Lischner, D. v. Lischner, C.

J-A29037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DONA C. LISCHNER, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHARLES M. LISCHNER, :
:
Appellant : No. 1975 WDA 2014
Appeal from the Order November 25, 2014
in the Court of Common Pleas of Allegheny County,
Family Court Division, No. FD 12-006532-009
BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 23, 2015
Charles M. Lischner (“Husband”), pro se,1 appeals from the Order
affirming the Master’s Report and Recommendation and equitably
distributing the marital property of Husband and Dona C. Lischner (“Wife”).
We affirm.
The parties married on July 3, 1980, and separated on December 16,
2009.2 In March 2012, Wife filed a Complaint in Divorce, after which
Husband filed a Complaint for Support. The trial court described what next
transpired as follows:
The parties appeared for a support hearing in front of a hearing
officer on May 16, 2012. On May 16, 2012, an Order of Court
for spousal support was entered, which required Wife to pay
Husband the guideline support amount of $784.00 per month,
1
Husband appeared pro se throughout the underlying proceedings.
2
Husband and Wife have two adult children.
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plus a mortgage deviation of $447.00 per month, for a total of
$1,231.00 per month. Said Order required Husband to pay the
mortgage on the marital residence, as a mortgage deviation was
reflected in the Order. The Order also required the parties to list
the marital residence for sale at $209,500.00 and to follow the
realtor’s recommendations regarding reducing the listing price.
Trial Court Opinion, 2/19/15, at 2.
Wife filed an Amended Complaint in Divorce on November 13, 2012,
including a count seeking the equitable distribution of the parties’ marital
assets. Subsequently, the trial court assigned the matter to a Special
Master, and directed that the Master take evidence and issue a report and
recommendation as to two issues: (1) the date of the parties’ separation;
and (2) Wife’s claim for equitable distribution of the parties’ marital
property. Trial Court Order, 8/23/13, at 1; Master’s Report and
Recommendation, 3/11/14, at 1.
On March 11, 2014, the Master issued her Report and
Recommendation. The Master first found the parties’ date of separation to
be December 16, 2009. Master’s Report and Recommendation, 3/11/14, at
2. Regarding the equitable distribution of marital property, the Master found
as follows:
There is limited marital property subject to distribution.
However, the parties dispute the value of the marital residence,
which is the largest asset in the marital estate. This property,
located at 455 Marlin Drive, Mt. Lebanon, PA[,] is a three
bedroom, [two-]bathroom[] home. Neither party had the house
appraised for purposes of this hearing. Wife is relying on the
2014 Allegheny County Assessment being $165,000 as her value
for the house. Husband is relying on a 2009 appraisal that was
done incident to the parties[’] refinancing of their mortgage,
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being $195,000. Wife testified that the house is in need of many
repairs and that [] will [a]ffect [its] potential value in any future
sale. Husband testified that the appraisal done in 2009
addressed those problems in determining the fair market value
at that time. The master notes that the fair market value of the
property on the 2014 Allegheny County Assessment is $183,500.
The Master finds that the fair market value is the more
appropriate valuation for equitable distribution purposes and is
splitting the difference between the 2009 appraisal and the 2014
fair market value. Therefore, the Master finds the fair market
value of this home to be $189,250. The Master is then
deducting $13,248 (17% closing costs) and the outstanding
mortgage ($106,744.86) for an equity value of $81,181.14.
Id. at 2-3 (footnotes omitted, emphasis in original).
After detailing the assets in the possession of each party, the Master
found the total value of the marital estate to be $164,020.57.3 Id. at 3.
Based upon her review of the factors set forth in the Divorce Code, the
Master recommended an equal division of the value of the marital assets.
Id. The Master recommended that Wife transfer $29,783.45 to Husband.
Id. at 5. The Master further recommended that Husband transfer title to the
marital residence to Wife, so that she could obtain the necessary funds by
means of a mortgage of the residence. Id.
The trial court entered a Decree in Divorce on May 1, 2014. The
Decree included the following language, which appears to bifurcate the
parties’ economic claims:
3
The Master found no evidence of dissipation by either party. Master’s
Report and Recommendation, 3/11/14, at 4. In addition, the Master found
that “[n]either party has any significant sole and separate estate.” Id.
