion of the FNB
savings funds came from already divided property, we find that even if this account does exist,
it is nonmarital property not subject to equitable distribution.
I. Commemorative Canoe
Husband was one of the nine miners involved in the Quecreek mine accident. Id. at
124. Oprah Winfrey gifted a limited edition I00-year commemorative canoe to each miner. Id
at 124--25. Gifts are nonmarital property and thus not subject to equitable distribution. 23
Pa.C.S.A. $ 3501(a)(3). However, the "increase in value of any nonmarital property" is subject
to equitable distribution. 23 Pa.C.S.A. $ 3501(a). Husband testified that the canoe was worth
$500. Hr'g Tr., 30. Wife testified that the canoe "is still in its original packing ... [and] has
never seen the light of day." Id. at 143. In her estimation, its value is $3,000. /d. at 125. Neither
party based these estimations on expert opinions, appraisals, or objective proof of value.
Therefore, the values given by each party are speculative, Consequently, we find that the canoe
has not increased in value and thus is not subject to equitable distribution.
Based on our valuations and findings of marital property, we find the total value of the
marital estate that is subject to equitable distribution is $1,032,954.60. This number is based
on adding all of the marital assets and deducting the marital debts. The calculation of the
marital estate is set forth below.
13
Marital Asset/Debt
Marital Residence $240,000.00
Mortgage on Marital Residence ($20,155.72)
Net Equity $219,844.29
20 I 8 Dodge Ram 2500 $42,467.00
Auto Loan Balance ($22,406.56)
Net Equity $20,060.44
2019 Toyota Highlander $41,275.00
Auto Loan Balance ($21,882,04)
Net Equity $19,392.96
2006 Suzuki LT-A700XK6 KingQuad $2,165.00
2013 Arctic Cat Prowler 700 HDX $5,740.00
Sea Nymph boat and trailer $1,000.00
2009 Carry-on trailer $500.00
CORSA Coal 401(k) balance $482,873.36
Nonmarital Contributions (520,771.49)
Net Equity $462,101.87
CFN IRA (00x-080x933) $95,738.75
CFN IRA (Xx-00r993) $32,571.58
FNB CD (0x0000945) $34,170.59
People's CD (00xx360) $10,611.62
Husband's Prudential Whole Life Insurance (xxxxx030) $54,919.59
Wife' Prudential Whole Life Insurance (xxxxx420) $6,273.71
Gemstones $54,765.00
Missing Opal ($6,290.00)
Net Equity $48,475.00
Firearms $28,930.00
Nonmarital firearms ($ I 1,300.00)
Net Equity $17,630.00
FNB Joint Checking Account $1,759.20
Net Value of the Marital Estate $1,032,954.60°
his value is the sum of all numerical values in bold print. Numerical values in parentheses signify a debt or
subtraction,
14
IV. EQUITABLE DISTRIBUTION
Husband requests this Court to split the marital estate 50/50 and Wife requests this
Court to split the assets greater than 50/50 in her favor. We find that a near 50/50 distribution
is the most equitable. Husband contributed to the marriage by his role of the primary wage
eamer that supported the family. Wife contributed to the marriage as being the primary
caretaker for their children and has continued to care for the property. Jn other words, both
Husband and Wife equally contributed to and benefitted from the marriage. Furthermore, we
find that there is no compelling reason to distribute a larger portion of the marital estate to one
spouse rather than the other. Accordingly, we find that a near 50/50 split is the most just
distribution of the marital property.
Because Husband has several months to work before retirement, Husband makes
substantially more income than Wife, and considering the economic circumstances of each
party, we find the most equitable distribution will be to award Husband most of the physical
assets while awarding Wife most of the liquid assets. Due to the diversification of assets, we
distribute the property by asset rather than requiring a party to make a cash payment to another
party. We find this overall equitable distribution fits both the party's needs, most requests, and
economic circumstances of each party after property distribution. Several equitable
distribution factors support our determination on equitable distribution.'
