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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ROBERT A. RYAN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1249 WDA 2013
:
PATRICIA A. RYAN :
Appeal from the Order Entered July 2, 2013,
in the Court of Common Pleas of Fayette County
Civil Division at No. 2797 of 2009, G.D.
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 14, 2014
Robert A. Ryan (“Husband”) appeals from the July 2, 2013 order of the
Court of Common Pleas of Fayette County which adjudicated the parties’
economic issues in a bifurcated divorce proceeding. We affirm.
The pertinent factual and procedural history of the case as taken from
the certified record follows. Husband and Patricia A. Ryan (“Wife”) were
married on April 17, 2004. The marriage was the second for Husband and
the fourth for Wife. The parties do not have any children together.
Husband, a high school graduate, had been working as a carpet installer for
23 to 25 years at the time of the marriage. At the time of equitable
distribution hearings in 2011, Husband was receiving workers’
compensation. At the time of the marriage, Wife was working at
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Ruby Memorial Hospital while attending LPN school to obtain her RN which
she attained in 2005.
The parties separated in September of 2009. Husband filed a
complaint in divorce on October 6, 2009, including counts for alimony and
equitable distribution of marital property. Wife filed an answer.
Amber N. Shipley, Esq., was appointed special master; and hearings took
place on July 8, 2011, July 27, 2011, and August 8, 2011. Attorney Shipley
filed her report on March 14, 2012, recommending a 60/40 division of the
marital assets in favor of Wife. Husband filed exceptions, and oral argument
occurred on May 29, 2012, before the Honorable Ralph C. Warman. On
January 7, 2013, the trial court bifurcated the divorce action. On March 8,
2013, the trial court granted the parties a divorce under Section 3301(d) of
the Divorce Code. On July 2, 2013, the trial court entered an order denying
Husband’s exceptions and affirming the report of the special master
regarding the parties’ economic issues. This appeal followed.
Husband raises the following issues for our review:
I. DID THE LOWER COURT ERR AND ABUSE ITS
DISCRETION BY FAILING TO CONSIDER ALL
OF THE PARTIES’ ASSETS IN ITS EQUITABLE
DISTRIBUTION AWARD, FAILING TO PROPERLY
IDENTIFY AND VALUE CERTAIN ASSETS, AND
FAILING TO APPROPRIATELY ATTRIBUTE
CERTAIN ASSETS TO THE RESPECTIVE PARTY
SUCH THAT WIFE WAS AWARDED 60% OF THE
MARITAL ESTATE AND HUSBAND ONLY 40%.
A. DID THE LOWER COURT ERR AND
ABUSE ITS DISCRETION IN
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FINDING THAT WIFE DID MORE TO
PRESERVE MARITAL ASSETS THAN
HUSBAND?
B. DID THE LOWER COURT ERR AND
ABUSE ITS DISCRETION IN NOT
CREDITING HUSBAND WITH
PAYMENTS ON THE 2007 DODGE
NITRO AND FAILING TO CREDIT
HUSBAND WITH THE BALANCE
DUE ON SAID NITRO AT THE TIME
OF DISTRIBUTION[?]
C. DID THE LOWER COURT ERR AND
ABUSE ITS DISCRETION IN NOT
INCLUDING CERTIFICATE OF
DEPOSIT IN THE AMOUNT OF
$15,000.00 AS A MARITAL ASSET?
II. DID THE LOWER COURT ERR AND ABUSE ITS
DISCRETION IN DETERMINING THAT THE
DEBT INCURRED BY WIFE COMMENCING
SEPTEMBER 30, 2009 UNTIL OCTOBER 14,
2009 WAS MARITAL DEBT SINCE THE SAME
WAS INCURRED FOLLOWING THE DATE OF
SEPARATION BY WIFE ONLY WITHOUT
HUSBAND’S KNOWLEDGE?
III. DID THE LOWER COURT ERR AND ABUSE ITS
DISCRETION IN GIVING WIFE CREDIT FOR
APPROXIMATELY $12,540.24 REP[R]ESENTING
WORKER’S COMPENSATION ANNUITY
MONTHLY PAYMENTS MADE TO HUSBAND AND
COUNTED AS INCOME IN DETERMINATION OF
WIFE’S OBLIGATION TO SUPPORT HUSBAND
IN CONTRAVENTION OF THE COURT’S ORDER
OF JULY 15, 201[1]?
IV. DID THE LOWER COURT ERR AND ABUSE ITS
DISCRETION IN NOT AWARDING ALIMONY
AND EXPENSES TO HUSBAND?