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The [trial c]ourt retains jurisdiction of any claims raised by
the parties to this action for which a final order has not yet been
entered.
Any existing spousal support order shall hereafter be
deemed an order for alimony pendente lite if any economic
claims remain pending.
Divorce Decree, 5/1/14.4
On July 18, 2014, Husband filed a “Nunc Pro Tunc Motion for the
Disputed Equitable Distribution and Appraisement filed April 1, 2014.” On
July 22, 2014, Husband filed “Exceptions Nunc Pro Tunc” to the Master’s
Report and Recommendation. Ultimately, on July 22, 2014, Husband filed a
Petition for Extension of time to file Exceptions Nunc Pro Tunc. By an Order
dated August 18, 2014, the trial court granted Husband’s Motion, stating
that “[t]he Exceptions[,] which were to be filed by April 7, 2014[,] shall now
be deemed to be timely filed ….” Trial Court Order, 8/14/14, at 1.
The trial court scheduled a hearing on Husband’s Exceptions for
September 9, 2014. When Husband failed to appear for the hearing, the
trial court entered an Order dismissing Husband’s Exceptions. Trial Court
Order, 9/9/14. Upon a subsequent Motion filed by Husband, the trial court
reinstated Husband’s Nunc Pro Tunc Exceptions. Trial Court Order, 9/18/14.
After oral argument and the submission of briefs, the trial court
entered an Order overruling Husband’s Exceptions, and requiring Husband to
4
Contrary to the arguments of Wife and the conclusion reached by the trial
court, the trial court’s Order appears to have bifurcated the parties’
economic claims. Thus, we decline to quash Husband’s appeal as untimely
filed.
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pay Wife $350 in attorney fees. On November 25, 2014, the trial court
entered an Order affirming the Master’s Report and Recommendation as a
Final Decree. Trial Court Order, 11/25/14. Thereafter, Husband filed the
instant timely appeal.
In an Order dated December 16, 2014, the trial court directed
Husband to file a Pa.R.A.P. 1925(b) concise statement of matters
complained of on appeal within 21 days. However, this Order was not filed
or docketed. A notation on the docket, dated February 19, 2015, states that
the Order was “placed in file without being entered.” Trial Court Docket,
2/19/15. Husband filed a Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal on December 29, 2014, and a nunc pro tunc
Concise Statement on February 13, 2015. On February 19, 2015, the trial
court filed its Opinion addressing the claims raised by Husband.
Husband, pro se, now challenges the trial court’s Order overruling his
Exceptions to the Master’s Report and Recommendation. Brief for Appellant
at 4.5 Specifically, Husband claims that the trial court improperly
(1) denied him alimony pendente lite from May 1, 2014, until
November 24, 2014, see id. at 4;
(2) denied his claim for alimony, see id. at 5;
(3) failed to apply a “rent differential” for the months of March
and April of 2013, see id.;
5
In his appellate brief, Husband did not include a statement of questions
involved, as required by Pa.R.A.P. 2116(a). However, we decline to quash
Husband’s appeal on this basis.
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(4) determined the value of the marital residence, see id. at 6;
(5) deducted closing costs from its determination of the fair
market value of the marital residence, see id. at 7;
(6) calculated the date of separation value of the parties’ PNC
Bank account, where the court had failed to include a loan
reimbursement that was deposited into the PNC Bank account,
see id. at 7;
(7) calculated the amount in Husband’s Bank of America
checking account by including Husband’s severance pay and
failing to credit Husband for his July 2013 mortgage payments,
see id. at 8; and
(8) failed to consider the tax consequences with respect to
Husband’s pension, see id. at 9.
See Trial Court Opinion, 2/19/15, at 6-7 (setting forth the claims presented
in Husband’s Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of
on Appeal). In his nunc pro tunc Concise Statement, Husband additionally
claims that Wife’s counsel improperly failed to distribute funds from the
escrow account after the sale of the marital residence. Concise Statement
Nunc Pro Tunc, 2/13/15.
We apply the following standard in reviewing an equitable distribution
order:
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
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J-A29037-15
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).
Moreover, it is within the province of the trial court to weigh the
evidence and decide credibility and this Court will not reverse
those determinations so long as they are supported by the
evidence. We are also aware that 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.