The total martial estate value equals $1,032,954.60. By splitting up the marital estate
by asset, we do not come to a perfect 50/50 split, but we arrive at an equitable solution giving
the parties most of what was requested and what we find to be most equitable. First, Husband
Te"needs of the parties", "sources of income", "opportunity for each pany for future acquisition of capital
assets and income", and the "economic circumstances of each party at the time of division of property." 23
Pa.C.S.A. $ 3502 (3), (5), (6), (10), respectively.
15
inherited the Martial Residence from his parents, and the property has been in his family for
generations. Therefore, Husband is awarded ownership and possession of the Martial
Residence, and $219,844.29 worth of equity is credited to him.
Second, each party will keep the vehicle in their current possession. Consequently,
Husband shall receive the 2018 Dodge Ram 2500 and the corresponding $20,060.44 worth of
equity is credited to him. Wife shall receive the 2019 Toyota Highlander and the $19,392.96
worth of equity is credited to her. Additionally, Husband shall receive the 2006 Suzuki LT-
A700XK6 KingQuad, worth $2,165.00, the 2013 Arctic Cat Prowler 700 HDX worth
$5,740.00, the Sea Nymph boat and trailer worth $1,000.00, and the 2009 Carry-on trailer
worth $500.00. These values are credited to Husband. Because these vehicles maintain the
residential property and serve a recreational purpose, Wife is better served with liquid assets
rather than the burden of selling these vehicles.
Third, both Wife and Husband are entitled to 50% of Husband's Corsa Coal 40l(k).
Each party will have $231,050.94 credited to them. An appropriate QDRO shall be prepared
to effectuate the distribution of the aforesaid portion of Husband's 40l(k) to Wife.
Fourth, Wife shall receive both CFN IRAs (account xxx-xxx933 and xxx-x8x993)
worth $95,738.75 and $32,571.58, the FNB CD (account xxx8xx945) worth $34,170.59, the
People's CD (account xxxx360) worth $10,611.62, and Husband's Prudential Whole Life
Insurance (account xxxxx030) worth $54,919.59. These values are credited to Wife.
Fifth, Wife shall receive the remaining nine gemstones. Of the original 12 gemstones,
Husband has possession of two Zircon gemstones and one opal gemstone is missing. The value
of the missing opal is $6,290.00. The value of the missing opal deducted from the total value
of the gemstones is $48,475.00. The combined worth of the two Zircon gemstones in
16
Husband's possession is $7,860.00. Thus, $7,860.00 is credited to him, leaving $40,615.00
worth of equity in nine remaining gemstones. As a result, Wife is credited with the remaining
equity in the nine gemstones in the amount of $40,615.00.
Sixth, because Wife is best served with liquidity and Husband with the actual asset,
Husband shall receive all but two firearms. Wife testified that she only wanted two handguns,
while Husband testified that several firearms were inherited from his father and that he also
wanted to keep several other firearms. The total equity in firearms is $28,930. Of the total,
$11,300 is nonmarital property not subject to equitable distribution, resulting in $17,630 worth
of equity. Wife is awarded the .22 caliber Browning Buckmark, serial number xxxxxx992,and
the SIG Sauer P238 serial number xxxxxx329. Accordingly, she is credited with $525.00 worth
of equity. Therefore, Husband is credited with the remaining $17, 105.00 worth of equity.
