Bullman, C. v. Bullman, E.

J-A16027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CONNIE E. BULLMAN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERNEST F. BULLMAN
Appellant No. 1488 WDA 2013
Appeal from the Order Entered August 15, 2013
In the Court of Common Pleas of Clearfield County
Civil Division at No(s): No. 2010-1768-CD
BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 24, 2014
Ernest F. Bullman (“Husband”) appeals from the order entered August
15, 2013, in the Court of Common Pleas of Clearfield County distributing the
parties’ marital property and awarding alimony and counsel fees to Connie E.
Bullman (“Wife”). On appeal, Husband challenges four of the trial court’s
findings of fact with respect to the equitable distribution order. In addition,
he argues the court erred in awarding Wife alimony and counsel fees. For
the reasons set forth below, we affirm.
Wife and Husband were married on December 5, 1981 in Philipsburg,
Centre County, Pennsylvania. Two children were produced during this
marriage, both adults at all relevant times for this appeal. After nearly 27
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years of marriage, in July 2008, the parties separated when Husband moved
out of Wife’s home.1 Wife filed a Complaint in Divorce on September 27,
2010, raising the issues of divorce under section 3301(c) and (d) of the
Divorce Code, equitable distribution of marital property, alimony, counsel
fees, costs and expenses. On December 16, 2010, the Court entered an
order and stipulation for bifurcation for a divorce decree, but retained
jurisdiction over all other matters.
Husband filed a motion for appointment of a Master on March 22,
2012. Subsequently, the court appointed Donald Gibbony, Esquire, as
Master. A Master’s hearing was held on September 21, 2012, with both
parties present and represented by counsel. On February 27, 2013, the
Master submitted his Report and Recommendation. Pertinent to this appeal,
the Master made the following findings: (1) Wife was 66 years old at the
time of the hearing and she indicated that she has several health concerns,
including suffering from mini-strokes, having issues with diabetes, arthritis,
deteriorated discs in her back and clogged arteries; (2) Husband was 57
years old at the time of hearing, appeared to be in good physical health, and
indicated that he did not suffer from any disabilities that would prohibit him
from engaging in full-time employment; (3) Wife was self-employed as a tax
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1
Wife alleged Husband moved in with his paramour in July. Husband
claimed Wife left their marital residence in November, 2000, and moved to
an apartment where he periodically resided.
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preparer and also engaged in a small business to sell craft-type items at
fairs and festivals; (4) Husband was laid off from his employment as a heavy
equipment operator at the time of the hearing;2 (5) Wife had a monthly
income of $1,529.83 per month; and (6) Husband had a monthly income of
$2,515.00 per month. See Master’s Report & Recommendation, 2/27/2013,
at 4-6.
The Master then made the following conclusions of law: (1) the date
of separation was July, 2008, when Husband moved in with his paramour
and no longer stayed at Wife’s residence from that date forward; (2) the
total value of the marital assets was $47,378.00, the appropriate distribution
scheme was a 55%/45% division in favor of Wife; (3) Husband should pay
alimony in the amount of $185 per month to Wife for four years; and (4)
Husband should pay 50% of Wife’s counsel fees, in the amount of
$1,185.00. See id. at 8-31.
Husband filed exceptions to the Master’s report and recommendation
on March 5, 2013, and later, filed amended exceptions on March 14, 2013.
The trial court conducted a hearing on April 29, 2013. On August 15, 2013,
the court entered an order, dismissing all 19 exceptions raised by Husband.
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2
Husband also had a commercial driver’s license.
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The court also fully adopted the terms and provisions of the Master’s report
and recommendation. Husband filed this appeal.3
Husband’s first four issues concern the equitable distribution of the
parties’ marital estate. Therefore, we begin with the following:
We review an equitable distribution order for an abuse of
discretion. Biese v. Biese, 2009 PA Super 142, 979 A.2d 892,
895 (Pa. Super. 2009).
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.
Id. (internal citations and quotations omitted).
Reber v. Reiss, 42 A.3d 1131, 1134 (Pa. Super. 2012), appeal denied, 62
A.3d 380 (Pa. 2012).
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3
On September 13, 2013, the trial court ordered Husband to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Husband filed a concise statement on September 30, 2013. In a related
matter, the court entered a divorce decree on December 11, 2013.
