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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KEVIN F. DUNCAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAVERNE T. DUNCAN :
:
Appellant : No. 1521 WDA 2016
Appeal from the Order Dated September 6, 2016
In the Court of Common Pleas of Blair County
Civil Division at No(s): 2012 GN 3536
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED MAY 26, 2017
Appellant, Laverne T. Duncan, appeals from the order entered
September 6, 2016, which granted the parties a divorce and directed
equitable distribution of the parties’ marital property. We affirm.
The parties were married in May 2001. The parties separated in
February 2011. This was the first marriage for Wife and the third marriage
for Husband. No children were born of this union. In November 2012,
Appellee, Kevin F. Duncan filed a Complaint in Divorce. Appellant filed a
counterclaim agreeing that the marriage was irretrievably broken and
seeking entry of a final decree in divorce, equitable distribution of marital
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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property, alimony, alimony pendente lite, spousal support, counsel fees and
costs.
In January 2015, Appellee filed a motion for appointment of a hearing
master. Following hearings, the master filed her Report and
Recommendation on February 29, 2016. Appellant filed exceptions, and the
trial court heard argument on March 18, 2016. Thereafter, in September
2016, the trial court issued its Opinion and Order ruling on Appellant’s
exceptions and entered a Decree in Divorce. Appellant subsequently filed a
Motion for Reconsideration. In October 2016, the trial court entered an
order modifying the September 2016 order, wherein Appellant’s payments
for equitable distribution to Appellee were contingent upon Appellee’s
payment on the support arrearages, but otherwise denying Appellant’s
Motion for Reconsideration.
Appellant timely appealed and filed a court ordered Pa.R.A.P. 1925(b)
statement.
Appellant raises the following issues for review:
I. Whether the trial court erred and/or abused its discretion
in crediting Husband with 100% of the mortgage and
home equity line of credit payments he made for the
marital residence after the parties’ separation.
II. Whether the trial court erred and/or abused its discretion
by not assessing Husband with the obligation to reimburse
Wife for his draws on the home equity line of credit at and
after the time of the parties’ separation.
III. Whether the trial court erred and/or abused its discretion
in offsetting Husband’s payments on the home equity line
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of credit against his draws on the said line of credit at and
after the time of the parties’ separation.
IV. Whether the trial court erred and/or abused its discretion
in not giving Wife credit for her post separation mortgage
payments made by cashing in her pre-marital certificates
of deposit.
V. Whether the trial court erred and/or abused discretion in
valuing Wife’s jewelry by averaging the original purchase
price of the jewelry with its current private party value.
VI. Whether the trial court erred and/or abused its discretion
in denying Wife’s claim for alimony under all of the facts
and circumstances of this case.
VII. Whether the trial court erred and/or abused its discretion
in denying Wife’s request for costs and counsel fees under
all of the facts and circumstances of this case.
VIII. Whether the trial court erred and/or abused its discretion
in ordering a resolution of the economic claims in this case
that fails to effectuate economic justice between the
parties as required by the Divorce Code.
Appellant’s Brief at 10-11.
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 when assessing the propriety of an
order effectuating equitable distribution of marital property is “whether the
trial court has abused its discretion by misapplication of the law or failure to
follow proper legal procedure.” Smith v. Smith, 904 A.2d 15, 19 (Pa.
Super. 2006) (citation omitted). We do not lightly find an abuse of
discretion, which requires a showing of clear and convincing evidence. Id.
This Court will not find an “abuse of discretion” unless the law has been
“overridden or misapplied or the judgment exercised” was “manifestly
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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).
In determining the propriety of an equitable distribution award, courts
must consider the distribution scheme as a whole. Id. “[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)
(citing Hayward v. Hayward, 868 A.2d 554, 557-58 (Pa. Super. 2005)).
Appellant first claims that the trial court abused its discretion by
crediting Appellee with 100% of the mortgage and home equity line of credit
(“HELOC”) payments he made for the martial residence after the parties’
separation. Appellant argues that the obligations were joint marital
obligations and the Master’s recommendation would entitle Appellee to
receive a 50% credit for Appellant’s share of mortgage and HELOC
payments.