Lastly, Husband shall receive both the FNB joint checking account and the limited
edition 100-year commemorative canoe. The FNB joint checking account in the amount of
$1,759.20 is credited to Husband. The canoe, however, was a gift and it is nonmarital property
not subject to equitable distribution. Because the parties speculated as to its worth without
expert opinion or some objective proof of value, any increase in the value of the canoe over
time is speculative as well. As a result, the canoe is Husband's sole property and we also find
that there has been no increase in value,
For the reasons above, the distribution of marital assets is as follows:
17
Randall Fogle
Asset Value
Net Equity of Marital Residence $219,844.29
2018 Dodge Ram 2500 $20,060.44
2006 Suzuki LT-A700XK6 KingQuad $2,165.00
2013 Arctic Cat Prowler 700 HDX $5,740.00
Sea Nymph boat and trailer $1,000.00
2009 Carry-on trailer $500.00
1/2 Corsa Coal 40l(k) $231,050.93
Wife' Prudential Whole Life Insurance (xxxxx420) $6,273.71
Two Zircon Rings $7,860.00
Fireams $17,630.00
FNB Joint Checking Account $1,759.20
$513,883.57
Wife's two handguns ($525.00)
Total: $513,358.57
Annette Fogle
Asset Value
201 9 Toyota Highlander $19,392.96
CFN [RA (XxXx-x06933) $95,738.75
CFN IRA (xx0x-xx993) $32,571.58
FNB CD (xxxxxx945) $34,170.59
People's CD (000x360) $10,611.62
Husband's Prudential Whole Life Insurance (xxxxx030) $54,919.59
1/2 Corsa Coal 401(k) $231,050.94
Gemstones $48,475.00
Handguns (Buckmark 22 and Sig Sauer P238) $525.00
$527,456.03
Husband's Two Zircon Rings ($7,860.00)
Total: $519,596.03
V. ALIMONY AND COUNSEL FEES
Wife requests that Husband be ordered to pay her alimony. "Alimony following a
divorce is a secondary remedy and is available only where economic justice and the reasonable
18
needs of the parties cannot be achieved by way of an equitable distribution award and
development of an appropriate employable skill." Teodorski v. Teodorski, 857 A.2d 194, 200
(Pa. Super. 2004) (quoting Moran v. Moran, 839 A.2d 1091, 1096-97 (Pa. Super. 2003))."The
purpose of alimony is not to reward one party and to punish the other, but rather to ensure that
the reasonable needs of the person who is unable to support himself or herself through
appropriate employment, are met." Id.In determining whether alimony is necessary, and in determining the nature,
amount, duration and manner of payment of alimony, the court must consider
numerous factors including the parties' earnings and earning capacities, income
sources, mental and physical conditions, contributions to the earning power of the
other, educations, standard of living during the marriage, the contribution of a
spouse as a homemaker and the duration of the marriage.
Id., See 23 Pa.C.S.A. $ 3701(b). Additionally, "the factors in Section 3701(b) do not create an
exhaustive list. In fact, the trial court should also consider the assets the petitioning spouse
received in equitable distribution." Schultz v. Schultz, 184 A.3d 168, 180 (Pa. Super. 2018)
(citation omitted).
Here, we fail to see how Wife would be unable to support herself to justify an award
of alimony. Wife is currently employed, capable of working full-time, and will receive a
substantial amount of liquid assets from the marriage. The record shows that even though Wife
has type II diabetes, it does not prevent her from employment. Additionally, Wife offered no
evidence as to her monthly expenses outside of the mortgage payment. As a result, the amount
of money Wife will receive from equitable distribution of marital property and through her
employment demonstrates that Wife has not sufficiently demonstrated that alimony is
necessary to meet her needs. Therefore, Wife's claim for alimony is DENIED.
Although Wife is currently working part-time at Meyersdale Hospital, Wife conceded that there is nothing
preventing her from working full time. Hr'g Tr., 90--91, 128.
19
Lastly, we turn to Wife's claim for counsel fees. "The purpose of an award of counsel
fees is to promote fair administration of justice by enabling the dependent spouse to maintain
or defend the divorce action without being placed at a financial disadvantage; the parties must
be 'on par' with one another." Busse v. Busse, 921 A.2d 1248, 1258 (Pa. Super. 2007) (citing
Teodorski, 857 A.2d at 201). A court may deny a claim for counsel fees where the party
receives sufficient assets in equitable distribution to pay the legal expenses. Tagnani •
Tagnani, 654 A.2d 1136, 1139 (Pa. Super. 1995) (citing Adelstein v. Adelstein, 553 A.2d 436,
437 (Pa. Super. 1989))
Here, we fail to see how Wife would be put at a "financial disadvantage" with having
to pay counsel fees. Wife is receiving a substantial amount of liquid assets from equitable
distribution, and Wife earns income from her employment. Taken together, Wife has sufficient
income to pay her legal expenses. Accordingly, Wife's claim for counsel fees is DENIED.
