J. A20004/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
MICHELLE L. RYBNER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JACOB RYBNER, : No. 1790 MDA 2018
:
Appellant :
Appeal from the Decree Entered September 26, 2018,
in the Court of Common Pleas of Lancaster County
Civil Division at No. CI-10-03913
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: MARCH 18, 2020
Jacob Rybner (“Husband”) appeals from the September 26, 2018
divorce decree entered in the Court of Common Pleas of Lancaster County.
We affirm.
The record reflects that Husband and Michelle Rybner (“Wife”) married
on December 2, 2000. Wife filed for divorce on April 15, 2010. The trial court
appointed a divorce master with respect to Wife’s claims for equitable
distribution, alimony,1 attorney’s fees, costs, and expenses. The divorce
master held hearings on April 27, 2016 and October 19, 2016. On the date
of the first hearing, both parties were 40 years old. Wife was a college student
and worked as a house cleaner. Husband was self-employed and worked as
1The record reflects that Wife subsequently abandoned her claim for alimony.
(See notes of testimony, 4/27/16 at 73-74.)
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a real estate developer, constable, and used car dealer. The parties had three
children born of the marriage, who were then 15, 12, and 10 years old.
The divorce master filed her report on January 16, 2018. The
trial court summarized the report, which divided the marital property into
eight categories, as follows:
1. Husband’s Real Estate Businesses
The Divorce Master valued Husband’s real
estate businesses at $202,369.07. This was
based upon the evidence that could be retrieved
and presented to the Divorce Master. The
Divorce Master noted that it was incredibly
difficult for her to obtain clear, verifiable
information about these businesses from
Husband because he ignored both her and
Wife’s counsel’s request for documentation to
support the dealings of these businesses.
Information received was often later
contradicted by Husband, thus adding
confusion. Wife did present testimony to
support Husband’s many large cash
transactions which indicated to the Divorce
Master that Husband had access to greater
financial assets than he alleged prior. There
was no formal business valuation introduced by
either party, only convoluted and contradictory
testimony, much of which relied on the
credibility of Husband. The Divorce Master
arrived at the $202,369.07 number as
Husband’s portion of the real estate businesses
because that was the amount he paid to his
brother, Leon, when they ceased joint business
operations.
2. Proceeds from the Sale of the Marital Residence
at 1939 [Kendale] Place
The marital residence was sold on February 14,
2014, and each party received approximately
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$12,708.14 from the proceeds of the sale for a
total of $25,416.29. The Divorce Master
recognized that Husband again desired to have
these amounts offset by the “losses” he suffered
on this property, though Husband did not
present adequate evidence or testimony to
establish any valid losses sustained. Further,
this property was owned by Husband and Wife
and not by any of the businesses so any housing
expenses or mortgage payments would not be
deducted from the proceeds of the sale to
determine net equity.
3. Proceeds from the Sale of the Marital Property
located at Old Delp Road
When this property was sold the proceeds
deposited into the escrow accounts were in the
amount of $206,833.49 and approximately
$23,180.00. These amounts are what the
Divorce Master used for valuation of the marital
property for equitable distribution. The Divorce
Master recognized that Husband desired to have
these amounts offset by the “losses” he suffered
on this property, though Husband did not
present adequate evidence or testimony to
establish these alleged losses.
4. Rent Received from Marital Property located in
East Brunswick, New Jersey
The parties owned the Old Bridge Turnpike
property in East Brunswick for several years.
This property was originally their marital
residence and then was later intended to be
developed for a profit. The nature of the
ownership of this property was unclear, whether
it was a personal or business property. The
property was owned jointly by Husband and
Wife and Husband received rental income of
approximately $2,000 a month which he did not
share with Wife. In November 2015, Husband
stopped paying the mortgage and taxes on the
property. Nevertheless, Husband continued to
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receive rental income from November 2015 until
February 2017, which amounts to $32,000.
