Trapasso, H. v. Trapasso, J. ( 2021 )

J-A21020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
HEATHER L. TRAPASSO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
JOSEPH G. TRAPASSO
Appellant : No. 293 EDA 2021
Appeal from the Decree Entered March 17, 2021
In the Court of Common Pleas of Northampton County Civil Division at
No(s): No. C-48-CV-2013-03559
BEFORE: KUNSELMAN, J., NICHOLS, J., and KING, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 19, 2021
Joseph G. Trapasso (Husband) appeals from the decree divorcing
Husband and Heather L. Trapasso (Wife). Husband challenges the valuation
of marital property and the award of alimony pendente lite (APL) to Wife. We
affirm based on the trial court’s opinion.
We state the facts as presented in the master’s report, which was
adopted by the trial court:
The parties were married on September 25, 2004. The parties
separated on April 18, 2013. There were no children resulting
from the marriage and this was the first marriage for both parties.
Wife was 47 years old at the date of the hearing. There was no
testimony regarding any medical issues. During the marriage,
Wife obtained a degree in nursing as well as a master’s degree.
Based upon her prior work experience and her education, Wife
developed a specialized career as a medical writer. In this
occupation, Wife contracts with various pharmaceutical companies
to assist them in preparing and editing documents which are then
submitted to “health authorities” for approval. These health
authorities are typically governmental agencies both domestic and
international.
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During the marriage, Wife established her business, Rite Idea
Enterprises (“Rite Idea”), for which she is the sole employee. Rite
Idea has few hard assets, consisting mainly of office equipment
utilized by Wife, and the value of this entity is almost entirely
Wife’s expertise, goodwill, and professional reputation. Wife
operated Rite Idea from a home office at 1658 Briarwood Circle
(“Briarwood Home”), the marital residence.
As of the date of the hearing, Wife was earning in excess of
$390,000 annually through Rite Idea. Despite her large salary,
Wife had failed to amass the expected level of savings, assets, or
retirement plans. The testimony revealed that during the
marriage, Wife would spend lavishly on luxury items. Fortunately
for Wife, she will continue to command a substantial salary post-
divorce. Her strong earning ability will allow her to support her
reasonable needs, continue her upper-class lifestyle, while also
amassing retirement and savings accounts for the future. As an
example of Wife’s current financial abilities, after the date of
separation, she purchased her own home and is now building
equity in this asset. Her high income is also aided by the likely
additional working years Wife will have over [H]usband due to her
being ten years younger.
Husband was 58 years old at the date of the [hearing]. There was
no testimony regarding any medical issues. Husband is a licensed
physician, specifically in oncology, currently employed by St.
Luke’s Physician Group (“SLPG”). At the time of the hearing,
Husband was earning over $500,000 annually. Husband
completed his training and education prior to the date of marriage
and was a partner within the medical practice then known as
Urology Specialists of the Lehigh Valley, P.C. (USLV”).
In 2017, well after separation, USLV was bought out by SLPG ina
purchase agreement that included a price for USLV itself as well
as employment agreements for the shareholder-physicians of
USLV. ... In contrast to Wife, Husband lives a frugal lifestyle.
As a result, Husband has amassed considerable savings and
retirement assets. He will continue to earn a substantial salary
thus enabling him to continue to support himself, meet all his
reasonable needs, and continue to set funds aside for the future.
Additionally, Husband has a number of non-marital assets and
thus, considerable savings beyond the marital estate divided
within this report.
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During the marriage, the parties maintained individual banking
and credit card accounts and indeed much of their financial lives
remained separate. Husband was primarily responsible for the
home expenses of the couple. Husband paid the mortgage and
real estate taxes on the Briarwood Home, the utility bills,
entertainment expenses, and travel. Husband also supported
Wife’s efforts to increase her earning potential by loaning her
funds for school and providing support typical within a marriage.
It was uncontradicted that Wife did pay Husband back for all the
sums he loaned her for education. Wife was responsible for the
expenses pertaining to their show dogs, which were not
insignificant. There was testimony that Wife would take charge of
various renovation projects on the marital home and that she
would also contribute to these projects financially. These projects,
however, seem to have done little to increase the equity in the
Briarwood Home....
Husband has remained at the Briarwood Home and all ownership
documents and any financial obligations on the same are in his
name alone. The home was purchased immediately prior to the
marriage by Husband....
At the date of the hearing, both parties commanded substantial
salaries. During the marriage, however, this was not always the
case. In fact, Wife’s income increased dramatically during the
marriage as Rite Idea became a successful business. At one point
during the marriage, Wife out-earned Husband’s salary from
USLV.
Master’s Report, 3/20/20, at 3-7; see also Order, 1/4/21 (adopting, as
modified, the master’s report).
Each party filed exceptions to the master’s report, which the trial court
resolved on January 4, 2021. See Order, 1/4/21. The trial court did not
immediately file a divorce decree. On February 3, 2021, Husband filed a
premature notice of appeal from the trial court’s January 4, 2021 order. The
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trial court subsequently filed a divorce decree on March 17, 2021.! Decree,
3/17/21.
Meanwhile, on February 10, 2021, the trial court ordered Husband to
comply with Pa.R.A.P. 1925(b), and service occurred on February 11, 2021.
Order, 2/10/21; Docket. On March 8, 2021, the trial court docketed
Husband’s Rule 1925(b) statement, which was dated March 3, 2021.2
Husband raises the following issues:
1. Did the [trial] court err in adopting the master’s
recommendation that the decrease in value of [Husband’s]
pre-marital property was limited to $52,000.00 as opposed
to $263,000.00 that existed on date of separation and had
zero value on date of distribution and a negative value of
another $125,000.00 on date of distribution, contrary to the
mandates of [23 Pa.C.S. § 3501(a.1)?].
2. Did the [trial] court err in adopting the master’s
recommendation that [Wife] was entitled to additional
growth of [Husband’s] pre-marital property after the date of
separation where that growth resulted in a greater amount
of the increase in [Husband’s] marital property, contrary to
[23 Pa.C.S. § 3501(a.1)]?
1 This Court held that Husband’s appeal is properly us. See Order, 4/9/21
(stating that “upon [this Court’s] docket review, and after [this Court’s] receipt
of an updated trial court docket evincing that the divorce decree was entered
on the trial court docket on March 17, 2021, this appeal will be treated as
timely filed” (citations omitted)); see also Campbell v. Campbell, 516 A.2d
363, 366 (Pa. Super. 1986) (en banc) (holding that an appeal filed before the
trial court enters a final decree is “rendered final by the entry of a decree in
divorce” (footnote omitted)).
2 Attached to Husband’s Rule 1925(b) statement was a completed United
States Postal Service Form 3817, which reflects a service date of March 3,
2021. Because Husband complied with Rule 1925(b)(1), which permits the
use of USPS Form 3817, we therefore conclude that Husband timely filed his
court-ordered Rule 1925(b) statement.
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3. Did the [trial] court err in granting and extending alimony
pendente lite to [Wife] where she consistently earned a
[substantial] income, at times greater than Husband, and
produced no evidence as to “need”[?]
Husband’s Brief at 3.
In support of his first issue, Husband argues that the trial court erred in
calculating the value of his USLV interest. Id, at 10. By way of background,
the parties stipulated that the value of Husband’s USLV interest on the date
of marriage was $52,695, and the value on the date of separation was
$236,734. R.R. at 18a-19a.2 On the date of the parties’ distribution hearing,
however, the value of Husband’s USLV interest was $0, and Husband had to
pay a further $125,000 to complete the sale of USLV. Id. at 328a-30a. The
trial court held that Husband lost $52,695 and that he was entitled to offset
that loss against any increase in the value of his other nonmarital property.
See, e.g., Trial Ct. Op., 1/4/21, at 12-13.
On appeal, Husband disagrees with the “start” date used to calculate
the value of his USLV interest. Specifically, instead of using the date-of-
marriage valuation of $52,695, Husband argues that the trial court should
have used the date-of-separation value of $236,734. Husband's Brief at 11.
Husband therefore reasons that the value of his USLV interest was negative
$361,734, which represents the complete loss of $236,734, plus the additional
3 We may cite to the reproduced record for the parties’ convenience.
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$125,000 he paid. Id. at 10-11. Husband asserts that under 23 Pa.C.S. §
3501(a.1), any decrease in the value of any nonmarital property “can be used
as an Offset.” Id. at 11.
Wife counters that Section 3501(a.1) states that the “start” date must
be the date of marriage. Wife’s Brief at 2. Wife therefore reasons that
Husband’s maximum loss is $52,695, j.e., the date-of-marriage value of
Husband’s USLV interest. Id. at 4.
The trial court addressed this issue as follows:
Upon review, we find no error of law or abuse of discretion in the
Master’s determination of the marital value of Husband’s interest
in USLV. The Master properly assessed the credibility of
Husband’s expert witness, Mr. LeMaster, and credited his
testimony that the sale of USLV allowed the four shareholders,
including Husband, to satisfy more than three million dollars in
outstanding corporate debt, wind down the business, and begin
instead working as employees of St. Luke’s. The Master
reasonably found that the value of Husband’s interest in USLV
was, at the time of the hearings, zero dollars. Because the
stipulated value at the time of the parties’ marriage was $52,695,
and because the Master is directed by law to the use the lesser of
the value at the time of separation or the value at the time of the
hearing, the Master properly found a decrease in value of $52,695
to serve as an offset against the gains of other pre-marital assets.
Trial Ct. Op., 1/4/21, at 13, 24 (stating that the “Master’s Report directly
addresses [Husband’s] argument that his loss should be much higher, more
than $300,000, by noting that no such loss was proven at the hearing. We
agree that the record does not support a decrease in value in excess of
$52,695”); Master’s Report, 3/20/20, at 15 n.7 (stating that “[w]hile Husband
maintains in his post hearing letter brief that he is entitled to a credit for a
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decrease in the amount of $361,734[,] this sum was not proven at the hearing
nor was the argument and math used within Husband’s brief persuasive as to
that figure”).
The standard of review follows:
Our standard of review when assessing the propriety of an order
effectuating the equitable distribution of marital property is
whether the trial court abused its discretion by a misapplication of
the law or failure to follow proper legal procedure. We do not
lightly find an abuse of discretion, which requires a showing of
clear and convincing evidence. This court will not find an abuse
of discretion unless the law has been overridden or misapplied or
the judgment exercised was manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill will, as shown by the
evidence in the certified record. In determining the propriety of
an equitable distribution award, courts must consider the
distribution scheme as a whole. We measure the circumstances
of the case against the objective of effectuating economic justice
between the parties and achieving a just determination of their
property rights.
Moreover, 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.
Goodwin v. Goodwin, 244 A.3d 453, 458 (Pa. Super. 2020) (citations
omitted and formatting altered), appeal granted, --- A.3d ---, 2021 WL
4204802 (Pa. filed Sept. Sept. 16, 2021).
