Jordan, R. v. Jordan, R. ( 2021 )

J-S07004-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RAMONA JORDAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD JORDAN :
:
Appellant : No. 827 WDA 2020
Appeal from the Order Entered August 25, 2020
In the Court of Common Pleas of Westmoreland County Civil Division at
No(s): 275 of 2018 D
BEFORE: SHOGAN, J., DUBOW, J., and KING, J.
MEMORANDUM BY SHOGAN, J.: FILED: MAY 11, 2021
Richard Jordan (“Husband”) appeals from the order entered August 25,
2020, granting a decree in divorce, granting in part and denying in part
Husband’s exceptions to the Master’s Findings of Fact, Recommendations, and
Report, and equitably distributing the marital property of Husband and
Appellee, Ramona Jordan (“Wife”).1 After careful review, we affirm.
____________________________________________
1 A divorce decree was entered on August 25, 2020. Husband filed his notice
of appeal on August 6, 2020, before the entry of the divorce decree. However,
on September 4, 2020, Husband filed an Amended Notice of Appeal to Include
Divorce Decree in which he appealed from the July 7, 2020 order and the
divorce decree. Although at the time Husband filed his initial appeal, the
divorce decree had not been entered, the appeal was properly before this court
because the divorce decree was entered while the appeal was pending.
Schenk v. Schenk, 880 A.2d 633, 638 (Pa. Super. 2005) (citing Campbell
v. Campbell, 516 A.2d 363 (1986) (stating “although Orders of property
distribution are not appealable until entry of a final divorce Decree, case law
holds that an award of equitable distribution is appealable where a divorce
Decree is entered while an appeal is pending.”)).
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The trial court set forth the following:
PROCEDURAL HISTORY
A Master’s hearing was held on January 13, 2020[,] and the
Master’s Findings of Fact, Recommendations and Report were filed
on February 26, 2020. On March 13, 2020, [Husband] filed
Exceptions to the Master’s Report. Briefs were timely filed and oral
arguments were heard on July 7, 2020. This court entered an
order on July 7, 2020 addressing [Husband’s] Exceptions. The
[c]ourt’s disposition follows.
On August 6, 2020, [Husband] filed a Notice of Appeal and
on August 7, 2020, this court entered an order directing
[Husband] to file his Concise Statement of Matters Complained of
on Appeal pursuant to the Pennsylvania Rules of Appellate
Procedure, specifically [R]ule 1925(b). [Husband] filed his
Concise Statement on August 27, 2020. It is noted that
[Husband] filed an Amended Notice of Appeal to include the
Decree in Divorce. [Husband’s] Amended Notice of Appeal was
filed on September 4, 2020.
STIPULATIONS OF THE PARTIES
1. The date of separation is December 26, 2017. (N.T. January 13,
2020, pg. 123 lines 4-9).
2. The current market value of the marital residence, located at
2517 Braddock Avenue, Lower Burrell, Pennsylvania, is
$138,000.00. (N.T. January 13, 2020, pg. 24 lines 23-25, pg. 25
line 1)
3. The mortgage payoff amount for the marital residence, as of
the date of the Master’s hearing, is $94,500.16. (N.T. January 13,
2020, pg. 28 lines 17-20, pg. [29] lines 4-5).
FINDINGS OF FACT
1. [Wife] was born on September 2, 1957[,] and was 62 years[,]
5 months old at the time of the Master’s hearing. (N.T.
January 13, 2020, pg. 7 lines 18-22). See also Master’s Report,
February 26, 2020, pg. 2.
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2. [Wife] resides in the marital residence located at 2517
Braddock Avenue, Lower Burrell, Pennsylvania. (N.T. January 13,
2020, pg. 16 lines 12-16).
3. [Wife] is employed at Bayer Corporation as a Facility Technician
and has been so employed for over thirty (30) years. (N.T January
13, 2020, pg. 17 lines 2-3, pg. 53 lines 15-19).
4. [Wife] will be 66.5 years old in March of 2024.
5. [Husband] was born on March 15, 1955[,] and was 64 years 10
months old at the time of the Master’s hearing. (N.T. January 13,
2020, pg. 101 lines 14-15). See also Master’s Report,
February 26, 2020, pg. 2.
6. [Husband] currently resides in Florida. (N.T. January 13, 2020,
pg.116 lines 5-7).
7. [Husband] suffers from Cyclic Vomiting Syndrome and started
receiving Social Security Disability in 2006. (N.T. January 13,
2020, pg. 103 lines 1-3, 23-24).