Husband claims that during the recent years,
the property maintenance costs exceeded the
rental income; thus, he should be credited with
the losses during those years. Husband did not
produce evidence to adequately substantiate
these losses. Conversely, substantial evidence
was presented that Husband received rental
income from this marital property. The Divorce
Master divided the $32,000 equally between
Husband and Wife in her recommended
distribution.
5. Real Estate Located in East Brunswick, New
Jersey
The Divorce Master used the amount of
$100,000 as the marital value of the Old Bridge
Turnpike property in East Brunswick in light of
the parties’ testimony that the property would
be sold to Serge Shapiro for $100,000 to
extinguish an outstanding loan Serge had with
Husband. The nature of the ownership of this
property was unclear, whether it was a personal
or business property. It was deeded in Husband
and Wife’s name, but the mortgage was in
Husband’s name alone. The property was
bought in 2004 for $650,000.00 with a plan to
develop the property to make a million dollars.
Husband never obtained the necessary
approvals to develop the land. As of February
2016, the mortgage balance was $354,800.00.
After the cost of sale and assuming that they
could sell the property for appraisal value, the
net equity would be $249,700.00. Husband
testified to massive losses he sustained on the
property, but did not produce adequate
evidence for the Divorce Master to adequately
determine those loss amounts. When asked
what he would like the Court to do in equitable
distribution, Husband replied, “the property in
Jersey, I’d like to write off to Serge for the
money that’s owed to him and wish him good
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luck with it.” Accordingly, the Divorce Master set
the marital value of the East Brunswick property
at $100,000.00, which is the amount that
Husband testified he owed to Serge.
Trial court opinion, 9/26/18 at 1-5 (record citations omitted). The divorce
master identified the remaining three categories of marital property subject
to equitable distribution as the marital portion of Husband’s whole life
insurance policy, a 2005 Dodge Caravan, and the parties’ personal property,
which were all determined to have no value for purposes of equitable
distribution. (Id. at 5.)
The divorce master valued the marital estate at $589,798.85.2 The
divorce master recommended that Husband be awarded the marital value of
the real estate businesses in the amount of $202,369.07 and the parties’
New Jersey real estate valued at $100,000 and that Wife be awarded the
proceeds of the sale of the marital property located at Old Delp Road, totaling
$230,013.49. The divorce master recommended an equal division of the
proceeds from the sale of the marital residence at Kendale Place and the rent
received from the marital property located in New Jersey, which amounted to
$28,708.15 to each party. In order to effectuate an equitable distribution of
53 percent of the marital estate to Wife and 47 percent to Husband, the
divorce master recommended that Husband make a $50,000 cash payment to
2 We note that the divorce master also included other debts and credits that
did not affect the value of the marital estate for equitable distribution purposes
and that are not germane to this appeal.
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Wife so that Husband would receive $281,077.21 and Wife would receive
$308,721.64. The divorce master also recommended that Husband pay
$15,000 toward Wife’s attorney’s fees and pay the fees and costs associated
with the divorce action.
Husband filed exceptions to the divorce master’s report. Following a
hearing, the trial court denied the exceptions, affirmed and adopted the
divorce master’s report, and entered the divorce decree. Husband filed a
timely appeal. The trial court ordered Husband to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Husband
timely complied. The trial court filed a Rule 1925(a) opinion that relied upon
the opinion it filed with the divorce decree on September 26, 2019.
Husband raises the following issues for our review:
[1.] Whether the multiple factual errors made by the
Lower Court establishes [sic] its racial bias and
prejudice against Husband?
[2.] Whether the Lower Court erred in finding that
the record supports the determination of the
value of the marital estate?
[3.] Whether the Lower Court erred in not including
the $25,000 payment in the Equitable
Distribution analysis?
[4.] Whether the Lower Court erred in awarding
attorney’s fees when the Husband was forced to
provide discovery materials for five (5) years
including multiple requests for the same
documents and information?
Husband’s brief at 2.
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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 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.
Balicki v. Balicki, 4 A.3d 654, 662-663 (Pa.Super. 2010) (internal citations,
quotation marks, and brackets omitted).
