Revak, A. v. Revak, F.

J-A08035-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AMY M. REVAK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANK T. REVAK, JR. :
:
Appellant : No. 1015 WDA 2022
Appeal from the Order Entered August 5, 2022
In the Court of Common Pleas of Fayette County Civil Division at No(s):
234 of 2019 GD
BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 11, 2023
Frank T. Revak, Jr. (Husband) appeals from the August 5, 2022
equitable distribution order entered by the Court of Common Pleas of Fayette
County (trial court) awarding 65% of the marital value of four certificates of
deposit (CDs) to Amy M. Revak (Wife). We affirm.
I.
We glean the following facts from the certified record. Wife initiated this
divorce action in 2019 following over ten years of marriage to Husband. At
the time of the divorce proceedings, Wife was 52 years old, in good health
and had been employed as Chief Clerk in Fayette County for approximately
nine years. She earned $50,000 per year with a net monthly income of $3,851
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* Retired Senior Judge assigned to the Superior Court.
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and received $400 in child support per month from Husband. Husband was
unemployed and had been receiving a disability pension from his work as a
tax technician for the Internal Review Service since approximately 2003. In
addition, Husband received income from a rental unit on his property and
monthly interest from four CDs, totaling a monthly income of approximately
$4,800. Husband had purchased his property, which included the rental unit,
in 1991, prior to his marriage to Wife.
The parties proceeded to a hearing in front of a Special Master to resolve
the equitable distribution of the marital estate. A primary point of contention
in the equitable distribution was the marital value of the CDs, valued at a total
of $860,000 at the time of separation, as the parties disagreed about the
extent to which Husband had funded the CDs with marital or premarital funds.
After receiving evidence regarding Husband’s assets at the time of the
marriage, the Special Master found that Husband had purchased the CDs with
$573,902 in premarital funds. Accordingly, the Special Master’s report and
recommendation valued the marital portion of the CDs at $286,098.
The Special Master awarded the marital components of various bank
accounts and retirement accounts to the named owner of the accounts,
awarded the marital component of the CDs and the marital residence to
Husband, and divided other smaller assets such as vehicles and other personal
property between the parties. He added the total value of all assets to reach
an award of $241,880 to Wife and $395,740.85 to Husband. Finding that an
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equal distribution of the marital assets was appropriate under the
circumstances, the Special Master required Husband to make a one-time
payment of $76,930.42 to Wife, such that each party would receive
$318,810.42 in marital assets.1
Wife filed exceptions to the Special Master’s report challenging the
Special Master’s determination of the premarital value of the funds used to
purchase the CDs. She argued that Husband had not produced sufficient
evidence to establish the value of premarital assets used to purchase the CDs
and that he had failed to establish valuation dates for certain accounts. She
contended that the Special Master excluded too much of the value of the CDs
as premarital without sufficient evidence.
Following oral argument, the trial court accepted the Special Master’s
determination of the premarital and marital values of the CDs. However, it
modified the Special Master’s recommendation to distribute 65% of the
marital value of the CDs to Wife and 35% to Husband. It did so because “[i]n
consideration of the estate of each of the parties, with Husband in possession
of the premarital value of the certificates of deposit, in excess of $570,000.00,
. . . it is equitable for Wife to receive a larger portion of the marital component
of the certificates of deposit.” Final Decree, 8/5/22, at 3 (pagination
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1 The parties discovered a mathematical error in the report, which the trial
court corrected in its final order.
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supplied). In all other respects, the trial court accepted the Special Master’s
recommendation and incorporated his findings as set forth in his report. Id.
at 2. The marital assets were distributed as follows:
A. TO WIFE:
1. Marital component of Community Bank checking account -
$51,552.00
2. Marital component of [W]ife’s fidelity IRA - $53,814.00
3. Wife’s Pension through Fayette County - $131,339.00
4. Wife’s 2011 Honda Pilot - $5,000.00
5. Ruger pistol - $175.00
6. 65% of the marital component of 4 certificates of deposit -
$185,963.70. (In order to effectuate this provision, Husband shall
make a payment to Wife in the amount of $185,963.70)
B. TO HUSBAND:
1. 2254 and 2256 Masontown Road, Masontown - $95,000.00
2. 35% of the marital component of 4 certificates of deposit -
$100,134.30
3. First National Bank checking account - $14,245.00
4. First National Bank checking account - $18,027.85
5. Guns - $370.00
Id. at 1-2. Husband timely appealed and he and the trial court have complied
with Pa. R.A.P. 1925.2
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2
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
(Footnote Continued Next Page)
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II.
A.
