Swartz, R. v. Swartz, E. ( 2015 )

J-A34021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD ALLAN SWARTZ, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ELAINE M. SWARTZ, :
:
Appellant : No. 865 MDA 2014
Appeal from the Order Entered May 6, 2014,
In the Court of Common Pleas of Franklin County,
Civil Division, at No. 2011-1851.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STABILE, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 23, 2015
Elaine M. Swartz (“Wife”), age fifty-four, appeals from the May 6, 2014
order of the Franklin County Court of Common Pleas in this divorce action.
We affirm.
After a nearly twenty-nine-year marriage, Richard Allen Swartz
(“Husband”), age fifty-five, filed a complaint in divorce on April 29, 2011,
that included a count for equitable distribution. N.T., 2/25/13, at 8, 40. On
June 30, 2011, the court entered an order, upon stipulation of the parties:
1) prohibiting Husband’s contact with Wife and providing that upon violation
of the order, “Wife may bring a Protection from Abuse action against him,”
and 2) proscribing Husband’s ability to “raise, as a defense or objection, the
passage of time between the occurrence of the ‘abuse’ and the date of filing
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same.” Order, 6/30/11 at 1. Thereafter, Wife filed a counterclaim adding
counts for alimony pendente lite, counsel fees and expenses, and alimony.
The parties have two children: an emancipated son and a minor daughter in
tenth grade. Id. at 9. The daughter lives with Wife; Husband has limited
partial custody. Id. at 38. Apparently, a child support action also ensued.1
Husband worked as a police officer for the Borough of Chambersburg
for the length of the marriage and attained the rank of sergeant for eight to
ten years prior to separation. N.T., 2/25/13, at 10, 40. He earned
approximately $100,000 annually, which included base pay of $60,000 and
overtime pay of $40,000. Id. at 48. He retired from the police force in
February 2011 and unsuccessfully ran for magisterial district judge. Id. at
41. Husband currently works as a driver for a waste management company
earning $41,000 per year. Id. at 10, 39. He has a pension from the
Borough of Chambersburg that pays a gross amount of $4,641.44, or
$3,950.15 net, per month. Id. at 35; Master’s Report, 8/15/13, at 3 ¶15.
If Husband is married at the time of his death, the pension plan offers
survivor benefits, at no cost, to his spouse in the amount of fifty percent of
1
Following a support conference on February 4, 2013, the trial court
entered a support order that day. Wife’s gross income was set at $23,885
based on her part-time employment with Blaine Windows plus her
unemployment compensation. Husband’s gross annual income, excluding
his pension, was set at $35,780, excluding one-half of his overtime pay of
$210 per week, per Franklin County Domestic Relations policy. N.T.,
2/25/13, at 39. Neither party appealed the support order.
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the benefit Husband was receiving. If Husband is not married at the time of
his death, there is no survivor benefit. N.T., 2/25/13, at 35. The present
value of the pension was determined to be in excess of $1.2 million dollars.
Id.
Wife also worked throughout the marriage. N.T., 2/25/13, at 99–100.
From 1985 until April 2011, Wife worked for a window hardware company,
Blaine Windows, that provided flexible hours and permitted Wife to work
from home while she raised the couple’s children. Id. at 12, 100–101. Due
to the economic downturn, the company reduced Wife to part-time status,
and she lost her eligibility for benefits. Id. at 100. Thereafter, Wife worked
on a commission basis for a car dealership, earning $28,000 in 2012. Id. at
105, 116. Her position was eliminated, and she collected unemployment
benefits of $34.00 per week. Id. at 107. Wife also serves on the
Chambersburg Borough Council, earning $4,150 per year. Id. at 13, 105.
Wife has been unable to find new full time employment despite submitting
over eighty-seven resumes. Id. at 111. Wife testified that she developed
memory issues resulting from two blows to the head by Husband, one in
March 2011 and one in April 2011. Id. at 118.
A Special Master was appointed on August 17, 2012. Because
Husband’s pension plan would not provide survivor benefits for Wife in the
event of a divorce, Wife requested a continuance of the Master’s hearing to
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allow time for further investigation into this issue by both parties, including
procurement of an appraisal of the pension and estimates for the cost of life
insurance to secure Wife’s interest in the pension.
A hearing before the Master was held on February 25, 2013. The
Master submitted her Report and Recommendations on August 15, 2013.
Regarding Husband’s pension, which amounted to $3,950.15 net per month,
the Master recommended that each party receive fifty percent, or $1,975.08
per month. Wife filed exceptions on September 4, 2013, and Husband filed
exceptions on September 14, 2013. Prior to oral argument before the
Honorable Robert G. Bigham2 on February 28, 2014, the parties resolved
Husband’s exceptions by agreement. Trial Court Opinion, 7/11/14, at 7.
The trial court entered an order on March 20, 2014, disposing of Wife’s
exceptions and determining equitable distribution of the marital estate.
Regarding Husband’s pension, the trial court modified the Master’s
recommendation of a fifty-fifty split to a fifty-five/forty-five percent split in
favor of Wife. Thus, Husband was to receive $1,777.57 per month and Wife
was to receive $2,172.58 per month. Wife filed a motion for reconsideration
on March 26, 2014, which was denied on March 28, 2014. The court entered
2
Adams County Judge Bigham was specially appointed by the Pennsylvania
Supreme Court because all judges of Franklin County recused due to a
conflict of interest. Order, 12/4/13.
