Rogers, A. v. Bauchwitz, R. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANN M. ROGERS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT P. BAUCHWITZ :
:
Appellant : No. 1499 MDA 2020
Appeal from the Decree Entered October 29, 2020
In the Court of Common Pleas of Dauphin County Civil Division at
No(s): 1336 DR 17, 2017-CV-06699-DV
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 4, 2022
In this divorce action, Robert P. Bauchwitz (Husband) appeals pro se
from the divorce decree entered in the Dauphin County Court of Common
Pleas. The trial court adopted the divorce hearing master’s recommendations,
denied Husband alimony, but awarded him 60% of the marital estate. On
appeal, Appellant argues the master and the trial court erred in: (1) finding
he had an earning capacity of $72,000 annually; (2) not awarding him a
greater share of the marital estate; (3) denying him alimony; and (4) not
granting a continuance of the divorce master’s hearings for additional
discovery. We affirm. Furthermore, we: (1) grant Husband’s application to
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* Retired Senior Judge assigned to the Superior Court.
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clarify his reply brief; but (2) deny his application to supplement the original
record.
I. Divorce Complaint
On September 20, 2017, Ann M. Rogers (Wife) filed the underlying
divorce complaint.1 At that time, both parties were approximately 57 years
old, had been married for 27 years, and had two adult children. Husband filed
a counseled answer to the complaint, “denying that the marriage was
irretrievably broken [but raising] claims for alimony, alimony pendente lite,
counsel fees, costs and expenses.” Trial Ct. Op., 10/9/20, at 1.2
The trial court appointed Cindy Conley, Esquire, to be the divorce
master. She conducted a settlement conference on June 28, 2019. “A hearing
was scheduled for October 17 and 18, 2019 to address all remaining issues.”
Trial Ct. Op., 10/9/20, at 2. On October 11th, Husband sought a continuance
of the hearing to conduct more discovery. Wife filed a response, and
Husband’s request was denied. Both parties, then 59 years old, appeared
with counsel at the October 17th hearing and gave testimony.
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1 The parties separated on August 28, 2017.
2 The trial court filed two opinions: one on October 9, 2020, following both
parties’ objections to the master’s report; and one on January 28, 2021,
following Husband’s notice of appeal.
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II. Divorce Master’s Report
On March 13, 2020, the divorce master issued a detailed, 63-page
report and recommendation, which stated the following. Wife obtained a
medical degree from Cornell University in 1987, and the parties married in
1990. Wife worked as a surgeon in a New York City hospital. In June of 2006,
the parties and their then-minor children relocated to Hershey, Pennsylvania
so that Wife could complete a fellowship in minimally invasive bariatric surgery
at the Penn State Hershey Medical Center. Wife then remained employed with
the Hershey Medical Center as a bariatric surgeon, and at the time of the
divorce master’s hearings, was the head of that department.
Wife’s 2018 gross Medicare earnings from the Hershey Medical Center
was approximately $437,191.3 Master’s Report at 6. Her monthly net income
from the hospital, after taxes but before deducting medical insurance costs
and retirement plan contributions, was $24,700. Id. She had “reasonably
monthly expenses of $5,467.” Id. Wife expected “a Social Security benefit
of $3,053 per month when she reaches . . . Retirement age of” 67, and will
also “receive retirement benefits from her share of the marital portion of her
other retirement accounts.” Id.
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3 In addition, in 2018, Wife earned $11,549 income “for legal chart review,
speaking honorarium, and for being a national site surveyor for bariatric
surgery.” Report & Recommendation of the Master, 3/13/20, at 6 (Master’s
Report).
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Husband received an undergraduate degree in biochemistry from
Harvard College in 1982, and from Cornell University, a medical degree in
1990 and a doctorate degree in 1991. He “was never licensed to practice
medicine and instead, focused on research.” Master’s Report at 7. From the
time he completed his doctorate degree until the parties moved to Hershey,
Husband was employed on a full-time basis. Id. at 39. “According to his
Social Security earnings history, the most Husband ever earned during the
marriage was $90,000 in 2005.” Id.
