Erb, J. v. Erb, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN T. ERB, : IN THE SUPERIOR COURT
: OF PENNSYLVANIA
Appellant :
:
v. :
:
ANN ERB, :
:
Appellee : No. 1271 EDA 2019
Appeal from the Order Entered March 29, 2019
in the Court of Common Pleas of Northampton County
Civil Division at No(s): C-48-CF-2016-05559
BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 12, 2020
John T. Erb (Husband) appeals from the order entered March 29, 2019,
which granted his divorce from Ann Erb (Wife) and ordered the equitable
distribution of the parties’ assets. We affirm.
Husband and Wife were married on September 12, 1998, and on June
23, 2016,1 Husband filed a complaint in divorce, where he requested the
equitable distribution of the marital property. Wife filed an answer, where she
requested, inter alia, equitable distribution, alimony pendente lite (APL), and
alimony. On April 10, 2018, the parties appeared for a hearing before Special
Master Steven N. Goudsouzian, Esquire (the Master).
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1 At a hearing on February 17, 2017, Special Master Jeremy Clark determined
that June 23, 2016, is also the parties’ date of separation.
* Retired Senior Judge assigned to the Superior Court.
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At the hearing, both Husband and Wife testified regarding their
marriage, assets, and earning capacities. Of note, the primary issues in
dispute were the disposition of the marital home and the parties’ joint money
market accounts.2
Husband, who at the time of the hearing was 59 years old and in good
health, is a traveling salesperson and holds a Bachelor of Science degree from
Kutztown State University. Prior to 2017, Husband earned over $200,000 per
year. In 2017, he earned $192,074.34, which was “down approximately 22
percent” from 2016. N.T., 4/10/2018, at 10. His earnings are based on both
salary and commission. Husband testified that he was concerned that his
2018 salary would also decrease, which could put his job in jeopardy. Id. at
11-12. Husband also testified that since the parties’ separation, he has
“chosen to pay [his] own [business] expenses,” instead of getting reimbursed
by his employer for his travel.3 Since July 11, 2016, Husband has incurred
$74,461 in business expenses that will never be reimbursed. Id. at 37.
Wife, who was 53 years old at the time of the hearing, has a high school
education, and has generally been a homemaker during the course of the
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2 The parties maintained a New Tripoli money market account valued at
$236,988 and a joint Wells Fargo account valued at $133,149.80. In addition
to these accounts, the parties also maintained their own Wells Fargo accounts
for expenses.
3 Husband submitted expense reports and was reimbursed by his employer
prior to that time. It was Husband’s position that he no longer submitted
reports because his employer changed the process, which eliminated
Husband’s ability to use a specific travel agent whom he had always used.
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marriage. Prior to the marriage, Wife had a minimum-wage job, and she held
several minimum-wage jobs throughout the marriage. After Husband
indicated he wanted a divorce, Wife went back to school to become a medical
assistant. She has been employed as a medical assistant since January 2017,
and she earns approximately $13 per hour, or $24,000 per year.
With respect to the marital home, Husband purchased a home in 1996,
prior to the parties’ marriage, for approximately $191,000. The home was
placed in the names of both Husband and Wife in 2006, and the mortgage on
the home was paid off in 2008. Since the parties’ separation, both parties
have continued to live there and Husband has paid all expenses for the marital
home. Wife represented that she has no interest in remaining in the marital
home. Id. at 7, 88. Husband indicated that if he were awarded the marital
home, he would consider selling it. Id. The Master found that the marital
home had a net value of $300,115. Master’s Report, 6/8/2018, at 9.
Husband testified that post-separation, Wife was taking money from the
parties’ joint accounts and transferring it to her own account. N.T., 4/10/2018,
at 22-28. According to Husband, he paid all expenses related to the marital
home since the parties’ separation, so he believed those transfers were not
appropriate.
On June 8, 2018, the Master filed a report, where he provided, in
relevant part, that “[t]o achieve economic justice from” the assets available,
Husband would keep the marital home as well as $33,150 from the parties’
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joint Wells Fargo account. Master’s Report, 6/8/2018, at 10. The Master
awarded Wife the remaining $100,000 from the Wells Fargo account, and the
entire value, $236,988, of the parties’ New Tripoli money market account.
