J-A24037-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARIA L. CERCIELLO, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
THOMAS R. CERCIELLO,
Appellee No. 415 EDA 2014
Appeal from the Decree January 29, 2014
in the Court of Common Pleas of Pike County
Domestic Relations at No.: 1624-2007-Civil
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 02, 2014
Appellant, Maria L. Cerciello (Wife), appeals from the decree granting a
divorce to her and Appellee, Thomas R. Cerciello (Husband), and equitably
distributing the parties’ marital property. We affirm.
The relevant facts and procedural history of this case are as follows.
Wife and Husband married on August 7, 1995, and they separated
approximately eleven years later on April 1, 2006. When they separated,
Wife moved out of the marital residence and took her personal possessions
and other household items with her. Husband cashed in a MetLife Investors
account valued at $6,433.15 to help Wife pay for moving expenses. On
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*
Retired Senior Judge assigned to the Superior Court.
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September 27, 2007, Wife filed a divorce complaint seeking equitable
distribution of the marital property.
On April 11, 2011, five years after the parties separated, a fire
destroyed the marital residence. The parties still jointly owned the home
and Husband resided in it. Husband was the only named insured on the
homeowners’ insurance policy and he paid all premiums for coverage after
the parties’ separation. The insurance company made all payments directly
to Husband, and the proceeds were allocated into three categories, to
compensate for loss of the structure of the home, the contents of the home,
and related living expenses.
The trial court appointed a Divorce Master, attorney Steven R. Guccini
(Master), who held hearings on the issue of equitable distribution on August
17, 2012 and November 8, 2012. On October 8, 2013, the Master filed a
report recommending an award of 60% of the marital property to Wife and
40% to Husband, calculating $40,416.53 net payable to Wife. With respect
to the insurance proceeds relating to the fire, the Master recommended that
the court award Wife 60% of the funds for the structure of the marital
residence (with no award of interest), but no share of the proceeds for the
contents of the residence or living expenses. The Master also recommended
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a credit of $2,573.26 to Husband for the money he gave Wife from the
MetLife account to help with moving expenses.1
Both parties filed exceptions to the Master’s report. On January 14,
2014, following a hearing, the trial court entered an order denying the
parties’ exceptions. On January 29, 2014, the court entered a divorce
decree ordering Husband to pay Wife $40,416.53. This timely appeal
followed.2
Wife raises the following issues for our review:
1. Did the trial court commit an abuse of discretion in failing to award
[Wife] a percentage share of the entirety of the insurance proceeds
resulting from the loss of a marital home?
2. Did the trial court commit an abuse of discretion in failing to award
[Wife] interest on the insurance proceeds awarded to her when the
reason for the delay in her receipt of the same was due to [Husband’s]
misappropriation of funds to his benefit and interest is compensation
for the deprivation of said funds?
3. Did the trial court commit an abuse of discretion in failing to award
[Wife] her percentage share of the MetLife account?
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1
The MetLife account was valued at $6,433.15 in March 2006. (See
Master’s Report, 10/08/13, at unnumbered page 3 ¶ 12). Husband testified
that he gave all of the funds to Wife to cover moving expenses. (See N.T.
Hearing, 11/08/12, at 6). The $2,573.26 credit to Husband represents his
40% share of the MetLife account. (See Trial Court Opinion, 3/11/14, at
11). The Master deducted this credit to Husband in calculating the net
payable to Wife. (See Master’s Report, 10/08/13, at unnumbered page 10).
2
Pursuant to the trial court’s order, Wife filed a timely concise statement of
errors on February 20, 2014. See Pa.R.A.P. 1925(b). The court filed a Rule
1925(a) opinion on March 11, 2014. See Pa.R.A.P. 1925(a).
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4. Did the trial court commit an abuse of discretion in adopting the
report and recommendation of the Divorce Master who did not timely
file his report and recommendation in accordance with the Rules of
Civil Procedure?
(Wife’s Brief, at 6).
Our standard of review is as follows:
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.
[W]e 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.
Childress v. Bogosian, 12 A.3d 448, 455-56 (Pa. Super. 2011) (citations
and quotation marks omitted).
