Whitmire, T. v. Whitmire, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TERRENCE WHITMIRE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DIANE WHITMIRE :
:
Appellant : No. 957 MDA 2019
Appeal from the Decree Entered April 29, 2019
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
17936 of 2010
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 31, 2020
Diane Whitmire (“Wife”) appeals from the divorce decree entered by the
Court of Common Pleas of Luzerne County, which provided for the equitable
distribution of the marital assets of Wife and Terrence Whitmire (“Husband”).
Wife claims the trial court abused its discretion in valuing the marital residence
without the benefit of expert testimony and erred in dividing the value of the
marital residence in equal proportions. After careful review, we affirm.
Husband and Wife married on October 5, 1985. It was Husband’s first
marriage and Wife’s second marriage; Wife’s first marriage ended after the
death of her first husband. Husband and Wife were married for twenty-two
years until Husband moved out of the marital home on June 5, 2008. Wife
continues to live at the marital home, which is located in Shickshinny,
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* Former Justice specially assigned to the Superior Court.
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Pennsylvania. Husband and Wife do not have any children together. Wife has
an adult daughter from her previous marriage.
On December 29, 2010, Husband filed a complaint in divorce. On
January 18, 2011, Wife filed an answer and a counterclaim, seeking inter alia,
equitable distribution, alimony, and alimony pendente lite.1 After the trial
court appointed a special master and the parties were granted numerous
continuances, the parties convened for a hearing before the divorce master
on December 19, 2016.
At the time of the master’s hearing, Husband was 59 years old and Wife
was 62 years old. Husband had worked for the U.S. Postal Service (USPS) for
31 years and had retired two years earlier due to a back injury. Husband has
two pensions, one from USPS, and another from his time served in the
military. Wife was employed at the Nanticoke Post Office and was planning to
retire in the near future with her pension from USPS.
At the beginning of the master’s hearing, the parties resolved all claims
related to their marital property except for the equitable distribution of the
marital residence, which was built in 1989 and is unencumbered by any
mortgage or lien.2 While each party submitted a written appraisal of the
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1 Wife opposed the entry of a divorce decree as she asserted that the couple’s
marriage was not irretrievably broken.
2 The parties waived their interest in the other spouse’s retirement account
and agreed to use a third investment account for their granddaughter’s college
fund. Wife retained a 2007 Subaru Impreza and a 2005 Dodge Neon. The
parties had no marital debt.
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marital residence for the master’s consideration, neither party presented
expert testimony in support of their appraisals.
On August 14, 2017, the Master filed a Report and Recommendation,
accepting Husband’s valuation of the marital residence at $156,000.00 and
further recommending that this marital asset be divided equally among the
parties. If Wife wished to stay in the marital residence, the master directed
Wife to pay Husband $76,500.00.3 If Wife was unable to pay this sum within
ninety days, the trial court directed the parties to list the property with a
mutually agreeable realtor and divide the sale proceeds.
Wife filed exceptions to the Master’s Report and Recommendation. On
January 26, 2018, the trial court remanded the case back to the master for
an explanation as to how he reached his valuation of the marital home. On
February 15, 2018, the master issued an addendum to his report in which he
offered the following explanation as to why he chose to accept Husband’s
appraisal of the marital home over Wife’s appraisal:
At the time of the Master’s hearing, the parties resolved all
claims except for the equitable distribution of the marital home.
Initially, as previously noted, each party offered an appraisal for
the Master’s consideration of the fair market value of the home
for equitable distribution purposes. The appraisals were
submitted without objection. Neither party offered any
accompanying expert testimony from the appraisers. Rather,
each party briefly testified regarding his or her observations of the
condition of the home.
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3 The parties agreed that Wife would get a $1,500 credit from the equitable
distribution award as a result of the parties’ vehicle distribution. Notes of
Testimony (N.T.), Master’s Hearing, 12/19/16, at 25, 75.
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The Master therefore reviewed both appraisals without the
benefit of any accompanying expert testimony. Both appraisers
identified 3 comparable properties and made comments on the
sales comparisons. Using the sales comparison approach, Wife’s
appraiser concluded that the value of the property is $133,000.00.