Consistent with our Memorandum we enter the following Decree in Divorce and
Property Distribution Decree:
20
RANDALL FOGLE, ) IN THE COURT Q16696gAlty Prothonotary
) PLEAS OF SOMERSET COUNTY
Plaintiff,
) evsY+,AL2baa 0Ee., 1a
)
)
«e [11 v@9
V.
) vo. pvo#6.#0#al
)
ANNETTE FOGLE, )
)
\
Certified to be truc and DIVORCE
correct topy of the original )
Document on file in Defendant. EQUITABLE DISTRIBUTION
this office.
d==
- Prothonoiry
PROPERTY DISTRIBUTION DECREE
AND NOW, this /214of December, 2022, the Court having conducted an
equitable distribution trial on September 27, 2022, for the reasons discussed in the
accompanying Memorandum, it is hereby ORDERED ADJUDGED and DECREED as
follows:
I. Husband is awarded sole title and possession of the Marital Residence at 890
Fogletown Road, Berlin, Pennsylvania. Husband shall, within sixty (60) days,
prepare at his own expense the requisite documentation transferring Wife's interest
u
in the Marital Residence to Husband. Wife shall sign any requisite docmentation
and shall execute the required documents within fourteen (14) days of receipt and
provide them to Husband.
2. Husband shall assume sole responsibility for satisfaction and repayment of the
mortgage on the Marital Residence. Husband is ordered to pay any and all
delinquent taxes and to refinance the mortgage on the Marital Residence as his sole
and separate liability or otherwise cause Wife to be released as an obligor. Husband
is responsible for any mortgage payments, loan payments, taxes, maintenance, and
any insurance without contribution or reimbursement from Wife.
3. Husband is awarded the 2018 Dodge Ram 2500, 2006 Suzuki LT-A700XK6
KingQuad, 2013 Arctic Cat Prowler 700 HDX, Sea Nymph boat and trailer, and
2009 Carry-on trailer, free and clear of any interest previously held by Wife. Wife
shall no longer have any interest in the 2018 Dodge Ram 2500, 2006 Suzuki LT-
A700XK6 KingQuad, 2013 Arctic Cat Prowler 700 HDX, Sea Nymph boat and
trailer, and 2009 Canry-on trailer. Husband shall, within sixty (60) days, prepare at
his own expense the requisite documentation transferring Wife's interest in the
2018 Dodge Ram 2500, 2006 Suzuki LT-A700XK6 KingQuad, 2013 Arctic Cat
Prowler 700 HDX, Sea Nymph boat and trailer, and 2009 Carry-on trailer to
Husband. Wife shall sign any requisite,documentation and shall execute the
required documents within fourteen (14) days of receipt and provide them to
Husband.
4.Husband shall assume sole responsibility for satisfaction and repayment of the auto
loan on the2018 Dodge Ram 2500, Husband is ordered to assume sole and separate
liability or otherwise cause Wife to be released as an obligor. Husband is
responsible for any auto loan payments, taxes, maintenance, and any insurance
without contribution or reimbursement from Wife.
5. Wife is awarded the 2019 Toyota Highlander, free and clear of any interest
previously held by Husband, Husband shall no longer have any interest in the 2019
Toyota Highlander. Wife shall, within sixty (60) days, prepare at her own expense
the requisite documentation transferring Husband's interest in the 2019 Toyota
Highlander to Wife. Husband shall sign any requisite documentation and shall
execute the required documents within fourteen (14) days of receipt and provide
them to Wife.
6. Wife shall assume sole responsibility for satisfaction and repayment of the auto
loan on the 2019 Toyota Highlander. Wife is ordered to assume sole and separate
liability or otherwise cause Husband to be released as an obligor. Wife is
responsible for any auto loan payments, taxes, maintenance, and any insurance
without contribution or reimbursement from Husband.