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In her first issue, Wife claims that the trial court abused its discretion
in adopting the Master’s recommendation to award her 60% of the insurance
proceeds for the structure of the marital home, but no share of the proceeds
for the contents of the home or living expenses related to the fire. (See
Wife’s Brief, at 14-23). She argues that “the entirety of the proceeds should
be split 60/40 in favor of Wife.” (Id. at 20 (emphasis omitted); see also id.
at 23). Wife acknowledges the parties’ long separation before the fire, but
asserts that she left several items of marital personal property at the home,
such as tools, guns, and appliances, which she intended to claim. (See id.
at 20). This issue does not merit relief.
In addressing Wife’s issue, we are mindful that “[t]he process of
equitable distribution is an exercise in marshalling, valuing and dividing the
marital pot in a fair manner.” Moran v. Moran, 839 A.2d 1091, 1095 (Pa.
Super. 2003) (citation omitted). “There is no simple formula by which to
divide marital property; the method of distribution derives from the facts of
the individual case.” Taper v. Taper, 939 A.2d 969, 974 (Pa. Super. 2007)
(citation omitted). “The courts attempt to split property equitably, instead
of equally, taking into consideration such factors as length of marriage, the
contributions of both spouses, ages and health of each spouse.” Id.
(citation omitted).
We also note that this Court has found that, under circumstances
where an insurance policy on a marital residence is issued in only one
spouse’s name, the unnamed spouse may recover an equitable share of the
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proceeds paid on that policy for personal property destroyed by fire. See
Beamer v. Beamer, 479 A.2d 485, 487, 489 (Pa. Super. 1984) (finding
that, under particular circumstances of case, trial court should determine
value of Wife’s personal property left in possession of Husband and
destroyed by fire where obvious that parties agreed to distribution of
property and Wife left several items behind at Husband’s request).
In the instant case, the record reflects that, in making its equitable
distribution recommendation, the Master considered the parties’ education
levels and employment status, Husband’s ability to earn a higher salary than
Wife, Wife’s lack of retirement benefits or health insurance, and each party’s
health conditions. (See Master’s Report, 10/08/13, at unnumbered pages 2-
3, 8); see also Taper, supra at 974. When considering the appropriate
distribution of the insurance proceeds paid because of the fire at the marital
residence, the Master recommended and the trial court agreed that Wife
should receive a 60% share of the proceeds paid for the structure of the
home, and Husband should receive only a 40% share. (See Trial Ct. Op., at
4). However, the Master and the court concluded that Wife was not entitled
to any of the funds paid for the contents of the home or for living expenses.
(See id.). The court explained the basis for its decision regarding the
contents of the home as follows:
The parties had been separated for five years at the time
of the fire. [(See Master’s Report, 10/08/13, at unnumbered
page 2)]. Testimony revealed that Wife had moved her personal
property from the home shortly after separation. [(See N.T.
Hearing, 8/17/12, at 17, 38)] (Where Wife testified that she
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removed pre-marital property she had brought to the house)
[;(see id. at 59)] (Where Wife testified that she hired a mover
and a moving truck). Wife also testified that the only items of
significant value purchased during the marriage were a dining
room table, which she took when she moved out of the
residence, and a living room set [valued at $3,000.00, left in the
home. (see id. at 40-43; see also Master’s Report, 10/08/13,
at unnumbered pages 4, 9)]. Husband claimed that Wife took
many items in addition to those she brought to the house
including small appliances, dishes, furnishings, and an
entertainment center. [(See N.T. Hearing, 8/17/12, at 63)].
The parties’ daughter, Andrea Cerciello, testified that Wife
moved many items from the home, including a dining room
hutch, desk, pictures, and the contents of her bedroom. . . .
[(See N.T. Hearing, 11/08/12, at 17-19)].
. . . [T]he value of the $3,000 living room set [lost in the
fire], which both parties acknowledged was marital property,
was factored into the total amount of marital assets. [(See
Master’s Report, 10/08/13, at unnumbered page 9)]. Although
Wife claimed, and her friend Alison O’Shea corroborated, that
there were additional personal items she intended to remove
from the home, the Master determined that this argument was
[not] compelling. [(see id. at unnumbered page 8; N.T Hearing
11/08/12, at 33-34)]. This determination was based on the
[testimony at the hearings], the fact that five years had elapsed
between the parties’ separation and the fire, and that Wife had
not made any claims to items in the home in the interim. [(See
Master’s Report, 10/08/13, at unnumbered pages 7-8).]