V. DID THE LOWER COURT ERR AND ABUSE ITS
DISCRETION IN NOT SETTING FORTH
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HUSBAND’S NON-MARITAL PROPERTY ON
EXHIBIT 12 AND MAKING PROVISION FOR HIM
TO OBTAIN THE SAME?
Husband’s brief at 5-6. Husband’s sub-issues I(B) and I(C) were not
addressed in his brief. Therefore, we consider them abandoned.
Husband’s first three claims of error relate to the trial court’s equitable
distribution order. Our standard of review of a trial court’s equitable
distribution award is well settled: “The trial court has broad discretion in
fashioning [equitable distribution] awards, and we will overturn an award
only for an abuse of that discretion.” Wang v. Feng, 888 A.2d 882, 887
(Pa.Super. 2005). An abuse of discretion is not merely an error of
judgment. Rather, we will find an abuse of discretion only if “the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown
by the evidence or the record[.]” Id., quoting Zullo v. Zullo, 613 A.2d 544,
545 (Pa. 1992). “[Further,], the finder of fact is free to believe all, part, or
none of the evidence and the Superior Court will not disturb the credibility
determinations of the court below.” Lee v. Lee, 978 A.2d 380, 382
(Pa.Super. 2009) (citation omitted).
“In fashioning an equitable distribution award, the trial court must
consider, at a minimum, the [13]1 factors set forth in 23 Pa.C.S.A. § 3502,
1
Since Section 3502 was enacted, the legislature has added two additional
factors to be considered when forming an equitable distribution award.
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Equitable division of marital property, (a) General Rule.” Gates v. Gates,
933 A.2d 102, 105 (Pa.Super. 2007). “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.”
Lee, supra at 383 (citation omitted). Rather, “[i]n determining the
propriety of an equitable distribution award, the court must consider the
distribution scheme as a whole.” Wang, supra at 887, quoting Schenk v.
Schenk, 880 A.2d 633, 643 (Pa.Super. 2004) (examining equitable
distribution award as a whole to determine trial court did not abuse its
discretion in awarding wife 60% of marital property).
In his first issue, Husband complains the equitable distribution scheme
proposed by the special master and accepted by the trial court did not
achieve economic justice. (Husband’s brief at 21.) Husband claims that
according to the relevant factors set out at Section 3502, Husband should
have been awarded 50% of the marital assets with Wife receiving the
remaining 50%. Instead, Husband was awarded 40% with Wife receiving
60%.
Husband’s complaint centers on the weight given to those factors. We
observe:
[T]here is no simple formula by which to divide
marital property. The method of distribution derives
from the facts of the individual case. The list of
factors [in the Code] serves as a guideline for
consideration, although the list is neither exhaustive
nor specific as to the weight to be given the various
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factors. Thus, the court has flexibility of method and
concomitantly assumes responsibility in rendering its
decisions.
Isralsky v. Isralsky, 824 A.2d 1178, 1191 (Pa.Super. 2003), quoting
Fonzi v. Fonzi, 633 A.2d 634, 638 (Pa.Super. 1993) (brackets in the
original).
The record indicates that the special master considered each of the
Section 3502 factors.2 (See report, 3/14/12 at 5-12.) The special master
then went on to explain her reasoning for the 60/40 split:
While [Husband] has a slightly lower earning
capacity than [Wife], [Wife] has preserved what little
marital assets the parties have from being dissipated
by paying the marital debts, insurance, the property
taxes on the parties’ property alone since the parties’
separation and contributed more of the assets to the
marriage. Specifically, since the marital home was a
gift from [Wife’s] mother to the couple, it is apparent
that [Husband] did not contribute anything to the
acquisition of that asset. While [Husband] tried to
show that he made significant improvements on the
property by introducing numerous photographs as
Exhibits, the Special Master determines that she is
unable to discern how much of an improvement he
contributed since she was not provided with both
before and after photographs. Thus, it is the
determination of the Special Master that [Husband]
did not make any significant contribution to the
worth of the marital home. Additionally, as to
[Husband’s] earning capacity, he has testified that
he is “able and available to work,” thus, the Special
Master determined that he has the ability to find
employment to support his monthly expenses.
2
In the interest of brevity, we will not set forth the 13 factors herein, but
instead refer to the subsection listing the factors.
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Id. at 19 (footnote omitted).
Based on the above, the special master placed added weight on the
fact that Wife preserved the most significant of the marital assets, i.e., the
marital home.
