J-A06039-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH L. TOPEL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
OLIVIA J. TOPEL, :
: No. 1211 WDA 2017
Appellee : No. 1283 WDA 2017
Appeal from the Decree Entered July 31, 2017
in the Court of Common Pleas of Erie County
Civil Division, at No(s): 12544-2012
BEFORE: BENDER, P.J.E, SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY: STRASSBURGER, J. FILED APRIL 13, 2018
Joseph L. Topel (Husband) appeals from the July 31, 2017 divorce
decree that, inter alia, provided for the equitable distribution of the marital
assets of Husband and Olivia J. Topel (Wife).1 We affirm.
Husband and Wife began their relationship in Virginia. The parties each
had a child from a prior marriage, and they had two children together. The
parties decided to move to Pennsylvania, and Wife purchased a house in
Waterford in January 2007, where they ultimately resided together with their
children.
1 Wife filed a cross-appeal at 1283 WDA 2017 which this Court sua sponte
consolidated with Husband’s appeal. However, Wife has decided not to pursue
arguments for reversal of the trial court’s rulings, and instead supports
affirmance. Wife’s Brief at 2.
* Retired Senior Judge assigned to the Superior Court.
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The parties married in February 2008. It was Husband’s fourth
marriage, Wife’s third. They sold their respective residences in Virginia, with
Wife contributing $96,000 to Husband to enable him to pay off his mortgage,
which had an outstanding balance greater than the market value of the
property. Wife was a stay-at-home mother during the marriage until she
resumed working outside the home in August 2011. Husband and Wife
separated in February 2012.
Husband filed for divorce in July 2012; Wife filed for economic support
and was awarded alimony pendente lite (APL). As the trial court aptly noted,
this litigation now has lasted far longer than the marriage, with rounds of
master hearings, exceptions, an interlocutory appeal and cross-appeal
quashed by this Court sua sponte,2 and now the instant timely-filed appeal.
As Husband and the trial court have complied with Pa.R.A.P. 1925, this Court
will address the following questions raised by Husband.
I. Whether the lower court erred in entertaining a
division of marital assets and issuing an order regarding same in
light of the fact that no valid decree in divorce was entered prior
to the distribution of marital property by the court.
II. Whether the lower court erred in its application of the
factors enumerated in the divorce code and in its application of
the doctrine of equitable reimbursement thereby failing to
equitably divide the marital estate.
2Order, 1/13/2017, filed in both 1864 WDA 2016 (Husband’s appeal) and
1923 WDA 2016 (Wife’s cross-appeal).
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III. Whether the lower court erred in refusing to terminate
the APL order requiring husband to pay [APL] through the appeal
process and upon any remand.
Husband’s Brief at 8 (suggested answers and unnecessary capitalization and
emphasis omitted).
Husband first contends that the master and trial court lacked jurisdiction
to take evidence or address in any way the equitable distribution of the marital
property before the divorce decree had been entered. Husband’s Brief at 25-
27. In support, Husband cites several cases for the proposition that there can
be no equitable distribution of marital property outside the context of divorce
proceedings. Husband’s Brief at 25 (citing, inter alia, Drumheller v.
Marcello, 505 A.2d 305, 306 (Pa. Super. 1986), rev’d, 532 A.2d 807 (Pa.
1987)).
Husband is correct that a trial court’s jurisdiction to distribute property
flows from its power to terminate marriages in divorce, as “[e]quitable
distribution is an incident of divorce, not marriage.” Campbell v. Campbell,
516 A.2d 363, 366 (Pa. 1986). However, that does not mean that a court in
which divorce proceedings are pending is unable to take any action on the
economic claims until after the divorce decree is entered.
Trial courts are “empowered to make equitable distribution
contemporaneously with or subsequent to a decree in divorce.”
Waddington v. Waddington, 624 A.2d 657, 660 (Pa. Super. 1993) (citation
and internal quotation marks omitted; emphasis added). It follows that, in
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order for the economic claims to be resolved contemporaneously with the
entry of the divorce decree, the court may entertain proceedings concerning
the economic issues prior to the entry of that decree. Indeed, our Supreme
Court has entertained the merits of an appeal from an interlocutory “pre-
divorce decree distributing marital property” after the distribution was
rendered final by the subsequent entry of the divorce decree. Campbell, 516
A.2d at 366.