8. Prior to his disability, [Husband] had a variety of jobs, including
working as a celebrity impersonator of Ozzy Osbourne and briefly
owning his own auto detailing business. (N.T. January 13, 2020,
pg. 91 lines 21-22, pg. 98 lines 1-2, pg. 99 lines 19-21).
9. The parties were married on February 7, 1976. (N.T.
January 13, 2020, pg. 16 lines 8-9).
10. The parties separated on December 26, 2017. (N.T.
January 13, 2020, pg. 123 lines 4-9).
11. The parties were divorced on August 25, 2020.
Trial Court Opinion, 9/23/20, at unnumbered 1-3. (footnote omitted).
The Master’s Report contained the following recommendations and
findings relevant to this appeal:
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8. The Marital Residence: The Master recommends that Wife
receive this asset and that she refinance the current mortgage so
as to remove Husband from that obligation. If she cannot, the
residence should be sold. The Master finds that the marital estate
value of the equity is $33,839.84. In the event the residence is
sold, Husband is awarded the lesser of one-half of the net proceeds
of sale or $16,919.92. This amount is to be adjusted downward
by $2,124.27 representing the “payment” to Wife to balance the
equitable distribution as described in Number 12 below. The
parties stipulated to a current market value of $138,000.00 and
they agreed that this value should be reduced by 7% to reflect the
sales commission and transfer tax cost that would be incurred
should the property be sold. Wife raised a claim for a further
adjustment to reflect a sanitary sewer repair that is common in the
City of Lower Burrell. Wife did not have the sewer line visually
inspected to determine that it must be replaced (Tr. 75: 2-18). To
further reduce the value would be speculative. The Master
recommends that Wife’s request for additional reduction be denied.
9. Retirement Assets: The Master recommends that the marital
portion of this asset be divided equally with a Qualified Domestic
Relations Order and the costs shared equally. This
recommendation is made considering the factors in 25 Pa.C.S.
§3502. This division would give Husband immediate access to
liquid funds.
10. The Motor Vehicles: The Master recommends that Husband
retain the Dodge Magnum automobile and the Johnny Pag
motorcycle. Wife shall continue to possess the vehicle she leases.
The Master determined the value of the Dodge automobile is
$1,500.00 and the value of [the] motorcycle is $2,749.50 which is
dividing the difference between the parties’ asserted values.
11.Personal Property and Furnishings: The Master
recommends that Husband’s personal belongings listed in his
Pretrial Statement be awarded to him and the remainder to Wife
with the division considered an equal division.
12. Marital Debt: The Master recommends that Wife assume the
liability for the marital debt including the New York judgment, the
RSP loan and, except as set forth above, the mortgage on the
marital residence. One half of the balance owed shall be charged
to Husband. This is represented in the calculation leading to the
equitable distribution payment described below.
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13. Equitable Distribution Payment: The Master recommends
that Husband transfer to Wife $2,124.75 to equalize each party’s
share of the marital estate.
14. Permanent Alimony: The Master recommends that Husband
be awarded alimony in the amount of $500.00 per month through
March, 2023 when Wife reaches retirement age. This
recommendation is based on the consideration that Husband will
draw from his share of the [Retirement Savings Plan (“401(k)” or
“RSP”)], the age of the parties, the unlikelihood that either can
increase income from other sources, and the relative needs of the
parties. The end date of the alimony obligation is based on Wife’s
testimony that she plans to retire at her full Social Security age,
66.5 years.
Attorney Fees and Expenses
In light of the availability to Husband of liquid assets, the
Master recommends that the parties each pay their own attorney
fees and that they share equally in the Master’s fee and the costs
of the hearing.
Masters Findings of Fact, Recommendations and Report, 2/25/2020, at 6-9
(emphases in original).
In its July 7, 2020 order, other than changing Wife’s retirement date
from March of 2023 to March of 2024, the trial court denied Husband’s
exceptions to the Master’ Report. Order, 7/7/20. Husband filed a timely
notice of appeal on August 6, 2020. As noted above, both Husband and the
trial court complied with Pa.R.A.P. 1925.
Husband presents the following questions for our review:
1. For a complete and accurate analysis of the marital property,
and for an appropriate division of the marital estate, must the
trial court consider whether the overall Equitable Distribution
decision is equitable to both Wife and Husband?
2. For a complete and accurate analysis of marital property, and
for an appropriate division of the marital estate, must the trial
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court consider whether a 50/50 division or some other
division is appropriate to achieve equitable distribution?
