J-S05028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LYNN M. HOCKER, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DIANA L. HOCKER, :
:
Appellee : No. 1086 WDA 2014
Appeal from the Order Entered June 3, 2014,
In the Court of Common Pleas of Bedford County,
Civil Division, at No. 931 for 2010.
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 04, 2015
Lynn M. Hocker (“Husband”) appeals from the June 3, 2014 order of
the Bedford County Court of Common Pleas in this divorce action against
Diana L. Hocker (“Wife”). We affirm.
The trial court summarized the basic facts regarding the parties and
their respective incomes, as follows:
The parties were married on August 9, 1986 in the state of
Kansas. The parties have two children, a daughter, age 25, and
a son, age 23. It was a first marriage for both parties.
[Husband], Lynn M. Hocker, is 58 years of age, having been
born on January 15, 1956. [Husband] is a business consultant
who operates his own business. [Husband] provides training in
communication and problem solving. The company staff consists
of himself and an office manager. The business is organized as a
sub-chapter S corporation. In 2013 the corporation reported a
loss of $42,980.00. [Husband’s] personal returns showed a total
negative income of approximately $798.00. [Husband] also
operates a number of other business entities, most of which
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appear to be duly filed fictitious names for the same business.
These entities are known as Solutions in Human Resources,
Whispering Creek Foundation, Whispering Creek Project Fund,
Whispering Creek LLC, Whispering Creek, and Whispering Creek
Trading Company. Based on [Husband’s] testimony it appears
these different names were used to take advantage of business
and tax opportunities. In 2010 [Husband’s] business interests
showed a loss for income tax purposes of $108,769.00.
[Husband] showed income of $4,516.00 on his personal return.
[Husband] has suffered from health problems over the last
few years. In 2002 [Husband] had a total hip replacement
resulting from degenerative arthritis. Two months after the
operation he was in an automobile accident which broke the
prosthesis. In 2010 the replacement hip shattered requiring a
second replacement. Currently he suffers from significant
strength loss and is able to stand for only a few minutes at a
time. Further, he suffers from arthritis in the other hip and in
both shoulders. [Husband] also has nerve damage in his left
side, and suffers from hypertension. [Husband] currently
receives payments from a private disability insurance policy.
[Husband] testified that the policy will pay him as long as he
maintains his profession. [Husband] stated that he receives
$5,516.00 per month or $66,192.00 per year. [Husband] stated
this insurance is free from income taxes and he receives these
payments until age 65 as long as he maintains the business.
[Wife], Diana L. Hocker, is 51 years of age, having been
born on September 23, 1962. [Wife] was 24 at the time the
parties were married. [Wife] has an Associate’s Degree in
general studies. At the time of the marriage [Wife] was
employed as an accountant for a retail sales business. As noted,
the parties married in Kansas then lived in Wisconsin for four
years. The parties moved to Bedford County in 1991. [Wife], by
agreement of the parties, had been employed full time in the
home since they had lived in Wisconsin. Although she conceded
she did some child care in the home in Wisconsin. When the
parties moved to Bedford her duties were the care of the home
and the children. [Husband] was employed at several area
companies before starting his present business in 1998. [Wife]
eventually obtained part time employment as an office worker.
[Wife] sought full time employment when [Husband] filed the
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divorce. Currently [Wife] is employed at an insurance company
in Blair County earning $24,000.00 a year with health benefits.
Initially this position paid $30,000.00 a year, but her job was
changed when she was unable to do the insurance portion of the
job which resulted in a $6,000.00 pay reduction. [Wife] also
receives an annual bonus of $1,000.00 to $1,200.00 a year.
[Wife] has maintained this employment for four years. [Wife]
stated she had never been involved in the finances of the
consulting business and did not do the banking. [Wife] also
receives $800.00 per month in spousal support and has received
this for approximately one and one-half to two years. [Wife]
reports no health concerns. The parties’ final separation was on
July 14, 2010.
Trial Court Opinion, 6/3/14, at 1–4.
Husband filed a complaint for divorce on July 16, 2010. Wife filed an
answer on October 6, 2011, which included new matter claims for support,
alimony pendent lite, and alimony. The trial court held evidentiary hearings
over a two-year period on June 11, 2012, January 25, 2013, and March 3,
2014. The trial court granted the divorce on June 3, 2014, entered an order
distributing the marital estate, granted Wife alimony for six and one-half
years until Husband’s sixty-fifth birthday, and awarded Wife counsel fees in
the amount of $6,000.00. Husband filed a notice of appeal on July 2, 2014.
Both Husband and the trial court complied with Pa.R.A.P. 1925.