Here, the trial court entered the divorce decree on July 31, 2017,
expressly incorporating therein the scheme of division of marital property that
it had found to be equitable in a memorandum and order dated November 9,
2016. While the distribution order had been interlocutory before the entry of
the decree, which is why this Court quashed the earlier appeal from that order,
the order of equitable distribution was properly rendered final and appealable
as of July 31, 2017. Husband’s first issue is meritless.
Husband next contends that the trial court failed to apply properly the
statutory factors applicable to determining the distribution of marital property,
resulting in an inequitable distribution. Husband’s Brief at 27. He also argues
that his having to pay Wife equitable reimbursement “is not fair.” Id. at 50.
We consider Husband’s arguments mindful of the following.
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
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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. We
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.
Reber v. Reiss, 42 A.3d 1131, 1134 (Pa. Super. 2012) (quoting Biese v.
Biese, 979 A.2d 892, 895 (Pa. Super. 2009)).
In fashioning an equitable distribution award, the trial court
must consider, at a minimum, the eleven factors set forth in 23
Pa.C.S.[] § 3502…. These factors require the trial court to
consider the relative economic positions of the parties and the
nature of the parties’ relationship. The section 3502 factors are
not a simple formula, rather they serve as a guideline for
consideration. The facts of a particular case mandate how the
section 3502 factors will be applied.
Gates v. Gates, 933 A.2d 102, 105 (Pa. Super. 2007). The factors
enumerated in section 3502 are as follows.
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income,
vocational skills, employability, estate, liabilities and needs of
each of the parties.
(4) The contribution by one party to the education, training or
increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital
assets and income.
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(6) The sources of income of both parties, including, but not
limited to, medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition,
preservation, depreciation or appreciation of the marital property,
including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the
marriage.
(10) The economic circumstances of each party at the time the
division of property is to become effective.
(10.1) The Federal, State and local tax ramifications associated
with each asset to be divided, distributed or assigned, which
ramifications need not be immediate and certain.
(10.2) The expense of sale, transfer or liquidation associated with
a particular asset, which expense need not be immediate and
certain.
(11) Whether the party will be serving as the custodian of any
dependent minor children.
23 Pa.C.S. § 3502(a).
We do not evaluate the propriety of the distribution order upon
our agreement with the court[’s] actions nor do we find a basis for
reversal in the court’s application of a single factor. Rather, we
look at the distribution as a whole, in light of the court’s overall
application of the [23 Pa.C.S. § 3502(a)] factors…. If we fail to
find an abuse of discretion, the [o]rder must stand.
Lee v. Lee, 978 A.2d 380, 383 (Pa. Super. 2009) (quoting Trembach v.
Trembach, 615 A.2d 33, 36 (Pa. Super. 1992)).
In the instant case, the master enumerated the statutory factors in the
report filed March 1, 2016. Master’s Report, 3/1/2016, at 3-4. While not
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offering her findings in a factor-by-factor list, the master addressed and
discussed at length the relevant information, covering the parties’ ages,
offspring, and prior marriages; their educations, abilities, employment and
incomes; their respective contributions to the marriage, financial and
otherwise; and their separate and marital property. Id. at 4-10. Upon these
findings, the master recommended a 52% (Wife) – 48% (Husband) scheme
for dividing the property, with, inter alia, each party retaining his or her
respective vehicle, personalty, and credit card debt; specific properties and
accounts (or portions thereof) being awarded to each party; and Husband
paying Wife $46,000 “as additional equitable distribution,” payable in monthly
installments. Id. at 11.
The trial court determined that the master’s “application of the
§ 3502(a) factors to the marital property in this case was appropriate, but fell
short in terms of fairly compensating Wife for her contribution to the
marriage.” Trial Court Opinion, 11/9/2016, at 14. The trial court thus ordered
equitable reimbursement.
The courts of this Commonwealth have created the doctrine
of “equitable reimbursement” as a method of compensating a
spouse for his or her contribution to the marriage where the
marital assets are insufficient to do so. … [E]quitable
reimbursement is nothing more than a method of compensating a
spouse for that which is fairly due to him or her. Whether this
compensation is achieved via equitable distribution, or via
“equitable reimbursement” as it is when there is insufficient
marital property available to compensate the spouse, the result is
the same.