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a divorce decree on May 6, 2014, and Wife filed her notice of appeal on
May 20, 2014. Both the trial court and Wife complied with Pa.R.A.P. 1925.
Wife raises the following issues on appeal:
A. Whether the Trial Court abused its discretion and misapplied
the law when it failed to make provision either in equitable
distribution or through alimony for the cost of life insurance to
secure Wife’s interest in the survivor benefit of Husband’s
pension, where the pension is the most significant asset of the
parties.
B. Whether the Trial Court abused its discretion and misapplied
the law in relying upon the Finding of the Franklin County
Domestic Relations Office to set Husband’s earning capacity at
$35,780.
C. Whether the Trial Court’s equitable distribution scheme as a
whole fails to effectuate economic justice because the court
abused its discretion and misapplied the law on the following
equitable distribution factors:1
1. The Trial Court misapplied the law to conclude
that factor 9, regarding the parties’ respective
standards of living, favored Husband; and
2. The Trial Court misapplied the law to conclude
that factor 11, regarding custody of a minor child of
the parties, is neutral.
D. Whether the Trial Court abused its discretion and misapplied
the law in denying Wife alimony particularly where there is a
significant disparity in income and Wife will have a substantial
and ongoing liability in connection with the purchase of life
insurance in order to secure her interest in Husband’s pension.
1
[Wife] originally identified five subparts to issue
three regarding application of the equitable
distribution factors. After review of the Trial Court’s
Rule 1925(a) Opinion with its clarification of the
Court’s ruling, [Wife] has elected not to pursue
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arguments that the Trial Court erred in its application
of the factors set forth at 23 Pa.C.S.A.
§§ 3502(a)(3), (4), (6), and (7).
Wife’s Brief at 13.
A trial court has broad discretion when fashioning an award of
equitable distribution. Dalrymple v. Kilishek, 920 A.2d 1275, 1280 (Pa.
Super. 2007). Our standard of review is whether the trial court abused its
discretion. Smith v. Smith, 904 A.2d 15, 19 (Pa. Super. 2006) (citation
omitted). “An abuse of discretion is not found lightly, but only upon a
showing of clear and convincing evidence.” Yuhas v. Yuhas, 79 A.3d 700,
704 (Pa. Super. 2013) (en banc), appeal denied, 93 A.3d 464 (Pa. 2014). In
determining the propriety of an equitable distribution award, we must
consider the distribution scheme as a whole. Childress v. Bogosian, 12
A.3d 448, 455 (Pa. Super. 2011). “[W]e measure the circumstances of the
case against the objective of effectuating economic justice between the
parties and achieving a just determination of their property rights.” Schenk
v. Schenk, 880 A.2d 633, 639 (Pa. Super. 2005) (citation omitted).
Moreover, it is within the province of the trial court to weigh the evidence
and decide credibility. Sternlicht v. Sternlicht, 822 A.2d 732, 742 (Pa.
Super. 2003). “[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
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observe and assess the behavior and demeanor of the parties.” Childress,
12 A.3d at 455–456 (citing Moran v. Moran, 839 A.2d 1091, 1095 (Pa.
Super. 2003)).
The main focus throughout this case has been Husband’s pension
because if Husband predeceases Wife, there will be no survivor benefit for
Wife. Thus, any pension payment awarded to her by equitable distribution
will stop. In her first issue, Wife avers the trial court erred in failing to make
provision for the cost of life insurance to secure Wife’s interest in the
survivor benefit of Husband’s pension, either in the equitable distribution
award or through alimony, which was not awarded. Wife asserts that the
marital estate was valued at $1,516,681.52, and Husband’s pension
accounted for $1,260,257. She underscores that the pension is a marital
asset accrued over nearly twenty-nine years of marriage. Unlike the typical
scenario where the spouse who accrued the pension has some control over
the survivor benefit, usually by election at the time of retirement, here, upon
entry of a divorce decree, Wife’s right to receive survivor benefits
automatically terminates.
The trial court noted the following stipulation by the parties regarding
the pension benefit:
1. If the parties remained married, and Husband died, Wife
would receive half of the monthly pension amount for her
lifetime as the survivor benefit, and Husband’s estate would
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receive nothing further. Once Wife died, her estate would
receive nothing further from the pension.
2. If the parties are divorced and Husband dies, neither
Husband’s estate nor Wife would receive anything further from
the pension.
3. If the parties divorced and Husband remarried, there would
be survivor benefits available for Husband’s new spouse and/or
possibly Wife if Husband predeceased either.
4. The parties had not further investigated the cost of premiums
for varying levels of life insurance to protect the parties’
interests in Husband’s pension.
5. Wife was amenable to remaining married to protect her
interest in Husband’s pension. Husband did not want to remain
married.