3. For a complete and accurate analysis of alimony, and for an
appropriate calculation or determination, must the trial court
provide a proper explanation or reason for the length of time
and the amount ordered was arrived upon and how it is
equitable?
4. For a complete and accurate analysis of marital property, and
for an appropriate division of the marital estate, must the trial
court consider whether the overall Equitable Distribution
decision regarding the marital home, marital debt, assets, as
well as attorneys fees and expenses is equitable?
Husband’s Brief at 6-7.
In his first issue, Husband argues that the trial court abused its
discretion because the equitable distribution scheme improperly failed to take
into consideration “the remaining years of earning potential of Wife versus
Husband, as well as the disparity in social security retirement income of the
parties.” Husband’s Brief at 25. Husband takes issue with the fifty-fifty split
of assets and the award of $500.00 per month in alimony payments. In
support, Husband avers that his net income from Social Security disability is
$13,488.00 per year and Wife’s net income is $45,914.40. Id. at 17. He
further avers that Wife has the ability to increase her income via overtime,
increases in yearly pay, and her employer’s 401(k) match. Id. at 18.
Husband asserts that because of his low monthly income and reduced alimony
award, he will have to deplete the funds he received from Wife’s 401(k) in
approximately ten years. Id. at 24. Husband argues the parties were married
for nearly forty-two years, Wife is able to work while Husband is disabled, and
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although Husband is retirement age, Wife will reach retirement age in 2024
and will “enjoy more than twice as much income as Husband during retirement
years.” Id. at 23. To that end, Husband asserts that in order to achieve an
equitable award, Husband must receive at least 70% of Wife’s 401(k) account,
a larger portion of equity in the home, and an award of alimony no less than
$1,000.00 per month while Wife is working. Id. at 25.
When reviewing an award of equitable distribution, we apply the
following standard:
[A] trial court has broad discretion when fashioning an award of
equitable distribution. Our standard of review when assessing the
propriety of an order effectuating the equitable distribution of
marital property is whether the trial court abused its discretion by
a misapplication of the law or failure to follow proper legal
procedure. We do not lightly find an abuse of discretion, which
requires a showing of clear and convincing evidence. This Court
will not find an “abuse of discretion” unless the law has been
overridden or misapplied or the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence in the certified record.
In determining the propriety of an equitable distribution award,
courts must consider the distribution scheme as a whole. 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.
Carney v. Carney, 167 A.3d 127, 131 (Pa. Super. 2017) (quoting Morgante
v. Morgante, 119 A.3d 382, 386–387 (Pa. Super. 2015)).
“An abuse of discretion is not found lightly, but only upon a showing of
clear and convincing evidence.” Yuhas v. Yuhas, 79 A.3d 700, 704 (Pa.
Super. 2013) (en banc). Moreover, it is within the province of the trial court
to weigh the evidence and decide credibility, and this Court will not reverse
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those determinations as long as they are supported by the evidence.
Sternlicht v. Sternlicht, 822 A.2d 732, 742, n.8 (Pa. Super. 2003). 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.” Childress v.
Bogosian, 12 A.3d 448, 455–456 (Pa. Super. 2011).
Pursuant to 23 Pa.C.S. § 3502, the following factors are relevant to the
equitable distribution of marital property:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income,
vocational skills, employability, estate, liabilities and needs
of each of the parties.
(4) The contribution by one party to the education, training or
increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of
capital assets and income.
(6) The sources of income of both parties, including, but not
limited to, medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the
acquisition, preservation, depreciation or appreciation of the
marital property, including the contribution of a party as
homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the
marriage.
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(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)(1)-(11).
We have held that “[t]he weight to be given these factors depends on
the facts of each case and is within the court’s discretion. We will not reweigh
them.” Busse v. Busse, 921 A.2d 1248, 1260 (Pa. Super. 2007) (citation
omitted). In determining the propriety of an equitable distribution award we
must consider the distribution scheme as a whole. Mercatell v. Mercatell,
854 A.2d 609, 612 (Pa. Super. 2004). Finally, “we also remain cognizant that
‘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.’” Schenk v. Schenk, 880 A.2d at 644
(quoting Heyward v. Heyward, 868 A.2d 554, 557-558 (Pa. Super. 2005)).
The trial court set forth the following analysis regarding the equitable
distribution of the marital property:
The court believes that the Equitable Distribution decision
made by the Master and adopted by this court with the additional
one (1) year of alimony is equitable in light of the testimony and
evidence presented to the Master and reviewed by this court.