The divorce master found the following with regard to Husband’s
employment history:
When the parties relocated to Hershey . . . in 2006, Husband
continued to work in his research lab in New York . . . , but ceased
that employment in 2007.
After Husband relocated to Hershey, he began his own [research
businesses.]
Neither of Husband’s businesses ever made a profit.
For a brief period of time, Husband was an adjunct professor at
Lebanon Valley College and earned a few thousand dollars per
course.
Id. at 7-8 (paragraph numbers and record citations omitted).
In 2004, Husband filed a whistleblower action in the Eastern District of
Pennsylvania federal court against his former employers Cornell University
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Medical College, Thomas Jefferson University, and others. 4 Master’s Report
at 16. In 2010, this suit was “dismissed in its entirety because it was not
brought within the statute of limitations.” See Master’s Report at 15-16. We
note that in the proceedings below and on appeal, Husband argues his
involvement in this whistleblower lawsuit hampered his ability to find
employment.
“In 2010, Husband obtained a paralegal certificate from Delaware Law
School and in 2016, [he] completed a certified fraud examiner certification.”
Master’s Report at 7. At the time of the 2019 divorce master’s hearings,
Husband was working part-time “as a substitute teacher earning $52 gross
[income] per day. In 2018, [he] had gross annual wages of $1,687.” Id. at
8 (record citations omitted). The master’s report stated, “Husband made it
clear at the hearing that he does not feel he has any obligation to find full-
time lucrative employment[.]” Id. at 47.
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4 In the federal suit, Husband alleged the defendants
misrepresented the findings of their DNA research when they
applied for National Institute of Health . . . research grants and
did not correct the misrepresentations on subsequent progress
reports and renewal applications. These misrepresentations,
[Husband] assert[ed], resulted in false claims in violation of the
[False Claims Act].
United States ex rel. Bauchwitz v. Holloman, 671 F. Supp. 2d 674, 677
(E.D.Pa. 2009). See also United States ex rel. Bauchwitz, v. Holloman,
670 Fed.Appx. 762 (3d Cir. 2016).
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Meanwhile, in the parties’ support matter, almost two years earlier,
[i]n December of 2017, the Dauphin County Domestic Relations
Office determined Husband’s gross earning capacity to be $72,000
per year as a Certified Fraud Examiner. While Husband initially
requested a De Novo Review of the Order, he later withdrew his
request.
Master’s Report at 8 (record citations omitted). At the divorce master’s
hearing, when asked “whether he had provided any evidence of the job
searches he had undertaken, Husband indicated that . . . documentary
evidence had been presented to the domestic relations office in the support
case.” Id. at 26. Given the lack of any new evidence, the divorce master
concluded the domestic relations office’s prior determination “remain[ed]
appropriate.” Id.
The divorce master also summarized Husband’s health issues:
In 2018 Husband was treated for head and neck cancer and he
now undergoes periodic screenings to ensure it has not returned.
Husband has also been diagnosed with osteoporosis,
osteoarthritis, and degenerative dis[c] disease. Husband suffers
from hemorrhoids and insomnia. Recently, Husband was
diagnosed with a mediastinal mass which is being monitored for
growth.
Master’s Report at 4 (paragraph number and record citations omitted).
While Husband’s health has deteriorated somewhat since 2017 in
that he has lifting restrictions, there was no evidence that the
restriction would prohibit him from obtaining employment as a
Certified Fraud Examiner, a paralegal, or employment that utilizes
his medical education.
A $72,000 gross earning capacity results in a $4,423 net after tax
monthly earning capacity.
* * *
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Husband has reasonable monthly expenses of $4,881.
Husband expects a Social Security Retirement benefit . . . of
$1,162 per month when he reaches . . . Retirement age of [67.]