Trial Court Opinion, 7/11/14, at 12. The trial court went on to explain Wife’s
request regarding distribution of the pension, as follows:
Wife desires for Husband to completely pay for life
insurance on Husband’s life, with Wife as the beneficiary, to
insure Wife’s interest in the pension. As long as Husband is
alive, both parties will continue to receive their respective
portions of the pension. If Husband dies unmarried, Wife will
receive nothing further. If Husband remarries, and then dies,
his new wife may have survivor benefits, and Wife may also be
eligible for benefits. This Court’s Order dated March 20, 2014
anticipates this possibility and adopts the language used by the
Divorce Master, directing in paragraph #19(a) the payment of
survivor benefits to Wife under this scenario.
Id. at 12–13. The provision of the Master’s Report to which the trial court
referred, stated as follows:
a. The attorneys are directed to prepare an appropriate
Domestic Relations Order, in cooperation with the plan
administrator, directing the plan administrator to pay 55% of the
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monthly payment of [Husband’s] pension, together with the cost
of living increases as awarded from time to time, directly to
[Wife]. This payment shall be taxable to [Wife]. If [Wife]
predeceases [Husband], the entire benefit shall revert to
[Husband]. If [Husband] has remarried, is survived by a spouse
at the time of his death, and is survived by [Wife], the Domestic
Relations Order shall further direct that the plan administrator
pay one half of the surviving spouse benefit to [Wife] until the
earlier of the death of [Husband’s] surviving spouse or the death
of [Wife].
Order, 3/20/14, at 5. The trial court continued its explanation of its
distribution of Husband’s pension as follows:
If Husband chooses to never remarry, and then dies, he and
Wife will be in approximately the same situation—Wife will no
longer receive her portion of Husband’s pension, but Husband,
by way of his estate and heirs, (with the exception of limited
survivor benefits available for a minor child), will also be cut off
from acquiring any more of this asset. In that sense, both
Husband and Wife could have the same motivations to obtain
insurance on Husband’s life to protect the future pension
benefits if Husband dies.
Trial Court Opinion, 7/11/14, at 13.
In DeMarco v. DeMarco, 787 A.2d 1072 (Pa. Super. 2001), we
described the two methods recognized in Pennsylvania to distribute a
pension when dividing the assets of a marital estate as follows:
The first method, “immediate offset,” awards a percentage of the
marital portion of the value of the pension to the party earning it
and offsets the marital value of this pension with other marital
assets at the time the estate is divided. This method is
preferred where the estate has sufficient assets to offset the
pension, because it does not require the court to retain
jurisdiction indefinitely. The second method, “deferred
distribution,” generally requires the court to retain jurisdiction
until the pension is collected, at which point the pension is
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divided according to the court’s order. This method is more
practical where the parties lack sufficient assets to offset the
marital value of the pension.
We have recognized that neither distribution scheme
will be appropriate to all cases. Rather, the trial
court must balance the advantages and
disadvantages of each method according to the facts
of the case before it in order to determine which
method would best effectuate economic justice
between the parties.
Lyons v. Lyons, 401 Pa. Super. 271, 585 A.2d 42, 47 (1991).
DeMarco, 787 A.2d at 1077. Wife argues that the instant case is in “stark
contrast” to DeMarco, where this Court determined that the trial court’s
award of alimony to the wife to fund a life insurance policy on husband was
improper. She points out that in the present case, the parties were married
nearly twenty-nine years, and the pension was already in pay status at the
time of separation. Wife’s Brief at 29. Instantly, the trial court awarded
Wife fifty-five percent of Husband’s pension. The trial court opined that with
the additional amount Wife would receive over the Master’s proposed fifty-
fifty split, she could purchase life insurance on Husband’s life, with Wife as
the beneficiary, to insure her interest in the pension. Wife asserts that “[i]f
the equitable distribution factors weigh in Wife’s favor, then it is error to
expect her to use the additional share of the pension to secure the primary
asset she is receiving in equitable distribution.” Wife’s Brief at 30.
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Wife also suggests that the trial court’s position that Husband will not
receive any benefit from life insurance purchased by Wife to secure the
pension is negated by the fact that Husband will receive “the benefit of his
pension for his entire life, whether there is life insurance in place or not. If
he predeceases Wife, she will receive nothing from the pension, but will
receive a life insurance award approximately equal to the pension benefits
she would have received during Husband’s lifetime.” Wife’s Brief at 30.
Wife maintains that the trial court failed to consider that if Wife predeceases
Husband, he “will continue to receive the benefit of the pension for the rest
of his life,” unlike Wife, who “will receive nothing from the pension” if
Husband predeceases her. Id. at 28, 30.
Husband counters that the trial court indeed considered Wife’s concern
and affirmed that fact when it changed the percentage of pension Wife would
receive from the Master’s proposal of a fifty-fifty split to fifty-five percent for
Wife. Husband maintains that the equitable distribution order provides that
Wife will receive $200 more per month of Husband’s pension than the
amount awarded in the Master’s proposed distribution. Husband’s Brief at 7.