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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. Sternlicht v. Sternlicht, 2003 PA Super 95, 822
A.2d 732, 742 (Pa. Super. 2003), aff’d, 583 Pa. 149, 876 A.2d
904 (Pa. 2005). 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.” Moran
v. Moran, 2003 PA Super 455, 839 A.2d 1091, 1095 (Pa. Super.
2003) (citing Simeone v. Simeone, 380 Pa. Super. 37, 551
A.2d 219, 225 (Pa. Super. 1988), aff’d, 525 Pa. 392, 581 A.2d
162 (Pa. 1990)).
Childress v. Bogosian, 12 A.3d 448, 455-456 (Pa. Super. 2011).
In Husband’s first issue, he claims the trial court erred in determining
that the date of separation was July 2008, because the parties failed to
reside together, hold themselves out as a married couple, and function as
husband and wife since November 2000, when Wife left the marital
residence. Specifically, Husband claims that in November 2000, Wife left
with the two children and did not tell him where she was going. He states
he eventually was able to locate his family at an apartment in Phillipsburg,
but that residence “was hers and not theirs.” Husband’s Brief at 10.
Husband asserts that it “was at this point that [he] believes the parties had
truly separated.” Id. Additionally, he states that over the next several
years, he was allowed to stay at the apartment so he could spend time with
the children, but he was forced to sleep on the floor or couch, the parties
never had a physical relationship, and they did not do anything socially or
otherwise as a married couple. Id.-5-
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“The determination of the separation date obviously impacts the value
of property in that [o]nly property acquired prior to the date of final
separation is marital property and therefore subject to equitable
distribution.” McCoy v. McCoy, 888 A.2d 906, 911 (Pa. Super. 2005)
(citation and internal punctuation omitted). Section 3103 of the
Pennsylvania Divorce Code defines “separate and apart” as a “[c]essation of
cohabitation, whether living in the same residence or not. In the event a
complaint in divorce is filed and served, it shall be presumed that the parties
commenced to live separate and apart not later than the date that the
complaint was served.” 23 Pa.C.S. § 3103.
[This] definition contains specific language pertaining to a
presumption that the date of separation, i.e., the date on
which the parties begin living separate and apart, is
established upon the filing and serving of a divorce
complaint, unless an earlier date can be substantiated
through the presentation of evidence confirming an
earlier date. “A presumption … is a procedural device which
not only permits an inference of the ‘presumed’ fact, but also
shifts to the opposing party the burden of producing evidence to
disprove the presumed fact. Failure to meet this burden of
production will normally result in [a decision] … in favor of the
party invoking the presumption.” Commonwealth v.
Slaybaugh, 468 Pa. 618, 364 A.2d 687, 689 (Pa. 1976). In
short, “the party attempting to rebut the presumption has
the burden of proof.” CW v. LV, 2001 PA Super 332, 788
A.2d 1002 (Pa. Super. 2001).
McCoy, 888 A.2d at 912 (emphasis added).
In the present case, the Master and the trial court found that the date
of separation was July, 2008, which was the last time Wife had contact with
Husband because Husband moved in with his paramour and no longer
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stayed at Wife’s apartment. See Master’s Report & Recommendation,
2/27/2013, at 9; Trial Court Opinion, 8/15/2013, at 2-3. While Husband’s
testimony tends to support a finding that he and Wife separated in
November, 2000, Wife’s testimony contradicted his testimony in many key
areas. Wife testified she left with the parties’ two children at that time
because the heat was not working at the marital home. N.T., 9/21/2012, at
31-32. Additionally, Wife stated that when Husband was not residing with
her, he occasionally slept at the former marital residence because he was
working on the house. Id. at 32. She also testified that during this period,
she would often pick him up from work at “[t]wo o’clock in the morning or
2:30 in the morning in the middle of nowhere.” Id. at 46. Lastly, Wife
indicated that she deemed herself to be married to Husband up until July of
2008. Id.
Both parties agree that from November, 2000 until July, 2008,
Husband would periodically stay at Wife’s residence. Id. at 33, 54.