The order of equitable distribution provides, in pertinent part, as
follows:
2. [Husband] shall receive as his sole and separate property the
following:
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a. The life estate in real estate at 1117
Oppenheimer Road.
b. 2007 Ford F-250 pickup truck. [Husband] shall
hold [Wife] harmless from any debt on said vehicle.
c. Chevrolet 1500 pickup, 2004 Honda motorcycle,
2007 Polaris ATV vehicle, 2007 Kawasaki motorcycle,
2004 Suzuki Eiger ATV, 2007 Honda Sportrax, 2001
Suzuki GS-500 Motorcycle, John Deere 955 tractor,
and the 18 foot trailer.
d. Putnam Investment in [Husband’s] name, Roth
IRA in [Husband’s] name, Investco account in
[Husband’s] name, and the Southwest Insurance
Policy.
e. Solutions in Human Resources, Inc. its associated
businesses and entities. [Husband] shall receive all
checking accounts associated with said business and
shall hold [Wife] harmless from any debt on said
businesses.
f. All personal property and equipment currently in
his possession unless otherwise awarded to [Wife].
3. [Wife] shall receive as her sole and separate property the
following:
a. The real estate and improvements located at 434
South Bedford Street, Bedford, Pennsylvania. All
furnishings and property contained therein. [Wife]
shall hold [Husband] harmless from the mortgage on
said residence, including but not limited to a set of
Noritake china, set of silverware, glassware, all
Longaberger baskets in the household, artwork by
Terry Redlen, and Jesse Borner, children’s toys and
schoolwork.
b. 2008 Nissan Rogue. [Wife] shall hold [Husband]
harmless from any debt on said vehicle.
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c. 614 shares of Sara Lee stock, [Wife’s] Putnam
Investments, American Fund Investments in [Wife’s]
name, Investco IRA in [Wife’s] name, and SAC, Inc.
401K.
4. [Husband] shall pay [Wife] reimbursement alimony at the
rate of $800.00 per month for a period of six (6) years, seven
(7) months from this date, but to end on [Husband’s] 65th
birthday.
5. [Husband] shall within 90 days of this date, pay [Wife] the
sum of $6,000.00 toward her counsel fees.
6. The parties shall sign all documents necessary to effectuate
this order.
Order, 6/3/14, at 1–3.
Husband raises the following issues on appeal:
1. Whether the Trial Court erred and abused its discretion by
failing to include the majority of the parties’ marital debts in its
Equitable Distribution Analysis that Husband was either paying
or responsible for paying, which included several loans, credit
card accounts, lines of credit and student loans for their children.
2. Whether the Trial Court erred and abused its discretion by
failing to recognize Husband’s disability income as revenue for
his business to maintain and pay for business expenses thereby
incorrectly stating the disparity between the parties’ income as
significant.
3. Whether the Trial Court erred and abused its discretion by
failing to include all of Husband’s business expenses in the
Equitable Distribution Analysis when calculating his income as
evidenced by the business tax returns.
4. Whether the Trial Court erred and abused its discretion in
calculating Husband’s life estate by failing to take into
consideration the maintenance costs and expenses paid to
maintain the real estate which would significantly reduce its
value.
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5. Whether the Trial Court erred and abused its discretion by
awarding Wife reimbursement alimony based upon the incorrect
value of Husband’s life estate.
6. Whether the Trial Court erred and abused its discretion by
awarding Wife counsel fees when wife had reasonable income
and resources to pay her attorney fees and receive the
substantial share of marital assets from the estate.
Husband’s Brief at 2–3.
A trial court has broad discretion when fashioning an award of
equitable distribution. Dalrymple v. Kilishek, 920 A.2d 1275, 1280 (Pa.
Super. 2007). Our standard of review is whether the trial court abused its
discretion. Smith v. Smith, 904 A.2d 15, 19 (Pa. Super. 2006) (citation
omitted). “An abuse of discretion is not found lightly, but only upon a
showing of clear and convincing evidence.” Yuhas v. Yuhas, 79 A.3d 700,
704 (Pa. Super. 2013) (en banc), appeal denied, 93 A.3d 464 (Pa. 2014). In
determining the propriety of an equitable distribution award, we must
consider the distribution scheme as a whole. Childress v. Bogosian, 12
A.3d 448, 455 (Pa. Super. 2011). “[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.” Schenk
v. Schenk, 880 A.2d 633, 639 (Pa. Super. 2005) (citation omitted).
Moreover, it is within the province of the trial court to weigh the evidence
and decide credibility. Sternlicht v. Sternlicht, 822 A.2d 732, 742 (Pa.
Super. 2003).