Contrary to Wife’s contention, the trial court did indeed consider the
potentiality that Wife’s pension payment would end if Husband predeceased
Wife. For that reason, the trial court adjusted the percentage of the pension
upward from the Master’s recommended fifty-fifty split to a fifty-five/forty-
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five split in favor of Wife. The trial court had determined that its
consideration of the equitable distribution factors, 23 Pa.C.S. § 3502, “was
very close to 50%/50%.” Trial Court Opinion, 7/11/14, at 13. Thus, the
additional five percent of the pension awarded to Wife was for the specific
purpose of providing Wife with additional funds to purchase life insurance on
Husband’s life if she so desired. We rely on the trial court’s explanation, as
follows:
This Court is well aware of Wife’s continued requests for
moneys to purchase insurance on Husband’s life, and purposely
structured it’s [sic] recalculation of equitable distribution to
provide Wife with additional funds so that she could obtain such
insurance as she desired. The amount of the difference in what
Wife receives under the Master’s plan and under this Court’s
determination of equitable distribution is approximately $200.00
per month, or $2,400 per year. Under this Court’s
determination, Wife actually receives about $400.00 more of the
pension per month than Husband, or about $4,800 more per
year than Husband. Wife had obtained estimates of insurance
costs to insure Husband’s life for twenty years in the amount of
$730,000, representing the approximate sum of 50% of the
estimated value of the pension of $1,260,257, or $630,128.50,
plus the survivor annuity benefit of $112,937. The Prudential
Financial estimate was $9,341.40 per year, or about $778.45 per
month. Subtracting the $200.00 per month in increased
equitable distribution from the $778.45 insurance payment
leaves Wife with $578.45 needed per month to purchase
insurance in the amount of $730,000 for a twenty year period.
If the additional $200.00 per month difference between what
Wife and Husband receive in the pension is also subtracted,
Wife’s remaining amount needed to cover the insurance payment
is only $378.45 per month, which is less than half of the original
$778.45 per month estimate. It is ultimately Wife’s decision
regarding how much insurance she wishes to purchase on
Husband’s life and for what time periods, but this Court believes
it would be inequitable to require Husband to provide Wife with
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any additional money in alimony or equitable distribution to
cover the complete insurance payments for Wife’s interest in
Husband’s pension, an interest of which there is no reciprocal
interest for Husband if Husband dies unless Husband likewise
were to purchase such insurance.
Id. at 13–14.
It is well established that absent an abuse of discretion on the part of
the trial court, we will not reverse an award of equitable distribution.
Anzalone v. Anzalone, 835 A.2d 773, 780 (Pa. Super. 2003). When
reviewing the record of the proceedings, we are guided by the fact that trial
courts have broad equitable powers to effectuate economic justice. Id.
Here, the trial court did not misapply the laws or fail to follow proper legal
procedures. Lee v. Lee, 978 A.2d 380, 382 (Pa. Super. 2009). The trial
court did not abuse its discretion.3 Id.
Wife’s second issue assails the trial court’s utilization of the Franklin
County Domestic Relations Office’s determination that Husband’s earning
capacity was $35,780. Wife’s Brief at 34. It is noteworthy that Wife
asserted at the hearing on exceptions that it was proper for the court to
utilize that office’s determination of her earning capacity but improper to do
so for Husband. At the hearing, Wife maintained that the domestic relations
3
Contrary to Wife’s suggestion in her reply brief, there is not “an undertone
suggesting that the pension belongs primarily to Husband or that Husband is
somehow more deserving of it than Wife.” Wife’s Reply Brief at 1. If this
were true, the trial court would not have modified the Master’s
recommended division of the pension from fifty/fifty to a fifty-five/forty-five
split in favor of Wife.
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office properly found her earning capacity to be $28,000 per year. N.T.,
2/28/14, at 18. At the same time, she averred that Husband could “earn
more than he is currently earning.” Id. Concomitantly, Husband indicated
he did not object to utilizing Wife’s earning capacity as that determined by
the domestic relations office, $28,000, as long as the trial court also
considered Husband’s earnings as the amount determined by that office.
Thus, the trial court stated:
d. At Oral Argument, the parties generally agreed to the use of
their earning capacities as determined by Domestic Relations.
Wife’s counsel indicated, on the record, that Wife should be held
to the amount as determined by Domestic Relations. Husband’s
counsel indicated, on the record, the Husband would accept
Wife’s earning capacity as determined by Domestic Relations so
long as Husband’s earning capacity as determined by Domestic
Relations was also used. The Court determined that it would be
appropriate to use the Domestic Relations income information for
both parties because both parties were agreeable to using those
values for their individual incomes.
Order, 3/31/14, at 1–2. Clearly, while each party agreed to the use of the
domestic relations office’s determination of earning capacity for him or
herself, Wife continued to assert that Husband’s earning capacity was
undervalued.
Husband contends that if the trial court had not held each party to the
domestic relations’ designation, each party’s earning capacity would have
been higher, and the effect would have been the same. Husband’s Brief at
11. Husband posits:
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Both Husband and Wife are in their 50’s and made more
[money] prior to separation than either party is currently
making. Wife made $33,280.00 a year plus $4,150.00 a year
from being a council person for the Borough of Chambersburg.
(N.T., p.100; R. 103a). This income was reduced when she
became part-time at Blaine [Window] after separation. Husband
retired shortly before separation and was making a base salary
of $60,000.00 when he retired. (N.T., p. 48; R. 90a). It could
be reasonably argued that due to retirement and to market
forces neither party is making as much currently as they made
prior to separation. Both parties have college educations but
both parties are also in their 50’s.
