Hassounah, J. v. De Silva, L.

J. S66034/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
JAMIL HASSOUNAH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LUCIA MARIA RIBERIO De SILVA, : No. 1512 EDA 2018
:
Appellant :
Appeal from the Decree, April 10, 2018,
in the Court of Common Pleas of Northampton County
Civil Division at No. C0048CV-2013-02082
BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 19, 2019
Lucia Maria Riberio De Silva (“Wife”) appeals from the April 10, 2018
divorce decree entered in the Court of Common Pleas of Northhampton
County. We affirm.
The record reflects that on September 29, 2016, Wife and
Jamil Hassounah (“Husband”) appeared before a special master (“master”)
for an equitable distribution hearing. The master set forth the following:
The parties stipulated that the date of marriage was
January 23, 1993. There was no agreement with
regard to the date of separation. Husband contends
that the date of separation was December, 2012.
Wife contends that it was January or March of 2013.
It is the parties’ first marriage. They have one minor
child, a daughter, who at the time of hearing was
11 years old.
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Husband is controlling and domineering. Wife was
simply not credible and [was] unrealistic.
The parties entered into a series of Stipulations with
regard to various assets as set forth below.
Wife currently resides in the marital property. The
marital home is of significant size. Currently, only
Wife and the parties’ daughter reside at the marital
home.
Husband is an engineer and has had a series of jobs
over the years. To find employment, Husband has
moved to various places including Canada, Texas,
New Jersey, Pennsylvania, and New Hampshire.
The parties had joint accounts at Bank of America.
However, when Husband moved to a new location,
he would open up a separate bank account through
Bank of America at that particularly [sic] location.
Husband did so while the parties were married as
well as after separation. While wife suggested that
this was nefarious, the undersigned makes a specific
finding that Husband’s method of banking was
nothing beyond the controlling actions of a spouse.
In other words, Husband set up this system so he
would be able to control the flow of money into joint
funds. However, although this system would provide
Husband the opportunity to prevent funds from
being deposited in a joint account, there was no
credible evidence that Husband did anything wrong.
Neither party was particularly responsive with regard
to discovery. On the date of the hearing, Wife
provided a series of documents to Husband. It did
not appear that Wife provided these items in
discovery. However, the items that Wife was
providing were bank records wherein they were
Husband’s bank records for accounts that he was
owner of either in joint name or, for the vast
majority of them, in his own name, only.
Accordingly, despite the fact that they were late and
the production was not timely, over Husband’s
objection, they were admitted into evidence.
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Both parties are originally from Brazil. Husband
acknowledged that he sent a significant sum of
money to Brazil during the course of the marriage.
Wife claims these transfers were done without Wife’s
knowledge or consent. In addition, the amount of
the transfers was at issue. Husband acknowledged
that it was $139,000.00. Wife claimed it was more.
Husband was involved in an extramarital affair. In
fact, Husband, prior to separation, made a transfer
from a marital Bank of America account to Carleen
King, the woman with whom he was having the
extramarital relationship. This transfer was for
$3000.
From the time that the parties moved from Brazil,
they moved due to Husband’s employment.
Husband earned a significant income and continues
to do so.
The assets of the parties with their approximate
values are as follows:
REAL ESTATE
1. Marital Residence—4688 Derby Lane,
Bethlehem, PA—$310,000.00. There is no
mortgage. Wife desires to keep the marital
home. Taking into account 3.5% costs of sale,
the equity is $299,150.00.
2. Rental property—124 Founders Court,
Bethlehem, PA—net equity: $75,841.00. The
parties own a rental property which has a
stipulated value of $152,000.00. In addition,
this property is subject to a mortgage with a
payoff of $76,159.34. The equity in the rental
property as of the time of the hearing was
approximately $75,841.00. Taking into
account 3.5% costs of sale, the equity is
$73,187.00.
