Kerry, M. v. Kerry, J.

J-A19040-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MELINDA E. KERRY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSEPH E. KERRY : : No. 3553 EDA 2019
Appeal from the Order Entered November 19, 2019
In the Court of Common Pleas of Delaware County Domestic Relations at
No(s): No. 2013-001583
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 3, 2020
In this divorce action, Melinda E. Kerry (Wife) appeals from the equitable
distribution order entered in the Delaware County Court of Common Pleas,
dividing the marital property between her and Joseph E. Kerry1 (Husband).
Wife raises four issues for our review, all relating to the trial court’s finding
that Husband’s post-separation deposits of money, into a joint bank account,
were not a gift to Wife. We affirm.
Wife and Husband were married on August 30, 1997, and have three
children, born in 2001, 2002, and 2005. On February 20, 2013, Wife filed a
complaint in divorce. The trial court found the date of separation was February
27, 2013, when the complaint was served on Husband. Amended Final
1Husband, an attorney, was represented by counsel in the proceedings below.
In this appeal, he proceeds pro se.
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Equitable Distribution Order, 11/19/19 (ED Order), at 5, 7. The trial court
conducted an equitable distribution trial over November 6, 2017, and February
14, April 24, May 14, and November 26, 2018. Id. at 4. On November 19,
2019, the court issued the underlying 37-page amended equitable distribution
order, and subsequently filed a 16-page opinion. As the trial court and parties
are well familiar with the litigation in this matter, we do not reproduce all the
underlying facts and procedural history, but rather focus our review on the
following.
“A major issue presented in this matter concerned Wife’s claim to”
Husband’s post-separation deposits into a TD Bank account (TD Account),
which was jointly owned by the parties. Amended Final Equitable Distribution
Order (ED Order), 11/19/19, at 12. By way of explanation, for 26 months
following separation, through April 29, 2015,2 Husband continued to deposit
all of his paychecks3 — and, after the termination of his employment, his
severance-package payments — into the TD Account. These deposits totaled
2 The trial court’s opinion stated the deposits ended in July of 2015, citing
Wife’s testimony to this effect. Trial Ct. Op., 2/11/20, at 2 n.2, citing N.T.,
4/24/18, at 96. While we agree that Wife testified in this manner on the cited
page, we note both parties consistently testified, and their counsel argued,
that the deposits spanned 26 months and ended in April of 2015. See N.T.,
4/24/18, at 9, 16, 21 (Wife’s testimony), 81, 103; N.T., 5/14/18, at 70
(Husband’s testimony).
3 See N.T., 5/14/18, at 69.
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$863,836.4 N.T., 4/24/18, at 86. Wife averred that at least one half of these
deposits were a “gift” to her from Husband.
We further note that post-separation, $4,500 was transferred monthly
from the TD Account to a joint Capital One account, ending in 7706 (7706
Account), and an additional $1,000 was transferred monthly from the TD
Account to a second joint Capital One account, ending in 8295 (8295 Account).
N.T., 5/14/18, at 188-89; see also Wife’s Brief at 31-32.
During this 26-month post-separation period, Wife did not seek spousal
or child support. When asked at trial why she did not, Wife testified, “Because
I thought we were working — I thought I was waiting for [Husband] to get
himself back [sic] . . . [a]nd to be able to not lie.” N.T., 4/24/18, at 79. Wife
further testified to the following: the children’s and her expenses totaled
$11,500 monthly. Id. at 105. She “had access” to and “the checkbook” for
the TD Account, which she used to pay “all the bills,” tithing, and taxes for not
only herself and the children, but also Husband. Id. at 84, 103. It was Wife’s
“role” and “job” to pay the bills and “handl[e the parties’] books.” Id. at 86.
Wife spent money from the account “as [she] saw fit,” and Husband did not
4 This Court previously affirmed a child support order, in an appeal taken by
Wife. M.E.K. v. J.E.K., 222 EDA 2019 (unpub. memo.) (Pa. Super. Nov. 13,
2019). In that memorandum, the panel explained, “In 2013 and 2014,
[Father] earned more than $500,000 per year. He was terminated for cause
in November 2014, and received a severance package that included payment
of $750,000 over 18 months ($30,000 per month), which ended in May 2016.”
Id. at 2 n.3.
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object to any of her spending. Id. at 105-06. Husband’s net total expenses
were $393,885,5 less than half of the total deposits of $863,836. Id. at 83,
86. When asked whether she considered the payments for Husband’s
expenses to be “a gift,” Wife responded “no.” Id. at 84.