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Schenk v. Schenk, 880 A.2d 633, 640-41 (Pa. Super. 2005) (citing Zullo v.
Zullo, 613 A.2d 544 (Pa. 1992), and Bold v. Bold, 574 A.2d 552 (Pa. 1990)).
The trial court offered the following explanation for the propriety of
equitable reimbursement in the instant case.
First, Wife contributed funds to the marriage that far
exceeded Husband’s contributions. Specifically, Wife contributed
funds to help get Husband out from debt. Husband was “upside
down” on his premarital Virginia Home because the Virginia Home
only sold for $520,000.00, which was less than what Husband
owed on the mortgage. Accordingly, Husband needed $95,560.27
to complete the sale. These funds were supplied by Wife. Wife
refinanced and increased the mortgage on her premarital Dunn
Valley Road Home by more than $75,000.00 and provided
$20,000.00 of her cash to Husband so Husband could sell his
Virginia Home. After a marriage of less than four years, the
parties separated. At the time of separation, Husband was free
and clear of his Virginia Home because of Wife’s assistance.
However, Wife is compelled to continue paying the mortgage she
had refinanced for Husband’s benefit. As a result, it is Wife [who]
is now de facto paying for Husband’s devalued Virginia Home.
Husband received this benefit, but Wife not only did not receive a
benefit, she incurred more debt for Husband’s benefit. Out of
fairness to Wife, Wife must be compensated for her contribution
that enabled Husband to eliminate a premarital debt.
Second, marital assets are insufficient to compensate Wife
for her contribution. As indicated by the Master in her
Supplemental Report, the marital estate only totaled $75,319.00.
The marital estate was therefore smaller than the $96,000.00 that
Wife had contributed to Husband to sell his Virginia Home. Where
marital assets are insufficient to compensate a spouse, equitable
reimbursement is appropriate. Actually, although the marital
estate was valued at $75,319.00, it was [] smaller than that
because Husband cashed two marital assets [valued at
$22,400.00 total] post separation and Wife received none of these
assets. … Clearly, the parties’ marital estate was insufficient to
compensate Wife for her $96,000.00 contribution.
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Since Wife contributed funds to Husband and the marital
assets were insufficient to compensate Wife for her contribution,
equitable reimbursement [of $96,000 to Wife] is appropriate in
this case. …
Trial Court Opinion, 11/9/2016, at 19-20 (citations and footnote omitted).
In seeking to have this Court award him relief, Husband complains that
the master did not designate the $96,000 award to Wife as equitable
reimbursement rather than equitable distribution, and that it “is clear that the
[trial] court suggested to the [m]aster that her distribution scheme regarding
the $96,000[] was equitable reimbursement to compensate Wife for the
contribution of the funds from Wife to Husband regarding the sale of his pre-
marital home.” Husband’s Brief at 44.
Husband cites no authority to suggest that the above constitutes
reversible error. As discussed above, our role is to determine whether the
trial court erred or abused its discretion in adopting the equitable distribution
that was ultimately ordered. Reber, 42 A.3d at 1134. Husband has failed to
persuade us that the trial court’s proper classification of the $96,000 as
equitable reimbursement after the master did not so designate it warrants any
relief from this Court.
Husband also maintains that the master failed to consider that Wife was
the one who insisted that Husband sell his Virginia home, and that Husband
had made contributions to Wife’s pre-marital property during the marriage.
Id. at 44-45. Husband points out that he was the one making all of the
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payments and financial contributions to the family for the majority of the
marriage, because he “was the sole bread-winner from the date of the
marriage until August of 2011, when Wife secured employment.” Id. at 50-
51.
Husband filed an exception concerning the master’s failure consider his
payments on Wife’s Pennsylvania home. As Husband and the parties’ children
resided in that home during the marriage, the trial court rejected his
argument, finding “Husband is not entitled to any form of credit for paying the
mortgage on a house in which he and his family lived and derived benefit.”
Trial Court Opinion, 11/9/2016, at 23. Husband offers no authority to
convince us that the trial court’s ruling was improper.
