J-A29010-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
WILLIAM RONALD TROUT, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JOAN A. TROUT, :
:
Appellee : No. 2036 WDA 2013
Appeal from the Order November 20, 2013,
Court of Common Pleas, Westmoreland County,
Civil Division at No. 2005 of 2008-D
BEFORE: DONOHUE, ALLEN and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 26, 2014
William Ronald Trout (“Husband”) appeals from the November 20,
2013 order of court dividing the parties’ marital property. Following our
review, we affirm.
Husband and Joan A. Trout (“Wife”) married on January 28, 1961 and
separated on February 27, 2004. During the marriage, Husband worked as
a mechanic primarily on large machinery and eventually opened a business
servicing such equipment. Wife stayed at home and raised their children, 1
but also assisted Husband in establishing and running his business by
performing the functions of a bookkeeper and occasionally helping Husband
in the garage.
1
The parties are the parents of three children, all of whom were adults at
the time of separation.
*Retired Senior Judge assigned to the Superior Court.
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In 1967, the parties purchased the marital residence, which is located
on approximately thirty-seven acres of land and includes not only the
residence but also a garage, which Husband used for his business, and a
barn. During the marriage, the parties restored and remodeled the
residence. There are two gas wells located on this property, from which the
parties receive royalty payments. In 1994, the parties purchased a parcel of
land in New Stanton, Pennsylvania, with the intention of moving Husband’s
business operations to that location. In 2000, the parties erected a building
to house Husband’s business operations on that parcel and Husband’s
business began operating from there. In 2004, Wife left the marital
residence and ultimately settled in Florida, where she continues to reside.
Husband has remained in the marital residence.
Husband filed a complaint for divorce in 2008. In July 2011, the trial
court appointed a special master for purposes of equitable distribution
proceedings. Following preliminary meetings between the parties, their
counsel and the master, a hearing was set for two days in August of 2012.
Husband requested a continuance, claiming that he required surgery on his
hip. Although Wife objected, the master continued the hearing until
September 14, 2012. At the hearing, Wife offered appraisals of the marital
residence and the New Stanton property, valuing them at $225,000 and
$400,000, respectively. The master subsequently filed his report and
recommendation, and Husband filed multiple exceptions thereto. Following
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oral argument, the trial court denied Husband’s exceptions. The trial court
adopted the master’s recommendations and on November 20, 2013, entered
an order dividing the parties’ marital property. The trial court awarded each
party fifty percent of the marital estate. Of relevance to this appeal, the trial
court awarded Husband the marital residence and ordered that Wife be paid
her share of the marital estate from the sale of the New Stanton property.
The trial court ordered that this be accomplished as follows:
In order to achieve an equal division of the marital
estate, the Wife is awarded exclusive title and
possession of the the [sic] commercial property
known as 250 W. Pennsylvania Ave., New Stanton,
PA subject to the following:
a. The Husband shall be granted a period of
150 days in which to have a person or entity of his
choosing at his sole expense remove all personal
property from the premises. Husband shall refrain
from any actions to or attempts to cause damage
and/or affect the existing condition of the business
property. In the event that Husband fails or refuses
to remove the personalty during the 150 day period
set forth above then said personalty shall be deemed
abandoned by the Husband and the Wife at her sole
discretion may choose to dispose of it by any means
available. In the event that Wife sells any such
personalty after the expiration of the 150 days the
Husband and Wife shall equally divide the net
proceeds from the sale. If the Wife is required to
expend sums for removal of such personalty from
the business property the Wife shall receive
reimbursement through an increased division of the
marital estate following the sale of the business
property. In the event that any such items of
personalty of the business property are not removed
by Husband within the 150 day period and to the
extent that any such items of personalty are not
owned by the Husband, then Husband shall
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indemnify and hold Wife harmless from any and all
costs, expenses, lawsuits, claims, or damages
including but not limited to reasonable counsel fees
for the sale of any such items of personalty.
b. The transfer of the title of the commercial
property to the Wife shall occur 150 days from the
date of this order.
5. Wife shall be permitted immediately to place [the]
business property for sale with a licensed realtor of
her choosing and without the interference of the
Husband. The listing price shall be no less than the
appraised value of $400,000.00. Wife is permitted to
solely execute any and all documents associated with
the listing or selling of the business property.
6. Husband shall maintain at his sole expense
insurance on both the marital residence and the
business property until such time as title are
transferred in accordance with the proposal for
distribution.