With respect to the valuation of marital property in “effectuating the
equitable distribution of marital property,” id., courts are guided by Section
3501(a.1) of the Domestic Relations Code:
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(a.1) Measuring and determining the increase in value of
nonmarital property.—The increase in value of any nonmarital
property acquired pursuant to subsection (a)(1) and (3) shall be
measured from the date of marriage or later acquisition date to
either the date of final separation or the date as close to the
hearing on equitable distribution as possible, whichever date
results in a lesser increase. Any decrease in value of the
nonmarital property of a party shall be offset against any increase
in value of the nonmarital property of that party. However, a
decrease in value of the nonmarital property of a party shall not
be offset against any increase in value of the nonmarital property
of the other party or against any other marital property subject to
equitable division.
23 Pa.C.S. § 3501(a.1).
“While the Divorce Code does not require a specific methodology for
assessing an asset’s value, it is beyond peradventure that the chosen
methodology must represent an accounting of the asset’s total value.” Mundy
v. Mundy, 151 A.3d 230, 237 (Pa. Super. 2016).
Thus, the trial court must exercise discretion and rely on the
estimates, inventories, records of purchase prices, and appraisals
submitted by both parties. When determining the value of marital
property, the court is free to accept all, part or none of the
evidence as to the true and correct value of the property. Where
the evidence offered by one party is uncontradicted, the court may
adopt this value even though the resulting valuation would have
been different if more accurate and complete evidence had been
presented. A trial court does not abuse its discretion in adopting
the only valuation submitted by the parties.
Biese v. Biese, 979 A.2d 892, 897 (Pa. Super. 2009) (citations omitted and
formatting altered).
Instantly, Section 3501(a.1) requires using the parties’ date of marriage
as the initial “start” date for determining any increase in the value of
Husband’s USLV interest. See 23 Pa.C.S. § 3501(a.1) (stating that “[t]he
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increase in value of any nonmarital property . . . shall be measured from the
date of marriage”). The parties stipulated that the value of Husband’s USLV
interest was $52,695 on the date of the parties’ marriage, and therefore, the
trial court did not abuse its discretion. See Biese, 979 A.2d at 897.
To the extent Husband challenges the calculation of the loss, Husband
did not establish any abuse of discretion by the trial court because Husband’s
proposed loss value uses the date-of-separation value but Section 3501(a.1)
requires using the parties’ date of marriage as the initial “start” date. See id.Regardless, even if the trial court could use the date-of-separation value as
the “start” date, we agree with the trial court that it did not abuse its discretion
by holding that Husband failed to establish the proposed loss value at the
hearing because it was well within the trial court’s discretion to “accept all,
part or none of the evidence as to the true and correct value of the property.”
See id. The trial court acted within its discretion to reject Husband's proposed
loss value and accept Wife’s proposed loss value. See id.In support of his second issue, Husband argues that the trial court erred
by adopting the master’s figures for the increase in value of the marital portion
of two of his non-marital properties. Husband’s Brief at 13. By way of
background, Jonathan Cramer, Wife’s valuation expert, testified that he
excluded postseparation contributions and payments in calculating the value
of the marital portions of the properties in question. R.R. at 200a. Mr. Cramer
testified that he did his best to separate the marital from the nonmarital
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contributions, but he did not have all of the required financial statements. Id.at 180a, 219a-20a.
Husband cross-examined Mr. Cramer as follows:
[Husband's counsel]. And you're aware that that statement that
all nonmarital -- marital assets such as this, that the increase in
value, for purposes of equitable distribution, is to be either the
date of final separation or the date as close to the hearing on
equitable distribution as possible, whichever date results in a
lesser increase?
[Mr. Cramer]. Correct. And I didn’t know -- you quoted from my
report, but you didn’t say the last sentence of the paragraph. I
have noted the limitation of that report, and I say, [i]f historical
statements had been made available to me to allow the calculation
the way you’re describing it, I would amend the report. But I was
not provided with necessary statements to do the exact
calculation that you’re referring to.
[Husband's counsel]. But your calculation would still be -- would
still result in a value that is greater than the value of the date of
separation; correct?
[Mr. Cramer]. Correct, because I’d be including earnings on the
marital contributions. Contributions made into the account during
the marriage, in my opinion, are marital property and should
include earnings postseparation. I do agree with you that the
increase in value of nonmarital property, which would be the
premarital balance, should be cut off at the date of separation, if
that provides for a lesser increase than as of the current date. But
we don’t have statements from 2004, 2013, so I can’t make the
calculation in accordance with the letter of the law. This is the
best I can do with what I have.
R.R. at 213a-15a. In other words, because Mr. Cramer did not have
statements post-dating the parties’ date of separation, he could not calculate
an alternative figure. See id.-10-
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On appeal, Husband argues that the trial court should have considered
only “the increase in value of the non-marital property [up] to the date of
separation [and] not any increase in value of any portion of the non-marital
asset as of the date of the [equitable distribution] hearing.” Husband’s Brief
at 18. Husband emphasizes that “Section 3501(a.1) is explicit that the marital
portion of a non-marital asset is to be calculated from the date of marriage to
the date of separation, only.” Id, at 19.
In Wife’s view, Husband “had the burden to provide sufficient credible
evidence” of any nonmarital asset. Wife’s Brief at 4. Regardless, Wife argues
that her marital asset valuations omitted “any growth. . . after the date of
separation” and any “post-separation contributions and any growth on those
contributions.” Id. at 6.
We have previously set forth the applicable law above. In relevant part,
as quoted above, “the court is free to accept all, part or none of the evidence
as to the true and correct value of the property.” Biese, 979 A.2d at 897(citation omitted).
Instantly, as stated, Section 3501(a.1) provides that the “increase in
value of [the marital portion of] any nonmarital property . . . shall be
measured from the date of marriage... . to either the date of final separation
or the date as close to the hearing on equitable distribution as possible,
whichever date results in a lesser increase.” See 23 Pa.C.S. § 3501(a.1).
Therefore, to the extent Husband argues that the date of separation is the
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only permissible date, Husband is incorrect. See id. Further, to the extent
Husband’s argument can be construed as a challenge to the calculation of the
|™
value, the trial “court [was] free to accept all, part, or none of the evidence
as to the true and correct value” of the increase in value of any nonmarital
property. See Biese, 979 A.2d at 892. The parties presented different values
for the calculation of marital assets. Husband presented one set of values,
which used the date of separation as the end point for his marital assets
calculation, and Wife presented her set of values, which used the same date
of separation. See R.R. at 200a (reflecting Mr. Cramer’s testimony that he
did not include post-separation contributions and payments); id, at 213a-15a
(reflecting Mr. Cramer’s testimony that he could not calculate any post-
separation figures). Upon careful review of the parties’ arguments, the record,
and the trial court’s opinion, we agree with and adopt the trial court’s
reasoning that it did not abuse its discretion in accepting Wife’s values based
on its analysis and review of the record. See Biese, 979 A.2d at 897.
Lastly, Husband argues the trial court erred in awarding APL to Wife,
specifically thirty months of APL for a total of $75,660. Husband's Brief at 20,
23-24. In Husband’s view, Wife failed to present “relevant evidence” of her
“circumstances or her ‘need’ with regard to lifestyle or the cost of the divorce
litigation.” Id. at 20. Husband emphasizes that Wife earned over $345,000
in 2013 (when the parties separated), over $440,000 in 2014, and over
$283,000 in 2016. Id. at 22. Because Wife failed to establish her burden of
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proof for APL, Husband asserts that he improperly paid her thirty months of
APL, totaling $75,660. Id. at 23-24.
Wife counters that Husband misstates the burden of proof. Wife’s Brief
at 9. Wife explains that the guideline support amount is presumed correct
and that Husband was required to establish error in the guideline support
amount. Id.
The standard of review for a grant of APL follows:
If an order of APL is bolstered by competent evidence, the order
will not be reversed absent an abuse of discretion by the trial
court. Further, in ruling on a claim for alimony pendente lite, the
court should consider the following factors: the ability of the other
party to pay; the separate estate and income of the petitioning
party; and the character, situation, and surroundings of the
parties.
Strauss v. Strauss, 27 A.3d 233, 236 (Pa. Super. 2011) (citations omitted
and formatting altered); see also 23 Pa.C.S. §§ 3702, 4322. “The guideline
support amount is presumed to be the correct support amount.” Ileiwat v.
Labadi, 233 A.3d 853, 863 (Pa. Super. 2020) (emphasis and citation
omitted). Because the guideline support amount is presumed correct, the
burden is on the person opposing the APL amount “to produce evidence to
persuade the fact-finder that the guideline amount was unjust or
inappropriate, and that deviation was warranted under the statutory factors.”
Id. (citations omitted). An argument that the APL recipient does not “need
the guideline amount to meet [the recipient’s] expenses has been soundly
rejected by this Court.” Id. (citation omitted and formatting altered).
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After careful review of the record, the parties’ briefs, and the trial court’s
opinion, we affirm this issue based on the trial court’s reasoning. See Trial
Ct. Op., 3/31/21, at 9-15. We agree with the trial court that it did not abuse
its discretion as the record supports the calculation of the APL amount, and
this Court has rejected Husband’s argument that Wife must establish a need
for APL. See Labadi, 233 A.3d at 863; Strauss, 27 A.3d at 236. For these
reasons, we affirm the decree on the basis of the trial court’s opinion.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Es¢
Prothonotary
Date: 11/19/2021
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“_—, =“ Circulated 11/04/2021 03:03 PM
IN THE COURT OF COMMON PLEAS OF
NORTHAMPTON COUNTY, PENNSYLVANIA
CIVIL DIVISION — LAW
HEATHER L. TRAPASSO, : CIVIL ACTION
Plaintiff :
NO. C-0048-CV-2013-3559
Vv.
JOSEPH G. TRAPASSO, ; a
Defendant : IN DIVORCE oe _—
OPINIONOFTHECOURT ==... ©!
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Presently before the Court are exceptions to the Divoree Masigr’s Report
filed by both the Plaintiff, Heather L. Trapasso, and the Defendant, j oseph G.
Trapasso. This matter was argued before the Court on October 27, 2020 and is
now, following a review of the record and the briefs filed by the parties, ripe for
disposition.
FACTUAL BACKGROUND/PROCEDURAL HISTORY
On April 18, 2013, Plaintiff Heather Trapasso (“Plaintiff” or “Wife”) filed a
Complaint in Divorce against Defendant Joseph Trapasso (“Defendant” or
“Husband”). The parties were married on September 25, 2004 and separated on
April 18, 2013. A Master’s Hearing was held on the 22™4 and 23" of January 2020,
at which counsel for both parties presented evidence and testimony before Special
Master Jeremy F. Clark, Esquire. The Master filed his Report on March 20, 2020.