At the outset, we note that Husband’s brief is largely unintelligible, and
we could dismiss this appeal on that basis. See Pa.R.A.P. 2101 (authorizing
dismissal of an appeal when an appellant submits a substantially defective
brief). To add to the brief’s lack of clarity, Husband most often refers to the
divorce master as the “lower court” and appears to challenge her factual
findings when this appeal lies from the trial court’s equitable distribution order.
Despite the defects in Husband’s brief, because we are able to discern
Husband’s issues, we will address them on the merits.
In his statement of questions presented, Husband first claims that the
“multiple factual errors made by the Lower Court establishes [sic] its
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racial bias and prejudice against Husband.” (Husband’s brief at 2 (emphasis
added).) In the argument section of his brief on this issue, Husband complains
that “[t]he numerous errors in the Opinion and Order establishes [sic] the
Lower Court’s intent to discriminate against the Husband based on his
religion.” (Husband’s brief at 4 (emphasis added).) Husband abandons his
racial bias claim and levels his bald allegation of religious bias against the trial
court and the divorce master. A review of Husband’s Rule 1925(b) statement
reveals that Husband failed to raise any claims of bias – racial, religious, or
otherwise. Therefore, Husband waives all bias claims on appeal. See
Pa.R.A.P. 1925(b)(4)(vii) (setting forth the rule that issues not included in an
appellant’s Rule 1925(b) statement are waived). Notwithstanding waiver, we
note that Husband entirely fails to substantiate either of these serious claims
with any record support. Our thorough review of the record reveals that there
is not one scintilla of evidence to support a claim of racial, religious, or any
other bias by either the trial court or the divorce master.
Husband next complains that the record fails to support the valuation of
the marital estate. Once again, Husband baldly asserts that the “valuation
demonstrates the bias of the Lower Court against Husband.” (Husband’s brief
at 9.) Husband then accuses the “Lower Court” of “‘double dipping’ the value
of the business and real estate assets.” (Id.) Husband claims that
“[a]ssuming the martial [sic] business is worth $202,369.07, the value for
that business must be used to purchase subsequent properties owned by the
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parties” and the “Lower Court does not establish any source of the funds to
purchase” the Kendale Place and Old Delp Road properties. (Id.) In this
argument, Husband baldly claims that the down payments for the
Kendale Place and Old Delp Road marital properties should be deducted from
the marital value of these properties and credited to his real estate businesses.
Husband raises this issue for the first time on appeal and, therefore, waives
the issue on appeal. Pa.R.A.P. 302 (stating that “[i]ssues not raised in the
lower court are waived and cannot be raised for the first time on appeal”).3
Husband next complains that the “Lower Court failed to take into
account Husband’s direct payment of $25,000 to Wife” . . . “in the Equitable
Distribution analysis.” (Husband’s brief at 10.) The record belies Husband’s
claim. The record reflects that, pursuant to a post-nuptial agreement entered
into between Husband and Wife, Wife received an advanced distribution of
$25,000 from an escrow account that held the proceeds of the sale of the
Old Delp Road marital property, which proceeds were awarded to Wife.
(Decree, 9/26/18 at 2 & n.1.) As aptly noted by the trial court, “Husband is
mischaracterizing this as a direct payment” that he made to Wife. (Trial court
opinion, 9/26/18 at 15.) Additionally, our review of the record reveals that
3 We note that when this matter was before the divorce master, Husband
baldly claimed that what he characterized as “losses” on marital property,
which included mortgage payments, real estate taxes, household expenses,
and fixtures, such as toilets, should be deducted from the value of the marital
property and credited to his real estate businesses. (See master’s report,
1/16/18 at n.7, 8 n.8; see also notes of testimony, 4/27/16 at 169-188.)
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the divorce master noted the advanced distribution made to Wife in her report.
(Master’s report, 1/16/18 at 10 & n.1.)
Husband finally complains that Wife is not entitled to an award of
counsel fees because she engaged in “vexatious and abusive discovery.”
(Husband’s brief at 11.)