Husband’s appraiser concluded that the value of the property is
$156,000.00. In addition to the reports, little evidence was
presented to assist the Master in determining which value to use
for equitable distribution purposes.
***
After having the opportunity to personally observe both
witnesses testify, the Master found [H]usband’s testimony
regarding the condition of the home to be more credible. This
determination was then coupled with the Master’s view of the
appraisals in order to ultimately conclude that [Husband’s] value
was more credible. The Master therefore valued the marital
property at $156,000.00 and used this figure in calculating the
recommended distribution award.
Addendum to Master’s Report and Recommendation, 2/15/18, at 1-3. On May
9, 2018, the trial court entered an order dismissing Wife’s exceptions. On
June 4, 2018, Wife filed a notice of appeal.
On June 25, 2018, this Court directed Wife to show cause why the appeal
should not be dismissed as interlocutory as a divorce decree was never
entered. This Court indicated that an equitable distribution order is
interlocutory and cannot be reviewed until it is rendered final by the entry of
a valid divorce decree. Wilson v. Wilson, 828 A.2d 376, 377-78 (Pa.Super.
2003); Pa.R.A.P. 341(b)(1) (providing that as a general rule, an appeal will
lie only from a final order that disposes of all claims and all parties). Wife
failed to respond to the rule to show cause. On August 24, 2018, this Court
quashed Wife’s appeal.
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The case was further delayed by Wife’s reluctance to sign an affidavit to
consent to the divorce. As such, the lower court reinstated the services of the
master to hold a hearing on the issue of grounds for divorce. Immediately
before the hearing, on April 19, 2019, Wife presented a signed Affidavit of
Consent to the Divorce, an Affidavit of Waiver of Marriage Counseling, and a
Waiver of Notice of Intention to Request Entry of a Divorce Decree.
As a result, the master recommended the trial court enter a divorce
decree on the grounds of mutual consent pursuant to Section 3301(c) of the
Divorce Code. 23 Pa.C.S.A. § 3301(c). On April 26, 2019, the lower court
entered the divorce decree, and Wife filed this timely appeal. After the trial
court directed Wife to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), Wife filed a concise statement
containing twenty-one issues for review on appeal.
In her brief, Wife raises the following issues for review on appeal:
1. Did the trial court err and/or abuse its discretion in accepting
the credibility determination of the Master in Divorce of the
real estate appraisers without their oral testimony?
2. Did the trial court abuse its discretion or commit an error of
law where it appears from a review of the record that there
is inadequate evidence to support the Master in Divorce’s
findings?
3. Did the trial court abuse its discretion or commit an error of
law in accepting the Master’s recommendation of a
50%/50% [sic] of the value of the marital real estate
without consideration of the factors set forth in Section
3502(a) of the Pennsylvania Divorce Code?
Wife’s Brief, at 13-14.
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Our standard of review is as follows:
When reviewing an order of equitable distribution, “our standard
of review is limited, and we will not disturb the trial court's
decision absent an abuse of discretion or error of law which is
demonstrated by clear and convincing evidence.” Gilliland v.
Gilliland, 751 A.2d 1169, 1171 (Pa.Super. 2000) (citation
omitted). Additionally, … 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. Simeone v. Simeone, [] 551 A.2d
219, 225 ([Pa.Super.] 1988).
Moran v. Moran, 839 A.2d 1091, 1095 (Pa.Super. 2003).
Wife first argues that the trial court abused its discretion in accepting
the credibility determinations of the divorce master with respect to the proper
valuation of the marital residence. Specifically, Wife argues that the master
could not find Husband’s appraisal more credible than Wife’s appraisal as
parties’ valuations were submitted without expert testimony. Further, Wife
claims that she was denied the “opportunity to vindicate th[e] essential right”
to present expert testimony in support of her claim. Wife’s Brief, at 17.