7. At the time of the sale of the commercial property
in New Stanton, a calculation is to be performed so
as to determine the extent of the marital estate and
the sums necessary to effectuate a 50-50 split of the
marital estate. In the event that the net proceeds
from the sale of the business property is an amount
in excess of the marital estate owed to Wife, the
Wife shall pay the Husband within 30 days of the
closing of the commercial property an amount
necessary to effectuate a 50-50 split of the marital
assets which will include only the marital residence
and the 37 acres upon which it is situate and the
commercial real estate in New Stanton. In the event
the net proceeds from the sale of the business
property equals an amount less than a 50-50 split of
the marital estate owed to Wife the Husband shall
pay the Wife within 30 days of the date of the
closing upon the business property an amount
necessary to effectuate an equal split.
Trial Court Order, 11/20/13, at 2-4.
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This appeal follows, in which Husband presents four issues for our
review:
1. The [trial] court erred by awarding [W]ife
exclusive possession of the parties [sic] business
property after a period of 150 days elapsing from
the date of the order of court, along with the sole
discretion as to the sale of the aforementioned
property, including but not limited to the listing
price and decision upon the sale of the property.
2. The [trial] [c]ourt erred by not defining the total
value of the marital estate, although a 50/50
division had been ordered. The [trial] [c]ourt
abused its discretion when ordering [H]usband to
make payment to Wife if she does not receive her
50 percent [] award division from the sale of the
business property.
3. The [trial] court erred by not applying a discount
for the cost of sale to the value of the real estate
located at 461 Hecla Road, Southwest, Pa 15685
(the prior in time marital residence) which was
awarded the [sic] Husband.
4. The master and subsequently, the trial court,
erred and abused their discretion by awarding
[W]ife reimbursement in the amount of $1,250.00
for appraisal fees, and $1,000.00 in counsel fees
to be paid by [H]usband.
Husband’s Brief at 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.” Balicki v. Balicki, 4 A.3d 654, 662-63 (Pa. Super.
2010) (citation omitted). Further,
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[w]e 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. at 663 (internal citations omitted).
Husband first takes issue with the manner in which the trial court
ordered the sale of the New Stanton property. Husband complains that the
trial court abused its discretion by giving Husband only 150 days to empty
the property and by giving Wife sole control over the listing and sale of the
property. Husband’s Brief at 6. Husband argues that 150 days is not long
enough for him to remove all contents from the property, especially the
items that belong to customers, which he must fix, reassemble, and return
to the rightful owners. Id. at 7, 9. He also argues that he has no assurance
that Wife will not sell the property for “a significantly reduced price” because
she lives out of state and is in dire need of the money she will receive from
the sale. Id. at 7-8. Husband is also concerned that Wife will not be able to
maintain the property during its listing. Id. at 9.
Despite this catalog of concerns, Husband cites no authority to support
his contention that the trial court abused its discretion by ordering that
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Husband remove the contents of the New Stanton property within 150 days
(rather than his proposed timeline of one year) and giving Wife unilateral
control over the sale of the New Stanton property. As stated above, we will
find an abuse of discretion only where “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.” Balicki, 4 A.3d at 663. Husband has not presented any
argument or citation to authority to support a conclusion that the trial court
misapplied the law. To the extent that Husband is attempting to prove that
the trial court’s order is manifestly unreasonable, or the result of partiality,
prejudice or bias or ill will, we disagree. There is no evidence of record to
support Husband’s claims that Wife will sell the New Stanton property at a
less than optimal price; in fact, the evidence of record reveals that Wife is
depending on the money she receives from the sale of this property to
support her for as long as possible. Wife testified that her expenses exceed
her income and that she has nearly depleted her IRA, her only other source
of funds, to make up the difference. Husband has not paid Wife spousal
support or alimony pendente lite, and Wife made no claim for alimony as
part of the divorce action. See N.T., 9/14/12, at 127-28, 130-32, 136.
Pursuant to the trial court’s order, Wife is to receive her fifty percent of the
marital estate from the sale of the New Stanton property. Trial Court Order,
11/20/13, ¶ 7. Accordingly, it is unreasonable to think that Wife would sell
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the New Stanton property for a reduced price, when she is depending on the
proceeds of the sale to support herself. Husband’s argument is, in essence,
that he would have preferred the trial court to order different terms
regarding the sale of the New Stanton property. This does not establish an
abuse of discretion.