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Husband first asserts that the trial court failed to credit Husband for
the marital debt he was paying or responsible for paying, resulting in an
equitable distribution order that did not effectuate economic justice between
the parties. Husband devised a chart in his brief that purports to list all of
the marital debts or liabilities for which Husband is responsible, which
allegedly total $286,721.48, noting their inclusion in the Reproduced Record
as exhibit numbers. Husband states that he “testified that the above-
referenced marital liabilities were incurred during the marriage,” but the trial
court failed to include them in its analysis. Husband’s Brief at 12.
While Husband maintains that he testified regarding these alleged
debts, he has failed to refer us to any such testimony in the record. Our
appellate procedural rules provide that “[i]f reference is made to the
pleadings, evidence, charge, opinion or order, or any other matter appearing
in the record, the argument must set forth, in immediate connection
therewith, or in a footnote thereto, a reference to the place in the record
where the matter referred to appears.” Pa.R.A.P. 2119 (c) (emphasis
added). Husband makes bald, unsupported claims without specific reference
to the testimony in the record. Because Husband fails to direct our attention
to the specific testimony of record that supports his claim, we could find the
issue waived. Pa.R.A.P. 2119(b); Stimmler v. Chestnut Hill Hosp., 981
A.2d 145, 153 n.9 (Pa. 2009) (stating that argument portion of brief must
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contain “sufficient citation to the record . . . .”). It is not this Court’s
responsibility to comb through the record seeking the factual underpinnings
of [an appellant’s] claim. Irwin Union National Bank and Trust
Company v. Famous and Famous and ATL Ventures, 4 A.3d 1099, 1103
(Pa. Super. 2010) (citing Commonwealth v. Mulholland, 702 A.2d 1027,
1034 n.5 (Pa. 1997)).
We conclude, however, that we can address the claim. We have
examined Husband’s argument closely. Three of the “debts” Husband
identified are student loans of the parties’ daughter. These three loans,
items twelve through fourteen on Husband’s chart, total $109,227.00. Item
six is a line of credit for Husband’s businesses in the amount of $20,398.80.
The trial court awarded the businesses to Husband and provided that
Husband “shall hold [Wife] harmless from any debt on said businesses.”
Order, 6/3/14, at 2. Items ten and eleven, $31,681.00 and $12,420.00
respectively, actually were grants related to Husband’s businesses and the
Oppenheimer Road property, which were awarded to Husband. Husband
explained:
In 2009 I have written and submitted a grant to the Department
of Environmental Resources. And the intention of this grant to
use our Oppenheimer Road retreat property as a renewal energy
dispenser. So the grant was to encompass putting in place a
geothermal system, a wind turbine, solar panels, a bio-diesel
back-up generator, as well as LED lights through-out the facility.
And we were fortunate enough to receive that grant. Now, that
was in 2008 when I wrote it and it was awarded in 2009. And so
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this series of documents shows not only the award of that grant
but what were the deliverables in exchange for getting these
types of monies, what was required of us in order to comply to
the grant specifications.
* * *
Associated with the receiving of that grant there were two
supplemental funding sources. One was Pennsylvania Sunshine
Grant where we received some monies back in exchange for
putting this particular, the Sunshine was for the solar panels.
The second section in this was for, under the IRS guidelines,
Section 1603, where we received about $31,000.00, $32,000.00
reimbursement, as well. And that is for the solar panels, the
geothermal system and the lighting. Each one of these has a
stipulation that if for some reason that I could not adhere to the
guidelines during a five year period, they will requires those
funds that they submitted reimbursed back to them.
* * *
Well, they are liabilities in that we’ve already received the money
and if the IRS in that example deems us not following to the
terms of the agreement would require those monies back. There
have been instances where they didn’t get the report information
that they wanted and I’ve received not so kind letters from the
IRS saying if we don’t get the required data we will require
repayment of these funds.
N.T., 6/11/12, at 67–68. Again, these grants were awarded for Husband’s
businesses, and there is no indication that the amounts advanced will have
to be repaid. Finally, item three on Husband’s chart is a $47,703.99
mortgage on the marital home awarded to Wife. The trial court ordered that
Wife “shall hold [Husband] harmless from the mortgage on said residence.”
Order, 6/3/14, at 2. Subtracting these amounts, results in Husband’s
liability of $65,623.16, compared to Wife’s mortgage of $47,703.99. We
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agree with Wife that Husband is “trying to seek credit for expenses the judge
did not order him to pay, i.e. his daughter’s college tuition; the mortgage on
the marital residence (which Appellee/Wife is paying); the various debt he
has incurred on his business where he has taken significant tax losses over
the years.” Wife’s Brief at 6. Thus, we reject Husband’s claim as being
unsupported by the record.
