Nally, A. v. Nally, M. ( 2022 )

J-A16003-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
APRIL G. NALLY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL NALLY :
:
Appellant : No. 163 EDA 2022
Appeal from the Decree Entered December 29, 2021
In the Court of Common Pleas of Bucks County Civil Division at No(s):
1999-63254
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 12, 2022
Michael Nally (“Husband”) appeals from the divorce decree and
equitable distribution order entered by the Court of Common Pleas of Bucks
County. Husband challenges the trial court’s decision to include the marital
residence in equitable distribution. We affirm.
The facts underlying this case are well known to the parties. By way of
background, Husband and April G. Nally (“Wife”) were married in 1997 and
have three children. Husband earns a gross income of approximately $80,000
a year as a driller and Wife earns $17 per hour as a customer service
representative. Husband provides medical insurance for Wife and the parties’
children through his employment.
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* Retired Senior Judge assigned to the Superior Court.
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Wife filed for divorce in November of 2018 after more than 21 years of
marriage. After the parties participated in an equitable distribution conference
before a master in August 2021, the trial court conducted a de novo hearing
on November 9, 2021. At the hearing, it was established that in 1999
Husband’s father (“Father”) bought a home in Bensalem, Pa (“Property”),
which he titled in his and Husband’s name as joint tenants with the right of
survivorship. Husband and Wife selected the home themselves, two years into
the marriage, for themselves and their children. Husband testified that
although he was not on the best of terms with Father, Father wanted the
couple out of their “run down” apartment. But apart from paying the purchase
price of $176,500.00, Father did not have anything else to do with the
Property. The parties and their children moved into the residence right after
it was purchased, and lived there for most of their 21-year marriage. The
couple maintained the residence themselves. Initially, Husband testified that
Father intended to purchase the property solely for Husband, but the court
found that testimony to be incredible. See Tr. Ct. Op., 12/23/21 at 7 n.7.
Father passed away in December 2003, and Husband inherited Father’s
share of the Property pursuant to the deed. Husband took out a $114,000 loan
secured by the Property, in 2004, to pay inheritance taxes. Husband also
received $400,000 from Father’s 401K, which was treated by the parties as
marital property by using it to pay for household bills, the mortgage, a car,
and vacations.
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Following the hearing, the trial court entered a divorce decree and order
on December 29, 2021, which among other things, fashioned a 55%-45%
equitable distribution in favor of Wife and ordered Husband to pay Wife
alimony for four years. Most significantly here, the court found that the
Property constituted marital property subject to equitable distribution between
the parties. Husband filed the instant timely appeal and both Husband and the
court complied with Pa.R.A.P. 1925.
Husband raises the following issues:
1) Did the trial court err in finding that the residence [Father] purchased
during the marriage and titled in the name of [Father] and Husband
as joint tenants with the right of survivorship was a gift to Husband
and Wife where:
A. The gift and conveyance was controlled by the Statute of Frauds
and the language of the Deed is specific that the property was
transferred and titled to [Father] and Husband as joint tenants
with the right of survivorship.
B. Where the trial court justified its determination that the transfer
of the residence to [Father] and Husband as joint tenants with the
right of survivorship was a gift to Husband and Wife with parol
evidence where the Deed was specific in violation of the parol
evidence rule in Statute of Frauds.
C. Where the trial court failed to give effect to the specific language
in the deed that transferred the property to [Father] and Husband
as joint tenants with the right of survivorship.
D. Where the trial court erred in failing to consider that [Father] was
himself divorced and knew the effect of conveying the property to
himself and Husband as joint tenants with the right of
survivorship.
E. The trial court erred in failing to find that the presumption that the
property was marital property was overcome where it is
undisputed that the property was acquired by gift from [Father],
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being transferred by way of a Deed, being one-half interest
acquired by Deed dated April 30, 1999 and the remaining one-half
interest upon the death of [Father] in 2003.
Husband’s Br. at 4-5.
All five subparts of Husband’s issue on appeal concern the same
overarching contention that the trial court erred by concluding that the
Property constituted martial property for purposes of equitable distribution. In
his first two sub-issues, which we address in tandem, Husband claims that the
trial court erred by considering any evidence beyond the clear language of the
deed. First, he argues that the statute of frauds precluded the conclusion that
the Property constituted marital property. The deed only listed Father and
Husband as the owners initially, and after Father’s death only Husband. Thus,
Husband argues that because the deed language is clear and not ambiguous
as to ownership of the Property, the court should not have considered any
parol evidence to the contrary.
We begin with our standard of review:
We review a challenge to the trial court’s equitable distribution
scheme for an abuse of discretion. We do not lightly find an abuse
of discretion, which requires a showing of clear and convincing
evidence. We will not find an abuse of discretion unless the law
has been overridden or misapplied or the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence in the certified record. .
. . If we fail to find an abuse of discretion, the order must stand.
[I]t is within the province of the trial court to weigh the evidence
and decide credibility and this Court will not reverse those
determinations so long as they are supported by the evidence.
Conner v. Conner, 217 A.3d 301, 309 (Pa.Super. 2019) (citations and
quotation marks omitted).
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Guiding our decision here is the rule that “[w]hether the interest is
marital property or separate property for purposes of distribution of the
marital estate is a matter within the sound discretion of the trial court.”