7. Wife is awarded $231,050.94 of Husband's Corsa Coal 401() which constitutes
50% of the $462,101.87 value of the 401(k) as of the date of separation. Wife shall,
within sixty (60) days, prepare at her own expense the requisite qualified domestic
relations order transferring $231,050.94 of Husband's 401(k) to an appropriate
deferred savings plan in Wife's name. Husband shall sign any requisite
documentation and shall execute the requirde documents within fourteen (14) days
of receipt and provide them to Wife.
8. Wife is awarded the following five financial investments: Commonwealth
Financial Network ("CFN") IRA account number xxx-0ax933 worth $95,738.75,
CFN IRA account number xxx-0xx993 worth $32,571.58, First National Bank
(FNB") CD account number xx0xxx945 worth $34,170.59, First People's
Community Federal Credit Union CD account number xx0xx360 worth $10,611.62,
and Prudential Whole Life Insurance account number xxxxx030 worth $54,919.59.
Wife shall, within sixty (60) days, prepare at her own expense the requisite
documentation transferring Husband's interest. Husband shall sign any requisite
documentation and shall execute the required documents within fourteen (14) days
of receipt and provide them to Wife.
9. Husband is awarded the Prudential Whole Life Insurance Policy account number
xx0xx420 worth $6,273.71. Husband shall, within sixty (60) days, prepare at his
own expense the requisite documentation transferring Wife's interest. Wife shall
sign any requisite documentation and shall execute the required documents within
fourteen (I4) days of receipt and provide them to Husband.
10. Wife is awarded all Gemstones currently in her possession, a total of nine
gemstones. Husband shall no longer have any interest in these remaining
gemstones.
IL. Husband is awarded two zircon rings believed to be in his possession. Wife shall
no longer have any interest in the two zircon gemstones.
I2. Husband is awarded all but two firearms. With the exception of the two firearms
listed in paragraph 13, Wife shall no longer have any interest in any of the firearms.
13. Wife is awarded the .22 caliber Browning Buckmark, serial number xxxxxx992,
and the SIG Sauer P238, serial number xxxxxx329. Husband shall no longer have
any interest in either of these firearms.
14. Husband is awarded the FNB checking account with a balance of $1,759.20,
account number xxxxxx419. Husband shall, within sixty (60) days, prepare at his
own expense the requisite documentation transferring Wife's interest in the FNB
checking account to Husband. Wife shall sign any requisite documentation and
shall execute the required documents within fourteen (14) days of receipt and
provide them to Husband.
I5. Husband is awarded sole ownership of the limited edition I0-year commemorative
canoe.
16. Within forty-five (45) days, Husband shall make available to Wife her personal
property in the Marital Residence.
I7. All other reimbursement and distribution claims are denied.
18. Wife's claim for alimony is denied.
19. Each party shall bear the burden of paying his/her own attorney's fees and costs.
BY
Scott P. Bittner, J.
PROTHONOTARY
IN THE COURT OF COMMON PLEAS
SOMERSET COUNTY, PENNSYLVANIA
RANDALL FOGLE,
Plaintiff,
v. No. 141 DIVORCE 2020
ANNETTE FOGLE, DIVORCE
EQUITABLE DISTRIBUTION
Defendant,
AND NOW, this 12" day of December, 2022, it is hereby ORDERED
ADJUDGED AND DECREED that RANDALL FOGLE, Plaintiff, and ANNETTE FOGLE,
Defendant, are divorced from the bonds of matrimony. Costs waived.
A separate distribution property decree had been executed in accordance with this
divorce.
The Court retains jurisdiction of the following claims which have been raised of
record in this action for which a final order has not yet been entered: NONE
December 12, 2022, I hereby
crtify
e that the foregoing is a true and
correct copy of the original DECREE IN
DIVORCE on file in this o BY THE COURT:
ts! Scott P, Bittner
notary Judge
Brian K. Fochtman
PROTHONOTARY