Morgante v. Morgante, 119 A.3d 382, 387 (Pa. Super. 2015) (citation
omitted).
Upon review of the parties’ briefs, and the record certified to this Court
on appeal, we conclude that the trial court concisely addressed Husband’s
first through eighth claims, and correctly concluded that they lack merit.
Trial Court Opinion, 2/19/15, at 7-12. The trial court’s findings are
supported by the evidence of record and its legal conclusions are sound.
See id. We therefore affirm on the basis of the trial court’s Opinion with
regard to these claims. See id.
Husband finally claims that Wife’s counsel, Sandra Jean MacPherson,
Esquire (“Attorney MacPherson”), violated a trial court order by failing to
disburse funds from the escrow account, upon the sale of the marital
residence. Brief for Appellant at 9. Our review of the record discloses that
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Husband first raised this claim in his Concise Statement Nunc Pro Tunc, filed
on February 13, 2015. Because our appellate rules are clear that an issue
cannot be raised for the first time on appeal, we cannot grant Husband relief
on this claim. See Pa.R.A.P. 302(a) (providing that a claim cannot be raised
for the first time on appeal).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2015
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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
FAMILY DIVISION
DONA LISCHNER, No.: FD l 2-006532-009
Plaintiff,
v.
OPINION OF COURT
CHARLESM. LISCHNER,
Defendant. BY:
The Honorable Alexander P. Bicket
440 Ross Street -
Suite 5069
Pittsburgh, PA 15219
COPIESTO:
Counsel for Plaintiff:
Sandra Macpherson, Esquire
-
LL
319 Maryland Avenue, Suite D
Oakmont, PA 15139
Pro Se Defendant:
Charles M. Lischner
1335 Cedar Blvd., Apt. B
Pittsburgh, PA 15228
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r"--·
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA'
FAMILY DIVISION
DONA LISCHNER, No.: FD l 2-006532-009
Plaintiff,
V.
CHARLES M. LISCHNER,
Defendant.
OPINION
BICKET, J. February 19, 2015
On November 26, 2014, an Order of Court was entered which adopted
the Master's Report and Recommendation dated March l l. 2014 as a final
decree in this matter. Defendant appeals said Order. For the reasons set forth
below, Husband's appeal should be quashed, or, in the alternative, the Order
should be affirmed.
Jurisdictional Issue
On March 11, 2014, Special Master Peggy Lynn Ferber issued a Report and
Recommendation disposing of the only pending economic claim filed in this
divorce action, Plaintiff's claim for equitable distribution. Neither party filed
timely exceptions to the Report and Recommendation. Accordingly, on May l.
2014, a Decree in Divorce was entered. At the time the Decree was entered, no
economic claims were outstanding. By Order of Court dated August 14, 2014,
this Court granted Defendant's request to file exceptions to the Master's Report
and Recommendation nunc pro tune. At the time this Court granted
Defendant's request, it was unaware that a final Decree in Divorce had already
been entered on May l. 2014. Pursuant to the reasoning contained in Melton v.
Melton, 831 A.2d 646, 651 (Pa. Super. 2003), this Court, therefore, did not have
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jurisdiction to grant Defendant's Petition to file exceptions nunc pro tune,
because well over 30 days following entry of the Decree in Divorce had passed.
As such, this Court believes that the Order dated August 14, 2014 and everything
that occurred thereafter was void ab initio. If the Superior Court agrees with this
Court, then Defendant's appeal should be quashed, as Defendant did not
timely appeal the Decree in Divorce entered on May l. 2014. Assuming
arguendo that the Superior Court does not agree, the Court will address the
merits of Defendant's appeal.
Background
The salient procedural history in this matter is as follows: The parties,
Charles M. Lischner (hereinafter, "Husband") and Dona Lischner (hereinafter,
"Wife"), were married on July 3, 1980. The parties separated on December 16,
2009. On March 5, 2012, Wife filed a one-count Complaint for Divorce,
requesting a decree in divorce. On April 9, 2012, Husband filed a Complaint for
Support, requesting spousal support only. The parties appeared for a support
hearing in front of a hearing officer on May 16, 2012. On May 16, 2012, an Order
of Court for spousal support was entered, which required Wife to pay Husband
the guideline support amount of $784.00 per month, plus a mortgage deviation
of $447.00 per month, for a total of $1,231.00 per month. Said Order required
Husband to pay the mortgage on the marital residence, as a mortgage
deviation was reflected in the Order. The Order also required the parties to list
the marital residence for sale at $209,500.00 and to follow the realtor's
recommendations regarding reducing the listing price.