However, when Husband reaches his full . . . Retirement age, he
will have the option of claiming Social Security on Wife’s earning
record to receive an amount equal to half of Wife’s benefit of
$1,562.50. Moreover, if Husband obtains employment equal to
his earning capacity, his Social Security retirement benefit should
increase in amount over half of Wife’s entitlement.
In addition, Husband will receive retirement benefits from his
share of the marital portion of his and Wife’s other retirement
accounts.
Id. at 8-9 (paragraph numbers record citations omitted).
The divorce master also stated the following concerning any marital
misconduct by either party:
Both testified that the parties would, not frequently, but from time
to time, engage in physical altercations. Wife submitted
photographs evidencing some of the injuries she sustained at
Husband’s hands[.] Wife testified credibly that sometimes she
instigated the violence and sometimes Husband instigated it. Wife
also admitted that she never reported the violence to the police.
Husband did not deny Wife’s allegations specifically[,] but testified
that “pretty consistently [Wife] instigates and escalates.”
Master’s Report at 49 (record citations omitted).
Finally, we note the parties’ marital estate was approximately $3 million.
See Master’s Report at 39. Nevertheless, the divorce master found the parties
established a “middle class” and “upper middle-class” standard of living, while
“putting the maximum amount into their retirement accounts[ and] living
within their means[.]” Id. at 12, 40.
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III. Divorce Master’s Recommendation — Equitable Distribution
The master divorce master considered all 13 statutory factors for
equitable distribution, at 23 Pa.C.S. § 3502(a), and recommended that
Husband receive 60% of the marital estate, with Wife receiving 40%. The
“[m]aster concluded that the majority of the factors favored Husband[,]”
[s]pecifically, the age, health, station, amount and sources of
income, vocational skills, employability, estate, liabilities and
needs of each the parties; the opportunity of each party for future
acquisitions of capital assets and income; the standard of living of
the parties established during the marriage; and the economic
circumstances of each party at the time of the division of
property[.]
Trial Ct. Op., 10/9/20, at 4.
The divorce master further found it was equitable for Husband to receive
a greater share of the marital estate:
The Divorce Master reasoned that given [Husband’s] impressive
education, [he] should be able to obtain employment that at least
meets, if not exceeds, his earning capacity of $72,000 annually.
Nevertheless, Wife’s income will most likely always exceed
Husband’s income many times over. For this reason, the Divorce
Master noted that equity demanded that Husband receive a
greater portion of the marital estate.
Trial Ct. Op., 10/9/20, at 5.
Finally, the divorce master considered the parties’ standard of living
during the marriage. She found:
[T]he parties had established an upper middle class standard of
living[.] While in the later years of the marriage Wife’s income
was substantial, the parties lived well within their means while
contributing the maximum to their retirement accounts. The
parties lived in a nice home, took regular vacations and owned
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nice, but not luxury, cars.[5 W]ith an earning capacity of
$72,000[ ] annually, Husband could maintain a middle-class
standard of living. . . . Wife’s earning capacity would allow her to
easily surpass the standard of living the parties became
accustomed to during their marriage. For this reason, . . . a larger
distribution to Husband was appropriate. . . .
Trial Ct. Op., 10/9/20, at 6-7.
IV. Divorce Master’s Recommendation — Alimony
The divorce master recommended that Husband not be awarded
alimony. The master considered the 17 statutory alimony factors under 23
Pa.C.S. § 3701, and found only three favored an alimony award: (1) the
parties’ relative earnings and earning capacities — Wife’s earnings are more
than six times Husband’s earning capacity; (2) the parties’ standard of living
during the marriage, summarized above; and (3) the parties’ relative needs —
while Wife “has a great deal of discretionary income,” Husband would have a
net monthly earning capacity of approximately $4,423, but reasonable
monthly net expenses of $4,881.6 Master’s Report at 45, 47, 48; Trial Ct.