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NON-QUALIFIED ASSETS
3. Bank of America Interest Checking x8575—
titled in Husband’s name—$11,121.00 as of
date of separation.
4. Bank of America Money Market Savings
x3804—joint names—$56.00 as of date of
separation.
5. Bank of America Money Market Savings
x8285—in Husband’s name—$3,002.00 as of
date of separation.
6. Bank of America Savings x4878—in Husband’s
name—$31,353.00 as of date of separation.
7. TD Bank Mutual Fund x0331—in Husband’s
name—$3,863.00 as of date of separation.
8. TD Bank Mutual Fund x8309—in Husband’s
name—$37,903.00 as of date of separation.
9. Fidelity Investments x8459—in joint names—
$755.00 as of date of separation.
10. Bank of America x6759—in Wife’s name—
$558.00
11. 2002 Buick Rendezvous—in Husband’s name
which Wife drives—$2,522.00.
12. 2008 Honda Accord—in Husband’s name—
$7,244.00
QUALIFIED ASSETS
13. Charles Schwab-IRA Rollover x3842—in
Husband’s name—$286,981.00
14. St[.] Jude Medical Inc. Retirement Savings
Plan 401K—in Husband’s name—$3,469,00.
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LIABILITIES
1. Husband has credit card debt at Chase in the
amount of $3,058.00.
2. Husband has credit card debt at Bank of
America in the amount of $1,357.00.
3. Husband has a 2013 IRS debt in his name
alone in the amount of $12,000.00.
Master’s report, 12/23/16 at 1-6.
The trial court set forth the following procedural history:
Both parties filed timely exceptions to the Master’s
Report. The parties presented oral argument on
their exceptions on May 30, 2017. On August 15,
2017, we issued an Order denying [Wife’s]
exceptions and denying [Husband’s] first exception.
We granted [Husband’s] second exception,
correcting the address of the marital home to
4988 Derby Lane, Bethlehem, Pennsylvania. On
September 6, 2017, [Wife] filed a Notice of Appeal to
the Superior Court of Pennsylvania from our
August 15, 2017 Order of Court. On October 10,
2017, the Superior Court issued an Order quashing
[Wife’s] appeal on grounds that this court’s
August 15, 2017 Order was interlocutory and,
therefore, not appealable. However, the matter
became appealable on April 10, 2018, following the
entry of the Divorce Decree by Judge Baratta.
Accordingly, on May 7, 2018 [Wife] filed a second
Notice of Appeal to the Superior Court from the
April 10, 2018 Divorce Decree.
Trial court opinion, 6/28/18 at 2-3 (record citations omitted).
The record reflects that the trial court ordered Wife to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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Wife timely complied. Thereafter, the trial court filed its Rule 1925(a)
opinion.
Wife raises the following issues for our review:
[1.] Did the Master err in allocating the TD Bank
mutual fund accounts of [Husband] solely to
him as “non–qualified assets” rather than
taking them into account as “qualified assets”
since they are retirement accounts of
[Husband] which represented marital property?
[2.] Did the Master err in his recommendation that
the martial [sic] value of all of the Bank of
America accounts with the exception of the
Bank of America account ending in the
numbers 6759 be allocated to [Husband]?
[3.] Did the Master err in his calculation of the
martial [sic] estate which did not take into
account the full value of the transfers of
martial [sic] assets which [Husband] made to
family members in Brazil without [Wife’s]
knowledge or consent?
[4.] Did the Master err in giving [Husband] “credit”
against the duration of his alimony obligation
for the time period between December of 2012
and October of 2014?
[5.] Did the Master err in his determination of value
of the various Bank of America accounts
representing martial [sic] property available for
equitable distribution?
[6.] Did the Master err in denying [Wife’s] claim for
attorney’s fees?
Wife’s brief at 6.[1]
1 We have reordered Wife’s issues for ease of disposition.
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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.
