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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PHILIP B. FLOYD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULIE C. FLOYD :
:
Appellant : No. 266 MDA 2020
Appeal from the Decree Entered February 21, 2020
In the Court of Common Pleas of York County Civil Division at No(s):
2017-FC-001777-15
BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 26, 2020
Julie C. Floyd (Wife) appeals from the trial court’s order adopting the
Master’s report and recommendation resolving the parties’ economic claims in
this divorce action.1 Upon review, we affirm in part, vacate in part, and
remand for further proceedings.
Wife and Philip B. Floyd (Husband) were married in June 2007, and are
the parents of three minor children. Husband is employed at an insurance
agency, where he has worked for 15 years. Approximately six months into
the parties’ marriage, in January 2008, Wife became a registered nurse.
However, following the birth of the parties’ second child in 2012, Wife stopped
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1Wife has separately appealed, at 1564 MDA 2019, from the trial court’s order
awarding Wife child and spousal support. We address and dispose of that
appeal in a separate memorandum.
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working as a nurse to care full-time for the parties’ children. In September
2017, after approximately 10 years of marriage, the parties separated.
The divorce master (Master) recounted the ensuing procedural history:
A Complaint in Divorce was filed on September 20, 2017. Robert
A. Kulling, Esq., was appointed Master on April 22, 2019 to hear
the issues of equitable distribution, alimony, counsel fees, costs
and expenses. A preliminary conference was held on May 23,
2019. A settlement conference was held on July 16, 2019. The
parties were unable to reach a settlement in this matter and a
hearing was scheduled for August 28, 2019. The hearing was
continued by the master and held on September 20, 2019. In
addition to issues related to the master’s appointment, Husband
argue[d] that Wife’s conduct was dilatory, obdurate and vexatious
pursuant to 42 Pa.C.S. § 2503(7).
Report and Recommendation of the Master, 10/31/19, at 1.
At the time of the hearing, Husband was 48 years old and Wife was 43
years old; both parties represented to the court that they were in good health.
Pursuant to a prior support order, Husband’s annual income was determined
to be $239,593, based upon paystubs, tax returns and social security
statements submitted by the parties. Wife had recently accepted a position
as a full-time school nurse at the Bermudian Springs School District. As to
her income, the Master determined: “Effective 4/1/2019 Wife’s earning
capacity was $0. Effective 9/1/2019 and 10/1/2019, Wife’s earning capacity
was/is $35,500. Effective 1/1/2020, Wife’s earning capacity will be $53,500.”
Id. at 4.
Following a hearing, the Master recommended equitable distribution as
follows:
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For the reasons set forth above, the master recommends that the
net marital estate should be distributed 54% to Wife as shown in
the following table:
Asset Value To H To W
Mt. Zion proceeds $16,354 $16,354
[(the former marital
residence)]
[Wife’s] 2011 Odyssey $7,700 $7,700
[Husband’s] 2012 $0 $0
Avalon
M[ember’s] 1st FCU $8,610 $3,508 $5,102
Chk/Sav
First National Bank $559 $559
M[ember’s] 1st Kids $3,458 $3,458
Club
Ameritas Life $684 $684
Money (W parents) $0 $0 $0
[Wife’s] Wellspan $17,662 $17,662
Pension
[Husband’s] Voya $320,733 $205,733 $115,000
401(k)
[Wife’s] Charles $91,900 $91,900
Schwab IRA
SSGA Upromise 529 $1,386 $1,386
Furnishings/Personalty $9,529 $6,428 $3,101
Disney Chase $0 $0 $0
Members 1st Visa $0 $0 $0
York Hospital Bills $-2,967 $-2,967
Total: $475,608 $216,719 $258,889
Percentage: 46% 54%
Id. at 13-14.
