J. S16044/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COLIN SANKEY, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LORRAINE SANKEY, :
:
Appellant : No. 2267 EDA 2015
Appeal from the Order Entered June 22, 2015
In the Court of Common Pleas of Monroe County
Domestic Relations at No(s): 11378 CV 2008
1219 DR 2008
BEFORE: OTT, J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 13, 2016
Appellant, Lorraine Sankey, (Wife) appeals from the June 22, 2015
Order of the Court of Common Pleas of Monroe County denying Wife’s
Exceptions to Divorce Master’s Report and ordering that Appellee, Colin
Sankey, (Husband) did not have to pay alimony to Wife. After careful
review, we affirm on the basis of the trial court opinion.
Husband and Wife were married on March 24, 2002 in Stroudsburg,
Pennsylvania and separated in January of 2008 after an alleged lengthy
affair by the Husband and one physical altercation between the parties. Trial
Ct. Op., dated 9/8/15, at 1. On November 21, 2008, Husband filed a
Complaint for Divorce. Id. The parties had no minor children at the time
the Complaint was filed. Id.
J. S16044/16
On December 15, 2014, a hearing was held before Divorce Master
Robert C. Lear, Esquire, where the only issue presented to the Master for
consideration was the payment of alimony by Husband to Wife, as the
parties stipulated to other economic claims. Id. at 2. On February 12,
2015, the Divorce Master filed his Report denying Wife's request for alimony.
On March 4, 2015, Wife filed Exceptions to the Divorce Master's Report. Id.
On June 22, 2015, the trial court issued an order that, inter alia, denied
Wife's Exception to the Divorce Master's Report, denied alimony, and
granted divorce. Wife filed a timely Notice of Appeal. Wife and trial court
both complied with Pa.R.A.P. 1925.
Wife raises the following issues on appeal:
a. Whether the trial court erred by failing to consider the relative
liabilities of the parties in its decision regarding alimony?
b. Whether the trial court erred by failing to consider the
emotional condition of Wife in its decision regarding alimony?
Appellant’s Brief at 2.
Our standard of review in spousal support cases is well settled – this
Court must determine whether the trial court has abused its discretion.
Dudas v. Pietrzykowski, 849 A.2d 582, 585 (Pa. Super. 2004).
Specifically, this Court must decide whether the trial court has “misapplied
the law, or has exercised judgment which is manifestly unreasonable, or is
the product of partiality, prejudice, bias or ill will as demonstrated by the
evidence of record.” Id. (internal quotation marks and citation omitted).
-2-
J. S16044/16
The Divorce Code requires a trial court to consider seventeen factors
when determining whether to award alimony, and “the nature, amount,
duration and manner of payment of alimony,” including:
(1) The relative earnings and earning capacities of the parties.
(2) The ages and the physical, mental and emotional
conditions of the parties.
(3) The sources of income of both parties, including, but not
limited to, medical, retirement, insurance or other
benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or
increased earning power of the other party.
(7) The extent to which the earning power, expenses or
financial obligations of a party will be affected by reason of
serving as the custodian of a minor child.
(8) The standard of living of the parties established during the
marriage.
(9) The relative education of the parties and the time
necessary to acquire sufficient education or training to
enable the party seeking alimony to find appropriate
employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the
marriage. The marital misconduct of either of the parties
from the date of final separation shall not be considered by
the court in its determinations relative to alimony, except
that the court shall consider the abuse of one party by the
other party. As used in this paragraph, “abuse” shall have
the meaning given to it undersection 6102 (relating to
definitions).
(15) The Federal, State and local tax ramifications of the
alimony award.
(16) Whether the party seeking alimony lacks sufficient
property, including, but not limited to, property distributed
-3-
J. S16044/16
under Chapter 35 (relating to property rights), to provide
for the party's reasonable needs.
(17) Whether the party seeking alimony is incapable of self-
support through appropriate employment.
23 Pa.C.S. § 3701(b).
Wife’s first argument is that the trial court failed to consider the
relative liabilities of the parties in its decision regarding alimony, specifically
that the Master failed to consider “the underwater marital real estate
properties and the large home equity line of credit which Wife was acquiring
through the equitable distribution of marital property through the divorce”
Appellate Brief at 2, 7-8. We have thoroughly reviewed the certified record,
Wife’s Appellate Brief, the applicable law, and the well-reasoned Trial Court
Opinion, and conclude that there was no abuse of discretion. The
comprehensive Trial Court Opinion properly disposes of the issue and we
affirm on the basis of that Opinion (concluding that Wife’s argument lacks
merit as the Master properly considered the required 17 alimony factors, 1
including relative assets and liabilities of the parties, and specifically
considered Wife’s expenses, among other evidence). See Trial Ct. Op.,
dated 9/8/15, at 2-5, 7-8.