Balicki v. Balicki, 4 A.3d 654, 662-663 (Pa.Super. 2010) (internal citations,
quotations and brackets omitted)
Wife first complains that because the master expressed the clear
intent in his report to distribute 55 percent of the parties’ qualified assets to
Wife and because the master mischaracterized the TD Bank mutual fund
account as a nonqualified asset, the trial court erred in denying her
exception as to the distribution of qualified assets, and she is, therefore,
entitled to 55 percent of the TD Bank mutual fund account. Contrary to
Wife’s assertion, the master clearly set forth his intent in the master’s report
as follows:
There are a series of qualified assets which are
marital in nature. These shall be subject to a
Qualified Domestic Relations Order [(QDRO)]. It is
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noted that Husband has post-separation retirement
accounts. Utilizing the appropriate factors of the
Divorce Code, the undersigned makes a specific
finding that Wife is entitled to a disproportionate
share of the marital qualified assets, namely, the
Charles Schwab IRA Rollover as well as the St. Jude
Medical Inc. Retirement Savings Plan. The two
marital qualified assets have a value of
approximately $290,450.00 of which over 90% is in
the Charles Schwab IRA Rollover.
Wife is entitled to a [QDRO] of slightly greater than
55% of the qualified asset, specifically, the fixed
figure of $160,000.00 (55% is $159,747.50). The
[QDRO] shall be through the Charles Schwab IRA
Rollover. The parties are directed to utilize the
services of John Hand, Esquire. The parties shall
split the costs of the [QDRO] equally.
In light of the parties’ past litigation history,
the undersigned desires to ensure that there is
no ambiguity with regard to this distribution.
Wife shall be entitled to the [QDRO] of
$160,000.00 from the Charles Schwab IRA
rollover. Husband shall be entitled to the
remainder of all of the remaining qualified
assets in his name including but not limited to
the remainder of the Charles Schwab IRA
rollover, the St. Jude Medical Inc. Retirement
Savings Plan as well as any and all other
qualified assets including any
post-separation/non-marital qualified assets.
It is noted that the figure of the [QDRO] to
Wife is the fixed amount of $160,000.00 and
not subject to adjustments, credits, etc. This
framework is set forth, on purpose, to prevent
the parties from further litigation.
Master’s report, 12/23/16 at 13-14 (emphasis added).
Because this claim entirely lacks record support, it is meritless.
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We will simultaneously dispose of Wife’s second and third issues, as
they both challenge the equitable distribution scheme. Wife complains that
the trial court erred in denying her exception to the allocation of liquid
assets. Wife also challenges the value of a Bank of America account.
Specifically, Wife complains that it was inequitable that she received one
Bank of America account totaling $558 while Husband received the balance
of the Bank of America accounts, totaling $87,298, when the parties have
disparate incomes. (Wife’s brief at 30.) Wife further disputes the aggregate
value of the Bank of America accounts by claiming that the master ignored
evidence that Husband transferred money to family members in Brazil that
went “above and beyond the $139,000” that the master concluded that
Husband had transferred. (Id. at 36.) Wife acknowledges that she received
the marital residence, valued at approximately $300,000, but claims that
that award “did not in any way limit the ability of the [m]aster to equalize
the distribution of liquid assets.” (Id. at 31.)
With respect to the equitable distribution scheme, the trial court found
that:
[t]he Master distributed the parties’ real estate and
non-qualified assets to account for [Wife’s]
preference to keep the parties’ former marital home.
[Wife] testified before the Master that she wanted to
retain possession of the marital home because she
was familiar with the area and had a support system
nearby.
The parties’ former marital residence was valued at
$299,150.00. The parties also owned a rental
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property with $73,187.00 in equity. Separately, the
parties had five Bank of America accounts totaling
$46,090.00, two TD Bank Mutual Fund accounts
containing $41,766.00, and a Fidelity Investments
account containing $755.00. The parties also had
two vehicles, a 2002 Buick Rendezvous, worth
$2,522.00, and a 2008 Honda Accord, worth
$7,244.00.