Op., 10/9/20, at 8. However, these three factors “were also contained within
the equitable distribution factors that favored Husband receiving a larger
marital property distribution.” Trial Ct. Op., 10/9/20, at 8.
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5 The parties owned a 2016 Volvo and 2006 Acura. Master’s Report at 9.
6 The divorce master noted that $1,000 of Husband’s current monthly
expenses was medical insurance, but once he obtained full-time employment,
he should be able to obtain insurance “at a greatly reduced rate.” Master’s
Report at 48.
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Thus, the divorce master further recommended that if alimony were to
be awarded, then a 50-50 split of the marital estate, rather than 60-40, would
be appropriate. Trial Ct. Op., 10/9/20, at 8. The master recommended that
by awarding Husband a 60% share of the marital estate and not alimony,
“Husband will be motivated to find employment close to his earning capacity
and will not be discouraged from entering into another relationship, which
could potentially jeopardize his income.” Id.
The divorce master also set forth her rationale for the statutory factors
that did not favor alimony for Husband. Although Husband suffered some
health issues that restricted what he could lift, he is not prohibited from
working. Master’s Report at 45. “Given [Husband’s] education, there is no
reason why Husband should not be able to obtain employment with benefits,”
and he “has not adequately explained his failure to obtain profitable
employment since” the parties moved to Hershey for Wife’s career. Id. at 45,
46.
Since separation, the only employment Husband has engaged in
is substitute teaching, earning less than $100 a day and working
very few days a week. . . . Husband made it clear at the hearing
that he does not feel he has any obligation to find full-time
lucrative employment[.] . . . Husband testified to a desire to
revive his research lab despite the fact that his previous efforts in
that regard yielded no income and only expenses. Be that as it
may, Husband has sufficient education to find appropriate
employment that would allow him to support himself. . . .
Id. at 47-48.
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V. Parties’ Exceptions & Trial Court’s Order
At this juncture, we note the divorce master also awarded Wife
attorneys’ fees of $900, to be offset with the $600 that Husband paid for the
valuation of the parties’ defined benefit pensions. Trial Ct. Op., 1/28/21, at
3.
Both parties filed exceptions to the divorce master’s report. The trial
court heard oral arguments on August 6, 2020, and issued an order on October
9th, dismissing all of Wife’s exceptions and dismissing all but one of Husband’s
exceptions, which related to the divorce master’s award of attorneys’ fees to
Wife without a hearing. The parties have since resolved this issue.7
Meanwhile, on October 28, 2020, the trial court entered the underlying
divorce decree. Husband filed a timely, counseled appeal.8
VI. Statement of Questions Involved
Husband presents the following issues for our review:
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7 The trial court’s October 9, 2020, order scheduled a hearing on Wife’s
petition for attorneys’ fees for November 10, 2020. On November 5th,
however, the court cancelled the hearing, “based upon an agreement by the
parties.” Trial Docket, 11/23/20, at 10.
8 The trial docket does not indicate any Pa.R.A.P. 1925(b) order by the trial
court.
On December 21, 2020, Husband’s counsel of record, Darren Holst,
Esquire, filed an application in this Court to withdraw from representation.
Attorney Holst averred that Husband had requested his withdrawal so that he
could proceed pro se. This Court granted counsel’s petition, and Appellant
accordingly proceeds pro se in this appeal.
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[1.] Did the trial court and/or the master abuse their discretion in
refusing to award . . .Husband ongoing alimony and/or a larger
distribution of marital assets when, at best, the record reflects
that Husband can earn a maximum of $72,000 a year while Wife
will continue to earn nearly $470,000 a year or more until her
retirement and the distribution of [60%] of assets to . . . Husband
adopted by the trial court primarily involved only retirement
assets which would perpetuate a substantial economic disparity/
economic injustice between the parties from divorce until the
retirement of the parties?