Wife also received 50% of the marital component of Husband’s 401(k) and
100% of her IRA, which was worth approximately $13,000. According to the
Master, he utilized this distribution scheme because Husband “indicated that
he is interested in keeping” the marital home, and Wife was concerned about
her need for liquid funds. Id. at 9. In addition, the Master awarded Wife
alimony through July 1, 2022. Specifically, the Master took into account the
length of the marriage, Husband’s superior earning capacity, even though the
nature of his future earning may not be guaranteed. In considering the length
of the alimony obligation, the Master withheld alimony from Wife so long as
Wife was residing in the marital home, and the Master took into account Wife’s
“post separation/anticipation of separation withdrawals.” Id. at 16.
Husband filed exceptions to the Master’s Report, claiming, in relevant
part, that the Master 1) “erred by failing to credit Husband for the payments
he made post-separation and in anticipation of separation on Wife’s behalf
and/or for Wife’s benefit[;]” 2) “erred by failing to credit Husband for the
withdrawals Wife took for her sole use and benefit from the joint marital bank
account[;]” 3) erred in failing to divide assets equally between Husband and
Wife; and 4) erred by failing to divide the marital home equally between
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Husband and Wife. Husband’s Exceptions to Master’s Report, 7/18/2018, at
¶ 3.
The trial court heard argument on Husband’s exceptions on November
6, 2018, and on January 17, 2019, the trial court entered an opinion and order
overruling Husband’s exceptions. A divorce decree was entered on March 29,
2019, and on April 25, 2019, Husband filed a notice of appeal challenging the
trial court’s order overruling his exceptions. Both Husband and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Husband presents the following issues for our review.
I. Whether the trial court erred and/or abused its
discretion by affirming the Master’s failure to credit [Husband] for
the payments he made on [Wife’s] behalf and/or for [Wife’s]
benefit in addition to Wife’s unilateral withdrawals from joint bank
accounts both post-separation and in anticipation of separation?
II. Whether the trial court erred and/or abused its
discretion by affirming the Master’s failure to divide all of the
marital liquid financial accounts evenly between [Husband] and
[Wife] and instead awarding [Wife] the majority of those
accounts?
III. Whether the trial court erred and/or abused its
discretion by affirming the Master’s failure to take into
consideration the actual dollar amount realized from the sale of
the marital residence has the potential to be less than the
assigned value of the residence as well as failing to divide the
equity in the marital residence between [Husband] and [Wife]
evenly in the distribution scheme?
Husband’s Brief at 8 (unnecessary capitalization omitted).
We consider Husband’s issues mindful of the following.
A trial court has broad discretion when fashioning an award of
equitable distribution. Our standard of review when assessing the
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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.
Reber v. Reiss, 42 A.3d 1131, 1134 (Pa. Super. 2012) (quoting Biese v.
Biese, 979 A.2d 892, 895 (Pa. Super. 2009)).
In fashioning an equitable distribution award, the trial court
must consider, at a minimum, the eleven factors set forth in 23
Pa.C.S.[] § 3502…. These factors require the trial court to
consider the relative economic positions of the parties and the
nature of the parties’ relationship. The section 3502 factors are
not a simple formula, rather they serve as a guideline for
consideration. The facts of a particular case mandate how the
section 3502 factors will be applied.
Gates v. Gates, 933 A.2d 102, 105 (Pa. Super. 2007). The factors
enumerated in section 3502 are as follows.
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income,
vocational skills, employability, estate, liabilities and needs of
each of the parties.
(4) The contribution by one party to the education, training or
increased earning power of the other party.
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(5) The opportunity of each party for future acquisitions of capital
assets and income.
(6) The sources of income of both parties, including, but not
limited to, medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition,
preservation, depreciation or appreciation of the marital property,
including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the
marriage.
(10) The economic circumstances of each party at the time the
division of property is to become effective.
(10.1) The Federal, State and local tax ramifications associated
with each asset to be divided, distributed or assigned, which
ramifications need not be immediate and certain.