Finally, we note that at trial, Wife acknowledged “[Husband] didn’t
specifically say this is a gift,” but nevertheless insisted “the intent was that
we were sharing that money.” Id. at 98.
Meanwhile, Husband testified to the following. Post-separation, he
continued to deposit his pay into the joint TD Account because he “didn’t want
to complicate [Wife’s and the children’s] lives,” “wanted to maintain the status
quo,” and “didn’t want to disrupt an already complicated situation.” N.T.,
5/14/18, at 70, 201. While Husband stated another reason for depositing the
money was that he loved Wife and the children, he denied the deposits were
made in “an effort to woo [Wife] back.” Id. at 70.
On April 29, 2015 — when the TD Account deposits ended — “Husband
sought court intervention to initiate a child and spousal support action on
behalf of Wife and against himself.” Trial Ct. Op. at 2-3. Husband testified to
the following at trial: through the TD Account deposits, Wife was “receiving
support [from him] voluntarily prior to [his] filing for support.” N.T., 5/14/18,
5 Wife calculated Husband’s total expenses, during the 26-month period, to be
$513,154. N.T., 4/24/18, at 82. This amount included Husband’s initial
payment for $119,269 of business expenses, which was subsequently
reimbursed. Id. at 82
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at 201. When Husband anticipated his severance pay would end, he asked
Wife to “work something out in terms of what [he could pay] that’s
reasonable.” Id. at 74. Wife, however, insisted he continue to pay according
to his prior salary of $500,000 a year. Id. Believing this was “not doable,”
Husband commenced the support action. Id. at 75.
Consequently, on October 20, 2015, the court issued a support order,
directing Husband to pay $7,653.57 in monthly alimony pendente lite (APL)
and $4,346.43 in monthly child support —a total of $12,000 monthly. Trial
Ct. Op. at 3; N.T., 4/24/18, at 80.
As stated above, Wife testified, and argued, that at least one half of the
post-separation deposits should be deemed a gift, from Husband.6 N.T.,
4/24/18, at 6, 8-9, 85, 98. In response, Husband’s counsel also stated that
a portion of the deposits “were a gift.” Id. at 6. Relevant to Wife’s argument
on appeal, we specifically note counsel’s statements to this effect at trial: “I
do agree that they were a gift,” id. at 6; “[W]e agree that, to some extent,
they constituted a gift to [Wife],” id. at 9; “They were a gift to her,” id. at 10;
“They’re a gift to [W]ife,” id. at 11; “I agree that there was a gift,” id. at 13;
and “. . . I agree that in depositing post separation earnings into the account,
6 At trial, Wife withdrew her claim that the post-separation deposits should be
classified as marital property. N.T., 4/24/18, at 13. See also 23 Pa.C.S. §
3501(a) (defining “marital property” as “property acquired by either party
during the marriage and the increase in value of any nonmarital property
acquired”).
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those constituted a gift.” Id. at 13-14. However, we note, Husband’s counsel
made these statements in the context of the following argument:
. . . I agree that in depositing post separation earnings into the
account, those constituted a gift. That is, [Husband] is without a
cause of action that would allow for him to call that back.
However, to the extent that [Wife] seeks to use that gift argument
to create a deficit between what she was entitled to and what she
received and then ask for this Court to remedy that deficit, we
don’t agree.
Id. at 13-14. Husband also argued the following:
[Husband: W]e’re not seeking a dollar-for-dollar credit where
[Husband’s] gift to [Wife] will carry relevance down the road, will
be when [Wife] asks for alimony [sic].
THE COURT: All right.
[Husband:] Because we have 26 months from the date of
separation to the date that [Husband] filed for support. Where he
was supporting [Wife] and the children far in excess of what his
statutory obligation would have been and was under the statute.
...
Id. at 16.
On January 31, 2019, the parties submitted post-trial memoranda, and
on June 27, 2019, the court issued an equitable distribution order. Wife filed
a petition for reconsideration on July 24, 2019, to which Husband filed an
answer. The court granted reconsideration on September 27, 2019, and held
a hearing on November 7th. On November 19, 2019, the court issued the
underlying amended final equitable distribution order. Pertinently, the court
concluded no portion of Husband’s post-separation deposits to the TD account
were a “gift” to Wife. The court reasoned, in part:
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As Husband was the sole source of income for the parties, it could
be . . . inferred that the purpose of [his deposits] was to preserve
the marital estate by paying expenses associated with ownership
and its dissipation. Also, as Husband testified, he was the sole
income source and felt the need to continue to support Wife and
the Children[.] Husband’s testimony is further supported by the
fact that when he ceased depositing the funds into the joint
account, he then “took himself to support court” to determine his
legally binding support obligation to the Children and Wife.