[Husband] worked random jobs during the course of the marriage
with his longest and most stable employment being the seven (7)
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years he worked for Springdale Specialty Plastics. (N.T.
January 13, 2020, pg. 43, lines 24-25, pg. 44 line 1). [Husband]
made little financial contribution to [the] household during the
course of the marriage. [Husband] was only able to reference
household purchases he made as occurring after he started
collecting social security disability benefits. (N.T. January 13,
2020, pg. 114 lines 8-17).
[Wife] has worked for the same employer for thirty (30)
years and has paid the mortgage, taken out loans against her
[401(k)] to get [Husband] a car and a motorcycle and paid for his
failed business endeavors throughout the course of the marriage.
At one point, [Wife] had to obtain a credit card machine for
[Husband] to use in his auto detailing business. [Husband] failed
to pay for the credit card machine which resulted in a judgment
being placed against [Wife] and in [Wife’s] name only. The
judgment is in the amount of $2,124.75 and is still in place today.
[Husband] has made no effort to pay that debt and clear it from
[Wife’s] credit report. (N.T. January 13, 2020, pg. 100 lines 13-
14). [Wife] has maintained the marital residence with no help
from [Husband] and has continued to pay the loans against her
[401(k),] thus providing [Husband] with a car and a motorcycle.
[Wife] currently leases a vehicle which she also pays for.
[Husband] was awarded one half of the value of the equity
in the marital residence ([one-]half of $33,839.84). If the
residence is sold, [Husband] is to receive the lesser of one-half of
the net proceeds of sale or $16,919.92. [Husband’s] amount was
adjusted downward by $2,124.75 which represents payment to
[Wife] for [Husband’s] credit card machine judgment. [Husband]
was also awarded his vehicle, an equal share of [Wife’s]
Retirement Savings Plan and an equal share of the parties’
property and furnishings. The combined marital debt (not
including the mortgage) was divided equally among the parties.
Based on [Husband’s] limited contributions to the marital
estate over the course of the marriage, the court finds that the
Master’s equitable distribution decision, with the additional year
of alimony, is more than equitable to [Husband].
Trial Court Opinion, 9/23/20, at unnumbered 5-6 (footnote omitted).
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In the instant case, the trial court underscored the fact that Wife’s
contributions to the marital estate were significantly higher when compared
to Husband’s limited contributions, even before he began collecting Social
Security disability benefits. After review, we do not find that the trial court
abused its discretion in its equitable distribution decision. Mercatell, 854
A.2d at 612 (trial court did not abuse its discretion in dividing the marital
estate and awarding sixty percent of the marital property to wife, who was
primarily responsible for building the marital estate by working several jobs
and husband was underemployed throughout the marriage). Further, as
discussed above, the weight to be given the statutory factors is within the
court’s discretion, and we may not reweigh them. Busse, 921 A.2d at 1260.
The equitable-distribution scheme set forth by the trial court was well
considered and within the realm of its discretion. We discern no reason to
disturb it.
In support of his second issue on appeal, Husband argues that the trial
court abused its discretion in finding that a fifty-fifty split of the parties’
retirement assets was equitable for Husband.2 Husband’s Brief at 25.
Husband avers that because he is disabled, “there is really no other source
by which Husband can acquire assets or income in which to maintain even
the reasonable standard of living that he enjoyed through the pendency of
____________________________________________
2 Although Husband refers to the parties’ retirement assets, Wife’s 401(k) is
the only retirement asset at issue.
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the divorce.” Id. at 26. Thus, he argues, if he and Wife are to equally split
the equity in the home and Husband is to receive a lower monthly alimony
amount, “he must receive a much larger share of the 401(k) for equitable
distribution to be achieved.” Id. at 26-27. Husband argues that he worked
various jobs during the time that Wife was not working full-time from 1976
until 1990. Id. Husband further alleges “it is evident that Husband
contributed to the marriage and substantially to the marriage income at
various times throughout the marriage.” Id. Husband asserts that he must
be awarded at least 70% of Wife’s 401(k) and alimony of no less than
$1,000.00 per month while Wife is working, in order for equitable distribution
to be achieved. Id. at 29.
The trial court set forth the following discussion of Husband’s second
claim of error:
The court disagrees that a 50/50 split of [Wife’s] retirement
assets is not equitable to [Husband]. As previously stated,
[Husband] contributed very little to the financial resources of the
marriage. [Husband] seems to think that he should receive
additional compensation because he is receiving less social
security benefits a month than [Wife] will receive when she
retires. [Husband] believes he should receive a higher percentage
of [Wife’s 401(k)] to compensate him for the disparity.