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With respect to alimony, the Master discussed the 17 statutory factors
pursuant to Section 3701(b) of the Divorce Code. Notably, the Master
acknowledged that Husband will be earning significantly more than Wife
following the parties’ divorce. The master determined that the parties’ income
disparity “favors an award of alimony.” Id. at 15. Wife’s role as primary
caretaker of the parties’ three minor children also supported an award of
alimony, though the Master noted that the children’s expenses would be
addressed in a separate child support order. Id. at 16. Moreover, although
the parties testified that they enjoyed a “seemingly comfortable standard of
living,” the Master found that “though comfortable, the parties lived at or
above their [means], leaving little in way of savings.” Id. Finally, in
discussing the relative needs of the parties, the Master concluded that alimony
was appropriate, “but for a short period of time.” Id. at 18-19.
Following discussion of the 17 statutory factors for alimony, and
considering that Wife was to receive 54% of the marital estate in equitable
distribution, the Master recommended that Wife receive $530 per month in
alimony for one year. With respect to counsel fees, costs and expenses, the
Master determined that “neither party provided testimony nor evidence
regarding the desire for counsel fees, costs and expenses.” Id. Specifically
as to Husband’s motion for sanctions, the Master found that there was a lack
of evidence to suggest that the conduct of Wife or her counsel was dilatory,
vexatious or obdurate. Accordingly, the Master did not recommend sanctions
pursuant to 42 Pa.C.S.A. § 2503(7).
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On November 18, 2019, Wife filed exceptions to the Master’s report and
recommendation;2 Husband filed cross-exceptions on November 19, 2019.
Both parties filed briefs in support of their exceptions and in opposition to
cross-exceptions. On January 15, 2020, the trial court adopted the Report
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2 Although the trial court states, incorrectly, that “[n]either Wife nor Husband
filed any exceptions to the Master’s Report and Recommendation,” Trial Court
Opinion, 3/16/20, the record indicates that both parties filed exceptions. They
also filed briefs in support of and in opposition to the exceptions. On January
9, 2020, the trial court entered an order confirming that exceptions were filed,
the time to file briefs had expired, and “the matter was assigned to the
Honorable N. Christopher Menges for disposition. If you would like the Judge
to consider oral argument, file a request for oral argument with the assigned
judge.” Order, 1/9/20. The parties did not request oral argument. On
January 15, 2020, the court entered an order stating “the Report and
Recommendation of the master dated October 30, 2019, is hereby adopted as
the FINAL ORDER of this Court with respect to all issues addressed
therein. The parties are directed to take such steps as may be necessary to
implement the master’s recommendation forthwith.” Order, 1/15/20
(emphasis added). Although the trial court did not expressly state it was
denying exceptions, the intent and implication is clear, such that the January
15, 2020 order was a de facto denial of both parties’ exceptions. See Weir
v. Weir, 631 A.2d 650, 653 (Pa. 1993) (citing McCormick v. Northeastern
Bank of Pennsylvania, 561 A.2d 328, 330 n.1 (Pa. 1989)) (“in the interests
of judicial economy, we may disregard a defect of this type and ‘regard as
done that which ought to have been done’”).
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and Recommendation of the Master. Wife filed a notice of appeal on February
13, 2020.3 On February 21, 2020, the trial court issued a decree in divorce.4
Wife raises ten issues on appeal, which we have reordered as follows:
I. Did the [t]rial [c]ourt err in failing to find that Wife had pre-
marital retirement funds of $20,533.37 from Amundi
Pioneer?
II. Did the [t]rial [c]ourt err in failing to award Wife a 60/40
division of assets, when her standard of living, income and
prospects for future income are so much lower than
Husband’s who earns five (5) to ten (10) times what Wife
earns?
III. Did the [t]rial [c]ourt err in failing to find that Husband
received $11,040.61 from Member’s 1st (and after netting
out the money taken from the child’s account), while Wife
only received $5,102.27 from said accounts?
IV. Did the [t]rial [c]ourt err in failing to assign credit card debt
to Husband who is clearly in a superior position to pay the
same?
V. Did the [t]rial [c]ourt err in failing to account for Wife’s
payment of eight (8) months of the HELOC while Husband
lived in the premises?