The Master’s Report provided that [Wife] would
receive the parties’ former marital residence, as she
requested. She also received the 2002 Buick
Rendezvous and the funds in one Bank of America
account, containing $558. Overall, the Master’s
Report distributes $302,230.00 in assets to [Wife].
[Husband] receives the remaining assets, totaling,
$167,729.00. Additionally, the Master attributed the
parties’ credit card debt and any IRS debt to
[Husband]. [Husband] was also responsible for
transfers he made to his relatives in Brazil, totaling
$139,000.00. Under this allocation, [Wife] received
more than 50% of the marital assets.
[Wife] contends that the distribution is inequitable
due to the disparity of the parties’ respective
incomes. We disagree. The Master’s Report
considered all statutory factors, including the parties’
incomes. See 23 Pa.C.S.A. § 3502(a)[.] We concur
with the Master’s recommended distribution, which
provides [Wife] with the parties’ largest asset, the
former marital residence. Therefore, we suggest this
claim of error is without merit.
Trial court opinion, 6/28/18 at 10-11 (record citations omitted).
With respect to the equitable distribution scheme, we have reviewed
the record and find no abuse of discretion. Regarding Wife’s contention that
the evidence demonstrated that Husband transferred more than $139,000 to
family members in Brazil during time of their marriage, the master found
that Wife’s testimony on this issue was not credible. (Master’s report,
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12/23/18 at 12.) The trial court deferred to the master. (Trial court
opinion, 6/28/18 at 13.) We have repeatedly reiterated that:
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.
Childress v. Bogosian, 12 A.3d 448, 455-456 (Pa. Super. 2011) (citations,
quotations, and brackets omitted).
We decline Wife’s invitation to revisit this credibility determination on
appeal.
Wife combines her next two issues and complains that it was error to
credit Husband for payments that he made to pay household expenses
through a Bank of America account for the 22-month period during which
the parties were separated but which preceded Wife’s filing her claim for
alimony pendente lite and alimony which depleted the marital value of that
Bank of America account and resulted in Husband’s receiving a “double dip”
credit.2 (Wife’s brief at 21-25.)
2 In her Issue 4 argument, Wife merely states that “[t]he argument covering
this issue is set forth above in regard to Wife’s Exception to the
determination of the duration of Husband’s alimony obligation.” (Wife’s brief
at 29.)
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We review alimony awards for an abuse of discretion. Middleton v.
Middleton, 812 A.2d 1241, 1247 (Pa.Super. 2002). The alimony statute in
the Divorce Code provides: “Where a divorce decree has been entered, the
court may allow alimony, as it deems reasonable, to either party only if it
finds that alimony is necessary.” 23 Pa.C.S.A. § 3701(a). The alimony
statute lists 17 factors that the court must consider in “determining whether
alimony is necessary and in determining the nature, amount, duration and
manner of payment of alimony.” 23 Pa.C.S.A. § 3701(b).3 The purpose of
3 The statute provides:
(b) Factors relevant.--In determining whether
alimony is necessary and in determining the
nature, amount, duration and manner of
payment of alimony, the court shall consider all
relevant factors, including:
(1) The relative earnings and earning
capacities of the parties.
(2) The ages and the physical, mental
and emotional conditions of the
parties.
(3) The sources of income of both
parties, including, but not limited
to, medical, retirement, insurance
or other benefits.
(4) The expectancies and inheritances
of the parties.
(5) The duration of the marriage.
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(6) The contribution by one party to
the education, training or increased
earning power of the other party.
(7) The extent to which the earning
power, expenses or financial
obligations of a party will be
affected by reason of serving as
the custodian of a minor child.
(8) The standard of living of the
parties established during the
marriage.
(9) The relative education of the
parties and the time necessary to
acquire sufficient education or
training to enable the party
seeking alimony to find appropriate
employment.