The Master’s Report concludes that neither party is entitled to alimony or counsel
' fees: With respect to equitable distribution of the marital property, the Master
recommends that Husband shall transfer to Wife a sum of $821,241.00 from his
qualified assets, and that Husband shall transfer to Wife several pieces of art
located in the former marital home now occupied by Husband.
On April 15, 2020, Plaintiff filed seven (7) exceptions to the Master’s
Report. On May 11, 2020, Defendant filed eight (8) exceptions to the Master’s
Report. On September 21, 2020, Plaintiff filed a brief in support of her exceptions.
On October 6, 2020, Defendant filed a brief in support of his exceptions. On
October 20, 2020, Defendant filed a response in opposition to Wife’s exceptions.
On October 26, 2020, Plaintiff filed a brief in opposition to Defendant’s
exceptions.
STANDARD OF REVIEW
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. See Cook v. Cook, 186 A.3d 1015 (Pa.
Super. 2018). “[T]he report of a master is entitled to great consideration . . . [and] it
should not be disregarded lightly.” Arcure v. Arcure, 281 A.2d 694, 695 (Pa.
Super. 1971). However, “the reviewing Court is not bound by it and it does not
come to the Court with any preponderate weight or authority which must be
' overcome.” Arcure, 281 A.2d at 695. The correct standard of review is de novo.
See id. Accordingly, when a party files exceptions to the master’s report, the trial
court is required to make an independent review of the report and
recommendations to determine whether they are appropriate. See Kohl v. Kohl,
564 A.2d 222, 224 (Pa. Super. 1989), aff'd 585 A.2d 463 (Pa. 1991). “In
determining the propriety of an equitable distribution award, courts must consider
the distribution scheme as a whole.” Morgante v. Morgante, 119 A.3d 382, 387
(Pa. Super. 2015).
DISCUSSION
We will first examine each of the Plaintiff’s exceptions. Thereafter, we will
examine each of the Defendant’s exceptions.
Plaintiff’s Exception No. 1:
Increased Value of Property at 1658 Briarwood Circle
Plaintiff argues that the Master abused his discretion and/or erred as a matter
of law by finding that the increased value of the property at 1658 Briarwood Circle
(the “Briarwood Home”) was $10,000 when the parties specifically stipulated that
the increased value of the property was $193,500. See N.T. 1/22/20 at 17; see also
N.T. 1/22/20 at 206:2-4 (Husband acknowledging marital value of the Briarwood
Home was $193,500). Plaintiff contends that the Master mistakenly utilized a
different value than the one agreed upon by the parties nor did he address or
explain his deviation from the stipulated value. Plaintiff therefore asks the Court to
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. grant the exception and use the value of $193,500 for the purpose of equitable
distribution.
Defendant responds that the parties stipulated that the fair market value of
the Briarwood Home increased by $10,000 during the parties’ marriage, see N.T.
1/22/20 at 5. Defendant argues that there is no dispute that the Briarwood Home
was pre-marital and owned solely by Husband,' and that Wife bears the burden of
proving her claim on Husband’s pre-marital property, upon which Wife admitted
she made no contribution toward mortgage payments.
In this matter, the parties disagree about the nature of their stipulation.
Plaintiff avers that the stipulation was that the “total increase in value of the asset
during the course of the marriage” was $193,500, see Brief in Support of Plaintiff's
Exceptions p. 1. Defendant asserts that the parties “stipulated that the fair market
value of [the] 1658 Briarwood Circle property increased by $10,000 during the
parties’ marriage.” See Defendant’s Response to Plaintiff's Brief p. 1. The
transcript of the proceedings before the Master reflects this apparent disagreement
and/or confusion. Just after a list of stipulations was marked as Joint Exhibit No. 1
and admitted into the record, the following exchange occurred:
THE MASTER: All right. Whoever would like to
read those onto the record can.
| Husband purchased the Briarwood Home for $640,000 on May 24, 2004. The parties were married on
September 25, 2004. Defendant argues that the parties stipulated to an increase in fair market value of
$10,000 (from $640,000 to $650,000) between the date of their marriage and the date of their separation
on April 18, 2013.
MS. EIDELMAN [Counsel for Defendant]: Since
Attorney Zamborsky prepared this, he can read it. I will
just state there are certain modification to this, so I'll state
them as he goes through them.
THE MASTER: Okay. Attorney Zamborsky.
MR. ZAMBORSKY [Counsel for Plaintiff]:
Certainly. The -- Number one, the fair market value of
1658 Briarwood Circle property increased by $10,000
during the parties’ marriage.
THE MASTER: So, no change to that one, Attorney
Eidelman?
MS. EIDELMAN: No.
THE MASTER: Okay.
N.T. 1/22/2020 at 5:4-16. However, just a few pages later, the following exchange
appears in the transcript:
THE MASTER: All right. Let’s go back on the
record. There are a few other stipulations, I understand,
Counsel.
MR. ZAMBORSKY: Yes, that’s correct. Number
one, that the increase in value of the marital residence
located at 1658 Briarwood Circle, Bethlehem,
Pennsylvania is $193,500.
MS. EIDELMAN: That’s agreed.
THE MASTER: $193,500, which is the increase in
value from what date to what date?
MS. EIDELMAN: Date of marriage to date of
separation.
THE MASTER: Okay. -
MS. EIDELMAN: That also is a premarital asset.
THE MASTER: Oh, okay. I understand. ...
N.T. 1/22/2020 at 17:10-24. The Master’s Report ultimately defined this portion
of the marital estate as follows: “The increase in value of 1658 Briarwood Circle
(“Briarwood Home”), a pre-marital asset of Husband owned in his name alone, of
$10,000 a value stipulated by the parties at the time of the hearing.” Master’s
Report at 9.
The Master’s Report notes that the Briarwood Home was purchased by
Husband just prior to the parties’ marriage, that title was held solely in his name,
and that he paid all expenses associated with the home. See Master’s Report at 6-7.
The Master considered Wife’s exhibit purporting to show funds that she had
expended toward “upgrades” to the property, but found credible other testimony
presented at the hearing that these purchases were made “without consulting
Husband and he often felt they were unnecessary.” Id. at 7. Wife would take
charge of various renovation projects, but “[t]hese projects, however, seem to have
done little to increase the equity in the Briarwood Home.” Id. at 6.
In light of the confusing testimony on this issue and the parties’ subsequent
expression of disagreement about the nature of their stipulation(s), we cannot find
that the Master erred by accepting the $10,000 figure stated by the parties as the
6
: agreed-to increase in the fair market value of the Briarwood Home, which was
memorialized in their Joint Exhibit No. 1.? Accordingly, Plaintiff's Exception No.
1 is denied.
Plaintiff’s Exception #No. 2:
Reduction of Mortgage Liability on Briarwood Home
Plaintiff next argues that, if her first exception is denied, that the Court
should grant her second exception seeking an adjustment of the value of the
Briarwood Home to reflect the parties’ stipulation that the outstanding principal
balance of the mortgage was paid down in the amount of $176,500 during the
marriage. See N.T. 1/22/2020 at 5. Plaintiff contends that it would be an error to
disregard this amount because a court must consider the “net value” or “equity
value” from the date of marriage to the date of separation, not just the change in
fair market value. See Plaintiff's Brief at 2 (citing Mundy v. Mundy, 151 A.3d 230(Pa. Super. 2016)).
Defendant responds that Wife did not submit any evidence or testimony as
to the balances of the mortgage on the date of marriage and date of separation.
Because Wife must prove any facts that she wants the Master to accept, Defendant
argues that wife cannot prevail on this exception.
2 This Joint Exhibit was submitted to the Master and admitted into the record, although not signed by
counsel or the parties. See N.T. 1/22/20 at 16:7-17:3.
7
° Although Defendant is correct that Wife did not produce documentary
evidence to prove the reduction in the mortgage balance on the Briarwood Home,
we nevertheless do not find Defendant’s argument persuasive because Defendant’s
counsel stipulated to that value:
MR. ZAMBORSKY: [Stipulation] Number two,
the principle [sic] balance of the mortgage note against the
1658 Briarwood Circle property decreased by the sum of
$176,500 during the marriage.
THE MASTER: Attorney Eidelman, is that --
MS. EIDELMAN: That’s agreed.
THE MASTER: Okay.
N.T. 1/22/20 at 5:18-24 (emphasis added). The record reflects no dispute that the
outstanding principal balance of the mortgage was paid down in the amount of
$176,500 during the marriage. While “the Divorce Code does not require a
specific methodology for assessing an asset's value,” Mundy v. Mundy, supra at
237, in order to accurately measure the increase in equity in the Briarwood Home
during the course of the marriage, the reduction of the debt encumbering the
property must be considered alongside the increase in its fair market value. The
amount paid toward the mortgage principal during the course of the marriage is
essentially money put into savings, but invested in a real estate asset rather than a
mutual fund or other more easily liquidated type of account, which would clearly
be part of the marital estate. Wife is therefore “entitled to her share of any increase
8
‘in equity that accumulated during the ... marriage.” Id. We therefore grant
Plaintiff's Exception No. 2. Because the increase in value of the Briarwood Home
is properly calculated as the sum of the increase in the home’s fair market value
and the reduction in the applicable mortgage balance — and because the parties
stipulated on the record that in this case those values are $10,000 and $176,500,
respectively — we find that the increase in value of the Briarwood Home during the
course of the marriage was $186,500.
Plaintiff’s Exception No. 3: Expert Valuation of USLV° Profit Sharing Plan
Plaintiff argues that the Master erred as a matter of law and abused his
discretion when he failed to utilize the value established by Wife’s expert,
Jonathan Cramer, with regard to Husband’s pre-marital USLV Profit Sharing Plan
— which was subsequently rolled over into a Fidelity IRA — despite stating that he
accepted Mr. Cramer’s valuation methodology and resulting value. See Master’s
Report at 17 (“... the undersigned will accept the valuation figures provided by
Wife’s expert.”). Mr. Cramer computed a marital value of $493,265.77, see N.T.
1/22/20 at 186:25-187:16, but the Master instead substituted an amount $11,087.77
less without explanation. See Master’s Report at 9. Without any justification for
this reduction, Plaintiff argues that the Master’s determination was in error.
3 “USLV” is used herein, as in the parties’ briefs, as shorthand for “Urology Specialists of the Lehigh
Valley, P.C.”.
9
” Defendant concedes that the Master did state that he accepted Wife’s
expert’s testimony regarding the marital value of the USLV plan, but Defendant
nevertheless argues that whether or not the Master accepted the expert’s ultimate
value is unclear as he never explicitly stated that he accepted the sum of
$493,265.77 for the purpose of his report.