Husband and Wife each seem to acknowledge that age is
playing a role in their inability to make the [money] that they
made prior to separation. Husband testified that age is going to
be against him in trying to get certain positions. (N.T., p. 43; R.
89a). Wife says her age is a significant disadvantage in starting
over. (N.T., p. 117; R. 108a). While Wife argues that her age
may be detrimental in her obtaining employment, she apparently
does not acknowledge that this might actually be an issue for
Husband as well as Wife.
Husband’s Brief at 11–12.
Wife’s reliance on Baehr v. Baehr, 889 A.2d 1240 (Pa. Super. 2005),
as support for her argument that Husband has not searched for employment
commensurate with his experience, is misplaced. The underlying issue in
Baehr involved child support, not equitable distribution. Moreover, the
husband therein was under forty years old and had been laid off from work;
he was not retired. Before being laid off, he had a lucrative position earning
approximately $61,500 per year plus bonuses of $30,000. He accepted a
position as an independent contractor for a software company owned by his
brother earning $16.50 per hour for a forty-hour work week, which
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amounted to approximately $33,000 to $34,000 per year. The court found
the father had not made a reasonable effort to find work commensurate with
his abilities and thus imputed to him an annual earning capacity of $60,000.
In the present case, Husband was employed in law enforcement for
more than twenty-eight years and retired two years past his eligible
retirement age. Despite the fact that Husband is retired and collecting a full
pension, he also is employed full time. Thus, Husband brings to the table
not only a significant retirement income, but he also has full-time earnings
post-retirement. While Wife denies that she is not requesting Husband to be
held to the income of a full-time police sergeant, in fact, she is doing just
that by requesting that he be held to an earning capacity of $60,000.00 per
year, which is the salary of a full time police sergeant in that area. N.T.,
2/25/13, at 48.
We cannot agree that the trial court abused its discretion on this issue.
The trial court stated:
[E]ven if [the court] adjusted the earning capacities as per
Wife’s wishes, holding Husband to a much higher earning
capacity while holding Wife to the same earning capacity, the
resulting difference in earning capacities would not change this
Court’s determination that the income-related equitable
distribution factors either favor or slightly favor Wife, and would
not change this Court’s determination of equitable distribution
which effectuates economic justice between the parties. This
Court adopts this position in the instant Opinion.
The Master had determined that the parties’ earning
capacities were approximately equal, with Wife having an
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earning capacity of $45,000 to $50,000 per year and Husband
having an earning capacity of $50,000 per year. The record
reflects that Wife makes $4,150 per year as a borough
councilperson, and earns $19.00 per hour for 20 hours of work
per week at her position with Blaine Window. If Wife worked a
full-time job at $19.00 per hour, she would earn approximately
$39,520 per year, plus her borough councilperson salary of
$4,150, which equals $43,670. Notably, this Court did not hold
Wife to an earning capacity of $43,670. Wife had previously
worked full-time at Blaine Window, earning approximately
$16.15 per hour, which is $33,592 per year. Including her
borough councilperson salary of $4,150, Wife could earn
approximately $37,742 per year. Notably, this Court did not
hold Wife to an earning capacity of $37,742 either. Husband
makes $14.00 per hour, and works forty (40) hours per week
plus approximately ten (10) hours per week of overtime.
Husband’s yearly salary is approximately $40,040. Notably this
Court did not hold Husband to a yearly salary of $40,040.
This Court’s adoption of the salaries as determined by the
Franklin County Domestic Relations Section actually favors Wife.
Husband agreed that he would accept Wife’s earning capacity as
determined by Domestic Relations if Husband’s earning capacity
as determined by Domestic Relations was also used. These
earning capacities, $35,780 per year for Husband and $23,885
per year for Wife, were both less than what this Court would
have otherwise determined. If this Court did not use the
Domestic Relation earning capacities, this Court would have
determined that both Husband and Wife had a relatively equal
earning capacity of approximately $40,000 per year, thus, this
Court would have found that equitable distribution factor (3) was
neutral.
Additionally, this Court notes that Wife strongly believes
that Husband should be more gainfully employed. Husband was
once a high ranking police officer, bringing in a salary of about
$60,000 per year plus overtime of $40,000 per year. Husband
now works a post-retirement full-time job and also works
overtime, and does not earn the same amount of money per
year as in his previous position as a police officer. Husband
testified that he is happy at his current position. Both Husband
and Wife testified about their respective job searches. Husband
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testified that he had looked for other employment, including
some out-of-country jobs with BAE Systems, but that Husband
did not want to leave his daughter to travel out-of-country for
work. Husband testified that he applied with the Commonwealth
of Pennsylvania. Husband testified that he interviewed with a
car dealership, but did not get the position. Husband testified
that he was offered a job in security for $9.00 per hour, which
Husband obviously has not taken. Husband also testified that he
would like to find a higher paying job, but he understood that his
age might be a factor in finding such employment.
Husband has retired from police work, and as Husband
indicated on the record, he does not have interest in ever
returning to law enforcement. While perhaps it is possible that
Husband could earn more money if he returned to law
enforcement, it is clear that Husband does not want to return to
such work and this Court does not fault Husband for his choice
after his many years of service. This Court will not hold Husband
to an unrealistic earning capacity based on a career field he is no
longer employed in and will not be employed in, in the future.