[Wife] has maintained gainful employment throughout the
marriage and has worked for the same employer for the last thirty
(30) years. The testimony at the Master’s hearing was that [Wife]
maintained the marital residence and paid the marital bills with
little to no help from [Husband]. [Husband] has reaped the
benefits of [Wife’s] steady employment and payment of all the
household expenses for the length of the marriage and continues
to reap those benefits after the separation and divorce.
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As stated above, [Husband] worked basically one (1)
legitimate steady job for a period of seven (7) years during the
entire course of the marriage. He was forced out of that position
due to his disability. While the court is empathetic to [Husband’s]
disability, the court also recognizes that the disparity in social
security benefits as well as available retirement assets is a
situation [Husband] created.
After considering the length of marriage, the age, health,
station, amount and sources of income, vocational skills,
employability, estate, liabilities and needs of each party, the
opportunity of each party for future acquisitions of capital assets
and income, the sources of income of both parties, including, but
not limited to, medical, retirements, insurance or other benefits,
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 a homemaker, the
standard of living of the parties established during the marriage
and the economic circumstances of each party at the time the
division of property is to become effective, the court finds that a
50/50 division of [Wife’s 401(k) account] Plan is equitable to
[Husband].
Trial Court Opinion, 9/23/20, at unnumbered 8-9.
As with Husband’s first issue relating to the equitable distribution of the
parties’ marital property, we find no abuse of discretion in the second issue.
The trial court reviewed the factors set forth in 23 Pa.C.S. § 3502(a) and
determined that a fifty-fifty division of Wife’s 401(k) was equitable to both
parties. After review of the record, we discern no abuse of discretion.
In his third issue, Husband avers that the trial court abused its
discretion or committed an error of law when it awarded Husband alimony in
the amount of $500.00 per month through March of 2024. Husband’s Brief
at 29. Husband argues that while Wife continues to work, “the disparity in
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income is huge.” Id. at 32. According to Husband, Wife’s income per month
is $3,439.25 higher than his, even when she was paying $1,000.00 per month
in spousal support. Id. at 33. He further contends that neither the Master
nor the trial court provided an explanation for the reduction in alimony and
argues that it was chosen arbitrarily. Husband argues that Wife should
continue to pay him $1,000.00 per month until she retires, then pay a
reduced rate when she begins to receive Social Security, or Husband should
have been awarded a larger portion of Wife’s 401(k) account. Id.
We apply the following standard when reviewing an award of alimony:
Our standard of review regarding questions pertaining to the
award of alimony is whether the trial court abused its discretion.
We previously have explained that “[t]he purpose of alimony is
not to reward one party and to punish the other, but rather to
ensure that the reasonable needs of the person who is unable to
support himself or herself through appropriate employment, are
met.” Alimony “is based upon reasonable needs in accordance
with the lifestyle and standard of living established by the parties
during the marriage, as well as the payor’s ability to pay.”
Moreover, “[a]limony following a divorce is a secondary remedy
and is available only where economic justice and the reasonable
needs of the parties cannot be achieved by way of an equitable
distribution award and development of an appropriate employable
skill.”
Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004) (citing Moran
v. Moran, 839 A.2d 1091, 1096-1097 (Pa. Super. 2003)) (emphasis in
original). When determining whether to award a party alimony and the
amount, duration, and manner of alimony, a court shall consider the following
factors:
(1) The relative earnings and earning capacities of the parties.
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(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.
(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.
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(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)(1-17).
The trial court set forth the following analysis of Husband’s alimony
argument:
[Husband] alleges that the court erred in decreasing the
monthly alimony award to $500.00 and for terminating the
alimony payments upon [Wife] turning 66.5 years old. The court
relied on the Master’s report and recommendation as well as the
testimony and evidence presented at the Master’s hearing and
finds the amount of alimony awarded as well as the termination
of the alimony obligation when [Wife] becomes full retirement age
are fair and equitable given the age of the parties, the parties’
respective health, their station in life, their sources of income,
their vocational skills, their employability and their individual
needs. [Husband] argues that the Master properly states the
reasons for his award of alimony but that the Master’s reasoning
is flawed. As previously stated, the Master found the alimony
award of $500.00 per month until March 2024 to be fair and
equitable based on the consideration that [Husband] will draw
from his share of the retirement saving plan, the age of the
parties, the unlikelihood that either can increase their income from
other sources, and the relative needs of the parties.