Husband’s second and third issues are waived. It is well settled that
the argument portion of an appellate brief must be developed with citations
to relevant authority. Pa.R.A.P. 2119(a). “Where the appellant has failed to
cite any authority in support of a contention, the claim is waived.” Connor
v. Crozer Keystone Health System, 832 A.2d 1112, 1118 (Pa. Super.
2003) (citing Bunt v. Pension Mortgage Associates, Inc., 666 A.2d
1091, 1095 (Pa. Super. 1995)).
Here, Husband’s argument pertaining to these issues contains no
citation to relevant legal authority. Husband’s Brief at 13–16. Instead,
Husband makes bald allegations that the trial court incorrectly stated the
disparity of the parties’ incomes and failed to include Husband’s business
expenses in calculating his income as evidenced by the business tax returns.
Because Husband’s argument on these issues consists of broad statements
and allegations but no analysis with relevant law, the arguments are not
properly developed for our review as they fail to apply the law to the facts of
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the case. This failure precludes appellate review. Thus, we conclude that
these issues are waived.1
Next, Husband contends the trial court erred in calculating Husband’s
life estate of the Oppenheimer Road property by failing to consider the cost
of maintaining it. The trial court described this property as follows:
2. Life estate on real estate located at 1117 Oppenheimer
Road, Bedford, Pennsylvania. The real estate was acquired
by the parties in 1998. It consists of 30 acres, a six room cabin
and a garage. The property was improved over the years and it
was used as a business retreat. It has been leased for a number
of years to [Husband’s] corporation which pays him rental for
the use of the property. [Husband] received a grant from the
government to do energy improvements. [Husband] had to
complete a number of improvements and meet a number of
conditions over a five-year period. However, [Husband]
concedes the grant was $200,000.00 and was paid out over
several years. When purchased in 1998, the property was titled
in the parties’ names. In 2008 the parties transferred the real
estate to their children but retained a life estate in [Husband’s]
name. The value of this life estate was set at $171,448.20 by
[Husband’s] accountant before deductions for taxes and
maintenance. There are no mortgages on this residence.
1
Even if not waived, the issues lack merit. The trial court specifically noted
that “despite significant losses for income tax purposes,” Husband “has been
able to maintain his business.” Trial Court Opinion, 6/3/14, at 9. Thus, the
trial court included all of Husband’s business expenses in calculating his
income and clearly considered Husband’s business tax returns. Both parties
utilized professional accountants to analyze the business accounts, and the
trial court accorded greater weight to Wife’s expert’s report. See Frey v.
Frey, 821 A.2d 623, 627 (Pa. Super. 2003) (“[I]n determining issues of
credibility, the lower court’s findings must be given the fullest consideration
for it was the lower court who observed and heard the testimony and
demeanor of various witnesses.”) (quoting Jayne v. Jayne, 663 A.2d 169,
172 (Pa. Super. 1995) (quotation omitted)). As to the disparate earning
capacities, the trial court utilized its discretion after assessing each party’s
credibility regarding his or her relative assets and income.
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Trial Court Opinion, 6/3/14, at 5.
Husband references the testimony of Mr. Randy Tarpay of Sickler
Accounting Associates. N.T., 1/25/13, at 94. Mr. Tarpay testified regarding
his calculation of the value of the Oppenheimer Road property, as follows:
I think it’s readily apparent from the letter I wrote there,
but it’s Just a calculation of the fact that somebody else, I think
a realtor or somebody had appraised the property at $220,000.
But a life estate based on Lynn’s age that yields a value to him
of $171,448.20. That’s from a table that represents a factor of
77.931% of the fair market value would be assigned to him
because he’s going to be allowed to live there for the rest of his
life. My understanding is that if he does live there that he has to
pay all of the expenses for maintaining the property and, you
know, Lynn had provided copies of many of those expenses.
They are co-mingled between business and personal there, but
$700 is a very reasonable, conservative estimate of what his,
you know, out-of-pocket obligation would be for that property
for that time frame. And so, subtracting that obligation from the
life estate, you come to a value of $23,296.77.
N.T., 1/25/13, at 112. Thus, without citing any case law supporting his
claim, Husband contends that the trial court should have considered what it
would cost for Husband to live in and maintain the Oppenheimer Road
property for a number of years based upon his life expectancy, and should
have subtracted that amount to arrive at the value of the property.