ED Order at 14-15. The court also considered Wife’s trial response, that “the
payment of Husband’s expenses [did not] constitute[ ] a gift of jointly held
money back to him.” Id. at 15. The court found this “logic must be applied
consistently,” against Wife. Id.
Finally, we note the court awarded Wife 70% of the marital estate, and
to Husband, 30%. Trial Ct. Op. at 1. The court also denied Wife’s request for
alimony, finding “Husband has been paying support to Wife[ ] since the
parties’ separation” by way of depositing his post-separation income to the
parties’ joint bank accounts. ED Order at 33. The court found these deposits
provided Wife “considerable sums of money,” and thus that she “received
almost [6] years of support in a [15-] year marriage.” Id.
Wife filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement of issues to be raised on appeal. She presents four issues
for our review:
1. Should the Trial Court have found that the monies deposited
into the TD Joint account between February 27, 2013 and April
29, 2015 were a gift since [Husband] and [Wife] agreed on the
record that the monies were a gift?
2. Should the Trial Court have found that the balance of the Capital
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One account ending in 7706 was $171,461 as of the date of
separation, as opposed to the $71,461 balance that was found,
because [Husband] did not present any evidence that the funds
deducted from the balance were used for marital expenses?
3. Should the Trial Court have found that a portion of the interest
accrued on the Capital One accounts attributable to the marital
estate considering that the marital balances were far in excess of
the non-marital portion when accrued?
4. Should the Trial Court have found that [Wife] was entitled to
Alimony considering the length of the marriage, the income of the
parties, and the fact that [Wife] has primary custody of the minor
children?
Wife’s Brief at 10.
In her first issue, Wife avers the trial court erred in finding Husband’s
post-separation deposits, to the parties’ joint TD Account, were not a gift to
her. In support, Wife quotes at least eight statements by Husband’s counsel,
as well as several comments by the trial court, at the April 24, 2018, hearing,
that the deposits were a “gift” to Wife. Wife’s Brief at 17-23. Wife maintains:
“[t]he parties agreed that the funds were a gift on the record,” id. at 16;
“[n]othing is more direct and convincing than an explicit agreement,” id. at
24; and the court erred in disregarding this agreement.7 Id. at 26. In the
alternative — regardless of the parties’ on-the-record agreement — Wife
asserts she established the existence of a gift, as: (1) Husband’s counsel’s
7 In alleging the parties “agreed” that the deposits were a gift, Wife maintains,
“Contracts between husband and wife, if fairly made, are generally considered
binding as to them.[ ]” Wife’s Brief at 28, citing Bredt v. Bredt, 326 A.2d
446, 448 (Pa. Super. 1974). To the extent Wife avers the attorneys’ trial
arguments constituted a contract binding the parties, in the absence of any
further supporting discussion, we deny relief on such a basis.
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statements at the April 18, 2018, hearing indicated his intent to give a gift;
and (2) Husband’s deposit of the money into the joint account, together with
granting Wife “full access of the funds,” evidenced delivery of the gift. Id. at
24-25, citing Ashley v. Ashley, 393 A.2d 637, 639 (Pa. 1973) (“To establish
a valid inter vivos gift, it is essential [to establish:] (1) an intention to make
an immediate gift, and (2) such actual or constructive delivery to the donee
as will divest the donor of dominion and control of the subject matter of the
gift.”). We disagree.
We note the relevant standard of review:
We review a challenge to the trial court’s equitable distribution
scheme for an abuse of discretion. . . . We 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.” When reviewing an award of
equitable distribution, “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.”
. . . “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
discretion, the order must stand.” 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.”
Hess v. Hess, 212 A.3d 520, 523 (Pa. Super. 2019) (citations omitted).
To establish a valid inter vivos gift, it is essential that the two
elements of a gift be shown. These elements are (1) an intention
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to make an immediate gift, and (2) such actual or constructive
delivery to the donee as will divest the donor of dominion and
control of the subject matter of the gift.
“Donative intent is the intention to make an ‘immediate gift.’”
Ashley, 393 A.2d at 639 (citations omitted).