[Husband] argues that the Master failed to consider that
[Husband] has to pay taxes on his portion of the retirement saving
plan and that while [Husband] is depleting his portion of the
retirement savings plan, [Wife] will be building up her portion of
the retirement savings plan. While it is not clear from the record
whether the Master considered the arguments raised by
[Husband], the court finds that the alimony award and duration
are equitable to [Husband].
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[Husband] wants to ignore the fact that [Wife] has to work
overtime to be able to continue to pay him the $1,000.00 a month
that was previously ordered. (N.T. January 13, 2020, pg. 45 lines
2-11). [Wife] testified that was the only way she could survive
financially. (N.T. January 13, 2020, [pg. 45] line 5). The Master
and the court found [Wife’s] testimony to be credible. [Husband]
wants to argue for a higher alimony award for a longer period of
time but fails to consider [Wife’s] ability to pay. [Wife] has been
able to keep current on all of the bills and mortgage payments
because she has been able to work overtime. [Husband] is lucky
that [Wife] was able to work overtime as it provided her the ability
to preserve and maintain what few marital assets exist in this
case. There is no guarantee that [Wife] will continue to have
overtime hours available to her. [Husband] has been receiving
$1000.00 a month in alimony since February 7, 2018 in addition
to his monthly social security disability payments. He was also
ordered to receive a portion of the equity in the marital home, an
asset that [Wife] has paid for and maintained during the course of
the marriage and throughout the separation and a 50% portion of
[Wife’s] retirement savings account which [Husband] can start to
draw on should he need the money. While [Husband’s] alimony
amount was reduced to $500.00 per month, the court did extend
the payment of that amount one (1) additional year so that
[Husband] will continue to receive alimony payments until [Wife]
is age 66.5 years. The court believes that terminating [Wife’s]
alimony obligation at her official retirement age, in light of the fact
that she testified that she would not work past that age, is
reasonable and equitable especially given the parties’ age, station
in life, their respective contributions during the marriage and their
efforts to preserve the marital assets after separation.
Trial Court Opinion, 9/23/20, at unnumbered 12-14 (footnote omitted).
A review of the record in the instant case, as well as the trial court’s
opinion, clearly supports the trial court’s consideration of the factors set forth
in 23 Pa.C.S. § 3701(b)(1-17) of the Divorce Code. As the trial court noted,
ability to pay is among the factors that a court should consider when
determining whether to award alimony. Brubaker v. Brubaker, 201 A.3d
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180, 190 (Pa. Super. 2018). The Master recommended and the trial court
found that Wife testified credibly that she had to work overtime in order to
pay Husband $1,000.00 per month that was previously ordered. Further, the
trial court properly noted that Husband was awarded a portion of the equity
of the home, an asset paid for and maintained by Wife, as well as 50% of
Wife’s 401(k) account, as part of the equitable distribution of the marital
estate. We discern no abuse of discretion in the trial court’s award of alimony.
In his final issue, Husband avers that the trial court abused its discretion
or committed an error of law “in its calculation or determination for equitable
distribution regarding the marital home, marital debt, the motorcycle and
attorneys fees and expenses.” Husband’s Brief at 34.
First, Husband reiterates his earlier argument that his share of the
equity in the home should be greater. Husband’s Brief at 25. Husband also
states that the Master’s report, as adopted by the trial court, is worded in such
a manner that Husband will not receive 50% of the equity in the home if it
sells for more than $138,000.00. Id.
We previously set forth our standard of review for an award of equitable
distribution. Once again, we find the trial court did not abuse its discretion in
awarding Husband his share in the marital home. Indeed, as the trial court
noted, Wife paid for and maintained the marital home with little to no help
from Husband. Trial Court Opinion, 9/23/30, at unnumbered 15. Further,
Husband cannot afford to pay the mortgage or maintain the home, and it was
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through Wife’s actions alone that the home remained a marital asset rather
than becoming a marital debt. Id. We have thoroughly reviewed the record
in this case and find no abuse of discretion or error of law in the trial court’s
equitable-distribution scheme as it relates to the marital home.
Husband next contends that the trial court and Master erred related to
the marital debt. Husband’s Brief at 35. Specifically, Husband argues:
The Master made a finding that there were two loans: one
from Wife’s 401(k) with a date of separation balance of $6,444.22
and a “second debt secured by Wife’s RSP that was used to
purchase Husband’s automobile. Wife paid this debt off paying
$1,800.00.” (Masters Recommendation Page 5, paragraph 5).