On May 17, 2012, Wife filed her Section 3301 (D) Affidavit of Consent. On
September 5, 2012, Wife presented a Motion for Special Relief, averring that
Husband refused to follow the recommendations of the realtor, which caused
the parties to miss out on a potential sale of the marital residence. The issue was
referred to a hearing officer. On November l, 2012, the hearing officer issued a
recommendation which set forth the parties' agreement regarding the marital
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residence and spousal support. The November l. 2012 recommendation
provided, inter a/ia, that Husband would vacate the marital residence prior to
February l. 2013; that, as of February l. 2013, the spousal support order issued
May 16, 2012 would be reduced to $784.00per month to reflect a termination of
the mortgage deviation; and that, as of February l. 2013, Wife would be fully
responsible for paying the mortgage on the property, "contingent upon
Husband moving out of the marital residence pursuant to the above terms and
his conveyance of his interest in the property to husband." (Emphasis added).
The recommendation also required Wife to buy out Husband's interest in the
property and pay him 50% of the equity, less the mortgage, realtor's
commission, and closing costs. Finally,the recommendation required Wife to file
an amended complaint in divorce raising a count of equitable distribution within
seven days. On November 13, 2012, Wife filed an Amended Complaint for
Divorce, including an additional count for equitable distribution. Pursuant to an
Order of Court dated November 21, 2012, the Hearing Officer's November l.
2012 recommendation became a final order.
Thereafter, Husband apparently did not, as ordered, move out of the
marital residence prior to February l. 2013. On April 3, 2013, following a judicial
conciliation, the parties entered into a Consent Order of Court which required
Husband to vacate the marital residence by May l. 2013; entitled Wife to move
into the marital residence when Husband vacated same; required Wife to be
responsible for the mortgage payments on the residence when Husband
vacated same; and required Wife to refinance the marital residence to remove
Husband's name from the existing mortgage and to place the additional funds
from the refinance in escrow in order to buy out Husband's interest in the marital
residence. A second Order was entered on April 3, 2013, scheduling a second
judicial conciliation for August 13, 2013.
Following the August 13, 2013 judicial conciliation, by Order of Court
dated August 22, 2013, the matter was referred to the Court's permanent
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Special Master to issue a report and recommendation with respect to the
pending claims. A one-day hearing occurred before Special Master Peggy
Lynn Ferber on February 10, 2014. Following the one-day hearing, the Master
issued a comprehensive Report and Recommendation dated March 11, 2014,
which contained several factual findings, divided the parties' marital estate on
a 50/50 basis, and set forth the method of distribution. Neither party filed timely
exceptions to the Master's Report and Recommendation.
On April l. 2014, Husband filed a Counter-Affidavit under Section 3301 (D)
of the Divorce Code.1 On April 4, 2014, Wife filed a Notice of Intention to
Request Entry of Divorce Decree and a Praecipe to Transmit Record.2 On May
l. 2014, a Decree in Divorce was entered." On May 2, 2014, the spousal support
order that was currently in effect was administratively terminated effective May
l, 2014.
On July 14, 2014, apparently after Husband appeared at the Domestic
Relations Office requesting that his spousal support be reinstated, an Order was
administratively entered that referred the matter to a hearing officer to address
whether the spousal support order was properly terminated. On July 18, 2014,
Husband filed with the Department of Court Records a document titled "Nunc
Pro Tune Motion for Disputed Equitable Distribution and Appraisement Filed April
l. Attached to Husband's Counter-Affidavit was a copy of a letter that Husband
apparently had sent to Master Ferber, which set forth several issues which Husband believed the
Master decided in error.
2. In his Counter-Affidavit, Husband checked option 2(b), which stated "I wish to
claim economic relief which may include alimony, division of property, lawyer's fees or expenses
or other important rights." The Counter-Affidavit specifically included a paragraph which stated,
"I understand that in addition to checking (b) above, I must also file all of my economic claims
with the Department of Court Records in writing and serve them on the other party. If I fail to do
so before the date set forth on the Notice of Intention to Request Divorce Decree, the Divorce
Decree may be entered without further notice to me, and I shall be unable thereafter to file any
economic claims."