Perlberger v. Perlberger, 626 A.2d 1186, 1196 (Pa.Super. 1993). “The trial
court’s findings of fact, if supported by credible evidence, are binding upon a
reviewing court and will be followed.” Id.The statutory definition of “marital property” has been drawn broadly to
encompass “all property acquired by either party during the marriage and the
increase in value of any nonmarital property.” 23 Pa.C.S.A. § 3501(a). Thus,
there is a presumption that all property acquired by either party during the
marriage is marital property “regardless of whether title is held individually or
by the parties in some form of co-ownership such as joint-tenancy, tenancy
in common or tenancy by the entirety.” 23 Pa.C.S.A. § 3501(b). Title alone is
not dispositive. For example, in Fitzpatrick v. Fitzpatrick, 547 A.2d 362(Pa.Super. 1988), we held that a car titled in a corporate name constituted
marital property because it “was available to both parties, and/or placed in a
position where both have use or enjoyment of the property.” Id. at 367. We
explained that “bare title may not be used as a shield to protect for the benefit
of one party that which in reality belongs to the marriage.” Id.However, “[p]roperty acquired by gift, . . . bequest, devise or descent”
is by statute not marital property. 23 Pa.C.S.A. § 3501(a)(3). Nevertheless,
even such precluded property, including inherited property, may be
considered marital property depending upon how the parties treat it. See Bold
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v. Bold, 516 A.2d 741, 745 (Pa.Super. 1986) (inheritance considered marital
property when it is comingled in a joint account).
In his first and second issue, Husband raises the statue of frauds1 and
the parol evidence rule2 in general without discussing the statutory framework
of the Divorce Code and the statutory definition of marital property. Thus,
Husband’s preliminary issues are thinly developed, and we find them
unavailing. Regardless of the names on the deed, the trial court was within
the bounds of its discretion to determine that the Property was marital
property, considering the circumstances of the parties’ acquisition of the
Property and due to the parties’ joint use of it. See 23 Pa.C.S.A. § 3501(a) &
(b); Fitzpatrick, 547 A.2d at 367.
As emphasized by the trial court, the parties selected the Property
together and lived on the Property for almost the entirety of their 21-year
marriage. See Bold, 516 A.2d at 741. Hence, the court found that the timing
of the acquisition of the property, right before the parties moved in, along with
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1 See 33 P.S. § 1 (providing that “no leases, estates or interests, either of
freehold or terms of years, or any uncertain interest, of, in, to or out of any
messuages, manors, lands, tenements or hereditaments, shall, at any time
after the said April 10, 1772, be assigned, granted or surrendered, unless it
be by deed or note, in writing, signed by the party so assigning, granting or
surrendering the same, or their agents, thereto lawfully authorized by writing,
or by act and operation of law”).
2 Husband cites Lenzi v. Hahnemann University, 664 A.2d 1375, 1379
(Pa.Super. 1995) (Under the parol evidence rule, neither oral testimony nor
prior written agreements or other writings are admissible to explain or vary
the terms of a written contract that is unambiguous and held to express the
embodiment of all negotiations and agreements prior to execution).
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their long-term joint use of the Property weighed in favor of considering the
Property marital. See id. Thus, Husband’s argument that the trial court
abused its discretion by determining that the Property constituted marital
property solely because Wife’s name does not appear on the deed is devoid of
merit. Hence, Husband’s first and second issues must fail.
Husband’s third, fourth, and fifth sub-issues each concerns Husband’s
contention that the trial court abused its discretion by finding that Father
intended to give the Property to both Husband and Wife, and not just to
Husband as reflected on the deed. Husband argues that the couple made no
substantial improvements to the property and the deed language showed
Father’s intention to give the property only to Husband. To this end, Husband
points to his own testimony at the November 2021 hearing where he explained
that Father had been divorced himself and therefore was likely trying to
protect Husband in the event of a divorce, as evidenced by the deed. Husband
also points out that at the time of his separation from Wife, he remained in
the home, not Wife, as Father intended. Husband claims that the court erred
by failing to conclude that he overcame the presumption that property
acquired during the marriage is marital property when the Property’s deed
established that Father intended to give the property only to him. According
to Husband, if Wife is entitled to anything at all in regard to the Property, it is
at most the Property’s appreciation over the course of the marriage.
A valid inter vivos gift exists if two elements are shown: “(1) an intention
to make an immediate gift, and (2) such actual or constructive delivery to the
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donee as will divest the donor of dominion and control of the subject matter
of the gift.” See Ashley v. Ashley, 393 A.2d 637, 639 (Pa. 1978). “[I]t is the
time, rather than the method, of property acquisition that determines if an
item of property constitutes marital property[.]” Anthony v. Anthony, 514
A.2d 91, 92-93 (Pa.Super. 1986) (en banc).
Here, the trial court concluded that the facts and circumstances
surrounding the parties’ acquisition and use of the Property indicate that
Father intended to gift the Property to both Husband and Wife. This was not
an abuse of discretion. Husband admitted in his testimony that Father initially
purchased the Property so Husband and his family would have a suitable place
to live. Further, the court was well within its purview when finding Husband’s
contradictory testimony to be incredible. See Conner, 217 A.3d at 309. In
addition, as the court pointed out, Husband and Wife immediately moved into
the Property after Father purchased it with no additional involvement from
Father. See Anthony, 514 A.2d at 93. We discern no abuse of discretion.
Moreover, both Husband and Wife used the Property as their home for
almost the entirety of their over 21-year marriage. Thus, like an inheritance
that has been comingled in the same account, the Property here was equally
accessible and used by both parties. See Bold, 516 A.2d at 745; Fitzpatrick,
547 A.2d at 367. The trial court did not abuse its discretion by determining
that the Property was marital property subject to equitable distribution. See
Perlberger, 626 A.2d at 1196.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2022
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