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3A pre-divorce order of equitable distribution is not a final order. Campbell
v. Campbell, 516 A.2d 363, 365. While “[t]he courts of common pleas have
been given [subject matter] jurisdiction to hear and decide divorce actions
and related economic claims[,] . . . [t]o enter a decree of equitable distribution
prior to a divorce decree . . . is improper.
Reese v. Reese, 506 A.2d 471, 474 (Pa. Super. 1986). Here, Wife filed her
notice of appeal from the trial court’s order before the order was made final
by the entry of the divorce decree. Nevertheless, because a divorce decree
has been entered, we have jurisdiction over this appeal.
4 Both Wife and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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VI. Did the [t]rial [c]ourt err in crediting [Husband] with
medical bills when there was no proof of payment of the
same and as sole wage earner of the family, that he should
have been solely responsible to pay the same?
VII. Did the [t]rial [c]ourt err in unilaterally reducing Wife’s
expenses and only granting alimony of $530.00 per month
for a duration of only one (1) year after divorce?
VIII. Did the [t]rial [c]ourt err in finding Wife’s earning capacity
to be in excess of $50,000.00 per year when she clearly is
not, and cannot earn the same and raise three (3) children?
IX. Did the [t]rial [c]ourt err in ignoring the fact that Wife has
been out of the work force for over eight (8) years?
X. Did the [t]rial [c]ourt err in overlooking Wife’s health care
costs which were provided in her employment exhibits and
testimony?
Wife’s Brief at 5-6.
In addressing Wife’s issues, we are guided by the following:
We review a challenge to the trial court’s equitable distribution
scheme for an abuse of discretion. Brubaker v. Brubaker, 201
A.3d 180, 184 (Pa. Super. 2018) (citation omitted). “We do not
lightly find an abuse of discretion, which requires a showing of
clear and convincing evidence.” Id. We 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.” Carney v. Carney, 167 A.3d
127, 131 (Pa. Super 2017). When reviewing an award of equitable
distribution, “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.”
Hayward v. Hayward, 868 A.2d 554, 558 (Pa. Super. 2005).
When determining the propriety of an equitable distribution
award, this Court must consider the distribution scheme as a
whole. Mundy v. Mundy, 151 A.3d 230, 236 (Pa. Super. 2016).
“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
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look at the distribution as a whole in light of the court’s overall
application of the 23 Pa.C.S.A. § 3502(a) factors for consideration
in awarding equitable distribution. If we fail to find an abuse of
discretion, the order must stand.” Harvey v. Harvey, 167 A.3d
6, 17 (Pa. Super. 2017) (citation and internal brackets omitted).
Finally, “it is within the province of the trial court to weigh the
evidence and decide credibility and this Court will not reverse
those determinations so long as they are supported by the
evidence.” Brubaker, 201 A.3d at 184 (citation omitted).
Hess v. Hess, 212 A.3d 520, 523 (Pa. Super. 2019).
In her first issue, Wife asserts the trial court erred in failing to find that
her Charles Schwab IRA account contained a premarital component. Prior to
the marriage, Wife held shares with Amundi Pioneer valued at $20,533.37.
Wife maintains that those shares were used to fund her Charles Schwab IRA
when she opened the account during the marriage. The Master stated that
because “Wife has been unable to provide a roll-over statement showing the
transfer from Amundi to Charles Schwab . . . the [M]aster cannot definitely
determine that the Charles Schwab is a non-marital asset.” Report and
Recommendation of the Master, 10/31/19, at 6. Accordingly, the Master
determined that for purposes of equitable distribution, Wife’s entire Charles
Schwab IRA account, valued at $91,900, was marital. Wife filed exceptions
to the Master’s ruling, which the trial court denied.
Our review of the record reveals that both Husband and Wife testified
that Wife’s Charles Schwab IRA account contained a premarital component.
Specifically, Husband testified:
[Counsel for Husband]: . . . Do you have any separate CDs,
mutual funds, investment accounts, et cetera?
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[Husband]: I do not.
[Counsel for Husband]: However, your wife does have an IRA,
correct?
[Husband]: That is correct.
[Counsel for Husband]: And do you agree that a portion of
that IRA was funded by some premarital assets that she
had?