3. The Decree included two paragraphs, which stated: "The Court retains jurisdiction
of any claims raised by the parties to this action for which a final order has not yet been
entered" and "(a)ny existing spousal support order shall hereafter be deemed an order for
(continued ... )
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\·
01, 2014." On July 22, 2014, Husband also filed a document titled "Exceptions
Nune Pro Tune - Master Ferber Report dated 3-11-2014." Husband never
presented either of these documents to this Court for leave to file same.
Nevertheless, the exceptions clerk scheduled argument on Husband's
Exceptions for September 9, 2014. Thereafter, on August 14, 2014, Husband
finally presented to this Court a "Petition for Extension of Time to File Exceptions
Nune Pro Tune", requesting leave to file exceptions to the Master's Report and
Recommendation. This Court, as mentioned above, was unaware that a
Decree in Divorce had already been entered on May l. 2014 and neither party
brought this fact to the Court's attention. Therefore, this Court granted Father's
Petition from the bench and scheduled argument on the exceptions for
September 9, 2014.
On August 27, 2014, the parties appeared in front of Hearing Officer
Bingman to address whether the spousal support order was properly terminated
or if it should have continued as alimony pendente lite. That same day, Hearing
Officer Bingman issued a recommendation dismissing Husband's request for
continuance of the support order. Hearing Officer Bingman determined that
Husband failed to properly file a claim for alimony IAPL prior to entry of the
Decree in Divorce, which was entered on May l. 2014. As such, she determined
that spousal support was properly terminated. Hearing Officer Bingman's
recommendation was made final by Order of Court dated August 28, 2014.
Thereafter, Husband failed to appear at argument on his exceptions.
Accordingly, his exceptions were dismissed by Order of Court dated September
9, 2014. Husband then presented a Petition for Special Relief on September 18,
2014, requesting that his exceptions be reinstated. By its Order dated
September 18, 2014, this Court reinstated Husband's exceptions and required
Husband to pay Wife's attorney fees for his failure to attend the previously
( ... continued)
alimony pendente lite if any economic claims remain pending."
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scheduled argument on exceptions. Following argument on Husband's
exceptions, by its Order dated November 6, 2014, this Court overruled all of
Husband's exceptions and required Husband to pay Wife's attorney $350.00 in
attorney's fees. On November 26, 2014, a "final" Order of Court was entered,
which adopted the Master's Report and Recommendation dated March 11,
2014 as a final decree in this matter. Husband filed a Notice of Appeal to the
November 26, 2014 Order on December 5, 2014.
On December 29, 2014, pursuant to this Court's request, Husband filed his
Concise Statement of Matters Complained of on Appeal. Husband's Statement
is neither clear or concise, nor is it in compliance with Pa. R.A.P. l 925(b)(4).
Nevertheless, the Court believes it· can summarize Husband's Statement as
follows:
1.) The spousal support order was improperly terminated
on May l. 2014. Instead, spousal support or APL should
have continued from May l. 2014 until November 24,
2014, when the final decree was entered;
2.) Husband is entitled to alimony;
3.) Husband is entitled to a "rent differential" for the
months of February, March, and April of 2013;
4.) The Master erred in determining the value of the marital
residence;
5.) In determining the net equity in the marital residence,
the Master erred by deducting $13,248.00 as an
estimate for closing costs from the fair market value of
the marital residence;
6.) The Master erred in calculating the date of separation
value of the marital PNC Bank Account by failing to
include a loan reimbursement that was deposited into
said account;
7.) The Master erred in calculating the amount in
Husband's Bank of America checking account by
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erroneously including Husband's severance pay and
failing to give Husband credit for the mortgage
payments he made until July 2013; and
8.) The Master failed in considering the tax consequences
with respect to Husband's pension.
