Camper, C. v. Werner, B. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CAROLYN T. CAMPER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRADLEY S. WERNER :
:
Appellant : No. 3 EDA 2022
Appeal from the Decree Entered November 17, 2021
In the Court of Common Pleas of Bucks County
Civil Division at No(s): A06-13-60988-D-37
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED MARCH 3, 2023
Appellant, Bradley S. Werner (“Husband”), appeals from the decree
entered in the Bucks County Court of Common Pleas, which finalized the
divorce between Husband and Appellee, Carolyn T. Camper (“Wife”). In a
separate order, the court completed the equitable distribution of the marital
property. We affirm.
This Court previously set forth the relevant facts and procedural history
as follows:
Husband and Wife were married in 2005 and separated in
2013. This was the second marriage for Wife, age 56. Wife
has two adult children from her prior marriage. Husband is
58 years old and has had four previous marriages. Prior to
his marriage to Wife, Husband formed Werner Athletic
Management, LLC (WAM) and Pennsbury Racquet and
Athletic Club, LLC (PRAC) in anticipation of purchasing a
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* Retired Senior Judge assigned to the Superior Court.
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pre-existing tennis club, Pennsbury Racquet Club (tennis
club). Husband, through PRAC, purchased the tennis club
approximately 16 months prior to marrying Wife.1
1 While still married to her first husband, Wife
contributed $110,000 towards the acquisition of PRAC
and WAM. In exchange, Wife acquired a 3.57%
ownership stake in PRAC. Later, Husband gifted Wife
a 1% ownership share in WAM.
Wife filed a complaint in divorce on June 19, 2013,2 seeking
equitable distribution of the parties’ marital assets, alimony,
alimony pendente lite (APL), counsel fees, costs, and
expenses. On August 1, 2014, an interim order of court
(interim support order) was entered directing Husband to
pay Wife $5,000 per month in APL.3 In addition to directing
Husband to pay Wife APL, the interim support order also set
forth Husband’s and Wife’s individual obligations with
respect to three jointly-owned properties.4
2The parties stipulated that, for equitable distribution
purposes, June 19, 2013, was also the date of
separation.
3 The interim support order was later terminated.
4 By way of further background, Husband and Wife
jointly owned and resided together in the marital
residence (Yardley Road property) during their
marriage. Additionally, the parties jointly owned a
rental property (Blough Court property) and a
vacation home (Beach Avenue property). Following
the parties’ separation, Wife remained in the Yardley
Road property and paid all real estate carrying costs
prior to its sale. Husband resided in the Blough Court
property with his mother and sister from the date of
separation through November 2014, when Husband
decided to reside elsewhere. His mother and sister
remained in the home until it sold in 2018. In addition
to paying the carrying costs for that property,
Husband was also directed to pay all costs for the
Beach Avenue property. With respect to this property,
the interim support order preserved Husband’s “right
to claim any credits he may have at the time of
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equitable distribution.” Following the sale of all three
properties, the proceeds were held in escrow pending
equitable distribution.
On March 22, 2017, a master’s hearing was held before
Roger E. Cullen, Esquire (the Master), to address the issues
of equitable distribution, alimony, and counsel fees. At the
conclusion of the hearing, the Master entered a master’s
report recommending, inter alia, that the marital estate be
distributed 60% to Wife and 40% to Husband.5 Pertinent to
this appeal, the Master made recommendations regarding
the proposed distribution of several assets, including: (1)
the increase in value of PRAC and WAM during the parties’
marriage; (2) Wife’s irrevocable trust, gifted to her by her
mother during the parties’ marriage (the Trust);6 (3) a
Merrill Lynch investment account titled in the names of both
Husband and Wife as joint tenants with a right of
survivorship (Merrill Lynch account); and (4) the proceeds
from the sale of the parties’ three properties.
5 The Master also recommended that Wife’s claims for
alimony and counsel fees be denied.
6 Wife’s mother established the Trust for Wife on
December 21, 2012 by depositing $10.00 into the
Trust. That same day, Wife’s mother made a second
deposit, this time in the amount of $700,000.
According to Wife’s inventory, as of the date of
separation, the value of the Trust was [estimated to
be] $800,000.
Husband timely filed a motion for a hearing de novo,
asserting that he took “exceptions to the recommendation
of” the Master. Thereafter, the trial court presided over an
equitable distribution hearing, which spanned three days.