However, Wife had been informed that she was responsible for securing
the presence of any and all witnesses that she desired to testify at the master’s
hearing. Due to the fact that the master’s hearing was continued multiple
times at the parties’ request, the master sent the parties numerous notices
that specifically advised the parties of the following:
[t]he purpose of the Master’s Hearing is to take testimony
concerning the claims for which the Master has been appointed so
that the Master may submit a report and recommendation to the
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court; the parties should accordingly be prepared to present any
and all witnesses and evidence to support their claims.
Notice of Master’s Hearing, 4/7/16, at 2; Notice of Master’s Hearing, 9/30/16,
at 2, Notice of Master’s Hearing, 11/14/16, at 2; Notice of Master’s Hearing,
12/7/16, at 2.
Despite the repeated notices that she was required to present all
witnesses to support her claims, Wife did not secure the presence of an expert
to testify in support of her valuation of the marital residence. At the master’s
hearing, both parties admitted their appraisals as exhibits without expert
testimony and without objection, agreed to proceed in this manner. Wife
cannot now blame the master and the trial court for reaching their decisions
without evidence that she failed to present at the master’s hearing.
Moreover, Wife offers no authority for her suggestion that it was
improper for the master to assess a value for the marital residence without
expert testimony. In reviewing the lower court’s decision to adopt the divorce
master’s valuation, we are mindful of the following:
“[T]he Divorce Code does not set forth a specific method or
valuing assets, and consistent with our standard of review, the
trial court is afforded great discretion in fashioning an equitable
distribution order which achieves economic justice.” Carney [v.
Carney,] 167 A.3d [127,] 131 [(Pa.Super. 2017)] (citation
omitted). “In valuing marital assets, the trial court must exercise
discretion and rely on the estimates, inventories, records of
purchase prices, and appraisals submitted by both parties.” Id.(quotation marks, brackets, and citation omitted). However,
“[t]he trial court may accept all, part, or none of the evidence
regarding valuation of marital property, and it may rely on its own
valuation method.” Brubaker [v. Brubaker], 201 A.3d [180,]
185 [(Pa.Super. 2018)].
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Llaurado v. Garcia-Zapata, 223 A.3d 247, 254 (Pa.Super. 2019).
As noted above, the parties each submitted a written appraisal of the
value of the marital residence that included detailed information about the
home’s area, features, amenities, and condition. Both appraisals compared
the pertinent information for marital residence to three similar properties in
the surrounding area and contained comments from the appraisers on the
comparisons. The parties chose not to offer accompanying expert testimony
from the appraisers.
Instead, Husband and Wife each testified regarding their observations
of the condition of the home. Husband was able to describe the house’s
features in detail, indicated that he maintained the home throughout the
marriage, and opined that the condition of the home was excellent. Husband
offered an uncontested estimate that the home’s monthly rental value was
$1,200 to $1,500. N.T., 12/19/16, at 33-38.
Wife testified that she resided in and maintained the home after the
parties’ separation. Wife asserted that the home needed a new roof.4
However, the master found that Husband credibly testified that he gave
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4 While Husband asserted a claim for the rental value of the marital property
as Wife had remained in the home continuously for eight years at the time of
the master hearing, the master declined this request. The master cited this
Court’s decision in Schneeman v. Schneeman, 615 A.2d 1369, 1377
(Pa.Super. 1992), which states that “[w]hile each party is entitled to his or
her equitable share of marital property, including the fair rental value of the
marital residence, the trial court need not compute that equitable share as a
credit to the non-possessory spouse, as long as the total distributory scheme
is equitable. Id.-8-
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$11,000 to Wife to be allocated for a new roof, and Wife never had the new
roof installed. Wife did not contest this testimony or offer details on her
specific costs in maintaining the home. N.T., 12/19/16, at 54-67.
After reviewing the master’s decision to accept Husband’s valuation for
the marital residence, the trial court agreed that Husband’s appraisal was
more accurate as the “comparables used by Husband [] were appropriate in
relation to the subject real estate.” Trial Court Opinion, 7/5/19, at 6.