[Husband]: Some of it, yeah.
[Counsel for Husband]: I believe it’s from Amundi, A-M-U-
N-D-I, Pioneer. Do you agree with that?
[Husband]: Yes, sir.
N.T., 9/20/19, at 52 (emphasis added).
Wife similarly testified:
[Counsel for Wife]: . . . You have a Charles Schwab IRA?
[Wife]: Yes.
[Counsel for Wife]: And the monies that are in the Charles Schwab
IRA, where did they emanate from?
[Wife]: During marriage or before marriage?
[Counsel for Wife]: Well, before marriage?
[Wife]: Well, before marriage, I had made some deposits,
from my own working, whenever I was working before
marriage, and then I hadn’t contributed to it for years and
years and years, and then the companies changed hands
several times, so we had to roll over money.
[Counsel for Wife]: Maybe it’s easier to take a look at [Wife’s]
Exhibit 5. It appears to be a letter from Amundi Pioneer.
[Wife]: Yes.
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[Counsel for Wife]: Did you obtain that letter at my request?
[Wife]: Yes.
[Counsel for Wife]: Did it indicate the values of these accounts on
June 15th, 2007?
[Wife]: Yes.
[Counsel for Wife]: And is it your position that the values
that are suggested there are all premarital values?
[Wife]: Yes.
[Counsel for Wife]: And is it your position that the values
that are suggested there are all premarital values?
[Wife]: Yes.
[Counsel for Wife]: And with respect to [Wife’s Exhibit 4],
does that indicate the current values of those funds at
Charles Schwab?
[Wife]: Yes.
Id. at 108-09 (emphasis added).
The parties do not dispute that Wife’s Charles Schwab IRA account was
funded with Wife’s premarital shares from Amundi Pioneer. Thus, we disagree
with the trial court’s conclusion that Wife’s Charles Schwab IRA account is
entirely marital. See Oaks v. Cooper, 638 A.2d 208, 213 (Pa. 1994) (only
the interest from the initial [non-marital] contribution can be realized as an
asset available for equitable distribution).
Having concluded that the trial court erred in determining that Wife’s
entire Charles Schwab IRA account was subject to equitable distribution, we
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vacate the equitable distribution award and remand for the calculation of the
marital portion of the account. We further note:
The Divorce Code does not specify a particular method of valuing
assets. Thus, the trial court must exercise discretion and rely on
the estimates, inventories, records of purchase prices, and
appraisals submitted by both parties. When 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.
Where the evidence offered by one party is uncontradicted,
the court may adopt this value even though the resulting
valuation would have been different if more accurate and
complete evidence had been presented. A trial court does
not abuse its discretion in adopting the only valuation
submitted by the parties.
Childress v. Bogosian, 12 A.3d 448, 456 (Pa. Super. 2011) (emphasis
added; citations, brackets and quotation marks omitted).
In this case, Wife submitted as evidence a statement from Amundi
Pioneer Asset Management, valuing her shares at $20,533.37 as of June 15,
2007. Husband did not rebut that value during cross-examination or admit
any evidence regarding the value of Wife’s premarital portion of her Charles
Schwab IRA account. Accordingly, upon remand, we direct the trial court to
exclude, at a minimum, the $20,533.37 premarital Amundi Pioneer funds,
when calculating the marital portion of Wife’s Charles Schwab IRA account.
In her second issue, Wife assails the trial court’s overall distribution of
the marital estate. The Master’s Report and Recommendation, as adopted by
the trial court, awarded 54% of the marital estate to Wife, and 46% of the
marital estate to Husband. Wife argues:
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The parties enjoyed an upper middle-class lifestyle and were able
to live in nice dwellings and enjoy many events in which the
children were active. Husband continues to reside in a big house
on a golf course. Wife took up residence in an old small house to
be close to her parents and be able to afford a home. Husband is
a commissioned salesman whose income will increase
exponentially. Wife is largely dependent upon child support and
spousal support. If Wife worked more hours or evenings, child
care providers would be necessary. Given the disparity in income
and Husband’s significant savings compared to Wife’s, if the
Master’s Recommendation is accepted, Wife will be required to
establish a new household and support herself and three (3)
children with no significant financial asset to her name . . . .