(Id. at 5-6).3
With respect to the living expense insurance proceeds, Husband
testified that he used the funds to cover the cost of purchasing a mobile
home to live in when the fire destroyed the marital home, while a new home
was constructed. (See N.T. Hearing, 8/17/12, at 66-67; see also Master’s
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3
Wife acknowledged that the parties never had an agreement with respect
to the remaining contents of the home. (See N.T. Hearing, 8/17/12, at 31).
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Report, 10/08/13, at unnumbered page 11). Wife had not lived in the
marital home for five years, and therefore did not incur similar living
expenses. (See N.T. Hearing, 8/17/12, at 43-44). Husband was the only
named insured on the policy and he paid all premiums for coverage after the
parties separated. (See Master’s Report, 10/08/13, at unnumbered page 2;
Trial Ct. Op., at 6).
Upon review, we conclude that the court’s determination that Wife is
not entitled to insurance proceeds for the contents of the home or living
expenses is supported by the record where: Wife removed her property at
separation five years before the fire; the parties did not enter an agreement
with respect to the remaining contents; Wife made no claims for items left
behind before the fire; and Wife did not incur any additional living expenses
as a result of the fire. Compare Beamer, supra at 487, 489. We discern
no abuse of discretion in the court’s decision. See Childress, supra at 455-
56. Wife’s first issue does not merit relief.
In her second issue, Wife argues that the trial court abused its
discretion in failing to award her interest on her portion of the insurance
proceeds for the structure of the home from the date Husband received the
funds. (See Wife’s Brief, at 23). Wife contends that she is entitled to
interest because Husband received the proceeds in 2011 and spent the funds
to his benefit, while he gave her none of the proceeds. (See id.). This issue
does not merit relief.
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In her one-page argument on this issue, Wife cites one case, Bryant
v. Girard Bank, 517 A.2d 968 (Pa. Super. 1986). (See Wife’s Brief at 23).
The Bryant case involved interest purportedly accrued on settlement funds,
and Wife cites it for the general proposition that “[i]nterest is the
compensation allowed by law for the deprivation of money.” (Wife’s Brief at
23 (quoting Bryant, supra at 979)). Wife cites no relevant legal authority
to persuade us that she is entitled to interest on the insurance proceeds
under the facts of this case. See Pa.R.A.P. 2119(a)-(b).
In the instant case, the trial court agreed with the Master’s decision
not to award interest based on its finding that the Master carefully
considered the economic circumstances of Husband and Wife along with
relevant statutory factors, and fairly and accurately interpreted the
testimony and evidence presented at the hearings. (See Trial Ct. Op. at 5,
11-12). The trial court concluded that it could “find no compelling reason to
award [W]ife interest on the insurance money when she was awarded a 60%
share of the marital assets.” (Id. at 12). We find no abuse of discretion in
the court’s decision. See Childress, supra at 455-56. Moreover, Wife’s
assertion that Husband should have paid her in 2011 immediately upon
receipt of the funds is specious where the record shows that the parties
wholly disagreed as to the appropriate allocation of funds and sought
resolution through equitable distribution. Accordingly, Wife’s second issue
does not merit relief.
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In her third issue, Wife claims that the trial court abused its discretion
in failing to award her 60% of the MetLife account (valued at $6,433.15)
that Husband cashed in to help her with moving expenses. (See Wife’s
Brief, at 24). In support of this issue, Wife argues that Husband’s testimony
was not credible, because he first testified that he gave her approximately
$6,000.00 to help with moving expenses, and later “contradicted himself” by
stating that he gave her $5,000.00 for these expenses. (Id. (citing N.T.
Hearing, 11/08/12, at 6, 12)). Wife asserts that she testified that Husband
gave her only $2,500.00 for expenses, not the entire amount from the
MetLife account.4 (See id.). This issue does not merit relief.