Moreover, the trial court deferred to the master’s finding that Husband gave
more credible testimony regarding the condition of the home. We cannot
overturn the master’s credibility findings when they are supported by record
evidence. We conclude that the trial court did not abuse its discretion in
adopting the master's report, recommendation, and credibility findings.
Wife also claims that the trial court abused its discretion in accepting
the master’s recommendation to divide the marital estate equally and in failing
to adequately consider two of the relevant statutory factors in the Divorce
Code. See 23 Pa.C.S.A. 3502(a)(1)-(11).
Our review of the equitable distribution award is guided by the following
principles:
[w]hen determining the propriety of an equitable distribution
award, this Court must consider the distribution scheme as a
whole. Mundy v. Mundy, 151 A.3d 230, 236 (Pa. Super. 2016).
“We do not evaluate the propriety of the distribution order upon
our agreement with the court's actions nor do we find a basis for
reversal in the court's application of a single factor. Rather, we
look at the distribution as a whole in light of the court's overall
application of the 23 Pa.C.S.[ ] § 3502(a) factors for consideration
in awarding equitable distribution. If we fail to find an abuse of
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discretion, the order must stand.” Harvey v. Harvey, 167 A.3d
6, 17 (Pa. Super. 2017) (citation and internal brackets omitted).
Finally, “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.” Brubaker [v. Brubaker], 201 A.3d [180,] 184
[(Pa.Super. 2018)] (citation omitted).
***
[Moreover,] “[a] trial court has broad discretion when fashioning
an award of equitable distribution.” [Id.] at 184 (citation omitted).
“In making its decision regarding equitable distribution, the trial
court must consider at least the eleven factors enumerated in 23
Pa.C.S.[ ] § 3502(a).” Isralsky v. Isralsky, 824 A.2d 1178, 1191
(Pa. Super. 2003). However, there is no standard formula guiding
the division of marital property and the “method of distribution
derives from the facts of the individual case.” Wang v. Feng, 888
A.2d 882, 888 (Pa. Super. 2005) (citation omitted).
While the list of factors in Section 3502 serves as a guideline for
consideration, the list is “neither exhaustive nor specific as to the
weight to be given the various factors.” Id. (citation omitted).
Accordingly, “the court has flexibility of method and concomitantly
assumes responsibility in rendering its decisions.” Id. (citation
omitted).
Hess v. Hess, 212 A.3d 520, 523-24 (Pa.Super. 2019).
As noted above, the trial court must consider the following relevant
factors in Section 3502 of the Divorce Code in seeking to distribute marital
property in an equitable manner:
§ 3502. Equitable division of marital property
(a) General rule.--Upon the request of either party in an action for
divorce or annulment, the court shall equitably divide, distribute
or assign, in kind or otherwise, the marital property between the
parties without regard to marital misconduct in such percentages
and in such manner as the court deems just after considering all
relevant factors. The court may consider each marital asset or
group of assets independently and apply a different percentage to
each marital asset or group of assets. Factors which are relevant
to the equitable division of marital property include the following:
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(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The 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.
(10.1) The Federal, State and local tax ramifications
associated with each asset to be divided, distributed or
assigned, which ramifications need not be immediate and
certain.
(10.2) The expense of sale, transfer or liquidation
associated with a particular asset, which expense need not
be immediate and certain.
(11) Whether the party will be serving as the custodian of
any dependent minor children.
23 Pa.C.S.A. § 3502(a).
Specifically, Wife asserts that the master and trial court failed to
consider the length of the parties’ marriage (22 years) and the fact that Wife
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was responsible for the maintenance of the marital home after the parties’
separation. Wife does not discuss the equitable distribution scheme as a
whole, but simply asserts that she should have been awarded the greater part
of the marital estate based on these two factors.
The trial court noted that the master thoroughly analyzed all of the
relevant factors listed in Section 3502(a) and his report specifically discussed
the length of the parties’ marriage and Wife’s contribution to the preservation
of the marital home. As the record supports the master’s findings with respect
to the Section 3502(a) factors, we conclude that the trial court did not abuse
its discretion in adopting the master’s recommendation and distribution
scheme.
For the foregoing reasons, we affirm.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/31/2020
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