However, the value of all of the outstanding loans at the time of
separation was $6,444.22, which already included the $1,800
that Wife Paid off. (See 401(k) statement dated December 2107
and Defendant’s Exhibit 14.) “Plain error is found where the
decision is based on factual findings with no support in the
evidentiary or legal factors other than those that are relevant to
such an award.” Diament v. Diament, 816 A.2d 256, 270 (Pa.
Super. 2003)
Husband’s Brief at 36. Husband’s argument relating to marital debt is
confusing and unclear as to his claim that the trial court abused its discretion
or committed an error of law. We will not act as counsel for Husband and
develop arguments on his behalf. Irwin Union Nat. Bank and Trust Co. v.
Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010). Thus, we find the issue
waived. Id.
Husband also posits that Wife testified there was a judgment against
her from Northern Leasing Systems in the amount of $2,485.62. Husband’s
Brief at 36. Husband avers that in the exhibit accompanying that testimony,
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an offer to settle the debt for $1,491.37 was made. Id. Husband then
asserts, without citation to relevant testimony, that neither Wife nor her
counsel informed Husband of this offer. Although Husband has included a
copy of a document that he alleges was an exhibit in the Reproduced Record,
we note that he fails to state the exhibit number and set forth where in the
certified record the exhibit was entered into evidence. Following extensive
review of the transcript of the Master’s hearing and the exhibits entered
thereto, we are unable to locate where the exhibit was entered into evidence
or a copy of the exhibit.
Pa.R.A.P. 2119 addresses arguments in appellate briefs and
corresponding references to the record and provides, in relevant part, as
follows:
If reference is made to the pleadings, evidence, charge,
opinion or order, or any other matter appearing in the record, the
argument must set forth, in immediate connection
therewith, or in a footnote thereto, a reference to the place
in the record where the matter referred to appears ... .
Pa.R.A.P. 2119(c) (emphases added).
It is not the role of this Court to develop an argument for a litigant or to
scour the record to find specific evidence to support an appellant’s arguments.
J.J. DeLuca Co. Inc. v. Toll Naval Assocs., 56 A.3d 402, 411 (Pa. Super.
2012) (quoting Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.
Super. 2007)). Therefore, “[w]hen an allegation is unsupported [by] any
citation to the record, such that this Court is prevented from assessing this
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issue and determining whether error exists, the allegation is waived for
purposes of appeal.” Commonwealth v. Harris, 979 A.2d 387, 393 (Pa.
Super. 2009) (citing Pa.R.A.P. 2119(c)).3
Next Husband asserts that the trial court erred when it awarded the
Johnny Pag motorcycle to Husband. Husband’s Brief at 37. Husband argues
that even though the motorcycle is titled in his name, he does not want it and
has no way to retrieve it. Id. Husband further avers, without relevant
citation, that because it will cost more than the value of the motorcycle to ship
it to Florida or allow Husband to retrieve it, it should have been awarded to
Wife. Id. Once again, we note that Husband’s argument is based upon facts
that are not in the record. Husband testified that he did not have the means
to transport the motorcycle to Florida. No testimony was presented regarding
the cost of doing so versus the value of the motorcycle. Further, we note that
although Husband testified that he believed the motorcycle was valued at
approximately $500.00, the master found it to be worth $2,749.50, an amount
Husband does not dispute. Master’s Report, 2/26/20, at 7.
The trial court set forth the following analysis relating to the motorcycle:
[Husband] claims that it is [a] hardship for him to retrieve
the motorcycle from the marital residence[,] and the costs of
____________________________________________
3 Husband also asserts that the Master improperly “indicated” that a lien was
filed against the marital home because of this judgment; he argues that there
was no testimony establishing this fact. Husband’s Brief at 37. This statement
is belied by the record. Wife specifically testified that a lien was taken against
the marital home because the judgment was not paid. N.T. (Master’s
Hearing), 1/13/20, at 26.
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bringing the motorcycle back to Florida with him are overly
burdensome. The court finds that while [Wife] paid for
[Husband’s] motorcycle, it was never her vehicle. [Husband]
could have easily taken the motorcycle with him when he left the
marital residence in December of 2017. Additionally, [Husband]
has a number of options to dispose of the motorcycle including
selling it here in Pennsylvania. The court finds this to be another
example of [Husband] creating an issue and expecting [Wife] to
clean up his mess. [Husband] wanted the motorcycle and [Wife]
paid for him to have the motorcycle. Now, because [Husband]
decided to relocate to Florida, he feels that [Wife] should be
responsible for dealing with it. The court additionally notes that
[Husband] has requested numerous pieces of personal property
from the marital residence, including his grandmother’s stuff, his
grandfather’s stuff, jewelry, clothing, his Ozzy paraphernalia,
items that were his parents, childhood items, Glenn Turner books
and tapes and sports paraphernalia including his football jerseys.