(10.2) The expense of sale, transfer or liquidation associated with
a particular asset, which expense need not be immediate and
certain.
(11) Whether the party will be serving as the custodian of any
dependent minor children.
23 Pa.C.S. § 3502(a).
We do not evaluate the propriety of the distribution order upon
our agreement with the court[’s] actions nor do we find a basis for
reversal in the court’s application of a single factor. Rather, we
look at the distribution as a whole, in light of the court’s overall
application of the [23 Pa.C.S. § 3502(a)] factors…. If we fail to
find an abuse of discretion, the [o]rder must stand.
Lee v. Lee, 978 A.2d 380, 383 (Pa. Super. 2009) (quoting Trembach v.
Trembach, 615 A.2d 33, 36 (Pa. Super. 1992)).
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In addition, although Husband does not specifically challenge the
Master’s award of alimony to Wife, because it was part of the overall
distribution scheme, we set forth those factors as well.4 See Braderman v.
Braderman, 488 A.2d 613, 621 (Pa. Super. 1985) (“In determining the
amount of alimony the court properly relied, inter alia, on the property
distributed to both parties under the equitable distribution scheme.”); see
also Nemoto v. Nemoto, 620 A.2d 1216, 1221 n.6 (Pa. Super. 1993) (“[W]e
cannot view an order granting alimony in isolation from a trial court’s equitable
distribution scheme because the relative assets of the parties is one factor
which must be considered by the lower court in the alimony context.”). The
alimony factors are:
(1) The relative earnings and earning capacities of the parties.
(2) The ages and the physical, mental and emotional conditions of
the parties.
(3) The sources of income of both parties, including, but not
limited to, medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or
increased earning power of the other party.
(7) The extent to which the earning power, expenses or financial
obligations of a party will be affected by reason of serving as the
custodian of a minor child.
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4 “An award of alimony may be reversed where there is an apparent abuse of
discretion or there is insufficient evidence to support the award.” Brubaker
v. Brubaker, 201 A.3d 180, 190 (Pa. Super. 2018).
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(8) The standard of living of the parties established during the
marriage.
(9) The relative education of the parties and the time necessary
to acquire sufficient education or training to enable the party
seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the
marriage. The marital misconduct of either of the parties from the
date of final separation shall not be considered by the court in its
determinations relative to alimony, except that the court shall
consider the abuse of one party by the other party. As used in this
paragraph, “abuse” shall have the meaning given to it under
section 6102 (relating to definitions).
(15) The Federal, State and local tax ramifications of the alimony
award.
(16) Whether the party seeking alimony lacks sufficient property,
including, but not limited to, property distributed under Chapter
35 (relating to property rights), to provide for the party’s
reasonable needs.
(17) Whether the party seeking alimony is incapable of self-
support through appropriate employment.
23 Pa.C.S § 3701(b).
Husband first contends the trial court erred in overruling his exception
to the Master’s Report where the Master failed to credit him for $76,000 that
Wife unilaterally withdrew from the parties’ joint bank account post-
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separation.5 Husband’s Brief at 14. According to Husband, the Master failed
to account adequately for the “precarious nature of [his] employment as well
as [his] fluctuating income.” Id.
Here, the trial court recognized that Wife resided in the marital home,
with Husband paying those expenses, for the two years since the parties’ date
of separation. See Trial Court Opinion, 1/17/2019, at 4. The trial court
adopted the Master’s rationale for how it accounted for these anticipation-of-
separation and post-separation payments.
Husband shall be responsible to [W]ife for a total of 6 years
of alimony. However, [H]usband is entitled to credit from the date
of separation moving forward. Accordingly, his alimony obligation
will end on July 1, 2022 (6 years from the date of separation).
While [W]ife remains in the marital home, [H]usband shall be
ordered and directed to continue to pay all of the outstanding
invoices and expenses. This obligation shall be modifiable.
However, while [W]ife remains in the marital home, [H]usband
shall have no obligation to make any alimony payments to [W]ife.
Rather, the parties will continue to live, as they have done so in
the past, until [W]ife physically moves out of the marital home.