Wife’s Brief at 14-15.
In determining the propriety of an equitable distribution award, we
consider the distribution scheme as a whole. Section 3502 of the Divorce
Code provides, inter alia, that upon request from either party in a divorce
action:
the court shall equitably divide, distribute or assign, in kind or
otherwise, the marital property between the parties without
regard to marital misconduct in such percentages and in such
manner as the court deems just after considering all relevant
factors. The court may consider each marital asset or group of
assets independently and apply a different percentage to each
marital asset or group of assets.
23 Pa.C.S.A. § 3502(a). The factors relevant to the equitable division of
marital property include:
(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.
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(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.
(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.
Id.
As noted, the trial court awarded 54% of the marital estate to Wife and
46% to Husband. Upon review of the record and prevailing law, we cannot
agree with Wife that this award is economically unjust. The Master specifically
discussed each and every factor to the extent they were applicable to the
parties. The Master was aware of and commented on the contributions each
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party made during the marriage, and the extent of their assets and future
opportunities. Other than the error we identified regarding Wife’s Charles
Schwab IRA account, we discern no abuse of discretion in the 54/46
distribution of the marital estate.
Wife emphasizes that her childcare responsibilities and eight-year
absence from the workforce limit her ability to obtain employment and greater
income, and thus she should have received a larger percentage of the marital
estate. The Master and trial court, however, disagreed, in part because they
determined that Wife was capable of obtaining full-time employment as a
registered nurse. As discussed infra, the Master specifically considered Wife’s
absence from the workforce and childcare responsibilities when formulating
the equitable distribution and alimony awards. Upon review, we may not
disturb credibility determinations, and consistent with prevailing legal
authority, we find no merit to Wife’s second issue as to the overall award of
equitable distribution.
In her third, fourth and fifth issues, Wife contends the trial court erred
in distributing the parties’ Members 1st account $11,040.61 to Husband and
$5,102.27 to Wife. Wife asserts that “Husband presented no evidence or
testimony as to why he should be entitled to a larger share of the distribution
of that account.” Wife’s Brief at 14. Wife further claims the trial court erred
in failing to assign credit card debt to Husband “who is clearly in a superior
position” to pay the debt, and challenges the trial court’s failure to credit her
for payments she made toward the parties’ home equity line of credit
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(HELOC). Id. at 18. Wife testified that she made eight payments of $61.54
toward the HELOC, and references Husband’s hearing testimony that he did
not make any payments toward the HELOC after separation. Id. at 18-19.
Wife’s argument in support of these three issues mirrors her argument
in support of her second issue challenging the overall distribution scheme.
Since we have already determined that the trial court did not err in the overall
award of equitable distribution, Wife’s third, fourth and fifth issues are
redundant, and subsumed by our prior review. We reiterate that in the
context of equitable distribution, a trial court “has the authority to divide the
award as the equities presented in the particular case may require.”
Mercatell v. Mercatell, 854 A.2d 609, 611 (Pa. Super. 2004) (citation
omitted). As such, it was within the trial court’s discretion to divide the
parties’ assets, with consideration of debts and payments, to effectuate
equitable distribution. Wife’s third, fourth and fifth issues do not warrant
relief.
In her sixth issue, Wife claims the trial court “erred in crediting
[Husband] with medical bills when there was no proof of payment. . . .” Wife’s
Brief at 19. In the argument section of her brief, however, Wife states,
“[a]lthough Husband did provide statements of payments on those bills[,] the
medical procedures correlated to the hospital bills occur[ing] during the
marriage. Additionally, Husband was the sole wage earner of the family and
should have been responsible for those payments.” Id. at 19-20.