“It is within the discretion of the trial court to grant rental value as a
part of equitable distribution.” Trembach v. Trembach, 615 A.2d 33, 37
(Pa. Super. 1992) (citations omitted). In deciding whether to award rental
value a trial court must first apply the general rule “that the dispossessed
party is entitled to a credit for the fair rental value of the jointly held marital
property against a party in possession of that property, provided there are
no equitable defenses to the credit.” Id. Here, Appellant had exclusive
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possession of the marital residence. Thus, we discern no abuse of discretion
in the trial court’s conclusion that Appellee was entitled to rent in the
amount of half of the monthly payments. Id.; Trial Court Opinion, 9/7/16 at
5.
Appellant’s second and third claims both assert errors in the trial
court’s determinations regarding Appellee’s withdrawals on the HELOC, as
such we will address them together. Appellant’s claims challenge the court’s
factual determinations. Specifically, Appellant asserts that prior to the
parties’ separation the balance of the HELOC was $41,747.94. Thereafter,
Appellee made draws against the HELOC for his own use, resulting in an
increase in the principal balance owed. Appellant’s Brief at 22-23. Appellant
asserts that the withdrawals by Appellee totaled $9,436.92. Id. Appellant
further asserts that the master erred in making her calculations by crediting
Appellee twice for payments made on the HELOC. Id.
According to the trial court, Appellee withdrew $9,436.92 from the
home equity line of credit between February 2011 and November 2011.
Appellee made payments directly on the HELOC totaling $12,871.36, and
thus the Master recommended that Appellee be awarded a credit of
$3,434.44, which reflects the payments Appellee made on the HELOC in
excess of the amount of his withdrawals. Trial Court Opinion at 6. As this is
a challenge to the court’s factual determination and we discern no abuse of
discretion, this Court will not disturb the trial court’s finding.
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Appellant’s fourth claim asserts that the trial court erred in not giving
Appellant credit for her post-separation mortgage payments. Specifically,
Appellant argues that she should have been credited with her post-
separation mortgage payments totaling $8,498.00. Appellant’s Brief at 26.
Appellant’s argument on this issue is limited to one paragraph and
cites no authority that would require this Court to conclude that the trial
court abused its discretion on this matter. It is well established that a failure
to argue and to cite to any authority supporting any argument constitutes a
waiver of issues on appeal. Korn v. Epstein, 727 A.2d 1130, 1135 (Pa.
Super. 1999). Pa.R.A.P. 2119(a) provides in relevant part that the
argument shall be “followed by such discussion and citation of authorities as
are deemed pertinent.”
It is the [A]ppellant who has the burden of establishing [her]
entitlement to relief by showing that the ruling of the trial court
is erroneous under the evidence or the law. Where the
[A]ppellant has failed to cite any authority in support of a
contention, the claim is waived.
Id. (citations omitted). Thus, we conclude that this issue is waived.
Absent waiver, we note the following trial court analysis:
A spouse is not entitled to a credit for post-separation mortgage
payments as a matter of right “as long as the total distributory
scheme is equitable.” Schneeman v. Schneeman, 420 Pa.
Super. 65, 81 (1992). It is within the discretion of the court to
credit an amount to one of the parties and take such credit into
consideration when dividing the marital property. Winters v.
Winters, 355 Pa. Super. 64, 73 (1986). Further, jointly owned
property acquired in exchange for premarital property is
converted into marital property. Busse v. Busse, 2007 Pa.
Super. 100 (2007).
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Trial Court Opinion at 5-6. We discern no error, as it is within the trial
court’s discretion to decline crediting Appellant for her post-separation
mortgage payments.
Appellant’s fifth issue challenges the trial court’s valuation of the
jewelry. The court justified its valuation as follows:
The Divorce Code does not contain any specific method for the
valuation of property. As such, this Court is given discretion to
rely on the “estimates, inventories, records of purchase prices,
and appraisals submitted by the parties” and is free to accept all,
none, or portions of the testimony regarding the true and correct
value of property.” Verholek v. Verholek, 741 A.2d 792.
Trial Court Opinion, at 8-9. The trial court valued Appellant’s jewelry at
$9,813.45, averaging the appraisals of the jewelry’s fair market value. Trial
Court Opinion at 9. After a review of the record, we discern no abuse of
discretion in the trial court’s valuation of Appellant’s jewelry.
Appellant’s sixth claim asserts that the trial court abused its discretion
in denying her claim for alimony.