Discussion
1. Husband's Request for Spousal Support or APL from May 1, 2014 to November
26,2014
With respect to Husband's first issue complained of on appeal, the spousal
support order was properly terminated effective May l. 2014, as a final Decree
in Divorce was entered on that date and there were no economic claims then
pending. Assuming arguendo that Husband's request to file exceptions nunc
pro tune was properly granted on August 14, 2014, then, technically, economic
claims would have been considered pending from May l. 2014 until November
26, 2014. If that is the case, Husband has a legitimate argument that spousal
support should have continued as alimony pendene lite until the date that a
"final" decree is entered. See DeMasi v. DeMasi, 597 A.2d l 01, l 04 (1991 )(APL
will continue throughout an appeal on matters of equitable distribution).
Although Husband may have a legitimate argument, this Court does not believe
that it would be fair or equitable to permit Husband to continue to receive
support for seven-plus months following entry of the Decree in Divorce based
only upon his late filing of meritlessexceptions.
B. Husband's Request for Alimony
The Master specifically addressed Husband's request for alimony in her
Report and Recommendation. The Master stated,
Husband attempted to assert a claim for on-going
alimony, but other than his initial Complaint for Support,
Husband filed no Petition raising any claims under the
Divorce Action. Therefore, the Master advised
Husband that the issue of alimony was moot and
therefore not before the Master.
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Master's Report and Recommendation, p. 2 (emphasis added in original).
Although the Master specifically addressed Husband's request for alimony in her
Report and Recommendation, Husband failed to file an exception to this finding
pursuant Pa. R.C.P. 1920.55-2(b). Therefore, Husband has waived this issue. Pa.
R.C.P. l920.55-2(b); McGinley v .. McGinley, 565 A.2d 1220, 1226 (Pa. Super.
l989)(any issue not raised in exceptions is deemed waived on appeal); Sioowicz
v. Sioowicz, 517 A.2d 960, 963 (Pa. Super. 1986)(any issue not timely raised in
exceptions is deemed waived on appeal, even if the trial court addresses the
issue on its merits). In any event, the Master was correct in her finding. At no
point during the pendency of this matter did Husband file a counterclaim or
petition raising a claim for alimony. Although Husband checked box 2(b) in his
Section 3301 (d) Counter-Affidavit this was not enough to preseNe a claim for
alimony. The language contained in the Section 3301 (d) Counter-Affidavit,
which Husband signed and filed, specifically made Husband aware that
checking box 2(b) was not enough to preserve a claim for alimony. Because
Husband never raised a claim alimony pursuant to Pa. R.C.P. 1920.15, his claim
for alimony is waived. Melton v. Melton, 831 A.2d 646, 651 (Pa. Super. 2003).
C. Rent Differential
Husband's third matter complained of on appeal is without merit. As the
Order of Court dated November 21, 2012 made quite clear, the mortgage
deviation of $447.00 per month awarded to Husband was to terminate effective
February l. 2013. As of that date, Wife was only required to pay Husband
$784.00 per month, regardless of whether Husband moved out of or remained in
the marital residence. That Order, as well as the Consent Order dated April l.
2013, provided that Wife was to be responsible for the mortgage only upon
Husband moving out of the residence. Husband continued to reside in the
residence after February l. 2013. Thus, Husband .was required to pay the
mortgage the months he remained in the residence after February l. 2013, and
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Wife was only required to pay Husband $784.00per month during these months.
Husband was not entitled to any "rent differential" or mortgage payments from
February l, 2013 to May l, 2013.
D. Valuation of Marital Residence
In her Report and Recommendation, the Master discussed how she
valued the marital residence:
Neither party had the house appraised for purposes of
this hearing. Wife is relying on the 2014 Allegheny
County Assessment being $165,000as her value for the
house. Husband is relying on a 2009 appraisal that was
done incident to the parties refinancing of their
mortgage, being $195,000. Wife 'testltled that the
house is need of many repairs and th-at will effect is (sic)
potential value in any future sale. Husband testified
that the appraisal done is 2009 addressed those
problems in determining the fair market value at that
time. The Master notes that the fair market value of the
property on the 2014 Allegheny County Assessment is
$183,500. The Master finds that the fair market value is
the more appropriate valuation for equitable
distribution purposes and is splitting the difference
between the 2009 appraisal and the 2014 fair market
value. Therefore, the Master finds the fair market value
of this home to be $189,250.