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Wife argument is flawed because she first asserts that Husband failed
to present evidence that he paid the medical bills he sought credit for, but
then concedes that Husband did, in fact, provide proof of payment. In
addition, Wife presents little argument, and cites no statutory authority or
case law. In an appellate brief, parties must provide an argument as to each
question, which should include a discussion and citation of pertinent
authorities. Pa.R.A.P. 2119(a). “This Court is neither obliged, nor even
particularly equipped, to develop an argument for a party. To do so places
the Court in the conflicting roles of advocate and neutral arbiter. When an
appellant fails to develop his issue in an argument and fails to cite any legal
authority, the issue is waived.” Commonwealth v. B.D.G., 959 A.2d 362,
371–72 (Pa. Super. 2008) (en banc). Accordingly, we find Wife’s sixth issue
waived.
In her seventh issue, Wife contends the trial court erred in awarding her
only $530.00 per month in alimony for one year following the divorce. Wife
claims that since the parties separated, she has been “forced to secure
employment and undertake expenses of renting a home and daily living needs
for herself and the children while they are in her care.” Wife’s Brief at 16-17.
She avers that “her commitment to raising” the children prevents her from
working night shifts or at distances greater than 30 minutes. Id. at 16. Thus,
because Wife’s standard of living “has been ‘cut’ drastically” by the divorce,
“$530.00 per month is not enough to assist her with monthly bills and child-
related expenses.” Id. at 17.
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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 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.
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,
alimony 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.
Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004).
Section 3701(b) of the Divorce Code states:
In determining whether alimony is necessary and in determining
the nature, amount, duration and manner of payment of alimony,
the court shall consider all relevant factors, 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.
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(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) Whether 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). “To determine whether alimony is necessary and to
establish the appropriate nature, amount, and duration of any alimony
payments, the court is required to consider all relevant factors, including the
17 factors that are expressly mandated by statute.” Lawson v. Lawson, 940
A.2d 444, 447 (Pa. Super. 2007). We note the factors in Section 3701(b) do
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not create an exhaustive list. Ressler v. Ressler, 644 A.2d 753 ([Pa. Super.]
1994).
After reciting the Section 3701(b) factors, the Master recommended
Husband pay $530 per month in alimony for one year following the parties’
divorce. The Master reasoned:
[D]espite Wife receiving 54% of the marital estate, Wife is still in
a position in which she needs additional support to maintain her
monthly expenses. The master has determined that Wife will be
unable to meet her reasonable needs until at least 1/1/2020, and
even after that, will need a buffer against the potential costs of
health insurance and retirement contributions. As mentioned
earlier, Wife will be in need of an additional $530 to meet her
personal expenses, but the master believes this award should be
extended to counteract those above additional expenses.
Therefore, it is the recommendation of the master that Wife
receive alimony in the amount of $530 per month for a period of
one (1) year commencing with the finalization of the divorce.
Report and Recommendation of the Master, 10/31/19, at 19-20.
In determining the amount of alimony, the Master found Wife’s budget
to lack credibility. Wife’s monthly expenses far exceeded her income. Her
monthly expenditures totaled $5,552.00, including $541 for fuel, $1,252.00
in grocery expenses, and $330 for clothing. The Master approximated Wife’s
monthly expenses to be $3,133.00, a figure that comported with the parties’
standard of living during the marriage. From this figure, the Master arrived
at the monthly alimony amount of $530.
Again, upon review of the record, we discern no error. At the hearing,
Wife introduced an expense statement that neither the Master nor the trial
court found credible. N.T., 9/20/19, at Df.’s Ex. 16. The Master recognized
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that Wife’s expenses far exceeded her income. Both the Master and trial court
acted within their discretion in crediting the testimony of Husband regarding
the parties’ standard of living and consistent with that testimony, assessing
Wife’s reasonable needs. “A master’s report and recommendation, although
only advisory, is to be given the fullest consideration, particularly on the
question of credibility of witnesses, because the master has the opportunity
to observe and assess the behavior and demeanor of the parties.” Childress
12 A.3d at 455-56. Further, and in regard to witness credibility, “[i]t is within
the province of the trial court to weigh the evidence and decide credibility and
this Court will not reverse those determinations so long as they are supported
by the evidence.” Id. Here, the findings of the Master and trial court are
supported by the record, and refute Wife’s seventh issue.