Here, Husband’s disagreement with the weight assigned to the
statutory factors affords him no relief. In Gates, we rejected a similar
argument where appellant argued for a reweighing of the factors. We
stated: “[I]t is apparent appellant is urging us to simply reweigh the section
3502 factors in the hope the scales will tip in his favor the second time
around. We cannot do so in the absence of an abuse of discretion, which
appellant has failed to demonstrate.” Gates, supra at 106. See also
Mercatell v. Mercatell, 854 A.2d 609, 612 (Pa.Super. 2004) (the weight
assigned to each of the statutory equitable distribution factors is at the
discretion of the trial court).
In the present case, Husband has failed to demonstrate an abuse of
discretion in the trial court’s application of the Section 3502 factors beyond
its failure to assign more weight to certain factors that Husband deems to be
in his favor. As such, we cannot reweigh the Section 3502 factors and
substitute our judgment for that of the trial court.
In his next issue, Husband takes issue with certain debts that were
characterized as marital. He contends those debts were Wife’s alone
because they occurred after the parties separated. According to Husband,
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the debts occurred on September 30, 2009, to Centra Bank for $12,143.22;
on October 8, 2009, to PNC Bank, formerly known as National City Bank, for
$9,875; and on October 14, 2009, to First Federal Bank for $7,537.24. The
total amount of the three debts is $29,555.46. This amount was deducted
from the total value of the marital estate ($245,791.05 minus $29,555.46
equals $216,235.59).
Wife testified that the three debts were incurred to purchase the
property located at 395 North Gallatin Avenue in 2008 while the parties were
married. (See notes of testimony, 8/8/11 at 500-505.) Wife testified she
continued to make payments on the debt after the parties’ separation. (Id.)
On the above dates, September 30, 2009, October 8, 2009, and October 14,
2009, the balance showing on each bank loan was the amount still owed for
the debt. The trial court determined “the debt incurred to purchase the
property located at 395 North Gallatin Avenue is tied to ownership of that
property, which clearly is a marital asset.” (Trial court opinion, 7/2/13 at 3.)
Between divorcing parties, debts which accrue to them jointly prior to
separation are marital debts. Litmans v. Litmans, 673 A.2d 382, 391
(Pa.Super. 1996). Husband’s argument that the debts occurred after the
parties’ separation is not supported by the record. Accordingly, there is no
merit to Husband’s claim, and we discern no abuse of discretion here.
Husband’s next issue concerns his workers’ compensation settlement.
In early 2009, Husband sustained a back injury at work. (Notes of
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testimony, 7/27/11 at 133.) A worker’s compensation claim was filed and
subsequently settled in early 2011. (Id. at 135-136.) Husband was
awarded an indemnity settlement of $70,000. After attorney’s fees were
deducted, Husband was left with $56,000. (Id. at 136.) Husband elected to
receive annuity payments of $1,145.02 per month for four years. (Id.)
According to Husband’s testimony, he started receiving the payments “two
or three months ago.” (Id. at 136-137.) Those payments were put in an
escrow account by court order. (Id. at 137.)
Following a hearing on July 15, 2011, Judge Warman entered an order
releasing the monthly payments of $1,145.02 over the next four years to
Husband. The special master concluded that the settlement of $56,000 was
a marital asset and awarded it to Husband. Husband complains the trial
court erred by including the entire sum of $56,000 as part of the marital
assets, especially in light of the following wording in the court’s July 15,
2011 order:
it is further ORDERED and DIRECTED that the Master
in the divorce proceedings will determine if any
balance remaining on the workmen’s compensation
settlement constitutes marital property or is the sole
property of the [Husband].
Order, 7/15/11 at 2.
Based on the above, Husband argues the special master should have
“backed out” of the equitable distribution award the payments already made
to him. According to Husband, there are 18 payments left which total
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approximately $21,649.40, and that is the amount that should have been
listed as a marital asset rather than the full amount of $56,000. (See
Husband’s brief at 33, 35-36.)
On November 23, 2011, the Pennsylvania Supreme Court decided the
case of Focht v. Focht, 32 A.3d 668, 674 (Pa. 2011), which held that
settlement monies received by husband, post-separation from wife, in his
personal injury tort action, were marital property because his cause of action
accrued prior to separation. Clearly, Husband’s $56,000 settlement is
marital property because his work-related injury that gave rise to the
settlement occurred before the parties’ separated.
Wife counters Husband’s argument by asserting that to allow Husband
to receive the monthly annuity payments throughout the period of the
equitable distribution hearings and appeal would constitute a windfall to
Husband; specifically, he would receive a double benefit of having exclusive
use of those funds while depleting a marital asset. Wife maintains that to
reduce her interest in the funds while Husband has exclusive control of them
would be inequitable. We agree, and discern no abuse of discretion in the
assignment of this particular marital asset in the amount of $56,000 to
Husband.