The discrepancy between Mr. Cramer’s calculated figure of $493,265 and
the Report’s use of $482,178 for the same asset is not explained in the Report and
appears inconsistent with the Master’s stated acceptance of Mr. Cramer’s valuation
figures. The hearing testimony and substance of the Master’s Report provide only
support for the former amount. In light of what appears to be an inadvertent error
in the Report with regard to this dollar figure, we grant Plaintiff's Exception No. 3
and find the marital value of the USLV Profit Sharing Plan to be $493,265.
Plaintiff’?s Exception No. 4:
Failure to Include National Penn Bank Account No. -3952 in Marital Assets
Plaintiff next argues that the Master erred by failing to include the stipulated
value of $2,018.00, held in National Penn Bank Account No. -3952, as a marital
asset subject to equitable distribution. Plaintiff avers that, given the parties’
stipulation that Husband controlled and either maintained or consumed said funds,
see N.T. 1/22/20 at 9-10, the Master erred as a matter of law and/or abused his
discretion by failing to include this account in the valuation. Plaintiff requests that
10
; thesé additional funds be attributed to Husband when determining equitable
distribution.
Defendant responds that the Master is free to accept or reject any testimony
in determining economic justice between the parties, and is afforded great
discretion in fashioning a distribution to achieve that purpose. See Smith v. Smith,
904 A.2d 15 (Pa. Super. 2006). Defendant suggests that the Master may have felt
that ignoring an asset of such minor value was part of achieving “economic
justice.”
We are compelled to agree with Plaintiff that the Master erred by omitting
Account No. -3952 held in National Penn Bank from the marital assets set forth on
pages 9 through 11 of the Master’s Report. The parties stipulated that this account,
valued at $2,018, was marital property. Defendant’s argument, that perhaps, the
Master excluded this account intentionally due to its relatively small value, is
inconsistent with the fact that the Master did specifically include National Penn
Bank Account No. -1727 valued at only $1,341. We believe the omission of
Account No. -3952 from the Report was an inadvertent error. Accordingly, we
grant Plaintiff's Exception No. 4 and attribute the amount of $2,018 to Husband for
the purpose of determining equitable distribution.
11
Plaintiff’?s Exception No. 5:
Decrease in Value of Husband’s Ownership Interest in USLV
Plaintiff contends that the Master erred by finding that Husband’s ownership
interest in USLV decreased by $52,695 during the parties’ marriage. Plaintiff
references pages 7 and 8 of the January 22, 2020 Transcript, in which the parties
stipulated that the value of Husband’s shares in the medical practice was $52,695
on the date of marriage and $236,734 on the date of separation, thus having
increased by $184,039 during the marriage. Plaintiff also alleges that Husband, as
one of the four remaining shareholders in the practice in 2017, opted to approve a
sale of USLV to St. Luke’s Physician Group, Inc. (“St. Luke’s”) for $3.8 million,
and thereafter became an employee of St. Luke’s rather than have the practice
repurchase his shares consistent with the Shareholders’ Agreement. This was four
years after the parties separated. Plaintiff avers that “Husband clearly chose to
abandon the increased value of his shareholder interest in USLV for a more
lucrative, non-marital, and thus untouchable income.” Plaintiffs Brief at 5.
Plaintiff asks the Court to find that Husband’s interest in USLV did not decrease
by $52,695 but rather increased by $184,039 during the marriage.
Defendant responds that the Master should have found that Husband’s
ownership interest in USLV decreased by more than $52,695 and that it is
undisputed, based upon the testimony of Louis Lemaster, the corporate
accountant for USLV, that Husband received nothing from the sale of USLV and,
12
in fact, lost a substantial amount. Its value on the date of separation was $236,734 -
and, upon the sale of USLV to St. Luke’s, each of the four partners had to
contribute $125,000 back to the business because the sale price alone was
insufficient to cover USLV’s debts. Therefore, Defendant argues that the true value
of the decrease of Husband’s pre-marital asset was $361,734.
Upon review, we find no error of law or abuse of discretion in the Master’s
determination of the marital value of Husband’s interest in USLV. The Master
properly assessed the credibility of Husband’s expert witness, Mr. LeMaster, and
credited his testimony that the sale of USLV allowed the four shareholders,
including Husband, to satisfy more than three million dollars in outstanding
corporate debt, wind down the business, and begin instead working as employees
of St. Luke’s. See Master’s Report at 13. The Master reasonably found that the
value of Husband’s interest in USLV was, at the time of the hearings, zero dollars.
Because the stipulated value at the time of the parties’ marriage was $52,695, and
because the Master is directed by law to the use the lesser of the value at the time
of separation or the value at the time of the hearing, see 23 Pa.C.S.A. § 3501 (a.1),
the Master properly found a decrease in value of $52,695 to serve as an offset
against the gains of other pre-marital assets. Therefore, Plaintiff's Exception No. 5
is denied.
13
Plaintiff’s Exception No. 6: Testimony of Mr. LeMaster
Plaintiff objects to the Master’s acceptance of the testimony of Mr.
LeMaster, who, as noted, testified for Husband and was the corporate accountant
for USLV since 1998. Plaintiff asserts that his testimony was contradictory
because he testified that typically the repurchase price for shares of a departing
USLV member was computed pursuant to a formula in the Shareholders’
Agreement, which had typically resulted in shareholders receiving over $200,000.
However, that formula was revised at a shareholders’ meeting in 2016 to be a flat
$50,000. Plaintiff states that Mr. LeMaster failed to reveal that the shares of one
doctor, Dr. Chiapella, were repurchased for $218,049.00 in July 2016. Plaintiff
states that this sheds significant doubt on the value of shares of USLV. Plaintiff
contends that, because a Master’s conclusions regarding credibility are not binding
on the reviewing court, see Rothrock v. Rothrock, 765 A.2d 400, 404 (Pa. Super.
2000), this Court should determine that the Master erred in viewing Mr.
LeMaster’s testimony as believable and reliable.
Defendant responds that there is no contradiction or other reason to
disbelieve Mr. LeMaster’s testimony. He testified that two retiring partners were
paid $50,000 for their shares under the new agreement while Dr. Chiapella’s
termination preceded the change in formula and that is why her shares were valued
under the previous agreement. Additionally, Wife’s expert, Dale Capone, was
14
‘privy to all documentation that Mr. LeMaster relied upon for his testimony. At the
hearing, Wife did not produce Mr. Capone and no contrary report was ever
prepared contesting the valuations calculated by Mr. LeMaster. See N.T. 1/23/20 at
15-18. Because Mr. LeMaster’s testimony was credible and uncontroverted,
Defendant urges the Court to reject Plaintiff's exception to the Master’s Report.
Upon review, we find no error of law or abuse of discretion in the Master’s
handling of Mr. LeMaster’s testimony. Although we are not bound to accept the
Master’s determinations with regard to the credibility of witnesses, see Arcure v.
Arcure, supra at 695, upon a review of the relevant testimony, and giving the
Master’s evaluation as set forth in his Report the “fullest consideration,” we see no
reason to alter his determination on this point. Accordingly, Plaintiff's Exception
No. 6 is denied.
Plaintiff's Exception No. 7: Qualified Retirement Assets
Plaintiffs seventh and final exception is that the Master erred by awarding
Wife only qualified retirement assets, thus leaving Husband with all of the cash
assets. Plaintiff argues that the Master erred in his statement that “there will be
little tax implications to either party as no assets will need to be liquidated.” See
Plaintiff's Brief at 8, quoting Master’s Report at 20. Plaintiff says that she will
eventually have to liquidate the qualified retirement assets and pay the resulting
taxes thereon unless she simply holds them intact until her own death. Plaintiff
15
says that, because the Master failed to articulate a logical basis for attributing all of
the cash assets to Husband and all of the qualified retirement assets to Wife, this
exception to the Master’s Report should be granted.
Defendant responds that he agrees with Plaintiff, in part, but “only to the
extent that the Master recommends the transfer of taxable assets that exceeds the
martial value of taxable assets subject to Wife’s claims. Defendant asserts,
therefore, that this recommendation is simply impossible to be met. Defendant’s
Brief at 6. Defendant seeks an alternative to allow for distribution to Wife from
other assets.
Although Defendant does not explicitly join Plaintiffs exception, both
parties seem to agree that the Master’s recommendation that “Husband will
transfer to Wife, from his qualified assets, the sum of $821,241.00” is either unfair
(because it leaves Husband with all of the cash assets) or unworkable (because
Husband’s qualified assets are less than $821,241.00). With regard to the full tax
implications, the picture is complicated. Under the distribution scheme contained
in the Master’s Report, in addition to various cash assets, Husband also maintains
the Briarwood Home, a Fidelity investment account, and a Vanguard investment
account. Although these are not qualified retirement assets subject to early
withdrawal penalties, as a practical matter these assets and accounts are similarly
16
subjéct to future taxation, at least to the extent that any capital gains are realized
during the life of the owner.’
In light of the parties’ common position that the Master’s recommendation
cannot be carried out in its present form, and in the interest of achieving economic
justice, we grant Plaintiff's Exception No. 7. The funds to be transferred to Wife
should come from a combination of qualified and non-qualified assets consistent
with the totality of the marital estate.
Defendant’s Exceptions Nos. 1 and 2:
Statement of Total Value of Marital Estate with Percentages to Each of the
Parties and Recommendation of Set Amount to be Paid to Wife
Defendant argues that the Master erred in his valuation of the marital estate
because he failed to specify percentages of distribution and instead only set forth a
specific monetary amount to be paid from Husband to Wife. Defendant believes
the Report intended to recommend that the parties each receive an equal share of
the marital estate. However, the Report does not provide any specific percentages
to be distributed to each of the parties, lists “qualified” and “non-qualified” assets
together, and recommends only that Husband distribute a specific dollar amount to
Wife from his “qualified” assets. Defendant contends that this error is of particular
impact here, where a large portion of the assets at issue are invested in the stock
4 The Court recognizes the possibility that a significant portion of any profits realized from a future sale
of the Briarwood Home may be exempt from capital gains taxes, although we reach no such conclusion
based solely upon the facts of record.
17
‘market and subject to significant fluctuations until the date of actual distribution.
Husband notes that the “qualified assets” in the marital estate are insufficient to
distribute the amount of $821,241 from such assets to Wife as recommended by
the Master, and the Report does not set forth how such a distribution can be
accomplished.