Husband alleged there were no physical relations between the parties, and
that he stayed at Wife’s apartment out of respect for the children. Id. at 55,
91. Husband did not institute a divorce proceeding during this period. Wife
filed her complaint in divorce in September, 2010, using July, 2008 as the
date of separation. As noted by the Master, Husband did not contest this
date in his filings. See Master’s Report & Recommendation, 2/27/2013, at
10.
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While the state of the parties’ marriage may have been dissolving
during the relevant eight-year period, our review of this issue is governed in
great part by the facts as determined by the Master and the trial court. See
Childress, supra. Moreover, we must defer to the trial court’s credibility
determinations and findings of fact, so long as those facts are supported by
competent evidence in the record, and our standard of review is based on an
abuse of discretion. Id. Given the Divorce Code’s definition of “separate
and apart,” and applicable case law, we conclude there is no abuse of
discretion in the court’s finding that the date of separation was July, 2008.
Likewise, we agree with the trial court that Husband failed to present
sufficient evidence that the date of separation occurred in 2000.
Accordingly, Husband’s first claim fails.
Next, Husband contends the trial court erred in determining he had a
greater capacity to acquire future income and assets, where the evidence
indicated that Wife is employed and Husband is unemployed with little
prospect of employment in his given field in the near future. Husband’s Brief
at 11. He states that Wife has two jobs, as a tax preparer and arts and
crafts seller, whereas he has been laid off from his job as a heavy equipment
operator since 2012 and has yet to find work. Husband asserts “there is
little to no factual basis on the record to support this assertion by the
Master. The only possible reason for this determination by the Master is that
[Husband] is approximately nine (9) years younger than [Wife].” Id. at 12.
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Moreover, he argues that “even if that were the case, [his] job prospects …
in central Pennsylvania are minimal due to federal regulations and his job is
considerably harder on his body than sitting at a desk preparing taxes.” Id.
at 13.
Section 3502 of the Divorce Code governs the equitable distribution of
marital property and provides, in relevant part:
Factors which are relevant to the equitable division of
marital property include the following:
…
(3) The age, health, station, amount and sources of income,
vocational skills, employability, estate, liabilities and needs of
each of the parties.
23 Pa.C.S. § 3502(a)(3).
With respect to this factor, the Master opined:
At the time of the Master’s hearing [on September 21, 2012,]
Husband was 57 years old and in reasonably good health.
Husband was unemployed at the time of the hearing and had
last been employed through Falls Creek Energy as a heavy
equipment operator; however, he was la[id] off during the spring
of 2012. Husband’s primary source of income at the time of the
Master’s hearing was unemployment compensation of $878.00
which was received every two weeks. Husband expected his
unemployment compensation to expire in October, 2012,
although Husband indicated that an extension of these benefits
was a possibility. Husband has a work history of being a heavy
equipment operator for several years for Sky Haven. Husband
also possesses a commercial driver’s license and has indicated
that he has experience doing mechanical work. Given Husband’s
work history and training and the CDL that Husband has,
Husband possesses skills and experience that would make him
employable.
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At the time of the Master’s hearing, Wife was 66 years old.
Wife testified that she is in poor health suffering from a variety
of ailments including clogged arteries, mini-strokes, issues with
diabetes, arthritis and deteriorated discs in her back. Wife is
self-employed as a tax preparer. Additionally, she receives
$724.00 per month in Social Security benefits. Testimony also
indicated that Wife does make craft type items to sell at craft
fairs and festivals. Wife indicated on her Income and Expense
statement that her monthly income from all sources is
$1,177.00.
Based on the testimony and information provided, both
parties possess skills which make them employable and able to
participate in the workforce. Since Wife is approximately nine
(9) years older than Husband and Wife suffers from several
medical conditions and is in poor health, Husband most likely
would be more employable and have the longer period of time in
which to earn an income.
Master’s Report & Recommendation, 2/27/2013, at 11-12 (record citations
omitted).
The trial court determined the Master properly addressed this factor
and found the following:
The Divorce Code requires that the amount and sources of
income must be considered in the determination of the equitable
distribution of the parties’ assets. 23 Pa.C.S.A. § 3502(a)(3).