In her eighth and ninth issues, Wife argues that the trial court erred by
assigning her an annual earning capacity of $53,500. Wife avers that the
earning capacity belies the evidence presented at trial, and is impossible given
her child care responsibilities. Wife’s Brief at 21.
“A person's earning capacity is defined not as an amount which the
person could theoretically earn, but as that amount which the person could
realistically earn under the circumstances, considering his or her age, health,
mental and physical condition and training.” Gephart v. Gephart, 764 A.2d
613, 615 (Pa. Super 2000). Past earnings alone are not sufficient to support
a determination of earning capacity without corroborating evidence that the
party still has the capacity to earn that amount. See D.H. v. R.H., 900 A.2d
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922 (Pa. Super. 2006) (holding trial court erred in determining earning
capacity based solely upon party’s most recent tax return).
The Pennsylvania Rules of Civil Procedure address earning capacity as
follows:
If the trier of fact determines that a party to a support action has
willfully failed to obtain or maintain appropriate employment, the
trier of fact may impute to that party an income equal to the
party’s earning capacity. Age, education, training, health, work
experience, earnings history and child care responsibilities are
factors which shall be considered in determining earning capacity.
In order for an earning capacity to be assessed, the trier of fact
must state the reasons for the assessment in writing or on the
record. Generally, the trier of fact should not impute an earning
capacity that is greater than the amount the party would earn
from one full-time position. Determination of what constitutes a
reasonable work regimen depends upon all relevant circumstances
including the choice of jobs available within a particular
occupation, working hours, working conditions and whether a
party has exerted substantial good faith efforts to find
employment.
Pa.R.C.P. 1910.16-2(d)(4).
In the companion case docketed at 1564 MDA 2019, Wife raised this
identical issue. We declined to review Wife’s claim, concluding that Wife failed
to timely challenge the assignment of her earning capacity. See J.C.F. v.
P.B.F., 1564 MDA 2019, at *7 (Pa. Super. Oct. 2, 2020) (unpublished
memorandum). In particular, this Court noted that the trial court assigned
Wife’s earning capacity on February 28, 2018, following a Special Support
Hearing, and although the order was appealable, Wife did not appeal. Id. at
8. Consistent with that disposition, we reject Wife’s eighth issue as to earning
capacity.
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Finally, in her tenth issue, Wife contends the trial court erred in
overlooking her healthcare costs. Wife’s entire argument on this issue reads
follows:
Husband testified during the Master’s Hearing that a health
insurance policy for just himself would cost $75.00 per month as
an insurance sales professional. He later testified that he
currently pays $699.72 per month for health insurance for the
entire family. Wife testified that health insurance is not offered
for free at her current place of employment. Should she be forced
to carry the three (3) children on her health insurance she would
be forced to pay a fairly significant monthly amount, even if she
were to find a ‘cheap’ rate. Given her monthly income and only
$530 in alimony for one (1) year this would not be fair or practical,
especially when Husband’s monthly health insurance payment
would be $75.00 by himself.
Wife’s Brief at 23-24. We again note deficiencies in Wife’s argument. Wife
provides no citation to legal authority or otherwise develop a legal argument.
Nonetheless, we repeat that we will not usurp the role of factfinder, or
disturb the fact finder’s credibility determinations. See Miller v. Miller, 744
A.2d 778 (Pa. Super. 1999). Here, the Master noted that Wife failed to
introduce evidence regarding her potential healthcare costs, and that any
calculation of costs by the Master would be speculative. See Report and
Recommendation of the Master, 10/31/19, at 18 (“The master has not been
able to include any potential health insurance costs, as they were not provided
by wife and therefore are speculative.”). Despite Wife’s failure to introduce
evidence of her healthcare costs, the Master considered the additional support
Wife would need to offset the additional cost of health insurance. Id. at 19
(“Wife . . . will need a buffer against the potential costs of health insurance
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and retirement contributions.”). On this record, we find Wife’s final argument
availing.
Order affirmed in part and vacated in part. Case remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2020
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