Husband’s argument on this point also utterly devalues Wife’s
contribution to the family during that time of raising the parties’ two children.
The trial court acted within its discretion in weighing the different contributions
of Husband and Wife to the marriage. See, e.g., Fonzi v. Fonzi, 633 A.2d
634, 638 (Pa. Super. 1993) (rejecting the husband’s argument that he should
have received “a greater share of the marital estate because of his
employment efforts” where the trial court had “recognized the substantial
contribution of wife as homemaker” in bearing “the entire burden” of rearing
the parties’ children).
In essence, Husband’s argument mainly consists of his offering his own
analysis of the statutory factors as the proper one, asking this Court to
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reweigh the evidence to reach his desired result. That we will not do. Busse
v. Busse, 921 A.2d 1248, 1260 (Pa. Super. 2007) (“The weight to be given
to the[] statutory factors depends on the facts of each case and is within the
court’s discretion. We will not reweigh them.”) (internal citations and
quotation marks omitted)).
The record shows that the trial court considered the relevant
information, and determined that the equitable result of this short marriage
was to split the marital property nearly in half, and to have Husband pay Wife
back the $96,000 she contributed to paying off his pre-marital mortgage.
Because Husband has failed to establish that the trial court’s order is the result
of any error of law or evidence of partiality, prejudice, bias, or ill-will on the
part of the trial court contained in the record, we will not disturb the equitable
distribution order. Accord Twilla v. Twilla, 664 A.2d 1020 (Pa. Super. 1995)
(holding monthly equitable reimbursement payments were appropriate to
compensate wife for husband’s dissipation of equity in the home).
With his last issue, Husband claims that the trial court erred in requiring
Husband to continue paying APL throughout the appeal process. Husband’s
Brief at 52.
We review APL awards under an abuse of discretion
standard. APL is an order for temporary support granted to a
spouse during the pendency of a divorce or annulment
proceeding. APL is designed to help the dependent spouse
maintain the standard of living enjoyed while living with the
independent spouse. Also, and perhaps more importantly, APL is
based on the need of one party to have equal financial resources
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to pursue a divorce proceeding when, in theory, the other party
has major assets which are the financial sinews of domestic
warfare.
Carney v. Carney, 167 A.3d 127, 134 (2017) (internal citations and
quotation marks omitted).
The award of APL is not dependent upon the status of the parties
but on the state of the litigation. This means, in theory, that the
APL terminates at the time of divorce which usually concludes the
litigation. However, a divorce is not final for purposes of APL until
appeals have been exhausted and a final decree has been entered.
Thus, while APL typically ends at the award of the divorce decree,
which also should be the point at which equitable distribution has
been determined, if an appeal is pending on matters of equitable
distribution, despite the entry of the decree, APL will continue
throughout the appeal process and any remand until a final
[o]rder has been entered.
DeMasi v. DeMasi, 597 A.2d 101, 104 (Pa. Super. 1991) (emphasis omitted).
Here, Husband dos not challenge the amount of APL awarded by the
trial court. Rather, Husband argues that, with child support, past alimony
payments, individual assets, and an award of $10,000 in counsel fees, the
financial resources of the parties have already been “sufficiently equalize[d].”
Husband’s Brief at 53.
The trial court disagreed, observing that, while Wife has received
substantial APL payments over the years that this case has been litigated, she
nonetheless still has a lower earning capacity than Husband, and this divorce
litigation has been long and complex. Trial Court Opinion, 7/3/2017, at 6.
Further, Husband’s litigation choices have dragged this case out, with the
proliferation of issues litigated. See, e.g., Trial Court Opinion, 11/9/2016, at
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21-31 (addressing Husband’s twenty exceptions and six additional exceptions
to the master’s report). It appears that Husband is making good on his
statement, made when Wife filed for APL, that “he would make sure that he
cost [Wife] every penny that he paid [her]….” N.T. Master’s Hearing,
8/3/2015, at 95. Under these circumstances, we discern no abuse of the trial
court’s discretion in holding that Husband has failed to show that early
termination of APL was warranted. Carney, 167 A.3d at 135 (“It is the burden
of the party seeking to modify an order of support to show by competent
evidence that a change of circumstances justifies a modification.”).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2018
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