Upon the conclusion of testimony and the submission of
proposed findings of fact and conclusions of law by the
parties, the trial court issued an order, in which it concluded
that “an equal split of the marital estate is appropriate.” In
relevant part, the trial court determined that the increase in
value of PRAC and WAM during the marital coverture, which
constituted marital property, was $2,300,000. Additionally,
the court found that “Husband’s personal use of and/or
mismanagement of PRAC/WAM [p]rofits/[a]ssets” post-
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separation totaled $400,000, which the court determined
was subject to equitable distribution. Neither the increase
in value of the Trust nor the Merrill Lynch account was listed
as a marital asset to be distributed. Additionally, neither
party received any credits for the carrying costs the parties
were directed to pay on their three jointly-owned properties.
Camper v. Werner, No. 2726 EDA 2018, unpublished memorandum at 1-4
(Pa.Super. filed December 3, 2019) (internal citations omitted) (“Camper I”).
Husband subsequently filed a notice of appeal from the equitable
distribution order. On December 3, 2019, this Court vacated the order and
remanded for further proceedings. Among other things, this Court determined
that the trial court failed to provide “any analysis of how the court arrived at
a $2,300,000 valuation for PRAC and WAM.” Id. at 10. This Court provided
the following remand instruction:
For the foregoing reasons, we reverse the portion of the trial
court’s order valuing the marital portion of PRAC and WAM
at $2,300,000. Upon remand, we direct the trial court to
address the … tax and cost of sale consequences [as set
forth in 23 Pa.C.S.A. § 3502(a)(10.1)-(10.2)] and, if
necessary, set forth a new valuation based on the same.
Regardless of whether the trial court accepts the valuation
offered by either expert, or again formulates its own
valuation, the trial court shall set forth reasons on the record
to support the chosen valuation.
Id.
We also addressed the increase in value of Wife’s trust. “[W]hile the
entirety of the Trust is not marital property, the trial court should have
recognized that the increase in value of the Trust during the marital coverture
constituted marital property.” Id. at 17. Because the trial court did not
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address the increase in value of the Trust, we remanded for a determination
on this point. Finally, this Court determined that Husband’s post-separation
actions with respect to PRAC and WAM funds should not have impacted the
marital portion of these assets, and we vacated the portion of the equitable
distribution order that awarded $200,000 to Wife. See id. at 10-15.
In response to the remand instructions, the trial court entered a new
equitable distribution order on February 23, 2021. On November 17, 2021,
the court entered a final divorce decree. Husband timely filed a notice of
appeal challenging the new equitable distribution order on December 17,
2021.1 That same day, the court ordered Husband to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Husband timely filed his
Rule 1925(b) statement on December 28, 2021.
Husband now raises three issues for our review:
Whether the [trial] court erred on remand by failing to
properly consider the dispositional costs of [PRAC and WAM]
under 23 Pa.C.S. § 3502(a)(10.1) & (10.2) in its
determination of their value.
Whether the [trial] court erred on remand by modifying its
prior 50/50 equal division of the marital estate to a 60/40
division in favor of Wife without adequate lawful basis.
Whether the [trial] court erred on remand by disregarding
Wife’s judicial admission regarding the value of the marital
component of the … Trust established at trial.
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1 Issues in divorce are reviewable after entry of the divorce decree and the
resolution of all economic issues. See Fried v. Fried, 509 Pa. 89, 501 A.2d
211 (1985).
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(Husband’s Brief at 10).
The following principles apply to this Court’s review of an equitable
distribution order:
A trial court has broad discretion when fashioning an award
of equitable distribution. Our standard of review when
assessing the propriety of an order effectuating the
equitable distribution of marital property is whether the trial
court abused its discretion by a misapplication of the law or
failure to follow proper legal procedure. We do not lightly
find an abuse of discretion, which requires a showing of clear
and convincing evidence. This court will not find an abuse
of discretion unless the law has been overridden or
misapplied or the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or
ill will, as shown by the evidence in the certified record. In
determining the propriety of an equitable distribution award,
courts must consider the distribution scheme as a whole.
[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.
Moreover, it is within the province of the trial court to
weigh the evidence and decide credibility and this
[c]ourt 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.
Goodwin v. Goodwin, 244 A.3d 453, 458 (Pa.Super. 2020), aff’d, ___ Pa.