Master's Report and Recommendation, p. 2-3 (emphasis added in original). The
Master did not abuse her discretion in determining the fair market value of the
marital residence.
E. Closing Costs
In determining that the net equity value of the marital residence was
$81, 181.14, the Master deducted the estimated closing costs, $13,248.00 (i.e.
7%), and the outstanding mortgage, $106,744.85, from the fair market value of
the residence. Even though there may not have been any closing costs, the
Master did not abuse her discretion in deducting estimated closing costs from
the fair market value in arriving at the net equity value. In both his Brief in
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Support of Exceptions and his Amended Brief in Support of Exceptions, Husband
cited to no authority which would suggest that the Master abused her discretion
or erred as a matter of law in including the estimated value of closing costs in
her valuation.
F. Date of Separation Value of the PNC Account
The Master set the date-of-separation value of the PNC Bank Account at
$1,000.00. Master's Report and Recommendation, p. 3. The Master indicated
that, shortly before separation, the account balance was actually higher than
$1,000.00. Id. at p. 3 n. 3. However, the reason it was higher was that the
balance reflected a school loan reimbursement. Id. Upon review of the record,
it appears that Wife had paid up front for graduate school during the marriage
and that this payment was refunded into the PNC Account just prior to
separation, because Wife received a PNC student loan, which was paid directly
to the school. Transcript of Testimony (''T.T. ") at p. 19, 111-113. The Master did
not abuse her discretion by excluding this refund from the value of the PNC Bank
Account, as this refund canceled out the student loan debt, which was
acquired during the marriage, and which still had to be paid back.
G. Date of Separation Value of Bank of America Checking Account
The Master determined the date-of-separation (December 16, 2009) value
of the Bank of America checking account was $15,595.27. Master's Report and
Recommendation, p. 3. The record reveals that the balance reflected in this
account as of October 23, 2009 was $7,595.27. T.T., p. 106.4 Husband received
severance pay in the amount of $8,000.00or $9,000.00in December of 2009, just
prior to the date of separation, and deposited this amount into his Bank of
America Checking Account. Id. at p. 138-140. Because the Master did not
have an account statement for December of 2009, it appears she simply added
4. The Master erroneously stated that the balance was $7,395.27. Master's Report
and Recommendation, p. 3 n. 6.
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$8,000.00to the account balance reflected on October 23, 2009 ($7,595.27) to
determine the date-of-separation value of $15,595.27. This was not an abuse of
discretion.
With respect to not receiving credit for mortgage payments, nothing in
the record suggests Husband is entitled to credit for any mortgage payments he
made following separation, if indeed he made them. The record actually
reflects that Wife paid her share of the mortgage following the parties'
separation. T.T. at p. 140-143. Furthermore, pursuant to the November 21, 2012
Order of Court, Husband was required to be solely responsible for the mortgage,
as he lived in the residence and Wife was required to pay Husband a mortgage
deviation. Wife was not required to assume the mortgage until Husband
vacated the residence. There is nothing in the record to suggest when Husband
vacated the residence or that he made mortgage payments after he vacated
the residence. With respect to the $5,000.00credit Husband requests, Husband
testified that he used $5,000.00 from the Bank of America Checking account to
make a payment on the mortgage principal so as to reduce it. However, as the
Master noted, "(h) e had no proof of that payment but testified that he is
awaiting copy of a check/statement which would evidence that payment."
Master's Report and Recommendation, p. 3 n. 7. The Master gave Husband
until February 14, 2014 to provide her with this proof. Id. The Master stated,
"Husband advised the Master via letter dated 2/16/14 that he made that
payment several months prior to the parties' separation. Therefore, no credit is
due to Husband." Id. The Master was correct in her determination and did not
err in failing to give Husband credit for this payment or any of the payments
Husband made or might have made towards the mortgage.
H. Retirement AccountsTax Consequences
Husband has waived this issue by failing to properly raise it in his
exceptions. Pa. R.C.P. 1920.55-2(b); McGinley v .. McGinley, 565 A.2d 1220, 1226
(Pa. Super. 1989)(any issue not raised in exceptions is deemed waived on
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appeal).
For the reasons set forth above, Husband's appeal should be quashed. In
the alternative, the Order of Court dated November 26, 2014 should be
affirmed.
By the Court:
Al
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