The Master discussed the sources of income for both parties,
including a comparison between [Husband]’s and [Wife]’s
income, training and skill level of both parties, and the standard
of living of the parties. The Master’s findings are supported by
the record and the exhibits submitted by the parties.
Trial Court Opinion, 8/15/2013, at 3-4. Contrary to Husband’s argument,
we discern no abuse of discretion and agree with the trial court’s conclusion
that the Master’s findings are supported by the record. We reiterate that the
Master had the opportunity to observe and assess the behavior and
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demeanor of the parties, and therefore, his credibility determination with
respect to the income capability of the parties should be given great
consideration. See Childress, supra. Accordingly, Husband’s claim of trial
court error on this issue is without merit.
In Husband’s third argument, he claims the court erred by improperly
including values in the marital property that should have been excluded
pursuant to 23 Pa.C.S. § 3501(a)(4). Husband’s Brief at 13. Specifically, he
states that prior to the Master’s hearing, the parties submitted memoranda
to the Master with valuations listed for all property owned by the parties.
Id. In his pre-trial statement, Husband listed certain insurance policies in
the “marital” property section. However, relying on Keller v. Keller, 760
A.2d 22 (Pa. Super. 2000), Husband asserts that since the date of
separation of the parties is at issue, the trial court should have considered a
portion of their value as acquired post-separation, and therefore, “non-
marital” property pursuant to Section 3501(a)(4). Id. at 13-14, 15.
Moreover, Husband argues that because there was no surprise or burden at
the time of the Master’s hearing and the inventory reflected the current
value of the property at that time, these values could be easily adjusted
based on the determination on the date of separation. Id.
The Divorce Code defines “marital property,” in pertinent part, as
follows:
§ 3501. Definitions
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(a) General Rule.—As used in this chapter, “marital property”
means all property acquired by either party during the marriage
and the increase in value of any nonmarital property acquired
pursuant to paragraphs (1) and (3) as measured and determined
under subsection (a.1). However, marital property does not
include:
…
(4) Property acquired after final separation until the date of
divorce, except for property acquired in exchange for marital
assets.
23 Pa.C.S. § 3501(a)(4).
Here, the record reveals the following. At the beginning of the
Master’s hearing, the parties stipulated to certain values for Wife’s Prudential
insurance policy, Husband’s two Prudential insurance policies, and Husband’s
M&T Bank IRA. See N.T., 9/21/2012, at 4-5. Subsequently, during the
proceeding, Husband’s counsel attempted to introduce the two insurance
policies and the IRA into evidence, which included different marital values for
the insurance policies than were previously stipulated to at the beginning of
the hearing. Id. at 68-72. Husband’s counsel claimed to have based the
values on the fact that the date of separation was November, 2000, and
therefore, any contributions made by Husband after that date were non-
marital property. Id. at 69-70. The Master noted Wife’s objection to this
“re-valued” evidence, and requested the parties to argue the issue in their
briefs before admitting the exhibits into evidence. Id. at 72-73.
In his report, the Master opined:
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As the parties had separated in July 2008, there were very
few marital assets left for distribution at the time of the Master’s
hearing. Prior to the taking of testimony, the parties, on the
record, set forth a stipulation as to the value of the remaining
marital assets…. The parties agreed to the following values as
per their stipulation: Wife’s Prudential life insurance policy -
$11,253.18; Husband’s Prudential life insurance policy #414 -
$21,352.26; Husband’s Prudential life insurance policy #992 -
$7,465.77; and an M&T IRA with Sky Haven that was Husband’s
- $7,306.90.
…
Subsequent to the entry of the stipulation into the record,
during Husband’s testimony, counsel then moved to enter into
the record [Husband]’s Exhibits B and C, which set forth
different marital values for Husband’s Prudential policies based
on payments Husband made throughout the separation of the
parties. [Husband]’s Exhibit B is in regard to the #992 policy
and indicates that a marital value of $3,989.22 or $3,476.55 less
than the stipulated value of that policy. [Husband]’s Exhibit C is
in regard to Husband’s Prudential policy #414 and it lists a
marital value of $12,998.39 which is $8,353.87 less than the
stipulated value of that policy. It should be noted that the
calculations that are done on Exhibits B and C are typed
calculations based on Husband’s assertion as to a date of
separation in November of the year 2000 and the amount of
post-separation contributions of Husband to those policies from
that date in November 200[0] forward.