In his second issue, Husband argues that the trial court erred by not
defining the total value of the marital estate before awarding a fifty/fifty split
thereof, or explaining what calculations should be performed to achieve this
fifty/fifty split. Husband’s Brief at 11-12. Husband has failed, however, to
provide any citation to, or discussion of, authority to support his claim that
the trial court erred in these respects.2 The Rules of Appellate Procedure
require an appellant to support his argument with citation to pertinent
authorities. See Pa.R.A.P. 2119(a). The failure to include such citations
results in waiver of that issue. Hayward v. Hayward, 868 A.2d 554, 558
(Pa. Super. 2005); Estate of Lakatosh, 656 A.2d 1378, 1381 (Pa. Super.
1995) (holding that waiver of claim results where argument section in
support thereof consists of general statements unsupported by any citation
of authority). However, we note that the trial court clearly explained the
manner in which the calculation should occur. See Trial Court Order,
11/20/13, ¶ 7. Husband’s real quarrel is, again, with the trial court’s
2
Husband cites only one decision from the Court of Common Pleas in the
entirety of his argument on this issue. Husband’s Brief at 14. Decisions of
the Court of Common Pleas are not binding authority on this Court. Sysco
Corp. v. FW Chocolatier, LLC, 85 A.3d 515, 520 n.2 (Pa. Super. 2014).
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decision to allow Wife to unilaterally control the sale of the New Stanton
property. See Husband’s Brief at 12-13 (claiming that Husband stands to be
injured if Wife accepts a price for the New Stanton property that is
significantly lower than its appraised value of $400,000). Husband’s concern
is pure conjecture and speculation, and, as discussed above, an
unreasonable assumption, as Wife has a significant interest is maximizing
the sale price of the New Stanton property, as the greater its sale price, the
greater the amount she receives as her share of equitable distribution.
Next, Husband contends that the trial court was required by law to
apply a discount for the cost of sale to the value assigned to the marital
residence, and that it erred by not doing so. Husband’s Brief at 15. In his
one-paragraph argument on this issue, Husband begins with the premise
that the trial court must consider the costs of sale when awarding property
in equitable distribution proceedings. Husband also contends that our law
requires that when awarding the marital residence to a party, the trial court
must deduct the cost of sale from its assigned value, even if the residence
will not be sold. Id. Husband relies on Zeigler v. Zeigler, 530 A.2d 445
(Pa. Super. 1987), for this proposition, but this reliance is badly misplaced.
Ziegler is immediately distinguishable from the present case, in that the
wife, who was awarded the former marital residence, intended to sell it
immediately. Zeigler, 530 A.2d at 447. On appeal, the wife argued that
the trial court should have reduced the value of the residence by seven
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percent to account for a realtor’s commission and another one percent for
realty transfer tax, and urged this Court to make a rule requiring such
deductions when the recipient intends to sell the property immediately. Id.
This Court refused Mother’s plea, stating the following:
We decline to adopt such a rule for all cases, or even
for all cases in which an immediate sale is intended.
First, such an intention is not easily susceptible of
proof. More importantly, the proper amount to
deduct for costs of sale would be a matter of
speculation. Although it is common practice to
employ the services of a realtor in selling a home, it
is not uncommon for an owner to undertake a sale
without the assistance of a realtor. In the latter
instances, no commission is involved. Moreover,
although a commission of seven percent is common,
it is by no means universal. Similarly, although realty
transfer taxes are routinely split equally between
buyer and seller, the practice is not universal.
Adjustment in the value of a residence for
expenses associated with a contemplated sale
may be an appropriate consideration in some
equitable distribution cases. We neither forbid
nor require the practice. In this case, however, we
hold that the trial court's refusal to deduct the costs
of sale was a proper exercise of its discretion. The
record does not establish the expenses incident to
the contemplated sale with sufficient specificity to
require that such expenses be deducted.
Id. (emphasis added). Thus, not only does Zeigler not support Husband’s
position, it expressly refutes it. There is simply no requirement that the cost
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of sale be deducted from the value of the marital residence, and so
Husband’s claim fails.3
Finally, Husband argues that the trial court erred in awarding Wife
$1000 in counsel fees.4
[O]ur ability to review the grant of attorney's fees is
limited, and we will reverse only upon a showing of
plain error. Plain error is found where the decision is
based on factual findings with no support in the
evidentiary or legal factors other than those that are
relevant to such an award.