Next, Husband argues the trial court erred when it failed to award him
alimony or expenses. Our standard of review in considering whether the
trial court erred in granting or denying alimony is whether the trial court
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abused its discretion or committed an error of law. Gates, 933 A.2d at 106;
Polito v. Polito, 655 A.2d 587 (Pa.Super. 1995). As this court has
explained:
[T]he 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.
In determining whether alimony is necessary,
and in determining the nature, amount, duration and
manner of payment of alimony, the court must
consider numerous 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.
Gates, 933 A.2d at 106 (internal citation and quotations omitted) (emphasis
in original).
“The Divorce Code dictates that in determining the nature, amount,
duration and manner of payment of alimony, the court must consider all
relevant factors, including those statutorily prescribed for at 23 Pa.C.S.A.
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§ 3701, Alimony, (b) Relevant Factors (1)-(17).” Smith v. Smith, 904 A.2d
15, 20 (Pa.Super. 2006) (internal quotation marks and citation omitted).
In the case sub judice, Husband argues that he should have been
awarded some alimony and expenses based on the parties’ disparity of
employability, income, and assets available. (Husband’s brief at 39.)
Preliminarily, we observe that a review of the special master’s findings
reflects that she did consider the relevant factors identified in 23 Pa.C.S.A.
§ 3701(a).3 (See report, 3/14/12 at 25-28.) The trial court adopted the
special master’s recommendation against alimony. The determination that
alimony was not warranted was explained by the special master in her
report as follows:
While [Husband] has offered testimony that he is
incapable of engaging in meaningful employment
and providing for his reasonable needs, he also
testified that he held himself out as “able and
available” to work in order to receive unemployment
compensation benefits. It is the finding of the
Special Master that [Husband] chose to receive
unemployment compensation benefits to their
exhaustion, and is now choosing to receive benefits
from his worker’s compensation settlement, rather
than to seek out and engage in appropriate
employment. Based on the foregoing, the Special
Master finds that [Husband] is capable of supporting
his reasonable needs.
. . . . The Special Master cannot recommend an
award of alimony where there is no apparent need
upon which to base such a recommendation. There
simply was nothing to indicate that the same is
3
In the interest of brevity, we will not set forth the 17 factors herein, but
instead refer to the subsection listing the factors.
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necessary. Although [Wife’s] income is greater than
[Husband’s], that factor alone is not determinative.
Given that [Husband] is capable of self[-]support
through appropriate employment, as well as the fact
that [Husband] has received APL for a duration of
time roughly half of the duration of the parties’
marriage, the Special Master believes that a
recommendation of an award of alimony would not
be appropriate or just in fact contrary to the
Pennnsylvania Divorce Code.
Id. at 28-29.
There is sufficient evidence in the record to support the denial of
alimony. We find no abuse of discretion on the part of the trial court in
adopting the master’s determination in this regard.
Last, Husband argues the trial court failed to specifically identify his
separate property in Wife’s possession and make provisions for him to obtain
same. More specifically, Husband refers to his Exhibit 12 which is comprised
of five single-spaced, handwritten pages that list personal items, such as,
work coats, hunting coats, boots, electric razor, etc.; tools, such as, pipe
wrenches, levels, shovels, rakes, sockets, saw, post hole digger, carpet
seam iron, etc.; sporting equipment, such as, fishing pole, tackle box and
fishing supplies, turkey call, etc.; personal jewelry, such as, wedding ring
and watches, and other miscellaneous items. (See Exhibit 12.)
In her report, the special master referred to Husband’s Exhibit 13
which was a one-page, handwritten list of items bought while the parties
were married. The special master awarded all of the items on the list to
Husband except for pots and pans that Husband valued at $50. (Report,
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3/14/12 at 16.) There was no specific mention of Exhibit 12 in the special
master’s report. However, Husband points out that later in the special
master’s report, the master stated: “In addition, each of the parties shall
keep any of the property that they each brought into the marriage that has
not been deemed marital property by this decree.” (Id. at 22.)
Our review of the record reveals Wife testified that many of the items
on Husband’s Exhibit 12 were either bought during the marriage or were
junk that Husband picked out of the trash. (Notes of testimony, 8/8/11 at
407-412). This contentious matter has been going on since October 2009.
It is now five years later. The items listed by Husband in Exhibit 12 were
not valued; however, any value is certainly diminished at this point in time.
We find no basis to remand. Accordingly, the order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2014
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