Wife, through her counsel, raised objection to the
admission of Exhibits B and C in this matter indicating that in the
pre-trial filings Husband did not list a non-marital component to
these insurance policies. Wife cites to the Pennsylvania Rules of
Civil Procedure, particularly Rule 1920.33(b)(1)(4).[4] Wife’s
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4
Rule 1920.33(b)(1), (4) provides:
(b) Within the time required by order of court or written directive
of the master or, if none, at least sixty days before the
scheduled hearing on the claim for the determination and
distribution of property, each party shall file and serve upon the
(Footnote Continued Next Page)
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contention is that Husband’s Exhibits B and C should be barred
because Husband did not reveal these Exhibits in his pre-trial
documentation. Wife further goes on to state that in the pre-
trial statements Husband does not assert that there is a non-
marital component to the policies or that Husband was claiming
an offset from the premiums paid as to the value of the policies
that Husband now claims.
Husband cites that the case of Keller v. Keller, 760 A.2d 22(Pa. Super. 2000) stands for the position that in equitable
distribution cases the outcome of creating an accurate record is
more important tha[n] specific rules of procedure. Husband
claims that even though a non-marital component was not listed
in his pre-trial filings, he should be allowed to make argument at
the time of the Master’s hearing as to any non-marital portions
of the insurance policies.
_______________________
(Footnote Continued)
other party a pre-trial statement. The pre-trial statement shall
include the following matters, together with any additional
information required by special order of the court:
(1) a list of assets, which may be in chart form, specifying:
(i) the marital assets, their value, the date of the
valuation, whether any portion of the value is non-
marital, and any liens or encumbrances thereon; and
(ii) the non-marital assets, their value, the date of
the valuation, and any liens or encumbrances
thereon;
…
(4) a list of all of the exhibits which the party expects to
offer in evidence, each containing an identifying mark. Any
exhibits that do not exceed three pages shall be attached
to the pre-trial statement, and any exhibits which exceed
three pages shall be described[.]
Pa.R.C.P. 1920.33(b)(1), (4).
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In analyzing this situation and looking at the arguments of
both of counsel as well as the case law and the Exhibits
provided, it is the recommendation of the Master that Husband’s
claims in asserting non-marital portions of the insurance policies
be denied. A review of the case Keller v. Keller shows that there
are factual distinctions between the situation in Keller and the
situation between [Husband and Wife]. In Keller the issue was
the value of Husband’s retirement benefit earned as a
Pennsylvania State Trooper. See Keller at 760 A.2d 25. Wife
filed exceptions to the Master’s report in Keller and did not
submit a brief on those exceptions as ordered by the Court. See
Id. Husband then argued that Wife’s position on the exceptions
regarding Husband’s pension should be waived on appeal due to
Wife’s failure to submit a brief as ordered by the Court. See Id.The Superior Court noted “although we do not condone wife’s
apparent disregard for the trial court’s direction to file a brief in
support of her exceptions, because husband does not cite to any
applicable local rules or case law endorsing such waiver, we fail
to find that wife has waived her issues on appeal.” Id. The
Superior Court also notes that in the case of Fielding v. Fielding,
685 A.2d 178, 179-180 [(Pa. Super. 1996)] that appellate courts
will not review undeveloped and unsupported arguments. See
Id. The Superior Court remanded the case in Keller because the
Master recommended that a value of $38,250.26 be used as the
marital portion of husband’s pension when a present value of
husband’s retirement benefit, including employer’s contributions
as reflected by the statement of account totaled $287,494.25.
See Id. Due to the substantial difference in the figures the court
determined that the matter needed to be remanded due to the
significant economic impact that the discrepancy in value would
have. See Id. pg. 26.
The language that Husband’s counsel in the present case
relies on from the Keller decision merely states that the Superior
Court would not allow husband to claim an issue had been
waived when husband had no rule indicating that was the
remedy for failure to file a brief. In this situation with [Husband
and Wife], Wife cites Pennsylvania Rule[] of Civil Procedure
1920.3(b)(1)(4) indicating that Husband’s counsel should not be
allowed to assert the values as non-marital when they were not
previously asserted in Husband’s pre-trial filings. Unlike Keller,
there are specific rules and specific remedies cited by [Wife]
here as to why relief should be granted.