As stated above, a master’s report is to be given the fullest
consideration, especially on questions of witness credibility, because the
master had the opportunity to observe the parties’ demeanor and behavior.
See Childress, supra at 455-56. It was for the trial court to weigh the
evidence and resolve credibility issues, and this Court will not reverse its
determinations if the evidence supports them. See id.
Here, Husband testified that he gave all of the funds from the MetLife
account to Wife to help with moving costs. (See N.T. Hearing, 11/08/12, at
6). When asked on cross-examination by Wife’s attorney whether he gave
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4
Wife provides this Court with no citation to the record for this purported
testimony, (see Wife’s Brief, at 24), and after review of the hearing
transcript, we did not locate her testimony to this effect.
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Wife only $3,000.00 to help her move, Husband answered “No.” (Id. at 12).
The Master found Husband’s testimony that he gave Wife all of the funds
from the MetLife account credible despite his reference to a $5,000.00
figure. (See Master’s Report, 10/08/13, at unnumbered page 10; see also
N.T. Hearing, 11/08/12, at 12). The trial court reviewed the record and
found no evidence that Husband agreed to give Wife only $2,500.00 toward
moving expenses. (See Trial Ct. Op., at 10). The court determined that
Wife’s recollection of the record did not comport with the hearing testimony,
and that the record instead supported the Master’s findings. (See id.). We
agree, and conclude that the court did not abuse its discretion in declining to
award Wife 60% of the MetLife account where the record reflects that she
used all of the proceeds for moving expenses. See Childress, supra at
455-56. Wife’s third issue lacks merit.
In her fourth issue, Wife argues that the trial court abused its
discretion in adopting the Master’s report because the Master failed to file it
within thirty days of the equitable distribution hearing in this matter, in
violation of Pennsylvania Rule of Civil Procedure 1920.55-2.5 (See Wife’s
Brief, at 24; see also Rule 1925(b) Statement, 2/20/14, at unnumbered
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5
Pennsylvania Rule of Civil Procedure 1920.55-2, provides in relevant part
that, after the conclusion of a hearing, a Master “shall . . . file the record and
the report within . . . thirty days after the receipt of the transcript by the
master in contested actions[.]” Pa.R.C.P. 1920.55-2(a)(1)(ii).
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pages 1-2). Wife contends that the court should not have adopted the
report because the Master filed it nearly one year after the final hearing.
(See Wife’s Brief, at 24). This issue is waived.
It is an appellant’s responsibility to ensure that this Court receives a
complete record, and when deficiencies in a brief hinder our ability to
conduct meaningful appellate review, we may find certain issues waived.
See Pa.R.A.P. 2101; see also Cresci Const. Serv., Inc. v. Martin, 64
A.3d 254, 266 (Pa. Super. 2013). Here, in her appellate brief, Wife has not
provided this Court with any legal argument to support her contention that
the court abused its discretion in accepting the Master’s report. (See Wife’s
Brief, at 24). Wife’s only presented argument on this issue consists of one
and one-half sentences; her brief omits the subsequent page that
presumably addressed this issue. (See id.). Accordingly, the issue is
waived. See Pa.R.A.P. 2101; see also Cresci Const. Serv., Inc., supra at
266.6
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6
Moreover, Wife’s fourth issue would not merit relief. First, we note that
Rule 1920.55-2(a)(1)(ii) sets forth a thirty-day deadline for the Master to file
a report after receipt of the transcript, not a thirty-day timeframe from the
date of the hearing. Further, even assuming a violation of the rule, “the
court at every stage of any such action or proceeding may disregard any
error or defect of procedure which does not affect the substantial rights of
the parties.” Pa.R.C.P. 126.
Here, the trial court acknowledged the lengthy delay between the
equitable distribution hearings and filing of the Master’s report. (See Trial
Ct. Op., at 7). It considered the proceedings and determined that the delay
did not substantially affect the parties’ rights where the record reflects that
(Footnote Continued Next Page)
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Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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(Footnote Continued)
the Master carefully considered the unique facts of this case and his report
was in accord with the testimony and evidence presented at the hearings.
(See id. at 5, 7); see also Pa.R.C.P. 126. We discern no abuse of
discretion in the trial court’s disposition of this issue.
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