Trial Court Opinion, 7/11/14, at 16–18. The trial court considered Husband’s
age, education, training, health, work experience, and earnings history.
Isralsky v. Isralsky, 824 A.2d 1178, 1188 (Pa. Super. 2003). We do not
find an abuse of discretion.
Wife’s third issue assails the equitable distribution scheme as a whole.
In particular, Wife asserts that it fails to effectuate economic justice because
the trial court misapplied the law regarding factor nine, the parties’
respective standards of living, and factor eleven, custody of a minor child.
While Wife suggests the trial court “misapplied the law” regarding these
factors, Wife’s Brief at 35, she fails to cite to any law in support. Rather, her
argument posits that the trial court’s conclusion “simply defies logic.” Id. at
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36. Regarding factor eleven in particular, Wife avers that the trial court
abused its discretion in concluding the factor was neutral for purposes of
equitable distribution. Id. at 38.
Pursuant to 23 Pa.C.S. § 3502(a), when fashioning an equitable
distribution award, the trial court must consider: the length of the
marriage; any prior marriages; age, health, skills, and employability of the
parties; sources of income and needs of the parties; contributions of one
party to the increased earning power of the other party; opportunity of each
party for future acquisitions of assets or income; contribution or dissipation
of each party to the acquisition, depreciation, or appreciation of marital
property; value of each party’s separate property; standard of living
established during the marriage; economic circumstances of each party; the
tax ramifications associated with each asset; the expense of sale, transfer,
or liquidation associated with a particular asset; and whether the party will
be serving as custodian of any dependent children. 23 Pa.C.S. § 3502(a)
(1–11). The weight to be given to these statutory factors depends on the
facts of each case and is within the trial court’s discretion. Mercatell v.
Mercatell, 854 A.2d 609, 611 (Pa. Super. 2004) (citing Gaydos v. Gaydos,
693 A.2d 1368, 1376 (Pa. Super. 1997) (en banc)).
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We rely upon the trial court’s explanation for its analysis and
evaluation of each of these factors as follows, concluding that the court did
not abuse its discretion.
This Court determined that factor (9) favored Husband. The
record reflects that the parties lived a middle-class standard of
living, with Wife enjoying the standard of living established by
the parties in a greater capacity than Husband. The record
reflects that both parties worked during the marriage, with
Husband working more hours, including over-time hours, than
Wife on a regular basis and bringing in more of the family’s
income during this time.
* * *
Wife mishandled the family’s joint funds. Husband was not
immediately aware of the financial state of the marriage, having
trusted Wife to pay bills and manage the finances. Husband
eventually started holding back some of his income in cash to
make sure future bills could be paid. Wife never paid off a
$12,000 porch bill from the year 2000. Wife borrowed against
her life insurance policy, which Husband wasn’t aware of. Wife
used a tax refund to pay for a vacation, and Husband did not
have that luxury.
Wife admitted at the Master’s Hearing that she did not
manage the parties’ finances correctly. Wife admitted that she
was not a great money manager. Wife indicated that she was
fine with Husband working overtime and that it was helpful for
the parties’ finances for Husband to do so. Wife described some
of her post-separation expenses, and some of the increased
credit card debts, but could not recall what she made some of
the expenditures for.
This Court notes that since separation, Wife has continued
to live a higher standard of living than Husband. Wife currently
has the benefit of living in the marital residence, while Husband’s
new residence does not even have an additional bedroom where
the parties’ daughter can stay. For a time after the parties’
separation, Husband was retired, receiving his pension, and not
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working, yet paying $2000 per month to Wife plus health
insurance for approximately six months, which was more than
half of Husband’s only income at the time.
This Court believes that based on the parties’ incomes
during the marriage, if Wife had properly managed the family’s
finances, the parties would be in a better place today. The
record reflects that the standard of living factor favors Husband,
because Wife had enjoyed a higher standard of living during the
marriage, while Husband spent a majority of his time during the
marriage working to bring in the income that Wife mismanaged.
While it is unclear to this Court exactly where all of the money
that the parties earned over their marriage disappeared to, it is
clear that Wife enjoyed the benefit of being in control of the
parties’ finances. Husband isn’t blameless, because his blind
trust in Wife’s ability to manage the parties’ finances prevented
his discovery of the parties’ financial troubles until nearly the
end of the marriage. While the record reflects that both parties
enjoyed the fruits of their income, it is clear to this Court that
Wife enjoyed a higher standard of living than Husband, and this
Court did not err in finding that the standard of living factor in
fact favored Husband.
* * *
This Court determined this factor [23 Pa.C.S. § 3502(a)(11)] to
be neutral. The parties have two children, an adult son and a
minor daughter of age thirteen at the time of the Master’s
Hearing. The record reflects and this Court believes that both
parties are devoted parents who love their children and who
both have provided parental duties to their children over the
years.