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The information contained in Husband’s Exhibits B and C is
also problematic given Husband’s assumption that the date of
separation would be in November 2000. As is previously set
forth in this report, Wife testified credibly that the date of
separation should be July 2008, as that was the final date that
Husband had resided with her. Husband admits that he would
stay at Wife’s residence periodically until July 2008, after that
time he acknowledges he did not return to Wife’s residence as he
moved in with his paramour, Marjorie Hawkins. Given this
discrepancy in the date of separation, the calculations used on
Exhibits B and C do not accurately reflect contributions from the
date of separation forward.
In examining the stipulation entered into the record by the
parties, it is important to note what was set forth. On page 4 of
the transcript, Husband’s counsel indicates “I think we’ve agreed
if counsel doesn’t mind that the policy Prudential policy number
992 the value of that is $7,465.77 that is Husband’s policy.”
Husband’s counsel further indicates “the policy number I’ll call it
#414 also with Prudential, Husband’s policy, is valued for the
purposes of this hearing at $21,352[.]26. The IRA in M&T Bank
we have valued at $7,306.90. And [Wife]’s Prudential life …
we’re valuing at $11,253.18. That is the sum total of the marital
or not marital but depending on the testimony.” See Tr. pg. 4.
It is plain from the language that is set forth that the parties had
agreed as to these higher values for the insurance policies and
the IRA. The next statement that is made clearly shows that the
dispute was not centered on the insurance policies, but on the
IRA, when Husband’s counsel states on pages 4 and 5 of the
transcript “I don’t think there is going to be any question on the
insurance policies. There’s some question … on the IRA
depending on … what you determine to be the date of
separation. That [] will be clearer as the case goes on.” See Tr.
pgs. 4-5. From the facts in the record, had the date of
separation from November 2000 been used, then Husband’s IRA
would not be marital property because said IRA would have
accrued following the separation of the parties. However, with a
date of separation in July 2008, Husband’s IRA accrued prior to
separation and the amount that was stipulated to by the parties
should be used as the value.
It should also be noted that in the Keller case that
Husband relies on to indicate that non-marital portions of these
assets should be considered, the parties never stipulated or
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agreed to the values of any of the assets. The main asset in
question in Keller was husband’s State Police pension and wife
contested the lower value of that pension. In this case, not only
did the parties enter into a stipulation as to the value of assets,
Husband’s counsel indicates that the dispute as to date of
separation would mainly center on the value of the IRA and
would not affect the value of the insurance policies. Given the
stipulation of the parties, the distinguishing factors between the
Keller case and the present case, and the provisions set forth in
the Pennsylvania Rules of Civil Procedure cited by Wife, it is
recommended that the stipulated values of these assets be used
by the Court.
Master’s Report & Recommendation, 2/27/2013, at 17-21.
We conclude the Master’s recommendation properly addresses
Husband’s argument. Moreover, as the trial court emphasized, “the parties
agreed to the valuation of the life insurance[] policies and IRA at issue in a
stipulation discussed prior to testimony.” Trial Court Opinion, 8/15/2013, at
5 (emphasis added). Therefore, the court did not abuse its discretion by
including certain values with respect to the insurance policies and IRA in the
marital property pursuant to Section 3501(a)(4).
In Husband’s fourth argument, he claims the court erred in creating a
distribution scheme where Wife receives 55% of the marital estate because
the record does not demonstrate a rational basis for the unequal distribution
of marital assets. Husband’s Brief at 16. Husband states that based on the
statutory factors as set forth in Section 3502 of the Divorce Code, “it is
inequitable to punish him by awarding him only 45% of the marital
property[.]” Id. at 17. Specifically, he argues the Master erred with respect
to the following factors: (1) the length of marriage; (3) the age, health,
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station, amount and sources of income, vocational skills, employability,
estate, liabilities and needs of each of the parties; (5) the opportunity of
each party for future acquisitions of capital assets and income; (9) the
standard of living of the parties established during the marriage; and (10)
the economic circumstances of each party at the time the division of
property is to become effective. With regard to these factors, Husband
states the Master improperly measured the length of the marriage and did
not consider his current unemployment status. Id. at 17-19.