___, 280 A.3d 937 (2022) (internal citations and quotation marks omitted).
In his first issue, Husband contends that this Court provided explicit
remand instructions in Camper I. Husband emphasizes this Court’s directive
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that the trial court needed to address the tax ramifications and sale expenses
impacting the valuation of the marital portion of PRAC and WAM. Husband
insists that the trial court “ignored the remand directions and attributed the
same $2,300,000 value” to the marital portion of the assets. (Husband’s Brief
at 19). “By simply reiterating its prior determination, the [trial] court … wholly
disregarded competent … evidence offered by Husband’s expert witness …
setting forth and explaining the tax repercussions” and other costs that would
arise out of the sale of PRAC and WAM. (Id.) Husband maintains that the
trial court’s “stated intention to effectuate a 60/40 split of the equitable value
of PRAC and WAM between [the parties] can only be achieved through division
after the costs of liquidating the asset are determined and considered.” (Id.
at 27) (emphasis in original). Husband concludes that the trial court
committed an error of law by not adequately considering the tax/liquidation
expenses, and this Court must reverse the new equitable distribution order.
We disagree.
Regarding remand directives from this Court:
[A] trial court has an obligation to comply scrupulously,
meticulously, and completely with an order of [the appellate
court] remanding a case to the trial court. The trial court is
required to strictly comply with the mandate of the appellate
court. Issues not included in the mandate cannot be
considered by the trial court.
Carmen Enterprises, Inc. v. Murpenter, LLC, 185 A.3d 380, 389
(Pa.Super. 2018), appeal denied, 650 Pa. 671, 201 A.3d 725 (2019) (internal
citations, quotation marks, and emphasis omitted).
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Further, the Domestic Relations Code governs the equitable distribution
of marital property as follows:
§ 3502. Equitable division of marital property
(a) General rule.—Upon the request of either party in
an action for divorce or annulment, the court shall equitably
divide, distribute or assign, in kind or otherwise, the marital
property between the parties without regard to marital
misconduct in such percentages and in such manner as the
court deems just after considering all relevant factors. The
court may consider each marital asset or group of assets
independently and apply a different percentage to each
marital asset or group of assets. Factors which are relevant
to the equitable division of marital property include the
following:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and
sources of income, vocational skills, employability,
estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the
education, training or increased earning power of the
other party.
(5) The opportunity of each party for
future acquisitions of capital assets and income.
(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.
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(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.A. § 3502(a).
Instantly, Camper I provided a lengthy analysis of the trial court’s
original valuation of the marital portion of PRAC and WAM. We concluded that
“the trial court did not provide any analysis of how it arrived at the $2,300,000
valuation.” Camper I, supra at 8. “Furthermore, the trial court made no
mention about whether it considered the statutory factors in [S]ection 3502.”
Id. at 10. Accordingly, this Court vacated the original equitable distribution
order, remanded the case, and instructed the trial court to: 1) address the tax
and cost of sale consequences as contemplated by Section 3502(a)(10.1),
(10.2); and, if necessary, 2) set forth a new valuation based on these factors.
See id. at 10. We also ordered the court to provide on-the-record reasons in
support of the chosen valuation for the marital portion of PRAC and WAM.
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On February 23, 2021, the trial court entered the new equitable
distribution order. The eight-page order analyzed each factor set forth in
Section 3502(a). (See Order, entered 2/23/21, at 5-6). Regarding the
valuation of the marital portion of PRAC and WAM:
This court determines the marital value of PRAC and WA[M]
to be $2,300,000. This is in line with Wife’s expert’s
testimony which valued the increase of these business
interests at $2,300,000. This court found Wife’s expert’s
testimony credible, and Husband’s expert’s testimony not
credible. While Wife argued that the value of the PRAC and
WA[M] should be increased by an additional $110,000 to
$2,410,000, this court does not adopt this addition to value
as the overall increase in value accounts for Wife’s
premarital contribution to this business.
This court has considered both the possible tax
consequences of a sale as well as all other possible
liquidation cost[s]. However, the court does not find it
appropriate to deduct for those possible costs. Said
deductions are not mandatory, and a further reduction of
the value of this marital asset would not serve to effectuate
economic justice in this matter. Most importantly the court
finds that a sale of the business is extremely unlikely. The
business is very profitable. It provides Husband with a
substantial direct income. In addition, as we previously
found, the business supports Husband’s expenditure of
substantial sums for his personal expenses. As noted below,
the court determines that Wife shall receive 60% of the
marital assets. Wife’s 60% of this asset is $1,380,000. If
the court did deduct the theoretically possible dispositional
costs (taxes, liquidation costs, etc.), the court would award
Wife substantially more than 60% of the asset, as the court
finds that awarding Wife $1,380,000 of this asset is
equitable.
(Id. at 1-2) (some capitalization omitted).