[2.] Did the trial court and/or the master abuse their discretion
in refusing to allow Husband more time to engage in further
discovery when the record reflects that Wife failed to disclose a
million dollars of [marital] assets during the course of the
proceedings?
[3.] Did the trial court abuse its discretion in failing to conduct a
de novo review of evidentiary rulings and credibility assessments
of the master in regard to issues that were highly relevant in
determining alimony and equitable distribution?
Husband’s Brief at 5-6.
VII. Standard of Review & Relevant Law
This Court has stated:
The trial court has broad discretion in fashioning
equitable distribution awards . . . .
* * *
. . . In assessing the propriety of an equitable distribution
scheme, our standard of review is whether the trial court,
by misapplication of the law or failure to follow proper
legal procedure, abused its discretion. Specifically, we
measure the circumstances of the case, and the
conclusions drawn by the trial court therefrom, against
the provisions of [23 Pa.C.S. § 3502(a)] and the avowed
objectives of the Divorce Code, that is, to effectuate
economic justice between the parties and insure a fair
and just determination of their property rights.
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“Moreover, the trial court has ‘the authority to divide the award
as the equities presented in the particular case may require.’”
Further, when a court divides the marital property, it must do so
only after considering “all relevant factors,” including eleven
specific factors listed in the Divorce Code. 23 Pa.C.S.[ ]
§ 3502(a).
Teodorski v. Teodorski, 857 A.2d 194, 199-200 (Pa. Super. 2004) (some
citations omitted).
With respect to credibility determinations,
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.
We are also aware that 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.
Carney v. Carney, 167 A.3d 127, 131 (Pa. Super. 2017) (citation omitted).
Section 3502(a) of the Divorce Code9 sets forth a non-inclusive list of
factors that are relevant to the equitable division of marital property:
(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.
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9 23 Pa.C.S. §§ 3101 et seq.
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(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.
23 Pa.C.S. § 3502(a)(1)-(11).
In reviewing the denial of a request for alimony,
[o]ur standard of review . . . 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
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equitable distribution award and development of an appropriate
employable skill.”
Teodorski, 857 A.2d at 200 (citation and emphasis omitted).
Section 3701(b) provides that in determining the necessity, nature,
amount, and duration 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.
(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.
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(14) The marital misconduct of either of the parties during the
marriage. . . .
(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. § 3701(b)(1)-(17).
VIII. Husband’s Issues: Equitable Distribution & Alimony
In Husband’s first issue, he argues both the divorce master and trial
court erred in not awarding him a greater share of the marital estate, and in
denying his request for alimony. Preliminarily, we observe that portions of
Husband’s pro se brief, 68 pages in length, lack clarity and sound legal
argument. We emphasize that Husband does not acknowledge the master’s
and trial court’s extensive discussion of the statutory factors for equitable
distribution and alimony. As we discuss infra, some of his rationales are hard
to follow, or veer into irrelevant topics. Nevertheless, we glean from his brief
the following chief complaints.
First, Husband appears to argue the divorce master and trial court erred
in considering the parties had a frugal lifestyle during the marriage, while
acknowledging the master’s and court’s statements that the parties had an
“upper middle class” or “middle class” standard of living. Husband’s Brief at
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18-19 (divorce master and trial court made “erroneous and incomplete
descriptions of the couple’s lifestyle”). Husband cites the United States
Census Bureau to argue he and Wife “were in the top 5% of U.S. incomes,”
and that following this divorce, Wife “alone would remain in the top few
percent of American income earners.” Id. at 18-19. Husband contends that
a couple’s “frugality in one area does not preclude economic advantage in
another,” and thus, how a married couple spends their money — “whether
[on] houses, businesses, cars, vacation, or investments [—] does not impact
an overall consideration of their standard of living.” Id.
Next, Husband challenges, on several bases, the divorce master and
trial court’s finding that he has an earning capacity of $72,000. As stated
above, in response to whether he had any evidence of his job searches,
Husband stated he previously presented documentary evidence to the
domestic relations office in the support case. Master’s Report at 26.