After [W]ife moves out of the marital home, [H]usband’s alimony
obligation will be in accordance with Northampton [C]ounty
Domestic Relation guidelines.
The undersigned notes that [W]ife made a series of post
separation/anticipation of separation withdrawals and these
actions have been taken into account. No adjustment shall be
made. Accordingly from a practical standpoint, [W]ife will be
receiving an award of greater than six years.
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5 Husband references pages 159 and 160 of the reproduced record, which
corresponds to pages 32 and 33 of the notes of testimony from the April 10,
2018 hearing. Our review of both does not reveal this number being
mentioned by either Husband or Wife. See Reproduced Record, 159-60; N.T.,
4/10/2018, at 32-33. In his post-hearing letter brief to the trial court,
Husband contended the expenditures totaled $45,476. Husband’s Post-
Hearing Letter Brief, 5/14/2018, at 2; Trial Court Opinion, 1/17/2019, at 4.
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Trial Court Opinion, 1/17/2019, at 6 (quoting Master’s Report, 6/8/2018, at
16).
Here, the parties were married for a substantial period of time, and
Husband was the sole provider for most of the parties’ marriage. Husband
was essentially credited two years of alimony payments in exchange for Wife’s
withdrawals. While Husband emphasizes his allegedly precarious employment
situation, the trial court was required to consider multiple factors in reaching
this decision, including the fact that Wife did not receive alimony pendente lite
during the parties’ separation. Upon review, we discern no abuse of discretion
in the trial court’s decision and conclude Husband is not entitled to relief on
this claim.
Husband next contends the trial court erred in overruling his exceptions
to the Master’s Report by failing to conduct “a specific review of each of the
applicable equitable distribution factors.” Husband’s Brief at 15. Again,
Husband references what he considers his “precarious” employment situation
and the financial consequences of either selling or taking out a loan against
the equity of the marital home. Id. at 16.
Although the Master did not do a factor-by-factor analysis,6 it is clear
that he did examine all of the relevant statutory factors in reaching his
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6 “While the list of factors in Section 3502 serves as a guideline for
consideration, the list is neither exhaustive nor specific as to the weight to be
given the various factors. Accordingly, the court has flexibility of method and
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conclusions. See Master’s Report, 6/8/2018, at 2-12. Additionally, the trial
court considered the Master’s Report, as well as the statutory factors, in
overruling Husband’s exceptions. See Trial Court Opinion, 1/17/2019, at 8-9.
Husband is in reality asking us to reweigh these factors. That we will not do.
Busse v. Busse, 921 A.2d 1248, 1260 (Pa. Super. 2007) (“The weight to be
given to the[] statutory factors depends on the facts of each case and is within
the court’s discretion. We will not reweigh them.”) (internal citations and
quotation marks omitted). Thus, we conclude Husband is not entitled to relief.
Finally, Husband argues that the trial court should have divided the
equity of the marital home between Husband and Wife evenly. Husband’s Brief
at 17. It is Husband’s position that the trial court has placed “an unfair
burden” on him by leaving “uncertainty with respect to the value” of the
marital home. Id.
Here, Husband expressed interest in remaining in the marital home,
while Wife did not. The trial court considered Husband’s contention that there
is a possibility “that the marital residence would sell for less than the assigned
value,” but concluded it was not a sufficient basis to disturb the Master’s
recommendation because Husband did not present evidence in support of this
contention. Trial Court Opinion, 1/17/2019, at 10. As the trial court pointed
out, “under the Master’s proposed distribution, Husband gets the benefit of
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concomitantly assumes responsibility in rendering its decisions.” Hess v.
Hess, 212 A.3d 520, 524 (Pa. Super. 2019) (internal citations and quotation
marks omitted).
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choosing between keeping the residence and keeping the net proceeds from
selling it.” Id. In fact, even if Husband sells the marital home for more than
the appraised value, he gets to keep all proceeds. Id. Again, viewing the
equitable distribution scheme as a whole, we conclude the trial court did not
abuse its discretion in overruling Husband’s exceptions.
Having concluded that Husband has presented this Court with no basis
for relief, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/20
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