Wife’s second argument is that the trial court erred when it failed to
consider her emotional condition when it denied alimony. Appellate Brief at
2. We have thoroughly reviewed the certified record, Wife’s Appellate Brief,
1
23 Pa.C.S. § 3701(b).
-4-
J. S16044/16
the applicable law, and the well-reasoned Trial Court Opinion. We conclude
that Wife’s second issue merits no relief. The comprehensive Trial Court
Opinion properly disposes of the issue and we affirm on the basis of that
Opinion (concluding that Wife’s argument lacked merit as she did not
present any direct evidence as to her emotional condition and the Master
properly considered indirect evidence including Husband’s alleged affair and
physical altercation with wife). See Trial Ct. Op., dated 9/8/15, at 2-7.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2016
-5-
J-{Q'th {e_e;1 E; 03/22/2016
Circulated 1 EAMi .
Wa.fru~10:15
lROECERWEIDl SEP !_ 4 20l5
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEAL TH OF PENNSYLVANIA
COLIN SANKEY, No. 1219 DR 2008
No. 11378 CV 2008
Plaintiff
v.
LORRAINE SANKEY, DEFENDANT'S EXCEPTIONS
TO DIVORCE MASTER'S REPORT
Defendant AND RECOMMENDATION
STATEMENT PURSUANT TO Pa.R.A.P. 1925{a)
This matter comes before the Court on Defendant Lorraine Sankey's
appeal of our Order dated June 22, 20i 5. The facts and procedural history of the
case are briefly summarized as follows.
Plaintiff, Colin Sankey (hereinafter "Husband") and Defendant Lorraine
Sankey (hereinafter "Wife") were married on March 24, 2002 in Stroudsburg,
Pennsylvania. The parties separated in January of 2008 after an alleged lengthy
affair by the Husband, however, the parties remained in the marital home
together for several months until one night when an alleged physical altercation
occurred between the parties, and Husband thereafter moved out of the marital
residence. Husband filed a Complaint for Divorce on November 21, 2008. The
parties had no minor children at the time the Complaint was filed.
A hearing was held before Divorce Master Robert C. Lear, Esquire on
December 15, 2014. At the Master's Hearing, the parties placed on the record a
stipulation of settlement of all economic claims between Husband and Wife, with
the exception of alimony. Therefore, the only issue presented to the Master for
consideration was the payment of alimony by Husband to Wife.
On February 12, 2015, the Divorce Master filed his Report denying Wife's
request for alimony. Wife filed exceptions to the Divorce Master's Report on
March 4, 2015 raising two issues, one concerning marital real estate, and the
second involving alimony. The parties thereafter entered into An Addendum to
Stipulation of Counsel and Parties which resolved Wife's exception regarding
marital real estate. The Addendum to Stipulation was adopted by the Court on
June 2, 2015. As a result of the Addendum to Stipulation, the sole exception
remaining before the Court was the issue of alimony. After the submission of
briefs and oral argument, this Court entered an Order on June 22. 2015 denying
Wife's Exception to the Divorce Master's determination that Wife was not entitled
to alimony. Wife filed a Notice of Appeal on July 22, 2015. As directed by the
Court, Wife filed a Concise Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b) on August 17, 2015. We now file this Opinion
pursuant to Pa.R.A.P. 1925(a).
DISCUSSION
In her 1925(b) Statement, Wife claims that the Court erred in denying her
exception seeking the grant of alimony on the grounds that the Divorce Master
and Court failed to properly consider the "alimony factors" pursuant to "Section
2
501 (b) of the Divorce Code," namely the emotional condition of Wife and the
relative assets and liabilities of the parties.
In her 1925(b) Statement, Wife cites to "Section 501 (b) of the Divorce
Code" as the statute setting forth the "alimony factors" to be considered in
adjudicating a request for alimony. This statute, however, has been repealed for
some time. The appropriate statute Wife presumably intended to cite to is 23
Pa.C.S.A. §3701, enacted in 1990. Out of judicial economy, we analyze the
"alimony factors" considered by the divorce master based upon the proper
statute set forth in Section 3701.
In ruling on divorce exceptions, the divorce master's report and
recommendation, although only advisory, is to be given great deference. Fiorilli
v. Fiorifli, 198 A.2d 369, 370 (Pa. Super. 1964); Morschhauser v. Morschhauser,
5'16 A.2d 10 (Pa. Super. 1986). A reviewing court has a duty to make a complete
and independent review of the proceeding below. Rollman v. Rollman, 421 A.2d
755, 758 (Pa. Super. 1980).
In reviewing a master's considerations, however, the report should
be given "fullest consideration," particularly on issues of credibility. Kohl v. Kohl,
564 A.2d 222 (Pa. Super. 1989). The review is intended to discover inherent
improbabilities in the stories of the witnesses, inconsistencies and contradictions,
bias, interest, and opposition to incontrovertible physical facts by which credibility
may be ascertained. Rollman, 421 A.2d at 758. However, because the master is
the person hearing the testimony and observing the demeanor and appearance
of the witness, any issue of credibility must be resolved by giving the master's
3
findings the fullest r :..it:?ration. Rorabaugh v. Rorabaugh, 448 A.2d 64 (Pa.
Super. 1982).