Plaintiff responds that these exceptions place form over function, and that all
values and determinations by the Master were itemized and are able to be extracted
from the text of the Report, as summarized by Plaintiff's itemization. See
Plaintiff's Brief in Response to Defendant’s Exceptions, Exhibit A. Therefore,
Plaintiff disagrees that the Master erred with regard to naming the specific assets
and their values. Although Plaintiff states that she cannot agree to Defendant’s
exceptions, Plaintiff does agree that the award should have been broken down into
non-qualified and qualified assets, and asserts that Wife should have received fifty
percent (50%) of the cash assets as well as fifty percent (50%) of the qualified
assets. In accordance with our ruling on Plaintiff's Exception No. 7, we will grant
Defendant’s Exceptions Nos. 1 and 2 to the extent that they seek a distribution to
Wife that is not entirely from qualified assets but rather consists of both qualified
and non-qualified assets consistent with the totality of the marital estate.
Defendant’s Exceptions Nos. 1 and 2 are further granted to the extent they
seek the distribution of assets to be expressed as a percentage rather than a specific
18
7 ™~
dollar amount. By statute, it is the court’s duty to “equitably divide, distribute or
assign, in kind or otherwise, the marital property between the parties without
regard to marital misconduct in such percentages and in such manner as the court
deems just after considering all relevant factors. The court may consider each
marital asset or group of assets independently and apply a different percentage to
each marital asset or group of assets” 23 Pa.C.S.A. § 3502(a) (emphasis added).
“In an order made under this chapter for the distribution of property, the court shall
set forth the percentage of distribution for each marital asset or group of assets and
the reason for the distribution ordered.” 23 Pa.C.S.A. § 3506 (emphasis added).
Although Plaintiff is not necessarily incorrect that a percentage and a specific
dollar figure can simply be two different methods of expressing the same idea, the
court is directed by statute to apply a percentage. We therefore find that the
Master’s expression of his determination in terms of dollars only, rather than as a
percentage, was in error.
Defendant’s Exceptions Nos. 3 and 4:
Denial of Motion in Limine to Exclude Testimony of Wife’s Expert,
Jonathan Cramer and Acceptance of Mr. Cramer’s Testimony>
Defendant argues that the Master erred in denying his motion in limine to
exclude the testimony of Wife’s expert, Jonathan Cramer, as irrelevant and
> Defendant’s Exceptions erroneously refer to Wife’s expert as “Jonathan Clark”, but this is corrected to
“Jonathan Cramer” in Defendant’s supporting brief.
19
contrary to existing law. Defendant’s counsel had argued that, under 23 Pa.C.S.A.
§ 3501(a.1), that no additional growth should be added to Husband’s non-marital
assets following the date of separation. The Master denied the motion and
permitted testimony from Mr. Cramer regarding a growth factor to be applied to
the “marital portion” of the non-marital assets. Defendant contends that Mr.
Cramer’s testimony should not have been permitted and that the Master erred by
accepting his testimony as to additional amounts he added to the non-marital
property of Husband after the date of separation. Therefore, the additional increase
of approximately $62,000 in the “marital portion” of Husband’s non-marital assets
was in error.
Plaintiff responds that the Master’s report was based upon the
uncontroverted expert testimony of Mr. Cramer, and so no error can exist. See
Bold v. Bold, 516 A.2d 741, 744 (Pa. Super. 1986). Plaintiff also argues that
Defendant is incorrect that growth should not apply to non-marital assets. Plaintiff
reiterates that, as here, where the marital portion of non-marital assets can be
identified, the value of that portion should be determined at the date closest to
distribution.
The Master’s Report begins with the Master’s ruling on Defendant’s Motion
in Limine, which was held in abeyance during the hearing, see N.T. 1/22/20 at 171,
to allow for Mr. Cramer to testify without an on-the-spot ruling by the Master as to
20
‘the admissibility of that testimony. The Master found that Husband had not cited
any rule of evidence or relevant case law that would justify the exclusion of Mr.
Cramer’s testimony, but rather advanced only arguments supporting his
disagreement with Mr. Cramer’s conclusions. See Master’s Report at 2. We agree
with Plaintiff that the Master did not commit an error of law or abuse his discretion
in determining that Mr. Cramer could testify. Defendant’s Exception No. 3 is,
therefore, denied.
We turn now to the substance of Mr. Cramer’s testimony and the Master’s
acceptance of that testimony. Mr. Cramer gave testimony regarding Husband’s
USLV Profit Sharing Plan and Guardian Whole Life Insurance Policy. Both of
these assets were pre-marital assets that saw a substantial increase in value both
during the marriage and after separation. The Master found that these assets have
several components: (1) their pre-marital value; (2) the growth of the pre-marital
component between the date of marriage and date of separation; (3) contributions
made during the marriage; (4) the growth of these marital contributions; (5)
contributions made after the date of separation; and (6) growth on contributions
made after the date of separation. See Master’s Report at 15-16. The Report
concludes that components (2), (3), and (4) are marital and subject to equitable
distribution, while components (1), (5), and (6) are non-marital. Mr. Cramer
21
" provided calculations of these components, while Husband did not offer expert
testimony on this point. See id. at 16-17.
Upon a review of the testimony and the Report, we find that the Master
appropriately relied upon uncontroverted testimony of an expert witness with
regard to valuation and did not commit an error of law by considering the growth
of the marital portion of an asset that has both marital and non-marital components.
The Master identified the marital portion of the asset and the increase in value of
the non-marital portion that must be considered “marital property” pursuant to 23
Pa.C.S.A. § 3501.° Accordingly, Defendant’s Exception No. 4 is denied.
6 Section 3501 provides, in relevant part:
(a) General rule.--As used in this chapter, “marital property” means all property acquired
by either party during the marriage and the increase in value of any nonmarital property
acquired pursuant to paragraphs (1) and (3) as measured and determined under subsection
(a.1). However, marital property does not include:
(1) Property acquired prior to marriage or property acquired in exchange for property
acquired prior to the marriage.
(2) Property excluded by valid agreement of the parties entered into before, during or after
the marriage.
(3) Property acquired by gift, except between spouses, bequest, devise or descent or
property acquired in exchange for such property.
(4) Property acquired after final separation until the date of divorce, except for property
acquired in exchange for marital assets.
(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good
faith and for value prior to the date of final separation.
(6) Veterans’ benefits exempt from attachment, levy or seizure pursuant to the act of
September 2, 1958 (Public Law 85-857, 72 Stat. 1229), as amended, except for those
benefits received by a veteran where the veteran has waived a portion of his military
retirement pay in order to receive veterans’ compensation.
(7) Property to the extent to which the property has been mortgaged or otherwise
encumbered in good faith for value prior to the date of final separation.
(8) Any payment received as a result of an award or settlement for any cause of action or
claim which accrued prior to the marriage or after the date of final separation regardless of
when the payment was received. Footnote is continued on page 23
22
Defendant’s Exception No. 5:
Failure to Consider Total Loss of Pre-Marital Assets
Defendant argues, similarly to his response to Plaintiff's Exception #5, that
Husband’s loss upon the sale of USLV was not the accepted figure of $52,695, but
actually a much higher amount because the business’s debt exceeded the sale price.
Because the value of Husband’s interest was reduced from $236,734 on the date of
separation to less than zero, he contends his actual loss was $352,334. Therefore,
he argues that the growth of Husband’s non-marital assets should be offset by the
total loss of Husband’s non-marital assets in the amount of $352,334 in order to
effect economic justice between the parties.
Plaintiff responds that her argument as to her own Exception #5 applies here.
Plaintiff notes that the maximum credit available to Defendant is the complete loss
of the premarital value of his interest in USLV, and that it misstates Defendant’s
actual loss to also include a gain that occurred during the marriage and then lost.
As set forth in the discussion of Plaintiff's Exception No. 5 supra, the Master did
Footnote continued from page 22
(a.1) Measuring and determining the increase in value of nonmarital property.--The
increase in value of any nonmarital property acquired pursuant to subsection (a)(1) and (3)
shall be measured from the date of marriage or later acquisition date to either the date of
final separation or the date as close to the hearing on equitable distribution as possible,
whichever date results in a lesser increase. Any decrease in value of the nonmarital property
of a party shall be offset against any increase in value of the nonmarital property of that
party. However, a decrease in value of the nonmarital property of a party shall not be offset
against any increase in value of the nonmarital property of the other party or against any
other marital property subject to equitable division.
23 Pa.C.S.A. § 3501.
23
‘not commit an error of law or abuse of discretion by finding that Husband
sustained a loss of $52,695 with regard to his ownership interest in UNLV. The
Master’s Report directly addresses Defendant’s argument that his loss should be
much higher, more than $300,000, by noting that no such loss was proven at the
hearing. See Master’s Report at 15, n. 7. We agree that the record does not support
a decrease in value in excess of $52,695. Accordingly Defendant’s Exception No.
5 is denied.
Defendant’s Exception No. 6:
Failure to Consider Wife’s Lack of Contribution to the Marital Estate
Defendant argues that the Master, by seemingly recommending a near-equal
division of what he determined to be the marital estate, failed to consider Wife’s
lack of contribution to the marital estate. Defendant contends that Wife admitted
that she never contributed to any of the marital assets during the marriage, see N.T.
1/22/20 at 142, and spent her money solely on what she wanted “‘to enjoy life,” not
contributing toward mortgage payments, taxes, utilities, dinners, vacations, or
other items or services for their mutual enjoyment despite her earning more than
him at times during their marriage. Despite earning over $300,000, Wife has no
separate assets and no growth in her non-marital assets.
Plaintiff responds that Defendant cannot now attempt to reconstruct the
lifestyle and contributions of the parties during the course of their marriage. In this
matter, the Master equally attributed the lifestyle choices of the parties during the
24
“marriage based upon evidence that the parties jointly made decisions regarding
investments and payments of certain funds, see N.T. 1/22/20 at 29, and at no point
prior to their separation did either party object to those decisions.
Defendant is correct that equitable distribution does require the
consideration of “[t]he contribution or dissipation of each party in the acquisition,
preservation, depreciation or appreciation of the marital property...”. 23 Pa.C.S.A.
§ 3502(a)(7). However, we disagree with Defendant’s assertion that the Master did
not consider this factor. The Report mentions that during the marriage Wife spent
“lavishly on luxury items,” failing to amass “the expected level of savings, assets,
or retirement plans,” while Husband lived more frugally. See Master’s Report at 5-
6. However, the Master specifically rejected Husband’s argument that Wife
dissipated marital assets through this behavior. See id. at 6. The Master’s Report
later cites Section 3502(a)(7), see id. at 18, and notes that the weight afforded to
this factor, as well as the other factors enumerated in Section 3502(a), is within the
sound discretion of the trial court. Id. at 18-19 (citing Wayda v. Wayda, 576 A.2d
1060, 1063 (Pa. Super. 1990)). The Master clearly considered this issue in
determining an equitable distribution of assets, and thus did not commit legal error
or abuse his discretion. Accordingly Defendant’s Exception No. 6 is denied.