“In the context of an equitable distribution of marital property, a trial
court has the authority to divide the award as the equities presented in the
particular case may require.” Reber, 42 A.3d at 1137 (citation omitted).
As provided in his report, the Master thoroughly analyzed the 11
enumerated factors of Section 3502 to determine the equitable distribution
split. See Master’s Report & Recommendation, 2/27/2013, at 7-13. The
trial court found the Master had considered all of the relevant statutory
factors and did not abuse his discretion. See Trial Court Opinion,
8/15/2013, at 5. We reiterate 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.”
Childress, 12 A.3d at 455. We agree and conclude Husband’s claim of trial
court error is without merit, and the court’s determinations are supported by
the record. Accordingly, Husband’s argument fails.
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In Husband’s fifth claim, he contends the court erred in awarding Wife
$185.00 per month in alimony because the property she is to receive by
equitable distribution should be more than sufficient to provide for her
needs. Husband’s Brief at 19. He states that the record demonstrates he is
unemployed, due to the economy and by no fault of his own. Id. at 21.
Moreover, Husband argues Wife is capable working as a tax preparer, and
has other financial means to support herself, “especially after the marital
property is distributed.” Id. He asserts there is no rationale basis on the
record for the granting of alimony to Wife.
With respect to alimony, we are guided by the following:
Our standard of review over an alimony award is an abuse of
discretion. Teodorski v. Teodorski, 2004 PA Super 313, 857
A.2d 194, 200 (2004), quoting Moran v. Moran, 2003 PA Super
455, 839 A.2d 1091, 1096-1097 (Pa. Super. 2003).
We previously have explained that ‘the purpose of alimony
is not to reward one party and to punish the other, but
rather to ensure that the reasonable needs of the person
who is unable to support himself or herself through
appropriate employment, are met.’ Alimony ‘is based
upon reasonable needs in accordance with the lifestyle and
standard of living established by the parties during the
marriage, as well as the payor’s ability to pay.’ Moreover,
‘alimony following a 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. (emphasis in original).
In determining whether alimony is necessary, and in
determining the nature, amount, duration and manner of
payment of alimony, the court must consider numerous
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factors including the parties’ earnings and earning
capacities, income sources, mental and physical
conditions, contributions to the earning power of the other,
educations, standard of living during the marriage, the
contribution of a spouse as homemaker and the duration of
the marriage.
Teodorski, supra at 200, quoting Anderson v. Anderson,
2003 PA Super 152, 822 A.2d 824, 830-831 (Pa. Super. 2003);
23 Pa.C.S.A. § 3701, Alimony.
Gates v. Gates, 933 A.2d 102, 106 (Pa. Super. 2007), appeal denied, 980
A.2d 608 (Pa. 2009).
Here, the Master addressed all of the factors set forth in 23 Pa.C.S. §
3701 and concluded Wife was entitled to an award of alimony based upon
the following factors: (1) Husband appears to have the greater earning
capacity due to his age, job experience, and job training; (2) Husband is
younger and in better physical health than Wife; (3) though Husband was
unemployed at the time of the hearing, he had acquired skills as a mechanic,
CDL driver, and heavy equipment operator whereas due to Wife’s poor
health, it is unlikely that she would be able to be retrained through further
education for a different career; (4) Wife has been receiving spousal support
from Husband in the amount of $185.00 per month to help meet her basic
obligations, Wife testified that she would not be able to meet her needs and
obligations without the receipt of spousal support, and Husband, despite
being unemployed, continues to pay the spousal support; (5) Husband was
abusive during the marriage, abused alcohol, and left the marital residence
to reside with his paramour; (6) the parties have few marital assets to divide
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and given Wife’s age and physical health and the limited marital assets, Wife
would not have significant property to ensure that she could continue to
meet her needs as she was accustomed to during the marriage; and (7)
Wife’s employment status is tied directly to her health status and given her
age and health concerns, the ability of Wife to remain self-sufficient through
her employment would be in question. See Master’s Report &
Recommendation, 2/27/2013, at 23-28. The Master concluded:
Given the factors, the testimony and evidence presented at the
time of the Master’s hearing, it is determined that said factors
weigh in favor of an award of alimony to Wife in this case. It is
the recommendation of the Master that Husband pay alimony in
the sum of $185.00 per month for a period of four (4) years.