Our standard of review regarding questions pertaining to the
award of alimony is whether the trial court abused its discretion.
We previously have explained that “[t]he 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.” 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 pay.”
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.”
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Moran v. Moran, 839 A.2d 1091, 1096-97 (Pa. Super. 2003) (citations
omitted).
In determining whether alimony is necessary, and in determining
the nature, amount, duration and manner of payment of
alimony, the court must consider numerous factors including the
parties’ earnings and earning capacities, income sources, mental
and physical conditions, contributions to the earning power of
the other, educations, standard of living during the marriage, the
contribution of a spouse as a homemaker and the duration of the
marriage.
Anderson v. Anderson, 822 A.2d 824, 830-31 (Pa. Super. 2003) (citations
omitted); see also 23 Pa.C.S.A. §3701.
Appellant argues that the trial court failed to consider the vast
disparity between Appellant and Appellee’s incomes. Appellant further
asserts that the court failed to properly consider the statutory factors in
determining the amount and duration of the alimony award.
The trial court adopted the Master’s findings regarding alimony. Trial
Court Opinion at 12. Specifically, the trial court noted that:
[T]he decision to deny alimony is bolstered by the fact that Wife
has already received alimony for three years after a ten year
marriage and has not in that time taken steps to increase her
own earning potential. Additionally, the fact that Wife loaned
Husband $40,000.00 provides circumstantial evidence that she
possesses individual assets of value. This Court has also
conditioned Wife’s equitable distribution payments upon
Husband’s payment of support arrearages to Wife.
Trial Court Opinion at 13. Appellant’s issue is without merit; it is evident
from the record that the trial court considered the required factors in
denying Appellant’s request for alimony.
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Appellant next claims that the court erred in denying her request for
costs and counsel fees. Appellant submitted billing from her counsel
indicating that a balance of $7,177.00 was due. Again, Appellant fails to cite
any legal authority in support of her claim. Furthermore, as the trial court
noted, counsel fees are not awarded automatically. Trial Court Opinion at
13. The spouse seeking counsel fees must show actual need to justify the
award. Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa. Super. 2004)
(citing Harasym v. Harasym, 614 A.2d 742, 747 (1992)). Appellant fails
to show an actual need for attorney’s fees; thus, we discern no abuse of
discretion in the trial court’s finding.
Appellant’s final claim is that the trial court failed to effectuate
economic justice as required by the divorce code. See 23 Pa.C.S.A. §
3102(a)(6). Appellant asserts that the trial court’s ruling saddled her with
obligations she could not pay. Appellant’s Brief at 33.
Trial courts have broad discretion in fashioning equitable distribution
awards, and we will overturn an award only for an abuse of that discretion.
Oaks v. Cooper, 638 A.2d 208, 211 (Pa. 1994) (citing Hovis v. Hovis, 541
A.2d 1378 (Pa. 1988)). The Divorce Code states that the trial court
[S]hall equitably divide, distribute or assign, in kind or
otherwise, the marital property between the parties without
regard to marital misconduct in such proportions and in such
manner as the court deems just after considering all relevant
factors . . . .
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23 Pa.C.S §3502(a). While the statutory factors provide a framework for
equitable distribution, this Court has explained:
[T]here is no simple formula by which to divide marital property.
The method of distribution derives from the facts of the
individual case. The list of factors of [Section 3502(a)] serves as
a guideline for consideration, although the list is neither
exhaustive nor specific as to the weight to be given the various
factors. Thus, the court has flexibility of method and
concomitantly assumes responsibility in rendering its decisions.
Gaydos v. Gaydos, 693 A.2d 1368, 1376 (Pa. Super. 1997). Finally, in
determining the value of marital property, the court is free to accept all,
part, or none of the evidence as to the true and correct value of the
property. Litmans v. Litmans, 673 A.2d 382, 387 (Pa. Super. 1996)
(citing Aleto v. Aleto, 537 A.2d 1383 (Pa. Super. 1988)).
After a thorough review of the record, the briefs of the parties, and the
applicable law, we conclude that Appellant’s issue merits no relief. The trial
court, in adopting the Master’s recommendations, properly considered all of
the Section 3502 factors for equitable distribution. See Trial Court Opinion
at 14-15, see also Master’s Report and Recommendation, 2/29/16 at 36-43.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 5/26/2017
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