Inasmuch as appellant challenges the award of
counsel fees, our standard of review is, once again, an
abuse of discretion. Furthermore:
The purpose of an award of counsel fees
is to promote fair administration of justice
by enabling the dependent spouse to
maintain or defend the divorce action
without being placed at a financial
disadvantage; the parties must be on par
with one another.
Counsel fees are awarded based on the
facts of each case after a review of all the
relevant factors. These factors include
the payor’s ability to pay, the requesting
party’s financial resources, the value of
the services rendered, and the property
received in equitable distribution.
Counsel fees are only to be awarded upon a showing
of need. In essence, each party’s financial
considerations dictate whether such an award is
appropriate.
Gates v. Gates, 933 A.2d 102, 109 (Pa.Super. 2007) (internal citations and
quotations omitted).
Husband takes a kitchen-sink approach to his argument on this issue.
Husband first claims, without any supporting record references, that Wife is
not entitled to counsel fees because she engaged in “vexatious and abusive
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discovery.” (Husband’s brief at 11.) Husband waives this issue on appeal for
failure to comply with procedural rules requiring the brief to contain citations
to the record. Pa.R.A.P. 2119; see also Irwin Union Nat’l Bank & Trust
Co. v. Famous, 4 A.3d 1099, 1103 (Pa.Super. 2010), appeal denied, 20
A.3d 1212 (Pa. 2011) (reiterating that where deficiencies in the brief hinder
meaningful appellate review, issues are waived, and noting that it is not this
court’s responsibility to comb through the record to find record support for a
claim). Notwithstanding waiver, we note that the divorce master summarized
what the record reflects:
Husband’s behavior during the pendency of the
divorce proceedings was obdurate and vexatious.
Husband’s behavior caused delay, frustrated the
divorce proceedings, and created unnecessary
additional expense. The docket demonstrates the
necessity of repeated attempts to return to Court to
request the Court direct discovery and compliance
with previous motions and direction. Throughout the
hearing, the Master continued to be frustrated by
Husband’s lack of ability or willingness to provide the
Court with information which would allow the Court to
make sense of Husband’s personal and business
dealings and accountings, as stated multiple times in
this Master[’s] Report.
Master’s report, 1/16/18 at 32 (record citations omitted).
Husband next erroneously, and without citation to legal authority,
claims that his payment of spousal support “over a seven year period of
approximately $400.00 per month” was “designed to level the playing field
between the parties and allow the Wife to have access to counsel and lifestyle
enjoyed during marriage.” (Husband’s brief at 12.) Husband waives this claim
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on appeal for failure to cite to legal authority. See Estate of Haiko v.
McGinley, 799 A.2d 155, 161 (Pa.Super. 2002) (reiterating that an appellant
must support each question raised by discussion and analysis of pertinent
authority; absent reasoned discussion of law in an appellate brief, this court’s
ability to provide review is hampered, necessitating waiver on appeal).
Despite waiver, we note that, contrary to Husband’s assertion, the purpose of
spousal support is to assure a reasonable living allowance to the party
requiring the support. Hainaut v. Hainaut, 599 A.2d 1009, 1011 (Pa.Super.
1991). Conversely, “the purpose of an award of counsel fees is to promote
fair administration of justice by enabling the dependent spouse to maintain or
defend the divorce action without being placed at a financial disadvantage.”
See Gates, 933 A.2d at 109.
Husband finally complains that
[t]he determination of Husband’s income by the Lower
Court is simply conjecture and speculation. The
lifestyle assigned to Husband is based simply on the
biased belief of the Lower Court. Any comparison of
Husband and Wife’s lifestyle and/or earning capacity
should only be completed after a new hearing to
properly determine his income and lifestyle.
Husband’s brief at 13. Husband waives these final claims for failure to develop
a legal argument capable of any meaningful appellate review. See Butler v.
Illes, 747 A.2d 943, 944-945 (Pa.Super. 2000) (holding appellant waived
claim where she failed to set forth adequate argument concerning her claim
on appeal; argument lacked meaningful substance and consisted of mere
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conclusory statements; appellant failed to explain cogently or even tenuously
assert how trial court abused its discretion or made error of law).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/18/2020
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