I. Alir
- \
Section..,,~ »sylvanla Divorce Code provides that
"[w]here a divorce decree has been e .. .:ered, the court may allow alimony, as it
deems reasonable, to either party only if it finds that alimony is necessary." 23
Pa.C.S.A. §3701 (a). In determining the nature, amount, duration and manner of
payment of alimony, the court must consider all relevant factors, including those
statutorily prescribed. lsralsky v. lsralsky, 824 A.2d 1 "178 (Pa.Super. 2003).
Those statutorily prescribed factors that a court must consider are:
(1) The relative earnings and earning capacities of the parties.
(2) The ages and the physical, mental and emotional conditions of
the parties.
(3) The sources of income of both parties, including, but not limited
to, medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
{5) The duration of the marriage.
(6) The contribution by one party to the education, training or
increased earning power of the other party. ·
(7) The extent to which the earning power, expenses or financial
obligations of a party will be affected by reason of serving as the
custodian of a minor child.
(8) The standard of living of the parties established during the
marriage.
4
(9) The relative education of the parties and the time necessary to
acquire sufficient education or training to enable the party seeking
alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the
marriage. The marital misconduct of either of the parties from the
date of final separation shall not be considered by the court in its
determinations relative to alimony, except that the court shall
consider the abuse of one party by the other party. As used in this
paragraph, "abuse" shall have the meaning given to it under section
6102 (relating to definitions).
(15) The Federal, State and local tax ramifications of the alimony
award.
(16) Wl1ether the party seeking alimony lacks sufficient property,
including, but not limited to, property distributed under Chapter 35
(relating to property rights), to provide for the party's reasonable
needs.
(17) Whether the party seeking alimony is incapable of self-support
through appropriate employment.
23 Pa.C.S.A. §3701(b). 0
'The 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." Twilla v.
Twilla, 664 A.2d 1020, 1022 (Pa. Super. 1995). 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
5
pay." k!,. Moreover, "[a]limony 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." kl
A. Wife's Emotional Condition as a Factor
Wife alleges that we erred in denying her exception to the Divorce
Master's Report and Recommendation because the Master failed to take into
consideration Wife's emotional condition as a factor in his determination of
alimony. We disagree.
Preliminarily, we note that Wife did not present any direct evidence as to
her emotional condition. The record is completely devoid of any such evidence.
As there is no direct evidence of Wife's emotional condition contained in the
record that the Master could consider as a factor for Alimony, Wife's assignment
of error is without merit.
Furthermore, despite the failure of Wife to present evidence of this issue,
the Master did take into consideration Wife's allegations of marital adultery by
Husband as a factor to be considered in determining Alimony. [Notes of
Testimony, at pgs. 19; 33; & 51, Transcript of Proceedings before the Divorce
Master, January 261 2015 (hereinafter N.T. _).]. The Master also heard
testimony by Wife as to allegations of a physical assault and abuse by Husband.
[N.T., p. 21]. Such conduct may have arguably affected Wife's emotional state.
As such, we find that the Master did take into consideration indirect evidence of
6
Wife's emotional condition in rendering his recommendation to deny Wife's
request for alimony.
For the above reasons, we request that the Superior Court affirm our
decision denying Wife's Exception to the Report and Recommendation of the
Divorce Master.
8. The relative assets and fiabilities of the Parties
Wife argues that we erred in denying her exception to the Divorce
Master's Report and Recommendation because the Master failed to consider the
parties' assets and liabilities in recommending Wife be denied alimony. Wife's
argument lacks merit.
The Master did expressly indicate in his report that he considered
the 17 "alimony factors" under Section 3701 of the Pennsylvania Divorce Code
[Master's Report, pgs. 5 - 81 which includes the "relative assets and liabilities of
the parties." And specifically, the Master stated that he considered the "income
and expense" of the parties in determining alimony. [Master's Report, pgs. 15
and 23]. Throughout the entire proceedings, the Master heard testimony about
the "relative assets and liabilities" of both Wife and Husband. [N.T., pgs. 5 thru
55]. The Master expressly considered the past; present and expected future
earnings and employment of Wife and Husband [Master's Report, pgs. 4-5; 7-8;
N.T.]; the current standard of living of Wife [Master's Report, p. 7]; the tax returns
of Wife and Husband for the relevant years [Master's Report, pg.5]; and Wife's
expenses [Master's Report, pgs. 7-8].
7
It is clear from the record that the Master did in fact consider the relative
"assets and liabilities" of Wife and Husband in making his determination of
alimony. Thus, we do not find that we erred in denying Wife's Exception to the
Report and Recommendation of the Divorce Master. We respectfully request the
Superior Court affirm our decision.
Dated: September 8, 2015
cc: Kimberly A. Fedrigon, Esq.
Kathleen E. Walters, Esq.
Robert C. Lear, Esquire, Master
,·-...>
;!:
C.'J
·-·
C:::'
c...r,
CJ)
-0
z c-<"I :::0
0
:::0 -0
0 -I
rn :r:
C')
co 0
z
0 o,
c: -u ...,
3 :3 j>
:::0
-< ~
r-o -<
--;·J
::;:,, (Ji
_c
8