Relatedly, Husband initially sought, but then withdrew, de novo review of the
domestic relations office’s determination of his earning capacity. Id. at 25.
Husband now argues the sole document cited in the domestic relations
office’s December 26, 2017, support order stated “the average starting income
. . . of a person holding a fraud examiner certification” was $44,000 annually.
Husband’s Brief at 21. Husband also now claims he did not agree with his
counsel’s decision to withdraw his request for de novo review of the domestic
relations office’s determination. Id. at 22.
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We conclude Husband’s challenges to the domestic relations office’s
determinations are both waived and misplaced. As both the divorce master
and trial court pointed out, any challenge to the domestic relations office’s
determination should have been brought in that proceeding. See Trial Ct.
Op., 10/9/20, at 11; Master’s Report at 26. Furthermore, Husband does not
deny that instead of presenting any new evidence pertaining to his job
searches or earning capacity, he merely referred to documents submitted two
years earlier to the domestic relations office. Husband offers no explanation
why he did not present any evidence to the divorce master, for her
independent recommendations to the trial court as to equitable distribution
and alimony. Accordingly, any argument that the master should have
considered other evidence is waived. See Pa.R.A.P. 302(a) (“Issues not raised
in the trial court are waived and cannot be raised for the first time on
appeal.”).
Next, in challenging the $72,000 earning capacity figure, Husband cites
his: “employability [following his] involvement in [the whistleblower] suit
against a former employer, [a] decade without earnings history, his lack of
experience of high-paying jobs outside of his field, his advanced age, and his
needs for accommodations for medical limitations on work.” Husband’s Brief
at 23-24 (emphasis omitted). Husband denies that his Harvard medical
education “would be determinative of employment,” arguing, for example,
that he lacks the “clinical medical knowledge . . . required to review charts as
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a paralegal” and “does not have the financial training or background to work
as an insurance fraud examiner.” Id. at 31, 33-34. Finally, Husband
challenges the master’s and trial court’s “theory that [he] lacked” motivation
to obtain full-time employment. Id. at 38. He concludes the trial court’s
findings lack support in the record. We disagree.
While Husband extensively discusses employment in or pertaining to the
medical field, he wholly ignores that he pursued and obtained a paralegal
certificate in 2010 and a certified fraud examiner certificate in 2016. See
Master’s Report at 7. At the time of the hearings, Husband had possessed
these credentials for, respectively, approximately nine and three years. The
trial court found “there was no medical evidence offered to suggest Husband
was prohibited from obtaining employment as a Certified Fraud Examiner, a
paralegal, or employment that utilizes his medical education.” Trial Ct. Op.,
10/9/20, at 11. Husband does not refute this rationale. For all the foregoing
reasons, we conclude no relief is due on Husband’s claims that he was
assessed an improper earning capacity.
Next, Husband challenges his award of 60% of the marital estate, which
he characterizes as “an additional 10% of marital assets,” with a value of
$176,127. Husband’s Brief at 41, 42 (footnote omitted). Husband avers that
of this amount, “$154,341 would be in taxable retirement funds if taken before
retirement age[.]” Id. at 42-43. He then contends, without further
explanation for the following figures, that “[t]he master did not show any tax
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consequences for the almost 88% of retirement funds which made up the
recommended asset distribution[.]” See id. at 43. Husband also calculates
that his “10% supplemental marital assets . . . when amortized from the date
of the master’s report to Husband’s 67th birthday . . . , was estimated to
provide [him] $1948/month in net income.” Id. at 44 (emphasis omitted).
He avers this amount, in addition to the anticipated monthly income he was
expected to earn — $4,51210 — would not be sufficient to meet his “over
$7000 of actual expenses presented to the court.” Id. at 44-45.