The text of the new order confirms that the trial court complied with the
remand instructions set forth in Camper I. The court considered Husband’s
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expert’s testimony regarding the possible tax consequences and costs
associated with a sale of PRAC and WAM. Nevertheless, the court did not find
such evidence credible, which was within its province. See Goodwin, supra.
The court also found that the likelihood of Husband retaining these assets
outweighed the need to reduce their valuation based upon the possibility of a
sale. Thus, the court complied with the Camper I directive requiring an on-
the-record statement of reasons for the chosen valuation.
Husband now argues that the trial court erred by failing to reduce the
valuation of the marital portion of PRAC and WAM to reflect the potential tax
consequences and costs associated with liquidation of the assets. On this
point, we find the precise language of Camper I to be instructive. Although
this Court acknowledged that the tax ramifications and expenses associated
with the sale of a marital asset are relevant considerations regardless of the
likelihood of a sale, we did not mandate that the trial court automatically
deduct such costs from the chosen valuation upon remand. See Camper I,
supra at 9-10 (citing Carney v. Carney, 167 A.3d 127, 134 (Pa.Super.
2017)). Rather, this Court instructed the trial court to “address” the “tax and
cost of sale consequences, and if necessary, set forth a new valuation based
on the same.” Id. at 10 (emphasis added). On this record, we conclude that
the trial court satisfied its obligation to comply with this Court’s remand
instructions, and it did not abuse its discretion in failing to calculate a new
valuation. See Goodwin, supra; Carmen Enterprise, Inc., supra.
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Consequently, Husband is not entitled to relief on his first claim.
In his second issue, Husband asserts that the trial court originally
ordered a 50/50 split of the marital assets. Upon remand, however, the new
equitable distribution order changed the distribution percentage to 60/40 in
favor of Wife. Husband argues that the court altered the distribution
percentages “based upon a wholly unchanged factual record[.]” (Husband’s
Brief at 27). Husband acknowledges that “there is no standard formula
guiding the division of marital property and the method of distribution derives
from the facts of the individual case.” (Id. at 29) (internal quotation marks
and citation omitted). Husband insists, however, that the court’s modification
of the distribution percentages upon remand was guided by “a desire to
vindicate its prior monetary award to Wife.” (Id. at 31). Husband concludes
that the “modification from a 50/50 equal apportionment to a 60/40 share in
favor of Wife was erroneous and should be reversed.” (Id. at 37). We
disagree.
“In the context of an equitable distribution of marital property, a trial
court has the authority to divide the award as the equities presented in the
particular case may require.” Schenk v. Schenk, 880 A.2d 633, 639
(Pa.Super. 2005). “The trial court need not distribute assets equally among
the parties, as economic justice often requires otherwise.” Dalrymple v.
Kilishek, 920 A.2d 1275, 1280 (Pa.Super. 2007). “Relevant factors in
fashioning an equitable distribution or reimbursement award are set forth at
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23 Pa.C.S.A. § 3502(a).” Id.
Instantly, Camper I acknowledged that its holdings might disturb the
original equitable distribution scheme such that some alterations were needed
to effectuate economic justice. See Camper I, supra at 25-26. For example,
Camper I held that the trial court committed reversible error in considering
Husband’s post-separation mismanagement of $400,000 in PRAC and WAM
funds. See id. at 10-15. Consequently, the new equitable distribution order
provided as follows:
On remand, the marital estate is valued at less. Also, some
of Wife’s assets previously attributed as her non-marital
estate are now part of the marital estate, thereby
decreasing Wife’s non-marital estate.[2] Also, Husband’s
non-marital estate has now increased by the aforesaid
$400,000. As a result, this [c]ourt determines that an equal
distribution of the marital estate would not effectuate
economic justice between the parties. Instead, the marital
estate (subject to the above determinations) shall be
divided 60% to Wife and 40% to Husband based on the
following analysis of the equitable distribution factors
outlined at 23 Pa.C.S.A. Section 3502[.]
(Order, entered 2/23/21, at 4-5). Thereafter, the court provided its analysis
of each of the Section 3502(a) factors.
Contrary to Husband’s argument, the trial court did not modify the
distribution percentages in some attempt to “vindicate” any prior
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2 Regarding the decrease in Wife’s non-marital estate, we reiterate the
following findings in Camper I: 1) the trial court did not address the increase
in value of the Trust, which should have been considered a marital asset; and
2) the trial court erred in determining that Wife’s Merrill Lynch account could
not be considered a marital asset. See Camper I, supra at 17, 21.