Husband’s first three issues on appeal are related and we address them
together. He argues that the trial court abused its discretion by altering the
Special Master’s division of the marital value of the CDs to award 65% of the
value to Wife when she requested a 50% split of the marital assets in her
exceptions. He contends that by awarding relief that Wife did not request, the
trial court acted as her advocate. He further argues that the trial court abused
its discretion by fashioning an equitable distribution award that resulted in
65.25% of the marital estate being awarded to Wife in contravention of the
Special Master’s recommended of a 50% split. Husband’s Brief at 30-42.
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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.
Moreover, it is within the province of the trial court to weigh the
evidence and decide credibility and this court will not reverse
those determinations so long as they are supported by the
evidence. We are also aware that a master’s report and
recommendation, although only advisory, is to be given the fullest
consideration, particularly on the question of credibility of
witnesses, because the master has the opportunity to observe and
assess the behavior and demeanor of the parties.
Goodwin v. Goodwin, 244 A.3d 453, 458 (Pa. Super. 2020), aff'd, 280 A.3d
937 (Pa. 2022) (cleaned up; citations omitted).
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As to Husband’s contention that the trial court’s award of 65% of the
marital value of the CDs was an abuse of discretion because Wife only
requested a 50/50 split, this argument takes Wife’s request out of context. In
her exceptions, Wife argued for an equal split of the marital component of the
CDs, but contended that the marital value was approximately $734,905, not
$286,098. See Exceptions to Special Master’s Report Filed March 9, 2022,
3/31/22, at 1-2 (pagination supplied); Suggested Findings of Fact, 11/12/21,
Summary. By ordering a 65/35 split of $286,098, the trial court awarded Wife
less than she had requested in her exceptions, not more. As discussed infra,
the trial court was entitled to alter the Special Master’s recommendation in
this way, Morschhauser v. Morschhauser, 516 A.2d 10, 15 (Pa. Super.
1986), and Husband’s claims to the contrary have no merit.
Husband also complains that the trial court’s award abused its discretion
by fashioning a different remedy than the Special Master. When an equitable
distribution action is referred to a hearing officer, after receiving evidence, the
hearing officer must author and report a recommendation for the trial court
that includes findings of fact, conclusions of law and a recommended
disposition. Pa. R. Civ. P. 1920.53. Upon receipt of the report, the parties
may file exceptions to the trial court, and any matters not covered therein are
waived. Pa. R. Civ. P. 1920.55-2(b). After reviewing the report and
recommendation and following argument on exceptions, the trial court enters
a final decree resolving the economic claims between the parties. Pa. R. Civ.
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P. 1920.55-2(c). However, “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).
This Court has previously rejected Husband’s argument that a trial
court’s authority to enter an equitable distribution order is cabined by the
exceptions the parties raise to the hearing officer’s report and
recommendation:
Although the rules of procedure provide for the appointment of a
master to conduct a hearing, prepare a report and make
recommendations (Pa.R.C.P. 1920.51) this does not transfer the
final responsibility of making the distribution to the master.
A master’s report is entitled to great consideration, but the court
is not bound by it. . . . The court is required to structure an
equitable distribution of property in light of the factors set forth in
[the Divorce Code]. If in its discretion the court determines
it must deviate from the recommendation of the master it
may do so regardless of whether either party has raised the
issue in an exception. Our function then becomes one of
determining if the court’s action constituted an abuse of discretion
under the statutory guidelines.
Morschhauser, supra, at 15 (Pa. Super. 1986) (citations omitted; emphasis
added); see also Balicki v. Balicki, 4 A.3d 654, 661 (Pa. Super. 2010)
(finding no abuse of discretion when trial court sua sponte considered tax
ramifications of alimony award when it was not raised in either parties’
exceptions). Accordingly, the trial court was well within its authority to alter
the recommendation of the Special Master even when the specific award it
fashioned was not requested by either party.
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Further, we discern no abuse of discretion in the trial court’s reasoning
for deviating from the Special Master’s recommendation:
[I]n considering the types and values of the assets overall, this
Court saw that almost all of the monetary assets awarded to []
Wife were not immediately accessible nor readily convertible to
liquid assets (e.g., IRA, pension). In order to remedy this, this
Court granted a larger portion of the marital component of the CD
assets to [] Wife, and it did so in alignment with the distribution
already recommended by the hearing officer for the other marital
assets. Although [] Wife would have accepted a fifty-fifty division
(an equal result), the type of assets distributed to each party
merited some deviation in order achieve an equitable result.
Trial Court Opinion 10/28/22, at 6. The trial court further noted that the
Special Master’s recommendation “would have resulted in [] Wife receiving
only about twenty-seven (27) percent of the marital component of the CDs
whereas [] Husband would have received over seventy-three (73) percent of
the marital component and ninety-one (91) percent of the total CD assets.”