(10) The relative assets and liabilities of
the parties.
(11) The property brought to the
marriage by either party.
(12) The contribution of a spouse as
homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of
the parties during the marriage.
The marital misconduct of either of
the parties from the date of final
separation shall not be considered
by the court in its determinations
relative to alimony, except that the
court shall consider the abuse of
one party by the other party. As
used in this paragraph, “abuse”
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alimony is not to reward one party and to punish the other, but rather to
meet the reasonable needs of the person who is unable to support herself
through appropriate employment. Grandovic v. Grandovic, 564 A.2d 960,
965 (Pa.Super. 1989). Alimony following divorce is a secondary remedy and
is available only where economic justice and the reasonable needs of the
parties cannot be achieved by way of an equitable distribution award and
development of an appropriate employable skill. Id.Here, the master explained the alimony award as follows:
There was a dispute with regard to the date of
separation. Wife filed an alimony and child support
obligation through Domestic Relation[s] which began
on October, 2014. However, in 2013, Husband
contributed approximately $62,000.00 to an account
that was utilized by Wife and paid Wife’s expenses.
shall have the meaning given to it
under section 6102 (relating to
definitions).
(15) The Federal, State and local tax
ramifications of the alimony award.
(16) Whether the party seeking alimony
lacks sufficient property, including,
but not limited to, property
distributed under Chapter 35
(relating to property rights), to
provide for the party's reasonable
needs.
(17) Whether the party seeking alimony
is incapable of self-support through
appropriate employment.
23 Pa.C.S.A. § 3701(b).
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In 2014, until the payments were done via Court
Order, this figure was $49,000.00. Accordingly, the
date of separation is December, 2012 when Husband
moved out of the marital home and moved to
New Hampshire.
From December 2012, the parties were separated.
Husband paid marital expenses such as the property
taxes, living expenses, etc. Husband’s pattern was
to deposit his paycheck into an account controlled by
him (alone) and then transfer funds into the joint
account for the benefit of the parties.
From the time period that he moved to
New Hampshire, Wife controlled the joint account.
Wife testified to the contrary. Wife’s testimony was
not credible. It was not supported by any
documentation, to the contrary, it was directly
contradicted by all of the documentary evidence
provided. Wife received the benefit of the funds
transferred into the joint account in 2013 and 2014.
The currently [sic] alimony and child support
obligation began on [sic] October, 2014.
In a transparent attempt of Wife to claim that
Husband had utilized this account, therefore,
minimizing his credit and/or pushing back the start
of his alimony payments, Wife claims that they were
not separated. Wife’s claims were without merit.
Accordingly, the date of separation is December of
2012. Husband shall receive credit for alimony
payments starting as of the date of separation.
Calculated in Husband’s current support obligation is
his salary which had an approximate base of
$155,000.00 as well as a year-end bonus that he
receives in December which has traditionally been
approximately $20,000.00 per year.
Notably, Wife desires post-divorce alimony. The
current amount of spousal support/alimony
pendent lite is $2,193.00 per month. As the date of
marriage was January 23, 1993 and the date of
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separation is determined by the undersigned to be
December, 2012, the parties were married just
under 20 years.
Accordingly, Husband shall receive credit from
January 1, 2013 moving forward. Accordingly, as of
December, 2016, Husband will have paid
approximately four years of alimony.
....