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determinations. Rather, the holdings from Camper I forced the trial court to
rethink the allocation of assets in order to effectuate economic justice. In this
matter, which involves extensive litigation over a complex marital estate, we
decline Husband’s invitation to reweigh the Section 3502(a) factors and
interfere with the trial court’s thoughtful distribution scheme. See
Dalrymple, supra. The new equitable distribution order provides the court’s
reasoning for implementing the 60/40 split. We cannot say that the court
committed an abuse of discretion, especially where the 60/40 split comports
with the Master’s original recommendation. See Goodwin, supra.
Therefore, Husband is not entitled to relief on his second claim.
In his third issue, Husband reiterates that Wife’s mother created the
Trust for Wife’s benefit during the marriage, and the initial value of the Trust
was $700,000. Citing Wife’s 2016 statement of inventory, Husband insists
that the value of the Trust was $800,000 on the date of separation. Further,
Husband argues that the valuation listed in Wife’s statement “constitutes a
judicial admission, [and Wife] is bound by the same, and cannot simply choose
to ignore it in an effort to make a better argument.” (Husband’s Brief at 39).
Under these circumstances, Husband concludes that the trial court committed
reversible error in finding that the value of the Trust had increased by only
$9,356.76 on the date of separation. We disagree.
This Court has addressed judicial admissions as follows:
Statements of fact by one party in pleadings, stipulations,
testimony, and the like, made for that party’s benefit, are
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termed judicial admissions and are binding on the party.
Nasim v. Shamrock Welding Supply Co., [563 A.2d
1266, 1267 (Pa.Super. 1989)] (“It is well established that a
judicial admission is an express waiver made in court or
preparatory to trial by a party or his attorney, conceding for
the purposes of trial, the truth of the admission.”). As we
held in John B. Conomos, Inc. v. Sun Co., 831 A.2d 696,
712 (Pa.Super. 2003)[, appeal denied, 577 Pa. 697, 845
A.2d 818 (2004)],
For an averment to qualify as a judicial admission,
however, it must be a clear and unequivocal
admission of fact. Judicial admissions are limited in
scope to factual matters otherwise requiring
evidentiary proof, and are exclusive of legal theories
and conclusions of law. The fact must have been
unequivocally admitted and not be merely one
interpretation of the statement that is purported to be
a judicial admission. Jones v. Constantino, [631
A.2d 1289, 1293–94 (Pa.Super.1993)] (finding no
admission where “the evidence could be reasonably
construed to admit of more than one meaning”)…. An
admission is not conclusively binding when the
statement is indeterminate, inconsistent, or
ambiguous. When there is uncertainty surrounding a
conceded fact, it is the role of the judge or jury as fact
finder to determine which facts have been adequately
proved and which must be rejected.
Coleman v. Wyeth Pharmaceuticals, Inc., 6 A.3d 502, 524-25 (Pa.Super.
2010), appeal denied, 611 Pa. 638, 24 A.3d 361 (2011) (some internal
citations omitted).
Instantly, Wife filed her statement of inventory on May 4, 2016. The
“non-marital property” section of the statement included the Trust. (See
Statement, filed 5/4/16, at 5 (unnumbered)). The same page of the
statement provided a space for Wife to supply the “Estimated Value at DOS”
of the Trust. (Id.) (emphasis added). Here, Wife estimated that the value of
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the Trust was $800,000 on the date of separation. Because this amount was
nothing more than an estimate, we cannot say it amounted to a “conclusively
binding” judicial admission. See Coleman, supra.After remand, the parties filed a joint submission “outlining issues that
are agreed upon and issues still in dispute” following this Court’s remand.
(Joint Submission, filed 10/13/20, at 1). Significantly, the joint submission
addressed the value of Wife’s trust as follows:
The parties agree that the date of separation value of Wife’s
Trust was $709,356.76. We agreed that that statement was
not submitted in Court at the time of trial. Rather, a
statement was submitted long after the date of separation
indicating an increase in value of approximately $100,000.
(Id. at 2). Thereafter, the court relied upon the information in the joint
submission to address the marital portion of the Trust in the new equitable
distribution order. (See Order, entered 2/23/21, at 3; Trial Court Opinion at
7-8).
Here, the court properly determined that the clear, unequivocal
statement in the joint submission constituted a judicial admission regarding
the value of the Trust on the date of separation. See Coleman, supra.Therefore, the court did not abuse its discretion by assigning this asset a date
of separation value of $709,356.76. See Goodwin, supra. Accordingly,
Husband is not entitled to relief on his final claim, and we affirm the divorce
decree and corresponding equitable distribution order.
Decree and order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2023
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