Id. at 6 n.4. As trial courts are granted broad discretion to fashion equitable
distribution awards that achieve fairness and justice between the parties
under the unique circumstances of each case, we cannot conclude that this
explanation was the result of a misapplication of the law or partiality,
prejudice, bias or ill will. Goodwin, supra.
B.
In his final issue, Husband contends that the trial court failed to consider
all the required statutory factors when it entered the equitable distribution
order. Specifically, he argues that the trial court did not consider: (1) the
“short duration” of the parties’ ten-year marriage; (2) the relative ages of the
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parties, with Husband being 11 years older; (3) the health of the parties, with
Wife being “fairly” healthy and Husband having a disability that prevented him
from working; (4) the parties’ relative earning capacities; (5) the sources of
the parties’ income, as Husband relies in part on interest earned on the CDs;
and (6) that Husband was the sole contributor to the CDs.
The Divorce Code sets forth factors that a trial court should consider in
crafting an equitable distribution order:
(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:
(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
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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. § 3502(a). The weight assigned to each factor is within the trial
court’s discretion and we will not reweigh the factors on appeal. Busse v.
Busse, 921 A.2d 1248, 1260 (Pa. Super. 2007).
As the trial court explained in its opinion, it considered each of these
factors and simply reached different factual findings and conclusions regarding
their respective weight than Husband:
First, this Court did not deem ten years to be a short amount of
time.5
5 Interestingly, [] Husband’s Concise Statement
characterizes ten (10) years of marriage as a “short
duration,” but eleven (11) years between birth dates as a
significant span of time.
Second, as to the difference in ages, health, potential for future
earnings, and [] Husband’s partial dependence on interest from
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the CDs, as discussed, this Court considered the type of assets
distributed as well as their monetary value. In addition, according
to the divorce complaint, the parties were married on August 1,
2008, at which time [] Husband already had been receiving a
disability pension for five (5) years. [] Husband therefore is
limited in his earning potential due to disability that existed prior
to the marriage, not because of his more advanced age compared
to [] Wife. Furthermore, this Court notes that [] Husband still
retains a majority of the total CD assets (78%) and still has more
than one current source of income, including rental income from
the residence awarded to him as part of the equitable distribution.
Finally, as to [] Husband’s contention that [] Wife did not make
any contributions to the CDs and that this should have weighed
more heavily in [] Husband’s favor, mutual contribution is not
required for an increase in value of an asset to be considered
marital property and again, [] Husband still retains the majority
of the total CD funds.
Trial Court Opinion 10/28/22, at 7-8 (citation omitted).
Moreover, in the Final Decree, the trial court explicitly adopted and
incorporated the factual findings of the Special Master. Final Decree, 8/5/22,
at 2. (“In all respects not altered herein, the Court accepts the
Recommendation of Special Master . . . and incorporates herein the Findings
and Recommendations set forth in the Report.”) In his report and
recommendation, the Special Master set forth specific factual findings as to
each of the required factors with citations to the evidentiary hearing record.
See Special Master’s Report, 3/9/22, at 2-6, 12-15 (pagination supplied). The
Special Master’s findings thoroughly addressed the parties’ respective incomes
and earning capacities, their standard of living, the value of various marital
and pre-marital assets and their contributions to the marital estate. The
Master found credible Husband’s testimony about the pre-marital value of the
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CDs and the trial court accepted that finding despite Wife’s exceptions. We
have previously held that a trial court does not abuse its discretion in adopting
a Master’s findings as to the Section 3502(a) factors when those findings are
supported by the evidentiary record. Childress v. Bogosian, 12 A.3d 448,
462 (Pa. Super. 2011); see also Snyder v. Snyder, 275 A.3d 968, 980 (Pa.
Super. 2022). Our review of the record of the equitable distribution hearing
reveals that it supports the conclusions set forth in the Special Master’s report
and the trial court did not abuse its discretion in adopting those findings.
Husband’s argument amounts to a disagreement with the weight the
trial court assigned to certain statutory factors and the conclusions it drew
from those factors. However, he does not point to anything in the record to
suggest that its factual findings are not supported by the record or that they
were motivated by partiality, prejudice, bias or ill will in contravention of our
standard of review. Goodwin, supra. While Husband would have weighted
certain factors differently, such as Wife’s premarital assets and her continued
earning capacity, the mere fact that the trial court reached the opposite
conclusion does not establish an abuse of discretion. Because the trial court
considered all required factors in fashioning its equitable distribution order and
its factual findings are supported by the record, Husband’s final issue merits
no relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2023
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