The decision to award post-divorce alimony, in light
of the Alimony Pendente Lite paid to date, by
reference, incorporates all of the factors set forth in
the statute. As many of the factors have been
addressed above, they will not be addressed in detail
again. However, there are numerous factors which
the undersigned has taken into consideration in
establishing a post-divorce alimony award. They
include, in particular, the following: 1, 3, 7, 10, 12,
14, 16, and 17. Although Wife is receiving greater
than 50% of the marital estate, under the
circumstances, (and utilizing the factors above) Wife
shall receive post-divorce alimony, it is noted that
Wife is receiving a disproportionate percentage of
the marital estate. Accordingly, Wife shall be
entitled to alimony until June 31, 2019 in an amount
in accordance with the Northampton County
Domestic Relation guidelines. Wife will have
received a total of six and one half years of alimony
for a marriage approximately 20 years. This is in
addition to receiving a disproportionate amount of
the non-qualified assets as well as receiving a
disproportionate amount of the marital qualified
assets.
From a practical perspective, Wife is receiving a
sizable retirement account, the house she desires
without a mortgage, the vehicle she drives, and an
income stream for a total of 6.5 years which is an
additional 2.5 years.
For Husband, although he has less [than] 50% of
marital component of the retirement accounts, he
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has post-separation accounts. He must refinance
the Founders Court property within 90 days. If he
cannot, it must be listed for sale. In addition, he has
less than 50% of the non-qualified accounts, but
these are more liquid, but he is also is [sic]
responsible for the debt incurred. He is responsible
for the transfers to Brazil and to his paramour.
Master’s report, 12/23/16 at 17-19.
After reviewing the record, the trial court agreed with:
the Master’s determination that [Wife] received the
benefit of the funds [Husband] deposited into the
parties’ joint checking account between December
2012 and October 2014. Over this period, [Wife]
received the benefit of approximately $111,000.00,
or more than $5,000 per month. The current amount
of spousal support/alimony pendente lite, set by
Domestic Relations, is $2,193.00 per month.
Therefore, we believe it was appropriate for the
Master to give [Husband] credit toward his alimony
obligation dating back to the parties’ separation in
December 2012.
[Husband] has not received a “‘double dip’ credit” in
the equitable division of marital assets, as [Wife]
suggests in her brief. The income [Husband]
received after the parties’ separation in December
2012 was his separate property. See 23 Pa.C.S.A.
§ 3501(a)(4) (“marital property does not include . . .
[p]roperty acquired after final separation until the
date of divorce”). [Husband’s] contribution to the
parties’ joint checking account, characterized by the
Master as alimony and used primarily for the benefit
of [Wife], did not have the effect of reducing the
total value of the marital estate. If anything, [Wife]
argues that she should obtain a ‘double dip credit,’ in
that she would like to enjoy the benefit of the
$111,000.00 [Husband] contributed to the parties’
joint checking account and she would like to extend
[Husband’s] alimony obligation for an additional
twenty-two months. We do not believe this remedy
is appropriate as the evidence supports the fact that
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[Husband] made the necessary deposits into the
parties’ joint checking account, and that [Wife]
received the full benefit of those funds.
Trial court opinion, 6/28/18 at 6-7 (record citations omitted).
We have carefully reviewed the record and find no abuse of discretion.
Wife finally complains that the trial court erred in denying her request
for counsel fees.
Inasmuch as appellant challenges the award of
counsel fees, our standard of review is, once again,
an abuse of discretion. Furthermore:
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.
Counsel fees are awarded based on the
facts of each case after a review of all
the relevant factors. These factors
include the payor’s ability to pay, the
requesting party’s financial resources,
the value of the services rendered, and
the property received in equitable
distribution.
Counsel fees are only to be awarded upon a showing
of need. In essence, each party’s financial
considerations dictate whether such an award is
appropriate.
Gates v. Gates, 933 A.2d 102, 109 (Pa.Super. 2007) (internal citations and
quotations omitted).
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Here, the master determined that nothing in the record supported an
award of counsel fees. (Master’s report, 12/23/16 at 21.) In denying Wife’s
request for counsel fees, the master concluded that Wife accumulated her
attorney’s fees for “no defensible reason,” that she “took a series of
meritless positions,” that she failed to comply with discovery rules, and that
she failed to demonstrate need. (Id. at 21.) We discern no abuse of
discretion.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/19
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