Biese v. Biese, 979 A.2d 892, 900 (Pa. Super. 2009) (internal citations
omitted). Furthermore, we are mindful that “[c]ounsel fees are awarded only
upon a showing of need[]” and that “in determining whether the court has
3
Husband also cites Section 3502(a)(10.2) as support for the general
proposition that the trial court must consider the costs of sale when
awarding property in equitable distribution. See Husband’s Brief at 15.
Husband is incorrect. Section 3502 provides only that a trial court must
“equitably divide” marital property “in such percentages and in such manner
as the court deems just after considering all relevant factors[.]”
23 Pa.C.S.A. § 3502(a). The statute then lists a number of factors relevant
to the equitable distribution of marital property, one of which is “[t]he
expense of sale, transfer or liquidation associated with a particular asset,
which expense need not be immediate and certain.” 23 Pa.C.S.A. §
3502(a)(10.2). Section 3502 does not mandate that a trial court must
consider the cost of sale of an asset that will not be sold; it therefore does
not advance Husband’s argument.
4
In his statement of the question involved, Husband includes a challenge to
the trial court’s decision that he must reimburse Wife $1250 for one-half of
the cost of the appraisals of the marital residence and the New Stanton
property. Husband provides no discussion relevant to the reimbursement of
appraisal fees, and so we find this aspect of his issue waived. See Owens
v. Mazzei, 847 A.2d 700, 705-06 (Pa. Super. 2004) (holding that the
Superior Court will not address an issue presented in the statement of
questions involved where no corresponding analysis is included in the brief).
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abused its discretion, we do not usurp the court's duty as fact finder.” Id. at
899-900.
Husband argues that the counsel fee award was improper because his
income is less than Wife’s and his health is worse than Wife’s, and therefore
she has the capacity to work for a longer time and out-earn him. Husband’s
Brief at 16-18. Husband argues, essentially, that Wife is in a better position
to be able to pay her counsel fees than he is, and therefore that she has
failed to establish need.
The master found that Wife incurred additional counsel fees because of
Husband’s refusal to cooperate with Wife’s efforts to have the properties
appraised, which required Wife’s counsel to seek a court order. Master’s
Report, 11/1/12, at 9-10. The master also found that Wife incurred
additional counsel fees because of Husband’s last-minute continuance
requests for a surgery that Husband claimed was essential, but that he still
had not undergone at the time of the hearing. Id. at 10. The master found
that Husband is able to contribute to Wife’s counsel fees, as he has a higher
income (which includes social security payments) and because he is living in
the marital residence, which is owned free and clear, whereas Wife must pay
rent for her apartment. Id. Based upon these factors, the master
recommended that Husband pay $1000 towards Wife’s counsel fees. Id.
The trial court adopted this recommendation and included it in the equitable
distribution order. Trial Court Order, 9/20/13, ¶ 14.
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The evidence of record supports the trial court’s finding that Wife
incurred counsel fees over a period of approximately seven months related
to attempts to have appraisals performed of the marital residence and New
Stanton property, which Husband refused to allow. N.T., 9/14/13, at 149.
There is also evidence of record that Wife incurred counsel fees due to
Husband’s belated request to postpone proceedings for surgery that did not
ultimately take place. Id. at 149-50. With regard to need, the record
supports a finding of need on Wife’s behalf, as it reflects that Husband’s
social security income alone ($21,606) is nearly as much as Wife’s income,
which is comprised of earnings ($17,715) and social security benefits
($9,474). See Husband’s Exhibit 1; Wife’s Exhibit L.5 Wife testified that at
seventy years of age, she does not feel able to work more than the part-
time schedule she currently has and she is unsure for how much longer she
will be able to work. N.T., 9/14/12, at 135, 161-62. Although each party
was awarded a $35,000 retirement account, Wife has had to make
withdrawals from her account to provide for her living expenses, which
include rent. Id. at 117, 127-28, 130-32, 137. In contrast, there is no
encumbrance on the marital residence, where Husband resides. Id. at 166-
67; Husband’s Exhibits 4,6.
5
The parties also receive income in the form of royalty payments from the
gas wells on the property surrounding the marital residence, and the gas
company sends one-half of each payment to each party; however, the
amount of these payments has been dwindling in recent years. N.T.,
9/14/13, at 159.
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As the evidence of record supports the trial court’s determination, we
cannot find plain error by the trial court, and so we may not disturb the
counsel fee award. See Biese, 979 A.2d at 900. Husband has failed to
establish a right to relief on this claim, as well.
Having found no merit to the issues raised by Husband, we affirm the
trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2014
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Trout, W v. Trout, J
Combined Opinion