25
Defendant’s Exceptions Nos. 7 and 8:
Documentation Showing Value of Husband’s Assets Prior to Covid-19 Crisis
& Decreased Value of Husband’s Assets Since Master’s Hearings
Defendant again reiterates that the Master failed to apply and use a
percentage distribution and, as a result, Husband was unfairly disadvantaged when
the “value of the stock market dropped significantly” due to the Covid-19
pandemic. Had the recommended distribution to Wife been a percentage rather
than a specific amount, Defendant asserts that both parties would have shared the
risk of declining values. Defendant states that economic justice has not been
effectuated by the Master’s recommendation of a specific dollar amount rather than
a percentage under which both parties would share the risk of market fluctuations.
Plaintiff responds that Defendant has failed to provide any evidentiary
support for his assertion that there has been a drop in the value of the affected
assets. Although Plaintiff concedes that factoring in a market effect on qualified
assets may be generally reasonable, it is well-established that “[a] Trial Court may
not consider evidence outside the record in making its determination.” Ney v. Ney,
917 A.2d. 863, 866 (Pa. Super. 2007) (citing Eck v. Eck, 475 A.2d 825, 827 (Pa.
Super. 1994)).
With regard to the valuation of the marital assets, we agree that there is no
evidence of record to demonstrate that the invested funds at issue have
significantly dropped in value. However, as set forth herein with regard to
26
; Defendant’s Exceptions Nos. 1 and 2, we agree that the distribution should have
been expressed in terms of percentages rather than as a set dollar amount to be
transferred from Husband to Wife. We therefore deny Defendant’s Exceptions
Nos. 7 and 8 to the extent they ask the court to consider evidence outside of the
record with regard to post-hearing fluctuations in the value of certain assets. We
grant Defendant’s Exceptions Nos. 7 and 8 to the extent they seek a distribution
expressed as a percentage of marital assets.
CONCLUSION
The Master identified twenty-one (21) assets that comprised the marital
estate and, therefore, are subject to equitable distribution. These assets are set
forth in numbered paragraphs 1 — 21 on pages 9 — 11 of the Master’s Report.
Paragraphs 1 — 14 are assets attributed to Husband/Defendant. Paragraphs 15 — 21
are assets attributed to Wife/Plaintiff. We have summarized the Master’s findings
in Court Exhibit “A” attached to this Opinion and made a part hereof. Husband’s
total is the sum of $1,866.391. However, the Master afforded an offset to
Husband in the amount of $52,695 for the decrease in value of Husband’s
ownership interest in USLV. We have upheld that determination in our analysis of
Plaintiff's Exception No. 5 and Defendant’s Exception No. 5. With the aforesaid
offset, assets Husband’s assets equal $1,813,696.
27
Assets attributable to Wife equal $118,372. The combination of assets
attributed to Husband and assets attributed to Wife brings the total value of the
marital estate to $1,932,068. Taking into consideration the value of the assets each
party had retained, and in order to effectuate economic justice between the parties,
the Master recommended that Husband be ordered to transfer to Wife the sum of
$845,241. Without so stating, this represented approximately 50% of the total
marital estate. The Master then reduced the recommended amount by $24,000
based upon an agreement of the parties that Wife owes Husband this amount. See
Master’s Report at 20. This resulted in the Master finally recommending that
Husband transfer $821,241 to Wife in order to effectuate the equitable distribution.
However, as a result of our rulings on the exceptions filed by the parties, we
must now adjust some of the findings of the Master as follows:
e Increased value of Briarwood Home is changed from $10,000 to $186,500
(See Plaintiff's Exception No. 2 supra)
e Increased value of USLV is changed from $482,178 to $493,265. (See
Plaintiff's Exception No. 3 supra)
e National Penn Bank Account No.: 3952 is added as a marital asset attributed
to Husband in amount of $2,018.00. (See Plaintiff's Exception No. 4 supra.)
Taking into consideration the aforesaid adjustments, the marital estate is
increased by the sum of $189,605. These additional assets are all attributed to
Husband bringing his total to $2,003,301. Therefore, we have revised the
calculation of the marital estate as set forth in Court Exhibit “B” attached to this
28
“~ ~
. Opiriion and made a part hereof. This brings the total value of marital property
subject to equitable distribution to the sum of $2,121,673.
We believe that the Master was correct in recommending essentially a 50% -
50% division of the marital estate. Based upon the aforesaid law and facts of
record, we find that the Court’s revision of some of the values of certain assets
should not change that percentage of distribution. Therefore, taking into
consideration the revised values and the value of the assets each party has retained,
we find that Husband should remit $942,464 to Wife, which will effectuate a 50%
- 50% distribution of marital assets. This amount, however, will be reduced by
$24,000.00 which represents the amount of money the parties acknowledged is
owed by Wife to Husband. Therefore, Husband will be ordered to transfer to Wife
$918,464.00. The Court’s calculation of the equitable distribution is set forth in
Court Exhibit “C” which is attached to this Opinion and made a part hereof.
Accordingly, we enter the Order that is attached to this Opinion.
29
an
SUMMARY OF MASTER’S DETERMINATION OF MARITAL ESTATE
HUSBAND
Increase value of “Briarwood Home”
$ 10,000
Increase value pre-marital USLV
$ 482,178
Increase value pre-marital Fidelity Inv.
$ 361,597
Increase value pre-marital Fidelity IRA
$ 27,256
Vanguard Account
$ 447,370
Increase value pre-marital Guardian Life Ins
$ 291,755
Pre-marital Knights of Columbus Life Ins.
$ 6,463
Pre-marital American Funds Act.
$ 2,285
Ownership interest in USLV
$ 0.
USLV real estate, MCC real estate
$ 161,734
Inc. value-pre-marital Int. Keystone Partners
$ 21,880
Inc. value-pre-mar Int. Theralogix Urology
$ 3,213
GMC Denali
$ 37,650
National Penn account
$ 13,010
$1,866,391
Less: $52,695.00
Decrease in value of USLV
Total Husband $1,813,696
TOTAL Marital Assets - $1,932,068
Determined by Master
WIFE
Inc. value pre-marital Fidelity IRA
$ 8,495
Fidelity SEP/IRA-Separation Balance
$ 65,817
National Penn Checking Account (1727)
$ 1,341
National Penn Checking Account (8032)
$ 19,997
National Penn Checking Act. Dt of Sep.
$ 9,924
KNBT Savings Account
$ 5,498
Automobile
$ 7,300
Total Wife $118,372
Court Exhibit “A”
am
oy
COURT REVISED SUMMARY OF MARITAL ESTATE
HUSBAND
Increase value of “Briarwood Home”
$ 186,500
Increase value pre-marital USLV
$ 493,265
Increase value pre-marital Fidelity Inv.
$ 361,597
Increase value pre-marital Fidelity IRA
$ 27,256
Vanguard Account
$ 447,370
Increase value pre-marital Guardian Life Ins
$ 291,755
Pre-marital Knights of Columbus Life Ins.
$ 6,463
Pre-marital American Funds Act.
$ 2,285
Ownership interest in USLV
$ -0-
USLYV real estate, MCC real estate
$ 161,734
Inc. value-pre-marital Int. Keystone Partners
$ 21,880
Inc. value-pre-mar Int. Theralogix Urology
$ 3,213
GMC Denali
$ 37,650
National Penn account
$ 13,010
National Penn Act. No. 3952
$2,018
$2,055,996
Less: $52,695.00
Decrease in value of USLV
Total Husband $2,003,301
TOTAL Marital Assets - $2,121,673
Determined by Court
WIFE
Inc. value pre-marital Fidelity IRA
$ 8,495
Fidelity SEP/IRA-Separation Balance
$ 65,817
National Penn Checking Account (1727)
$ 1,341
National Penn Checking Account (8032)
$ 19,997
National Penn Checking Act. Dt of Sep.
$ 9,924
KNBT Savings Account
$ 5,498
Automobile
$ 7,300
Total Wife $118,372
Court Exhibit “B”
I.
Il.
COURT CALCULATION OF EQUITABLE DISTRIBUTION
Assets
Husband $2,003,301
Wife 118,372
Total $2,121,673
50% Distribution
Total Marital Estate: $2,121,673
$2,121,673 +2 = $1,060,836 to each party
Calculation of Wife’s Share
$1,060,836
Less: _- 118,372 - Retained Property of Wife
$ 942,464
Less: _- 24,000 - Amount owed to Husband
$918,464 - Payable to Wife
Court Exhibit “C”
Circulated 1104/1 03:03 PM
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
COMMONWEALTH OF PENNSYLVANIA
HEATHER L. TRAPASSO, Docket Nos.: C-48-CV-2013-3559
DR-95317
Plaintiff,
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PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925(a)
STATEMENT
AND NOW, this 3 bay of Mar da , 2021, the Court issues the
following statement pursuant to Pa.R.A.P. No. 1925(a).
This matter is before the Superior Court on Defendant’s appeal of an
Order entered on January 4, 2021 in the parties’ divorce action at
Northampton County docket no. C-48-CV-2013-3559. On the Notice of
Appeal and subsequently filed Rule 1925(b) Statement, Defendant indicates
that he is also appealing the Orders granting Plaintiff Alimony Pendente Lite
(“APL”) entered in the Domestic Relations Section during the course of the
divorce litigation.
With regard to Defendant’s appeal of the January 4, 2021 Order, the
reasons for the Court’s decision are set forth fully in the January 4, 2021
Opinion of the Court, which was filed concurrently with the Order, as well
1
©
as the Master’s Report filed March 20, 2020.’ Because the reasons for the
January 4, 2021 Order are set forth at length in the Opinion and Master’s
Report, we rely on those documents of record and do not duplicate here their
discussions of the factual/procedural background and the reasons for the
Court’s determinations.
With regard to Defendant’s appeal of the APL Orders at issue, the
procedural history of the APL in the Domestic Relations Section and the
propriety of those Orders are addressed herein.
PROCEDURAL BACKGROUND
On July 5, 2017, Plaintiff, Heather Trapasso, filed a Complaint to
establish APL with the Northampton County Domestic Relations Section.
See Complaint, Trapasso v. Trapasso, DR-095317 (C.P. Northampton
7/5/2017).”. At the Court’s direction, the parties appeared with counsel for a
support conference on September 26, 2017. See Conference Notes,
Trapasso, supra. (C.P. Northampton 9/26/2017). The parties’ 2016 income
tax returns were received, however, at the conclusion of the conference, it
was noted that disposition of the case was pending receipt of Defendant’s
! Paragraph 14 of the January 4, 2021 Order states that, “[e]xcept as modified herein, in all other
respects, the Master’s Report is accepted and approved by the Court, and made a part hereof.”
2 Plaintiff, Heather Trapasso, filed a Complaint in Divorce at Northampton County Civil Docket
No. C-48-CV-2013-03559. The Complaint to establish APL in the instant matter was a copy of
the Complaint in Divorce certified to the Domestic Relations Section on July 5, 2017.
pay stubs and a tax return for Defendant’s business. See Conference Notes,
Trapasso, supra. (C.P. Northampton 9/26/2017).