In its opinion, the trial court specifically addressed Wife’s claim that
“Husband admitted on the record that the funds were a gift:”
Wife advanced the position that [the post-separation] funds
deposited by Husband were a gift to Wife. She applied mostly
manufactured and contradictory reasoning to support her
position. The Amended Final Equitable Distribution Order . . .
fully disposes of this issue and cites relevant case law in support
of its determination that these funds did not constitute a gift. See
[ED Order at] 12-16.
However, on appeal, Wife attempts to circumvent this Court’s
holding by stating that Husband admitted that [the] funds were a
gift to Wife. [This contention] is without merit. Wife is
mischaracterizing statements made by Husband’s counsel.
This Court disagrees that Husband (or his counsel) admitted that
the funds were a legal gift to Wife. This Court understood
Husband’s position, as stated by his counsel, to be the following:
Husband admitted that he had voluntarily placed the post[-]
separation funds into the jointly held bank account[ ].
Consequently, Husband’s counsel conceded that Husband had no
legal recourse, in the equitable distribution process, to reclaim
those funds, or any portion thereof, from Wife. Because Husband
had no legal recourse for reimbursement of any portion of those
funds, he conceded that the funds were a “gift” but insisted that
those funds were given to Wife in lieu of any support obligation.
See N.T., 4/24/18[,] at 13-14. As stated by Husband’s counsel:
. . . [Husband is not] seeking a dollar-for-dollar credit [in
equitable distribution] . . . where [Husband’s] gift to
[Wife] will carry relevance down the road, will be when
[Wife] asks for alimony . . . because we have 26 months
from the date of separation until the date when [a
support action was commenced.] Where [Husband] was
supporting [wife] and the children far in excess of what
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his statutory obligation would have been and was under
the statute [sic].
[Id.] at 15-16.
Trial Ct. Op. at 5-6 (emphases added and other emphases omitted).
On appeal, Wife fails to address this discussion by the trial court.
Instead, Wife reiterates her insistence that Husband’s counsel’s statements —
quoted out of the context specifically considered by the trial court — alone
established Husband’s intent to make a gift. Wife ignores Husband’s
testimony and argument at trial — credited by the trial court — that his intent
was, instead, to provide informal spousal and child support, in order to prevent
further complications in their lives. See Ashley, 393 A.2d at 639 (to establish
a valid gift, party must establish “an intention to make an immediate gift”);
Hess, 212 A.3d at 523 (this Court will not reverse trial court’s credibility
determinations so long as they are supported by the evidence); Trial Ct. Op.
at 6; N.T., 5/14/18, at 70. In the absence of any discussion why the court
should not have considered all of Husband’s trial testimony and argument, we
decline to disturb the court’s conclusions. See Hess, 212 A.3d at 523.
In Wife’s second issue, she challenges the marital value of the Capital
One 7706 Account. We first consider the following factual and procedural
history. While the parties agreed that as of the February 27, 2013, separation
date, the 7706 Account contained $171,461, the trial court credited Husband’s
contention that “$100,000 was spent by the parties from that account” post-
separation. ED Order at 36 n.36. The court thus set the value of this account,
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as $71,461 and awarded this entire amount to Wife. Id. at 10, 27. With
respect to the parties’ other joint Capital One account, the 8295 Account, the
court found the value, as of the date of separation, was $50,079,8 and likewise
awarded the entire amount to Wife. Id. According to Wife, all post-
separation deposits to these accounts were made by the automatic monthly
transfers from the TD Account. Wife’s Brief at 30-31.
On appeal, Wife claims the trial court erred in finding the marital value
of the 7706 Account was $71,461, where the account had $171,461 as of the
date of separation “and the record does not support [the trial court’s finding]
that the funds were used for marital expenses.” Wife’s Brief at 29. Wife
presents two assertions. First, she reiterates the parties “agreed” — and the
trial court should have found — that all the post-separation deposits to the
joint TD Account were a gift, and thus the transfers of TD Account funds to
the 7706 Account were likewise a gift. Id. at 30-31. Second, Wife disputes,
in the alternative, the trial court’s finding that $100,000 from the 7706
8 We note a discrepancy, in the amended final equitable distribution order,
regarding the value of the 8295 Account as of the date of separation. On page
10 of the order, the trial court stated the value of the 8295 Account was
$50,079. ED Order at 10, 36 & n.37. In support, the court cited Wife’s exhibit,
“P-1,” a spreadsheet of the parties’ assets, and our review of the exhibit
supports the $50,079 figure. See Wife’s Reproduced Record at 380.