(N.T. January 13, 2020, pg. 121 lines 2-12). … [Wife] testified
that [Husband’s] items are all boxed up and sitting in the garage
of the marital residence waiting for him to retrieve them. (N.T.
January 13, 2020, pg. 40 lines 4-11).
It is the position of this court that it is not [Wife’s]
responsibility to ship [Husband’s] personal items to Florida
especially when [Husband] left those items behind and voluntarily
moved to Florida. The court believes that when [Husband] makes
arrangements to obtain his personal items from the marital home,
he can make arrangements to retrieve the motorcycle.
Trial Court Opinion, 9/23/20, at unnumbered 17-18. Given all of the above,
we discern no error or abuse of discretion in the trial court’s award of the
motorcycle to Husband.
Finally, Husband argues that the trial court erred when it failed to award
him attorneys’ fees. Husband’s Brief at 38. As we previously have held:
We will reverse a determination of counsel fees and costs only for
an abuse of discretion. The purpose of an award of counsel fees
is to promote fair administration of justice by enabling the
dependent spouse to maintain or defend the divorce action
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without being placed at a financial disadvantage; the parties must
be ‘on par’ with one another.
Counsel fees are awarded on the facts of each case after a review
of all the relevant factors. These factors include the payor’s ability
to pay, the requesting party’s financial resources, the value of the
services rendered, and the property received in equitable
distribution.
Counsel fees are awarded only upon a showing of need. In most
cases, each party’s financial considerations will ultimately dictate
whether an award of counsel fees is appropriate. Also pertinent
to our review is that in determining whether the court has abused
its discretion, we will not usurp the court’s duty as fact finder.
Brubaker, 201 A.3d at 191 (citing Busse, 921 A.2d at 1258).
In the instant matter, the Master recommended that each party pay his
own attorney fees and share equally in the Master’s fee and cost of the
hearing. The trial court adopted the Master’s recommendation for the
following reasons:
In the instant case, neither [Husband] nor [Wife] is … in a
great financial position. [Husband] is living on social security
disability payments and alimony and [Wife] is working, paying
alimony and paying the majority of the debt from the marriage.
[Husband] testified that he does not have enough money to cover
his expenses and [Wife] testified that she is working overtime
every chance she gets to make ends meet. (N.T. January 13,
2020, pg. 45 lines 2-11, pg. 113 lines 12-14). The court finds
that both parties testified credibly on this matter and that neither
[Wife] nor [Husband] is living extravagantly. The purpose of an
award of counsel fees and expenses is to financially equalize the
parties so that no one party has an advantage over the other
simply because one of the parties has more access to financial
resources. The court finds that [Wife] and [Husband] are on par
with each other financially and that both [Wife] and [Husband] are
barely making ends meet every month. For this reason, the court
agrees with the Master’s recommendation to deny [Husband’s]
request for counsel fees and expenses. Both [Husband] and
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[Wife] had access to legal counsel and neither one of them was
prejudiced by their current financial position with regard to fully
litigating this matter.
Trial Court Opinion, 9/23/20, at unnumbered 19-20.
As has been repeatedly noted by the Master and the trial court, Husband
and Wife have limited means and a small marital estate. Indeed, although
there is a disparity in the total income of the parties, both parties testified that
they struggled to make ends meet and neither lives an extravagant lifestyle.
Wife testified that she works overtime in order to be able to afford to pay
Husband alimony. The trial court did not abuse its discretion in finding that
both parties should pay their own attorney fees and split the cost of the
Master’s report and hearing. Teodorski, 857 A.2d at 201 (finding no abuse
of discretion where the trial court had a “reasonable rationale” for its decision
to award Wife less money for counsel fees than the Master recommended).
Husband is due no relief on these grounds. For all the foregoing reasons, the
order is affirmed.4
Order affirmed.
____________________________________________
4 We note that in her brief, Wife stated that she had been laid off by her
employer and, as of the time of the filing of her brief, was hospitalized due to
brain tumors. Although this Court is sympathetic to Wife’s current situation,
we did not, and indeed could not, consider facts that are not of the record in
upholding the trial court’s order. Johnson v. Johnson, 153 A.3d 318, 322
(Pa. Super. 2016).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/11/2021
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