Relying on these same figures, Husband avers the trial court erred in
denying him alimony. He calculates that if he were awarded $3,000 monthly,
alimony would be greater than the “$1948/month from [the] 10% additional
marital assets (of which almost 88% are in retirement funds).” Husband’s
Brief at 48 (record citation omitted). Husband then states, again without
further explanation or support, that if he were “given 55% of the marital
assets and $3000/month alimony, then when the tax implications were
considered, the total after-tax income would be $341,850, or 2.0 fold more
than” the award of 60% of the marital estate alone. See id. at 49 (emphasis
omitted). No relief is due.
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10 Husband asserts, without further explanation or support, that if he earned
a gross annual income of $72,000, his “net income” would be “$54,144/year
or $4512/month.” See Husband’s Brief at 44 (emphasis omitted).
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First, Husband ignores that the divorce master recommended, and the
court found, that his reasonable monthly expenses were $4,881. See Master’s
Report at 8. Husband does not challenge this finding on appeal, and offers no
explanation to support his inflated $7,000 figure.
Husband also fails to address the marital estate and his 60% share as a
whole, instead focusing solely on a portion thereof, $176,127, and arguing
why that isolated amount is insufficient. Both the divorce master and trial
court extensively considered the parties’ differing incomes and concluded that
Husband was entitled to more than 50-50 split. Husband also ignores that
the trial court awarded him 60% of an almost $3 million marital estate. To
this end, we further observe Husband provides no explanation for the source
of his $176,127 figure. His claims merit no relief.
Finally, in his claim for alimony, Husband points out alimony is
“modifiable[;]” for example, if he became “very wealthy, Wife might stop
paying alimony.” Husband’s Brief at 49. . Alternatively, if Husband broke
“his back . . . from his severe osteoporosis,” then alimony would provide “a
safety net . . . to present the complete and certain demise of his standard of
living.” Id. Husband’s reliance on hypothetical circumstances is meritless.
Instead, alimony is properly awarded on a party’s reasonable needs and — as
Husband wholly ignores — is a “secondary remedy and . . . available only
where economic justice and” one party’s reasonable needs cannot be met
through “an equitable distribution award and development of an appropriate
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employable skill.” See Teodorski, 857 A.2d at 200 (emphasis added). As
stated above, Husband wholly fails to address the master’s and trial court’s
weighing of the Section 3701(b) factors. For all the foregoing reasons, we
conclude no relief is due.
At this juncture we review Appellant’s third issue on appeal — that the
trial court abused its discretion in not conducting “a de novo review of [the
divorce master’s] evidentiary rulings and credibility assessments[.]”
Husband’s Brief at 57. He maintains that “Wife persisted in not disclosing
almost $1 million in retirement[,] pension and other funds.” Id. (discussed
further infra).
Throughout her report, the divorce master set forth credibility
determinations with respect to both parties, regarding particular issues. On
appeal, Husband challenges the master’s statements that “Husband testified
that he oversaw the parties’ investments to a very detailed and exhaustive
knowledge of the parties’ finances[,]” and that “by his own admission[,]
Husband was largely in charge of the parties’ finances[.]” Husband’s Brief at
58 (emphases omitted).
No relief is due. We reiterate that a master’s report and
recommendation “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.” Carney,
167 A.3d at 131. The points raised by Husband relate to one isolated issue —
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the extent of Husband’s knowledge of Wife’s finances — the weight of which
would not require reversal of the master’s and trial court’s extensive findings
into the other matters presented in this case.
IX. Denial of Continuance Request
In Husband’s second issue, he avers the discovery master and trial court
abused their discretion in not granting his request for a continuance of the
October 17, 2019, hearing and for additional time to conduct discovery.