On page 27 of the equitable distribution order, however, the court stated
the value of the account was $34,510.84. ED Order at 27. On appeal, Wife
does not challenge the value of the 8295 Account, and indeed, her brief states
the value of the account was $50,079. See Wife’s Brief at 37. We reach no
legal or factual conclusion as to the proper amount.
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Account was used toward marital expenses. Id. at 35. Instead, Wife
maintains, the $100,000 was transferred back to the TD Account in order to
pay for Husband’s work expenses that “were not immediately submitted for
reimbursement.” Id. at 32. She reasons: “There is no mathematical
justification for treating funds that were deposited into the joint TD account
and then later moved to the joint Capital One Accounts and then moved back
in part to the Joint TD account, differently than the funds that were never
moved from the [J]oint TD account.” Id. at 34.
Incorporating our disposition of Wife’s first issue, we conclude no relief
is due. First, we have affirmed the trial court’s finding that Husband’s post-
separation deposits to the TD Account were not a gift to Wife. Additionally,
Wife conflates two distinct principles: (1) the marital, or pre-separation,
portion of the account; and (2) post-separation, non-marital funds, which she
avers were a gift. See 23 Pa.C.S. § 3501(a) (defining “marital property” as
“property acquired by either party during the marriage and the increase in
value of any nonmarital property acquired). Even if we were to proceed on
the premise that the post-separation TD Account deposits were a gift, they
would not be included in the marital estate. See also N.T., 4/24/18, at 13
(Wife abandoning her claim that the post-separation deposits were marital
property).9 Instead, we construe Wife’s discussion as a claim that the trial
9 We thus disagree with Wife’s contention that “[t]he determination[,] of
whether the funds deposited into the Joint TD account were a gift, directly
impacts the finding of the Trial Court relative to the marital balance of the
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court should have awarded her $100,000 as a post-separation gift. In this
regard, we agree with Wife’s reasoning the court should have treated in the
same manner: (1) the initial post-separation deposits to the TD Account
funds; and (2) TD Account funds transferred to the 7706 Account. See Wife’s
Brief at 34. In so doing, we conclude the court did not err in declining to
award $100,000 to Wife as a post-separation gift. We likewise do not disturb
the trial court’s calculation of the marital value of the 7706 Account.
In Wife’s third issue, she avers the trial court erred in not attributing
any of the post-separation “interest accrued on the Capital One accounts to
the marital estate.” Wife’s Brief at 36. Wife disputes the trial court’s
reasoning that it “was unable to determine a sum certain of interest earned
on the marital portion,” and asserts the total interest accrued, “from February
27, 2013 through 2015” was $5,061.63. Id. at 36-37. We further note Wife’s
discussion:
[T]he Trial Court completely ignored the facts, finding that the
existing marital balances of the accounts ($171,491 and $50,079)
at date of separation earned no interest. As discussed above, the
parties had in place an automatic monthly sweep of $4,500 and
$1,000 from the Joint TD account to the two Capital One
Accounts.[ ] If the deposits to the Joint TD account should have
been considered a gift by the Trial Court, then this issue is
disposed of, as all funds available in the Capital One Accounts,
including accrued interest, would be subject to equitable
distribution.
Wife’s Brief at 37-38. No relief is due.
parties’ joint [7706 Account] for purposes of equitable distribution.” See
Wife’s Brief at 29 (emphasis added).
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Wife again conflates pre-separation, marital property with post-
separation, non-marital assets. We again incorporate our discussion disposing
of Wife’s first issue, and decline to disturb the trial court’s finding that interest
on the post-separation deposits were not marital property. See Wife’s Brief
at 36 (“The Trial Court erred in failing to attribute any of the interest accrued
. . . from February 27, 2013 through 2015 as marital . . . .”).
In her final issue, Wife alleges the trial court erred in denying her
request for alimony, “considering the length of the marriage, the income of
the parties and the fact that [Wife] is the primary physical custodian of the
minor children.” Wife’s Brief at 40. In her four-sentence discussion of this
issue, Wife requests that “[s]hould this . . . Court reverse and remand this
matter due to the Trial Court’s error in not treating the funds deposited into
the Joint TD account as a gift, then the issue of alimony should be reviewed.”
Id.
Because we affirm the trial court’s finding that Husband’s post-
separation TD Accounts were not a gift, we decline to grant relief on Wife’s
alimony issue.
For the foregoing reasons, we affirm the November 29, 2019, amended
final equitable distribution order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/3/2020
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