Husband testified that Wife has primary custody of the
parties’ daughter, but that Husband sees her on a regular basis
on Tuesdays, Thursdays, and Saturdays. Husband testified that
one reason he did not wish to pursue employment overseas was
because he did not want to leave his daughter. Husband
testified that he does not currently have a room in his residence
for his daughter to stay, and that he would be required to
complete some counseling before his custodial time could
increase. Husband testified that he has in the past transported
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and still transports the parties’ daughter “here and there” as her
needs dictate.
This Court recognizes that Wife is currently the primary
custodian of the parties’ daughter, and as a result, Husband is
responsible for paying child support. Both parties enjoy custody
of their daughter, however, and it is likely that Husband’s
custody will increase in the near future if it hasn’t already. This
Court found that this factor favors neither party in particular,
and did not err in doing so.
Trial Court Opinion, 7/11/14, at 20–22, 25.
Given the facts of this particular case, the trial court placed emphasis
on Husband’s contributions to building the marital estate, by agreement of
the parties. Moreover, as noted previously, the weight assigned to each of
the equitable distribution factors is at the discretion of the trial court.
Mercatell, 854 A.2d at 612. Examining the equitable distribution award as
a whole, which we must, we do not find that the trial court abused its
discretion in analyzing the above factors as it did.
Wife’s final issue asserts that the trial court abused its discretion in
denying Wife alimony. Other than citing to case law standards, Wife fails to
cite to case law in support. While we could find the issue waived, Jordan v.
Jackson, 876 A.2d 443, 454 (Pa. Super. 2005), we note, instead, that
unsupported claims provide scant persuasion as we undertake our review of
the record.
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
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appropriate employment, are met. In determining the nature,
amount, duration and manner of payment of alimony, the court
must consider all relevant factors, including those statutorily
prescribed for at 23 Pa.C.S.A. § 3701. 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.
Dalrymple, 920 A.2d at 1278–1279 (citing Isralsky, 824 A.2d at 1188).
Wife proffers that “it is manifestly unfair not to provide a means for Wife to
purchase security for herself to protect against the potentially ‘devastating’
financial impact of Husband’s untimely death.” Wife’s Brief at 39. We
previously addressed this parallel claim in relation to the trial court’s
provision of an additional five percent of the pension to Wife to ensure this
very concern. Moreover, we rely upon the trial court’s explanation for its
denial of alimony, as follows:
Regarding factor (1), the relative earnings and earning
capacities of the parties, this Court has determined in its
analysis of the equitable distribution factors that the earning
capacities of the parties are approximately equal, but that
Husband has a slightly greater earning capacity. This factor
slightly favors Wife.
Regarding factor (2), the ages and the physical, mental
and emotional conditions of the parties, both parties are of
approximately the same age, and while there was some
testimony regarding the health of the parties, there was no
indication that any health condition of either party prevents a
party from pursuing gainful employment. This factor favors
neither party.
Regarding factor (3), the sources of income of both
parties, including, but not limited to, medical, retirement,
insurance or other benefits, both parties are working in some
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capacity and are both able to work full-time. Husband works
full-time with some overtime hours in his position as a truck
driver for IESI and Wife works part-time with Blaine Window and
as a borough councilperson. Husband receives benefits with his
full-time position, and Wife does not currently receive benefits
with her part-time positions but should be able to receive
benefits when she finds full-time employment. Husband’s
income is currently higher than Wife’s, but both parties have an
approximately equal earning capacity, with this Court having
determined that Husband’s earning capacity is slightly higher
than Wife’s earning capacity. This factor favors Wife slightly.
Regarding factor (4), the expectancies and inheritances of
the parties, Husband received an inheritance of personal
property and money from his family during the marriage.
Husband testified that he received approximately $20,000 as
inheritance from his mother’s estate, which he put into a joint
account and later split the remainder of $14,000 evenly with
Wife after separation. At this point, neither party is expected to
receive any further inheritances. This facto favors neither party.
Regarding factor (5), the duration of the marriage, the
parties were married for approximately twenty-nine years. The
parties have left the marriage on approximately equal footing,
with similar earning capacities. During the marriage, Husband
made a much higher income than Wife. After retirement,
Husband’s income has significantly lessened, but Husband still
earns more than Wife. Both parties are of approximately the
same age. Due to mismanagement of the family’s finances by
Wife, the parties have come out of the marriage with little in the
way of financial assets aside from Husband’s pension. In
balance, this factor favors neither party over the other.
Regarding factor (6), the contribution by one party to the
education, training or increased earning power of the other
party, this Court has previously determined in analyzing this
factor inequitable distribution that this factor is neutral.
Regarding factor (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,
the record does not reflect that Wife’s role as primary custodian
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of the parties’ minor daughter negatively affects Wife’s current
ability to pursue more gainful employment. Wife was often
employed full-time during the marriage, and this Court believes
Wife will be again if she is not already. This Court notes that
Husband pays child support to Wife, and there are no special
financial circumstances regarding the minor daughter that need
to be addressed. This factor favors neither party.
Regarding factor (8), the standard of living of the parties
established during the marriage, this Court has previously
determined in its analysis of the equitable distribution factors
that this factor favors Husband.
Regarding factor (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, both parties hold four-year degrees from
Shippensburg University. Both parties are currently employed.
Wife is employed part-time and is seeking full-time employment.