Id. at 28.
The trial court confirmed the Master’s recommendation, noting:
Most importantly, the Master found that [Husband] possessed
skills and experience that make him more employable than
[Wife]. Moreover, [Husband] is in better health and nine (9)
years younger than [Wife], which provides [him] with a greater
earning capacity. [Wife] is also experiencing serious health
concerns which impact her ability to remain self-sufficient via her
self-employment.
The Court finds that the Master’s Report analyzed the
factors as set forth in the Divorce Code in detail and carefully
considered the facts presented. The Court agrees with the
Master that alimony is necessary in the case to provide [Wife]
with the necessities of life, and refuses to disturb the Master’s
findings.
Trial Court Opinion, 8/15/2013, at 6-7.
A review of the record indicates that the Master’s findings are
supported by competent evidence. Moreover, we conclude the trial court’s
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decision was not an abuse of discretion under these circumstances. The
court agreed with the Master that the Section 3701 factors weighed in favor
of awarding Wife alimony. Further, the award was not an exorbitant
amount, as Husband had previously been paying Wife the same amount in
spousal support, despite being unemployed at that time, and was for a
limited four-year period until Wife turns 70. We find the alimony award was
in accordance with ensuring that the reasonable needs of Wife, who is
unable to support herself through appropriate employment due to age and
health status, were met. See Gates, supra. Accordingly, we conclude that
Husband is due no relief on this issue.
In Husband’s penultimate argument, he claims the court erred in
determining Wife is in need of having any of her counsel fees paid because
the property she is to receive by equitable distribution should be more than
sufficient to cover these fees. Husband’s Brief at 21. He states that
because both parties have incurred substantial attorney fees in relation to
the same size of the marital estate, “both parties should be able to cover
their own attorney fees and have money left over to continue on with their
lives without having any major economic issues.” Id. at 22.
With respect to challenges to the award of counsel fees:
[O]ur standard of review is, once again, an abuse of discretion.
Busse v. Busse, 2007 PA Super 100, 921 A.2d 1248, 1258 (Pa.
Super. 2007). Furthermore:
The purpose of an award of counsel fees is to promote fair
administration of justice by enabling the dependent spouse
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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.
Busse, supra at 1258, quoting Teodorski, supra at 201(additional citation omitted); see also 23 Pa.C.S.A. § 3702,
Alimony pendente lite, counsel fees and expenses.
Counsel fees are only to be awarded upon a showing of need.
Busse, supra at 1258, citing Teodorski, supra at 201. In
essence, each party’s financial considerations dictate whether
such an award is appropriate. Id., citing Plitka v. Plitka, 714
A.2d 1067, 1070 (Pa. Super. 1998).
Gates, 933 A.2d at 109.
Here, Wife set forth in her Exhibit 3 that she had accrued counsel fees
in the amount of $2,371.50. The Master stated that after considering the
Section 3702 factors, “as well as the facts and evidence and testimony in
this case, it is recommended that Husband pay 50% of Wife’s counsel fees.”
Master’s Report & Recommendation, 2/27/2013, at 29. The trial court
agreed with the Master, stating the “Master based his findings on
[Husband]’s ability to pay, and the financial resources available and financial
considerations of both parties.” Trial Court Opinion, 8/15/2013, at 7. Again,
we agree with the decision of the trial court. Both the Master and the court
were aware of the parties’ respective financial situations and arrived at a
reasonable determination. Accordingly, we conclude the trial court did not
abuse its discretion in awarding $1,185.75 in counsel fees to Wife.
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In Husband’s final argument, he argues the trial court erred in
determining that he has the ability to pay Wife’s alimony and/or counsel
fees. Husband’s Brief at 22. He merely directs this Court to his previous
arguments on those issues. Id. at 22-23. We disagree with Husband’s bald
assertion. As analyzed above, the Master and trial court both found that
Husband possessed the ability to pay Wife alimony and attorney’s fees
despite his current unemployment status. We need not address this
argument further. Accordingly, Husband’s final argument fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2014
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