On or about October 23, 2017, Defendant submitted to the Honorable
Paula A. Roscioli a “Petition to Dismiss Plaintiff's Claim for Alimony
Pendente Lite.” See Defendant’s Petition to Dismiss Plaintiff's Claim for
Alimony Pendente Lite, Trapasso, supra. (C.P. Northampton 11/16/2017)’.
Also on October 23, 2017, Judge Roscioli ordered that Defendant’s Petition
to Dismiss Plaintiff's Claim for Alimony Pendente Lite would be heard on
the De Novo Hearing List scheduled for November 6, 2017 before the
Honorable Michael J. Koury, Jr. See Order of Court, Trapasso, supra. (C.P.
Northampton 10/23/2017).
Following receipt of the documentation required at the conclusion of
the September 26, 2017 conference, Defendant was found to have a monthly
disposable net income in 2016 in the amount of $19,702.75, while Plaintiff's
monthly disposable net income was determined to be $13,398.77. See
Conference Notes, Trapasso, supra. (C.P. Northampton 10/25/2017). On
October 25, 2017, the Honorable Paula A. Roscioli entered an Order of
Court, utilizing the parties’ monthly disposable net incomes as determined
by the Conference Officer and the formula provided by the Pennsylvania
3 The Petition was received on 10/24/2017 but filed and docketed on November 16. 2012.
Rules of Civil Procedure, requiring Defendant to pay APL in the amount of
$2,774.00 per month, effective July 5, 2017. The award was allocated
$2,522.00 for current support of Plaintiff and $252.00 for arrears. See Order
of Court, Trapasso, supra. (C.P. Northampton 10/25/2017) (“October 2017
Order”). Arrears as of October 25, 2017 were set at $9,804.71. Id.
Defendant was required to provide medical insurance coverage for Plaintiff.
Id. Pursuant to the October 2017 Order, APL was set to terminate on July 4,
2019 absent a written request from Plaintiff indicating the need for
continued support. Id. The October 2017 Order also provided that APL
could terminate earlier than July 4, 2019 if the parties reached a settlement,
or if ordered by the Court. Id.
On November 6, 2017, the parties appeared before Judge Koury for
the scheduled hearing on Defendant’s Petition to Dismiss Plaintiff's Request
for APL. On November 16, 2017, Judge Koury entered an Order of Court
denying Defendant’s request to dismiss Plaintiff's claim for APL. See Order
of Court, Trapasso, supra. (C.P. Northampton 11/17/2017). The Order
directed the parties to comply with the October 25, 2017 Order. Id.
On December 6, 2017, Defendant filed a Notice of Appeal of the
November 16, 2017 Order to the Superior Court. See Notice of Appeal,
Trapasso, supra. (C.P. Northampton 12/6/2017). Defendant failed to request
a transcript of the November 6, 2017 hearing and failed to submit a
Statement of Errors Complained of on Appeal. On December 16, 2018, the
Court received a Notice of Discontinuance of Appeal by Defendant.
On June 5, 2019, Plaintiff filed a written request for continued APL
and demand for a de novo hearing regarding the continuation of the APL in
this matter. On June 6, 2019, Defendant filed a written demand for de novo
hearing regarding opposition to continued APL. The parties were ordered to
appear at a complex/separate listing hearing to occur on July 22, 2019,
which was subsequently continued to August 12, 2019.
On August 12, 2019, the parties appeared before the Honorable
Samuel P. Murray for the hearing on Plaintiffs request for continued
alimony pendente lite and Defendant’s opposition thereto. Following the
hearing, Judge Murray entered an Order directing counsel for Plaintiff to
submit a letter brief within 30 days and indicating that after receipt of the
that documentation, further disposition would be made by the Court. See
Order of Court, Trapasso, supra. (C.P. Northampton 8/23/2019). Counsel
for Plaintiff timely submitted his brief on September 3, 2019. Counsel for
Defendant submitted a brief on September 26, 2019.
On October 9, 2019, Judge Murray entered an Order granting
Plaintiffs request for continued APL and extended Defendant’s APL
obligation for an additional six (6) months effective July 5, 2019. See Order
of Court, Trapasso, supra. (C.P. Northampton 10/11/2019). APL was set to
terminate on January 4, 2020 absent a written request from Plaintiff
indicating the need for continued support. Id. All other contingencies of the
October 25, 2017 Order remained in full force and effect. Id.
On January 6, 2020, Judge Roscioli entered an Order directing
Defendant to pay $2,774.00 per month for arrears, effective January 4, 2020.
See Order of Court, Trapasso, supra. (C.P. Northampton 1/6/2020). No
insurance was ordered. Id. The Order terminated APL as of January 4, 2020
in accordance with Judge Murray’s October 9, 2019 Order. Id. Upon
payment of the arrears in full, the case was to be closed. Id. On February
28, 2020, Judge Roscioli entered an Order of Court closing the case and
vacating the attachment of Defendant’s income as the record indicated that
the arrears had been paid in full.
On February 3, 2021, Defendant, Joseph Trapasso, filed a Notice of
Appeal in the divorce case, Northampton County docket no. C-48-CV-2013-
3359, of an Order entered by the undersigned on January 4, 2021 granting in
part and denying in part exceptions filed to the Master’s Report by both
parties. In the Notice of Appeal, Defendant indicated that he was also
appealing “previous interlocutory Orders granting Alimony Pendente Lite,
as entered on the docket”. See Notice of Appeal, Trapasso v. Trapasso, CV-
2013-3359 (C.P. Northampton 2/3/2021). On March 3, 2021, Defendant
filed his Rule 1925(b) Statement of Errors Complained of on Appeal in the
divorce matter. Paragraph three (3) of the Statement of Errors set forth the
following averment: “Did the lower court err in granting and continuing
Plaintiff's alimony pendente lite where she showed no need and had
substantial income, sometimes greater than Defendant during the marriage?”
See Defendant’s Rule 1925(b) Statement, Trapasso v. Trapasso, CV-2013-
3359 (C.P. Northampton 3/3/2021).
STANDARD OF REVIEW.
It is well established that “[i]t is within the discretion of the lower
court to determine the amount of a support Order.” Hartley v. Hartley, 528
A.2d 233, 235 (Pa. Super. 1987) (citing Costello v. LeNoir, 337 A.2d 866(Pa. 1975)). It is further well established that on appeal the Superior Court
will “review APL awards under an abuse of discretion standard.” Childress
v. Bogosian, 12 A.3d 448, 463 (Pa. Super. 2011) (citing Haentjens v.
Haentjens, 860 A.2d 1056 (Pa. Super. 2004)). The Superior Court has stated
that the “standard of review for awards of alimony pendente lite is well
settled. If an order for alimony pendente lite is bolstered by competent
evidence, the order will not be reversed absent an abuse of discretion by the
trial court.” Isralsky v. Isralsky, 824 A.2d 1178, 1188 (Pa. Super. 2003)
(quoting Jayne v. Jayne, 663 A.2d 169, 176 (Pa. Super. 1995)). “In order to
overturn the decision of the trial court, we must find that it ‘committed not
merely an error of judgment, but has overridden or misapplied the law, or
has exercised judgment which is manifestly unreasonable, or the product of
partiality, prejudice, bias or ill will as demonstrated by the evidence of
record.’” Dudas v. Pietrzykowski, 849 A.2d 582, 585 (Pa. 2004).
The Pennsylvania Supreme Court has stated as follows:
“Abuse of discretion” is synonymous with a failure
to exercise a sound, reasonable, and legal
discretion. It is a strict legal term indicating that
[an] appellate court is of opinion that there was
commission of an error of law by the trial court. It
does not imply intentional wrong or bad faith, or
misconduct, nor any reflection on the judge but
means the clearly erroneous conclusion and
judgment—one that is clearly against logic and
effect of such facts as are presented in support of
the application or against the reasonable and
probable deductions to be drawn from the facts
disclosed upon the hearing; and improvident
exercise of discretion; and error of law.
Commonwealth v. Powell, 590 A.2d 1240, 1244 (Pa. 1991). A finding of
abuse of discretion will be made only upon a showing of clear and
convincing evidence. Id.DISCUSSION
It is respectfully submitted that Defendant’s appeal of the APL Orders
entered during the course of the divorce proceedings is without merit and
should be dismissed. It was not an error of law or an abuse of discretion to
grant Plaintiff APL during the pendency of the divorce proceedings, or to
continue APL until the conclusion of the divorce litigation.
23 Pa.C.S.A. § 4322(a) provides that “[c]hild and spousal support
shall be awarded pursuant to a Statewide guideline as established by general
rule by the Supreme Court, so that persons similarly situated shall be treated
similarly. (emphasis added). That section further notes as follows:
[t]he guideline shall be based upon the reasonable
needs of the child or spouse seeking support and
the ability of the obligor to provide support. In
determining the reasonable needs of the child or
spouse seeking support and the ability of the
obligor to provide support, the guideline shall
place primary emphasis on the net incomes and
earning capacities of the parties, with allowable
deviations for unusual needs, extraordinary
expenses and other factors, such as the parties'
assets, as warrant special attention.
23 Pa.C.S.A. § 4322(a) (emphasis added). Pa.R.C.P. No. 1910.16-1
provides that “[e]xcept as provided in subdivision (3), the support guidelines
determine the amount of support that a spouse or parent should pay based on
the parties' combined monthly net income, as defined in Pa.R.C.P. No.
1910.16-2, and the number of persons being supported.”* Pa.R.C.P. No.
1910.16-1(a). Rule 1910.16-1 further provides that “[t]he support amount
(child support, spousal support or alimony pendente lite) awarded pursuant
to the Pa.R.C.P. Nos. 1910.11 and 1910.12 procedures must be determined
in accordance with the support guidelines, which consist of the guidelines
expressed as the child support schedule in Pa.R.C.P. No. 1910.16-3,
the Pa.R.C.P. No. 1910.16-4 formulas, and the operation of the guidelines as
set forth in these rules.” Pa.R.C.P. No. 1910-16.1(b) (emphasis added). The
Rules also specifically note that “[i[f the trier-of-fact determines that a party
has a duty to pay support, there is a rebuttable presumption that the
guideline-calculated support amount is the correct support amount.”
Pa.R.C.P. No. 1910.16-1(d).
When the October 25, 2017 APL Order was entered, Pa.R.C.P. No.
1910.16-3.1 provided that “[i]Jn cases in which the parties’ combined
monthly net income exceeds $30,000, the trier of fact shall apply the
formula in Part IV of Rule 1910.16-4(a) as a preliminary analysis in
calculating spousal support or alimony pendente lite.” Pennsylvania Rule of
Civil Procedure No. 1910.16-4 provides the formulas for calculating support
4 Subdivision 3 addresses circumstances where the plaintiff is a public body and is not applicable
to the instant matter.