Wife testified that she believes she may require more education
or training to find a job in event planning, hospitality, or
customer service. Wife is looking for a secretarial/administrative
position. The record reflects that Wife has succeeded in several
different full-time positions during the course of the marriage.
Wife testified that she will be unable to work in her current
positions if she attends school because of financial reasons. Wife
would like Husband to pay alimony for Wife to use to go back to
school to get training in order to find full-time employment.
Husband has great experience from a long career in law
enforcement that he could draw from to find employment, but
Husband’s current position is not law enforcement related and
Husband does not wish to obtain any future employment in law
enforcement. Both parties testified regarding their extensive job
searches. It is pure speculation that Wife requires further
education to obtain full-time employment, and Wife could
expand her job search beyond looking for secretarial and
administrative positions. That being said, the advantage for this
factor goes to Husband, and this factor favors Wife.
Regarding factor (10), the relative assets and liabilities of
the parties, it is clear from the record that aside from Husband’s
pension, there are not a great amount of marital assets to be
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split between the parties. Pursuant to this Court’s determination
of equitable distribution, each party receives an approximately
equal amount of the net marital estate. Regarding Husband’s
pension, Wife receives a greater amount of this asset than
Husband pursuant to this Court’s determination of equitable
distribution. Regarding liabilities, until Wife obtains full-time
employment with benefits, Wife is responsible for paying for her
own health insurance, which Wife testified is approximately $151
per month for adequate health insurance. Additionally, under
this Court’s determination of equitable distribution, each party
has taken a share of the marital debt in equitable distribution,
with Husband being responsible for $27,518.90 in marital debt
and Wife being responsible for $40,744.10 in marital debt. Wife
may also be responsible for obtaining life insurance on
Husband’s life to insure her interest in Husband’s pension if Wife
so chooses to do so, [sic] just as Husband could obtain life
insurance on his own life for the benefit of his estate to insure
his own interests. While Wife claims that there is a significant
disparity between the parties in income, this is simply not the
case as this Court has previously explained elsewhere in this
opinion. This Court believes that its determination of equitable
distribution, which provides Wife with a greater amount of
Husband’s pension, effectuates economic justice between the
parties and provides Wife with some additional monies she could
use to purchase life insurance on Husband’s life, if she so
wishes. This factor favors Wife slightly due to Wife’s financial
obligation of paying for her health insurance.
Regarding factor (11), the property brought to the
marriage by either party, this factor favors neither party.
Regarding factor (12), the contribution of a spouse as
homemaker, this Court in its determination of the equitable
distribution factors found this factor to be neutral between the
parties.
Regarding factor (13), the relative needs of the parties,
this Court believes its determination of equitable distribution
fairly addresses the needs of both parties.
Regarding factor (14), the marital misconduct of either of
the parties during the marriage, this Court is aware of some
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issues of marital strife between the parties during and near the
end of the marriage but finds that the parties specifically did not
go into these issues at the Master’s Hearing and that they are
not relevant here.
Regarding factor (15), the Federal, State and local tax
ramifications of the alimony award, if this Court were to award
alimony to Wife, Wife’s alimony award would result in taxable
income to her and the amount of the award would be deductible
from Husband’s gross income.
Regarding factor (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, this Court believes that
its determination of equitable distribution provides Wife with
sufficient property to provide for her reasonable needs.
Regarding factor (17), whether the party seeking alimony
is incapable of self-support through appropriate employment, the
record reflects that under this Court’s determination of equitable
distribution, Wife will receive half of the net marital estate not
including Husband’s pension, and 55% of Husband’s pension.
Wife also receives income from her two or three part-time
positions. In total, this Court finds that Wife is capable of self-
support through her current employment and will be in a better
position once she finds full-time employment.
This Court’s analysis of the alimony factors of 23 Pa.C.S. §
3701 results in one factor that favors Husband, one factor that
favors Wife, and three factors that slightly favor Wife. Alimony
is a secondary remedy, and alimony should only be awarded
where economic justice is not afforded to the parties through
equitable distribution alone. In the instant case, equitable
distribution properly effectuates economic justice between the
parties, and therefore Wife is not entitled to alimony.
Trial Court Opinion, 7/11/14, at 27–32.
The trial court’s conclusions are amply supported by the evidence of
record. In determining whether alimony was necessary in this case, the
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court considered all of the factors set forth in 23 Pa.C.S. § 3701, including
the parties’ earnings and earning capacities, income sources, mental and
physical conditions, contributions to the earning power of the other,
educations, standard of living during the marriage, the contribution of a
spouse as homemaker, and the duration of the marriage, and concluded an
award was not required thereby. Accordingly, as the record supports the
trial court’s conclusions, the trial court did not commit an error of law or an
abuse of discretion in denying Wife alimony.
The trial court balanced the equities in devising its award of equitable
distribution. We conclude, giving the Master’s recommendations that were
adopted by the trial court the fullest consideration, particularly on the issues
of credibility of witnesses, as she had the opportunity to observe and assess
the behavior and demeanor of the parties, Kraisinger v. Kraisinger, 928
A.2d 333 (Pa. Super. 2007), and relying upon the trial court’s findings
supported in the record, that our standard of review compels affirmance of
the equitable distribution award.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2015
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