Our first observation is that in awarding Wife the marital residence at
434 South Bedford Street, the trial court held Husband harmless on payment
of the outstanding mortgage. More to the instant point, however, in
awarding that asset to Wife, the trial court did not deduct the cost of
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maintaining the property from its value, as Husband seeks on the property
awarded to him. Moreover, the trial court considered Husband’s argument
and rejected it. We find merit in the trial court’s explanation, as follows:
Applying the factors described in the Divorce Code and the
requirements of the case law yields the following analysis:
The discussion must begin with reference to the values
used by the parties. The real estate values are from 2012. This
seems appropriate as the cases point out that the value of assets
should be determined close to the distribution date as possible.
Sutliffv. Sutliff, 543 A.2d 534 (Pa. 1988). However, the values
provided to the Court on all other property were valued as it
existed in 2010 as of date of separation. Further, regarding the
life estate, the value provided was reduced by the monthly
expense of maintaining the property. The Divorce Code does
direct the Court to take into account the expenses of sale and
the Federal statues and local tax ramifications associated with an
item to be divided. 23 Pa C.S.A. § 3502(10.1) and (10.2).
However, reducing the value of the life estate by maintenance
costs and property taxes would not seem appropriate unless
extraordinary or very significant. That is not the case here, so
we use a value of $171,448.20 which [Husband’s] expert
described as the value of the life estate without maintenance
expense and property tax.
Trial Court Opinion, 6/3/14, at 8–9.
We reject Husband’s claim that the trial court abused its discretion in
failing to assign a $23,296.17 valuation to Husband’s life estate by
deducting ordinary living expenses, which were calculated on Husband’s life
expectancy, from Husband’s expert’s valuation of $171,448.20 of the
Oppenheimer Road property. This Court will not find an abuse of discretion
unless the law has been “overridden or misapplied or the judgment
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exercised” was “manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill will, as shown by the evidence in the certified record.”
Wang v. Feng, 888 A.2d 882, 887 (Pa. Super. 2005). “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 (quoting
Sternlicht, 822 A.2d at 742). The trial court did not err.2
Husband’s final issue relates to the trial court’s award of $6,000 for
counsel fees to Wife. We first note the erroneous citations in Husband’s
brief that hamper our ability to evaluate support for his argument. Of the
four cases Husband cites, two are obvious errors. His citation to Miller v.
Miller, 501 A.2d 550 (Pa. Super. 1986), actually is a New Jersey case,
Matter of Promulgation of N.J.A.C. 13:35-6.14, 501 A.2d 547, (N.J.
Super. A.D. 1985), dealing with administrative regulation by the State Board
of Medical Examiners. His citation to Johnson v. Johnson, 522 A.2d 1123
(Pa. Super. 1987), is a case titled, Coleman v. Coleman, that does not
discuss counsel fees.
2
We need not address Husband’s fifth issue that the trial court abused its
discretion “by awarding Wife reimbursement alimony based upon the
incorrect valuation of Husband’s life estate,” Husband’s Brief at 19, because
we have concluded that the valuation was not an abuse of discretion. Thus,
there is no basis to his fifth claim.
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Pursuant to 23 Pa.C.S. § 3702, the trial court may award reasonable
counsel fees and expenses for the dependent spouse. Husband suggests
that the trial court erred in awarding Wife counsel fees “despite the fact that
she earns a reasonable income of $24,000.00. . . .” Husband’s Brief at 22.
This income contrasts to Husband’s tax-free income of $66,192.00. Trial
Court Opinion, 6/3/14, at 2–3. In awarding the fees, the trial court stated
as follows:
Finally, [Wife] seeks an award of counsel fees in this case.
Counsel fees can be awarded in proper cases on petition 23 Pa
C.S.A. § 3702. Such an award should be made where it
promotes justice between the parties by enabling a dependent
spouse to defend the divorce action. Busse v. Busse, 921 A.2d
1248. In this case, there is a substantial disparity in the parties
income as previously noted. [Wife] has a reasonable income
and the Court previously approved the payment of $3,000.00 by
[Husband] toward the cost of a forensic accountant for [Wife].
The Court will award an additional $6,000.00 toward [Wife’s]
counsel fees. Such an award is necessary to equal t[he] parties’
ability to pursue the divorce.
Id. at 11.
An award of counsel fees is within the discretion of the trial court, and
we may reverse only upon a finding of abuse of that discretion. Marra v.
Marra, 831 A.2d 1183, 1188 (Pa. Super. 2003). “The purpose underlying
the award of fees is to place the parties ‘on par’ in defending their respective
rights.” Id. at 1188. The trial court’s determination herein is supported by
the record, and we find no abuse of discretion therein. Jacobs v. Jacobs,
884 A.2d 301, 307 (Pa. Super. 2005).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2015
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