10
obligations under various circumstances. Part IV of Rule 1910.16-4,
paragraphs 22 through 29 set forth the formula to calculate the APL
obligation of a defendant when there are no minor children. That section
provides the following formula for calculating APL with no dependent
children:
22. Obligor's Monthly Net Income (line 4)
23. Obligor's Support, Alimony Pendente Lite or Alimony
Obligations to Children or Former Spouses who are not
part of this action, if any (Pa.R.C.P. No. 1910.16-2(¢)2)) ()_
24. Obligee's Monthly Net Income (line 4) ee )
25. Difference
(line 22 minus lines 23 and 24)
26. Multiply by 40% oo KAO
27. Preliminary Monthly Spousal Support or APL amount
(line 25 multiplied by line 26)
28. Adjustments for Other Expenses (See Pa.R.C.P. No.
1910.16-6)
(line 12f)
29. Total Monthly Spousal Support or APL amount
(line 27 plus or minus line 28, as appropriate)
This was the formula utilized by the Conference Officer to determine the
recommended APL obligation for Defendant, and the calculations were
provided to the parties. The resulting amount calculated utilizing this
formula was set forth in the October 25, 2017 Order.
As set forth above, APL was initially ordered on October 25, 2017.
See Order of Court, Trapasso v. Trapasso, DR-95317 (C.P. Northampton
10/26/2017). Defendant was ordered to pay APL in the amount of $2,774.00
11
per month effective July 5, 2017, the date on which the Complaint for APL
was filed with the Domestic Relations Section. Id. The monthly APL
payment was allocated $2,522 for basic support and $252.00 on arrears. Id.
APL was set to terminate on July 4, 2019 absent a written request for
continued support from Plaintiff. Id. Arrears as of October 25, 2017 were
set at $9,804.71. Id.
The October 25, 2017 Order was entered following a conference on
September 26, 2017. At the conference, both parties appeared with counsel
and provided information and documentation of income. See Conference
Notes, Trapasso, DR-95317 (C.P. Northampton 9/26/2017). Defendant
reported being a partner in a Urology medical practice that had recently been
sold to St. Luke’s Physician’s Group. Id. Defendant reported that he had
recently begun receiving a salary of approximately $400,000.00 per year,
along with potential additional incentives. Id. Defendant was directed to
submit his full 2016 Federal Tax Return and business returns within seven
(7) days of the conference. Id. Plaintiff submitted her 2016 Federal Tax
Return at the time of the conference. Id. Plaintiff's 2016 return indicated
gross receipts of $283,360.00. Id. Following review of the parties’ tax
returns, Defendant was found to have a monthly disposable net income in
2016 of $19,702.75. See Conference Follow-Up Notes, Trapasso, DR-
12
95317 (C.P. Northampton 10/25/2017). Plaintiff was determined to have a
monthly disposable net income in 2016 of $13,398.77. Id. The Domestic
Relations Conference Officer then properly utilized the formula set forth in
Pa.R.C.P. 1910.16-4 to calculate Defendant’s APL obligation at $2,521.59
and this amount was properly included in the October 25, 2017 Order.
These calculations were provided to the parties and their counsel.
Based on the above, it was clearly not an error of law or an abuse of
discretion to enter the October 25, 2017 APL Order. The correct figures
were utilized for the parties’ incomes, and the calculations were run
properly. The Defendant’s APL obligation was determined utilizing the
statutory scheme and formula, as required by the Pennsylvania Rules of
Civil Procedure and applicable statutes.
Defendant’s request to dismiss Plaintiff’s claim for APL was heard
before Judge Koury on November 6, 2017. Defendant has not requested and
has not filed with the Court a transcript of that hearing. However, on
November 16, 2017, Judge Koury entered an Order denying Defendant’s
request to dismiss Plaintiff’s claim for APL and requiring compliance with
the October 25, 2017 Order. See Order of Court, Trapasso, DR-95317 (C.P.
Northampton 11/17/2017). Given that Defendant’s APL obligation was
properly calculated, it was not an error of law or an abuse of discretion to
13
deny Defendant’s request to dismiss Plaintiff's claim for APL and to require
compliance with the October 25, 2017 APL Order.°
On June 5, 2019, counsel for Plaintiff filed a demand for a hearing to
continue APL. On June 6, 2019, counsel for Defendant filed a written
demand for a hearing regarding opposition to the continuation of APL. A
hearing occurred on August 12, 2019 before Judge Murray on the issue of
continued APL. Defendant has not requested or submitted to the Court a
transcript of that hearing. Following the hearing, counsel for Plaintiff was
directed to submit a letter brief in support of Plaintiffs request for continued
APL. Counsel for both parties submitted legal briefs, and after considering
the arguments set forth therein, Judge Murray entered an Order granting the
request for continued APL and extending APL six (6) months, to terminate
on January 4, 2020, absent another request from Plaintiff indicating the need
for continued support. See Order of Court, Trapasso, DR-95317 (C.P.
Northampton 10/11/2019).
It is well established that “APL is ‘an order for temporary support
granted to a spouse during the pendency of a divorce or annulment
proceeding’”. Schenk v. Schenk, 880 A.2d 633, 644 (Pa. Super. 2005)
5 As reflected in the DRS docket, Defendant filed an appeal of the November 16, 2017 Order.
Defendant did not file a Statement of Errors complained of on Appeal, did not request or submit a
transcript, and subsequently discontinued the appeal.
14
(quoting 23 Pa.C.S.A. § 3103). APL “is designed to help the dependent
spouse maintain the standard of living enjoyed while living with the
independent spouse.” Id. (quoting Litmans v. Litmans, 673 A.2d 382, 389
(Pa. Super. 1996)). Furthermore, “APL is based on the need of one party to
have equal financial resources to pursue a divorce proceeding when, in
theory, the other party has major assets which are the financial sinews of
domestic warfare.” Id. APL, therefore, is not dependent on the status of the
party, but on the state of the litigation. Id.As set forth in the October 25, 2017 Order, APL was set to terminate
on July 4, 2019, absent written request from Plaintiff indicating the need for
continued support. Plaintiff submitted that request and a hearing was held
on that request. The record reflects that as of June 5, 2019 when the request
for continued APL was filed, as of August 12, 209 when the hearing on the
request occurred, and on October 9, 2019 when Judge Murray entered the
Order continuing the APL in this matter, the parties’ divorce proceedings
remained ongoing at Northampton County docket no. C-48-CV-2013-3559.
Given that APL is “dependent on the state of the litigation”, as stated above,
it was not an error of law or an abuse of discretion to continue the APL for
an additional 6 months while the divorce litigation continued.
15
CONCLUSION
For the reasons set forth at length in the Court’s January 4, 2021
Opinion and Order, as well as in the Master’s Report to the extent it is made
a part thereof, it is respectfully submitted that the issues identified in
paragraphs 1, 2 and 4 of Defendant’s Statement of Errors Complained of on
Appeal are without merit. We respectfully request that our decision should
be affirmed and Defendant’s appeal dismissed.
With regard to paragraph 3 concerning the Court’s APL
determinations, for the reasons set forth herein we submit that Defendant’s
APL obligation was properly calculated utilizing the appropriate figures and
formulas required by the Rules of Civil Procedure. Defendant did not have a
legal basis to dismiss Plaintiff's claim for APL at any point during the
litigation. When requested by Plaintiff, Defendant’s APL obligation was
properly extended for six months while the parties’ divorce proceedings
continued. Defendant’s APL obligation came to an end on January 4, 2020,
pursuant to the Court’s Order and was not extended beyond that point,
despite the fact that the divorce proceedings continued for another year, until
the January 4, 2021 Order currently on appeal. The Court did not commit an
error of law or an abuse of discretion in awarding Plaintiff APL or extending
it an additional 6 months after the initial award was set to expire. Therefore,
16
paragraph 3 of Defendant’s Statement of Errors Complained of on Appeal is
similarly without merit and we respectfully request that our decision be
affirmed and Defendant’s appeal dismissed.
BY THE COURT
Ne WA. Aroralt
JOR M. MORGANELLL, J.
ay
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17
MeO [~O-LOA LA
aS
IN THE COURT OF COMMON PLEAS OF
° NORTHAMPTON COUNTY, PENNSYLVANIA
CIVIL DIVISION — LAW
HEATHER L. TRAPASSO, CIVIL ACTION
Plaintiff
NO. C-0048-CV-2013-3559
V.
JOSEPH G. TRAPASSO,
Defendant
IN DIVORCE
ORDER OF COURT
AND NOW, this Sf 4 day of You vary » OAS , upon consideration of the
exceptions to the Master’s Report filed by Plaintiff, Heather L. Trapasso, and Defendant, Joseph
G. Trapasso, it is hereby ORDERED as follows:
1. Plaintiff's Exceptions Nos. 1, 5, and 6 are DENIED.
2. Plaintiff's Exceptions Nos. 2, 3, 4, and 7 are GRANTED.
3. Defendant’s Exceptions Nos. 1 and 2 are GRANTED.
4. Defendant’s Exceptions Nos. 3, 4, 5, and 6 are DENIED.
5. Defendant’s Exceptions Nos. 7 and 8 are GRANTED IN PART and DENIED IN
PART as follows:
a. Granted to the extent that they seek distribution as a percentage of marital assets
rather than a specific dollar amount;
b. Denied to the extent that they seek the consideration of evidence outside of the
record with regard to post-hearing fluctuations in the value of certain assets.
ms,
IT IS FURTHER ORDERED AND DECREED as follows: LS &
ne
>
VS
1
10.
11.
12.
13.
14.
The parties will be divorced from the bonds of matrimony by a separate order to be
entered upon the completion of the equitable distribution scheme set forth within this
order.
Neither party is entitled alimony or counsel fees.
Husband shall transfer to Wife the sum of $918,464.00 in order to effectuate a 50%
division of the marital estate. If necessary, the parties will cooperate in the preparation
of a qualified domestic relations order and will share the costs associated therewith.
Husband shall return to Wife art from the Briarwood Home, one piece located within
the foyer and two pieces from the library.
The Parties shall execute, within 14 days of presentment, all documents necessary to
effectuate the contents of this order.
The Parties shall be equally responsible for any outstanding court or stenographer fees
associated with this matter.
Except as set forth in this Order, neither party is entitled to any further distributions or
transfers.
The Court retains jurisdiction of any claims raised by the parties to this matter for
which a final Order has not yet been entered.
Except as modified herein, in all other respects, the Master’s Report is accepted and
approved by the Court, and made a part hereof.
BY THE COURT:
CO )/otw. vnugentl:
M. MORGANELLL, J.