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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
SUSAN KATZ, ¦ IN THE SUPERIOR COURT OF
¦ PENNSYLVANIA
Appellee ¦
¦
v. ¦
¦
JAMES R. KATZ, ¦
¦
Appellant ¦ No. 1653 WDA 2015
Appeal from the Order October 9, 2015
in the Court of Common Pleas of Allegheny County
Family Court at No(s): FD03-000652-008
SUSAN KATZ, ¦ IN THE SUPERIOR COURT OF
¦ PENNSYLVANIA
Appellant ¦
¦
v. ¦
¦
JAMES R. KATZ, ¦
¦
Appellee ¦ No. 1723 WDA 2015
Appeal from the Order October 9, 2015
in the Court of Common Pleas of Allegheny County
Family Court at No(s): FD03-000652-008
SUSAN KATZ, ¦ IN THE SUPERIOR COURT OF
¦ PENNSYLVANIA
Appellee ¦
¦
v. ¦
¦
JAMES R. KATZ, ¦
¦
Appellant ¦ No. 123 WDA 2015
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Appeal from the Order December 17, 2014
in the Court of Common Pleas of Allegheny County
Family Court at No(s): FD03-000652-008
SUSAN KATZ, ¦ IN THE SUPERIOR COURT OF
¦ PENNSYLVANIA
Appellant ¦
¦
v. ¦
¦
JAMES R. KATZ, ¦
¦
Appellee ¦ No. 390 WDA 2015
Appeal from the Order December 17, 2014
in the Court of Common Pleas of Allegheny County
Family Court at No(s): FD03-000652-008
BEFORE: SHOGAN, OLSON, and STRASSBURGER,∗ JJ.
CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED NOVEMBER 03, 2016
I join the Majority’s resolution of most of the myriad issues presented
by these parties. However, I disagree with the disposition of Wife’s issue
concerning Husband’s receiving credit for the Missing Jewelry and Husband’s
issues related to his being saddled with all the costs of the Enclave and
Distinct Coatings lawsuits.
The trial court declined to omit non-marital items when awarding
Husband his share of the value of the Missing Jewelry, stating that “Wife
∗
Retired Senior Judge assigned to the Superior Court.
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should not be rewarded for her lack of good faith” in concealing the
whereabouts of the items and testifying incredibly that she forgot.1 Trial
Court Opinion, 8/10/2015, at 21. The Majority declines to disturb the trial
court’s ruling, claiming that a credibility determination, which is “within the
sole province of the trial court,” is “at the core of this issue.” Majority
Memorandum at 16. I disagree.
The trial court did not hold that Wife offered incredible testimony to
support her claim that items among the Missing Jewelry were her separate,
non-marital property. The credibility determination went to her excuse for
not disclosing the location of the items. While the trial court has means to
sanction a party for acting in bad faith, it simply does not have the authority
to distribute non-marital property. See, e.g., Smith v. Smith, 749 A.2d
921, 924 (Pa. Super. 2000) (“Assets that are acquired before the marriage
are not marital property, and therefore are not subject to equitable
distribution under the Divorce Code.”). Accordingly, I would hold that
Husband’s share of the Missing Jewelry should be limited to 50% of the
marital value of the items.
1
The trial court also indicated that Wife had filed no exception to the
Master’s ruling that Husband was to be awarded 50% of the value of the
Missing Jewelry upon its being found. Trial Court Opinion, 8/10/2015, at 20.
However, Wife did contest the Master’s ruling with her exceptions filed on
September 16, 2011. Exceptions, 9/16/2011, at ¶ 21 (“The Master erred in
recommending that Husband receive a credit of 50%–or any percentage–of
the values of items on Exhibit 34 [(‘List of Missing Jewelry’)] which … are
Wife’s non-marital property.”).
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The trial court also determined that Husband should bear 100% of the
costs and expenses of the Enclave lawsuit, as well as all of the damages
arising from the Distinct Coatings lawsuit. Although both liabilities relate to
marital businesses, the trial court reasoned that Wife should bear none of
the Enclave costs because “Wife was excluded from any dealings regarding
the development of The Enclave, which was solely managed by Husband.”
Trial Court Opinion, 8/10/2015, at 15. Similarly, the trial court declined to
distribute to Wife any of the Distincts Coating debt, which resulted from a
painting subcontractor’s dealings with Coventry Estates, because “Wife was
effectively ‘out of the picture’” with regard to the business, and “had no
opportunity to exercise any responsibility over the carrying out of the
contract.” Id. at 19. The Majority summarily concluded that these decisions
were neither error nor an abuse of discretion. Majority Memorandum at 29,
32.
The Majority recognizes that Coventry Estates and The Enclave are
both marital businesses subject to equitable distribution. Majority
Memorandum at 5. The fact that Husband was the one who made all of the
decisions for the businesses and handled the businesses’ dealings has not
kept Wife from being awarded a fair share of the assets of those
businesses. Correspondingly, her lack of participation is not a reasonable
basis for insulating Wife from these debts occasioned by the same
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companies. I would hold that the trial court’s decision to place the entirety
of those debts upon Husband was an abuse of discretion. Accord Aletto v.
Aletto, 537 A.2d 1383, 1385 (Pa. Super. 1988) (indicating that a trial
court’s award of the entirety of a piece of the marital property (the increased
value of the wife’s stock) to the wife for the reason that “[n]one of the
parties' activities during the marriage enhanced the value of the stock”
would be an abuse of discretion).
Therefore, I respectfully dissent.
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