By way of context, we note the following. Following the divorce master’s
June 28, 2019, settlement conference, additional hearings were scheduled for
October 17 and 18, 2019, to address all remaining issues. Trial Ct. Op.,
10/9/20, at 2. On October 11th, six days before the scheduled hearing,
Husband filed a request for a continuance, “again” arguing Wife “failed to
disclose all of her retirement assets and . . . was attempting to hide marital
assets.” Master’s Report at 33. Wife filed a response, which: (1) “again”
acknowledged “that the failure to list all of the retirement accounts was” due
to her counsel’s mistaken belief “that ‘the TIAA retirement account and the
Empower account were the same asset[;]’” and (2) explained this mistake
was “discussed and resolved between the parties’ attorneys[ and] was not
meant to fraudulently hide marital assets.” Id. at 33-34. Wife further argued
Husband was causing unnecessary delay:
This divorce action has been pending [for 25 months]. Husband
has sought the advice of at least five . . . different attorneys and
presumably resumed sound legal advice. Husband conducted
formal discovery and had the opportunity to request information
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from Wife at the divorce master’s preliminary conference and
settlement conference. Husband should not be able to use a last-
minute request for additional and unnecessary and irrelevant[ ]
information as an excuse to further delay this proceeding.
See Master’s Report at 35, citing Wife’s Response. The master further
explained:
At the settlement conference, Husband requested . . . copies of
the Autopsy and Toxicology Reports of Wife’s Father[, arguing]
these reports are necessary to prove that Wife committed marital
fault. [T]he master advised that she did not find them relevant to
that issue[.]
Id. at 35 n.2. The master denied Husband’s request for a continuance and
the hearing proceeded as scheduled on October 17, 2019.
On appeal, Husband reiterates his claim that Wife did not disclose
numerous assets, including almost $1 million in retirement assets. Husband’s
Brief at 61. This argument ignores the above discussion; Husband does not
refute the master’s summary that the parties resolved the issues of the
alleged missing retirement asset. He is entitled to no relief.
Furthermore, Husband argues on appeal that Wife failed to provide
“unredacted, unaltered and complete . . . Capital One and Northwest Bank”
bank and credit card account statements for 2017 and 2018. Husband’s Brief
at 62, 64.
The divorce master likewise aptly addressed this claim, pointing out that
the parties separated on August 28, 2017, and Wife was not directed to
provide bank statements dated after separation. Master’s Report at 34.
Nevertheless, in her answer to Husband’s continuance request, Wife indicated
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that she “voluntarily provided additional statements for the accounts [post-
dating] September 2017, but redacted some of the detail . . . because she did
not want to provide details regarding her post-separation banking to
Husband.” Id. Husband offers no argument why the divorce master erred
nor why he is entitled to Wife’s post-separation financial information.
X. Husband’s Applications to Supplement & Clarify Record
During this appeal, Appellant filed, on September 19, 2021, an
“Application of Clarification” regarding his reply brief. He points out that page
22 of his reply brief states, “This was not granted by the trial court.”
Appellant’s Application of Clarification, 9/19/21, at 1 (emphasis added).
Appellant now wishes to clarify that the word, “This,” refers to “special relief
to sell the home.” Id. at 2. We grant this application and incorporate
Appellant’s above explanation into our review.
That same day, Appellant also filed an “Application to Supplement the
Original Record,” averring that in footnote 17 of his reply brief, he “quoted
from a power of attorney (POA).” Husband’s Application to Supplement
Original Record, 9/19/21. We note that in this POA, executed October 31,
2019 (after the divorce master’s hearings), Husband granted Wife power of
attorney to list and sell the marital residence. See id. Exh. A. Husband argues
that although the subsequent revocation of this POA appears in the certified
record, the POA itself does not.
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To the extent Appellant desires this Court to consider the document in
our review, we shall. However, we deny his application to formally
supplement the trial record with an unauthenticated photocopy of this
document.
XI. Conclusion
In sum, we affirm the order of the trial court awarding Husband 60% of
the marital estate and denying his request for alimony. We grant his
application for clarification and deny his application to supplement the original
record.
Order affirmed. Husband’s Application for Clarification granted.
Husband’s Application to Supplement the Original Record denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/04/2022
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