J-S12006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    TRACY S. NEWCOMER                          :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD C. NEWCOMER                        :
                                               :
                       Appellant               :    No. 1382 MDA 2017

                Appeal from the Order Entered August 3, 2017
      In the Court of Common Pleas of Schuylkill County Civil Division at
                            No(s): S-1901-2013


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                                  FILED APRIL 12, 2018

       Richard C. Newcomer (“Husband”) appeals from the order, entered in

the Court of Common Pleas of Schuylkill County, distributing the parties’

marital property and ordering Tracy S. Newcomer (“Wife”) to pay Husband

alimony in the amount of $1,473.84 per month until December 31, 2017.1

After our review, we affirm based on the opinion authored by the Honorable

Jacqueline L. Russell.

       The parties married in 1998 and separated in 2013. They have three

minor children, ages 17, 15 and 12. The parties share physical custody of the

two youngest children; Wife has primary physical custody of the oldest child.

None of the children has special needs.            At the time of the hearings before


____________________________________________


1Husband has been receiving alimony pendente lite (APL) since August 2014;
upon divorce the APL award converted to alimony.
J-S12006-18



the master, in October and December of 2016, Wife was 50 years old and

Husband was 47 years old.

       Prior to the marriage, Wife obtained a Bachelor’s Degree in Business

Administration and a Master’s Degree in Human Resources; she is employed

at Country Meadows Retirement Community.                   Wife earns approximately

$140,000.00 per year. Husband has taken some college level classes in

horticulture; he has been self-employed as a landscaper since 1993. Husband

can operate a bucket truck, a backhoe, a chipper and a stomper. Husband

also has an active commercial driver’s license (CDL). Husband’s 2015 Federal

Income Tax Return for his landscaping business showed gross receipts of

$35,455.00 for his landscaping and snowplowing business, and other income,

including alimony, of $22,237.00.2

       The parties stipulated to the value of the marital assets. The master

held hearings on October 10, 2016, December 6, 2016, and December 28,

2016. On April 18, 2017, the master issued his report and recommendation.

Both parties filed exceptions, and, on August 3, 2017, the trial court entered

an order, adopting the master’s findings and recommendations, and

distributing the marital property as follows: 51% to Husband ($422,521.00)

and 49% to Wife ($420,681.00).                 The court also ordered Wife’s alimony

payment to Husband continue to December 31, 2017. Husband appealed.

____________________________________________


2An interim order entered on August 27, 2014, determined that Husband’s
monthly net income was $833.15 and Wife’s monthly net income was
$7,928.37.

                                           -2-
J-S12006-18



Both Husband and the trial court have complied with Pa.R.A.P. 1925. Husband

raises the following issues for our review:

         1. Whether the lower court erred in setting forth an equitable
            distribution scheme that does not reflect a proper
            consideration of the facts as applied to the factors set forth
            in the Pennsylvania Divorce Code, and, instead, reflects bias
            in favor of Wife?

         2. Whether the lower court erred in awarding alimony only
            until December 31, 2017?

         3. Whether the lower court erred in failing to award attorney
            fees and costs to Husband?

         4. Whether the lower court erred in failing to set forth the basis
            of, and reasoning behind, its equitable distribution scheme?

         5. Whether the lower court erred in discriminating against
            Husband?

Appellant’s Brief, at 7.

      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.

      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


                                      -3-
J-S12006-18


      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.

Morgante v. Morgante, 119 A.3d 382, 386-87 (Pa. Super. 2015) (quoting

Childress v. Bogosian, 12 A.3d 448, 455-56 (Pa. Super. 2011) (internal

citations and quotation marks omitted)).

      Essentially, Husband argues that he should continue receiving alimony

beyond December 31, 2017, in light of the disparity in the parties’ incomes

and in light of the fact that he suffers from back issues that limit his ability to

work. The trial court noted, however, that Husband offered no medical

testimony to support work restrictions for his back and takes no medication.

Husband also argues that he requires approximately $76,000.00 for tuition

because he intends to acquire a degree in mechanical engineering so that he

can obtain a job that does not require physical labor. The court noted that

the master found Husband was underemployed and that Husband’s testimony

was simply not credible. The court accepted the master’s determination with

respect to Husband’s credibility. See Morgante, supra.

      Further, the court reviewed the statutory factors, applied them to the

parties’ stipulations and the master’s findings, and set forth its reasoning for

the equitable distribution order. The trial court listed the factors a court must

consider in the implementation of an equitable distribution scheme and in the

award of alimony, and evaluated the master’s reference to them and all




                                       -4-
J-S12006-18



relevant factual information assigned to them. Trial Court Opinion, 8/3/17, at

9-12.

        We also agree with the court that the fact that it accepted the master’s

credibility determination did not establish that the court was biased against

Husband or discriminated against him. Husband was awarded more than half

of the marital estate and alimony for one year. He was also awarded the

marital home and liquid assets, whereas the bulk of the assets awarded to

Wife were retirement funds.

         Having reviewed the parties’ briefs, the record, the relevant law and

the well-reasoned analysis by the trial court in the two opinions rendered in

this case, the August 3, 2017 Opinion and the November 9, 2017 Rule 1925(a)

Opinion, we conclude that the court properly disposed of Husband’s claims on

appeal. Accordingly, we adopt the trial court’s two opinions as our own and

affirm the order on that basis. We direct the parties to attach these opinions

in the event of further proceedings.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2018




                                       -5-
Page 1   of   32          Schuylkill County Government
                                                                       Received 9/18/2017 3:17:33 PM           Court Middle
                                                                                                      Superior03/22/2018
                                                                                                   Circulated               District
                                                                                                                         03:37 PM

                                                          ••               Filed 9/18/2017 3:17:00 PM Superior Court Middle District
                                                                                                                  1382 MDA 2017




 iv �}
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     �\\!)�
            3 COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY--CIVIL ACTION-LAW

  �\x\�            TRACY S. NEWCOMER,                          : No. S-1901-2013
   �- )                          Plaintiff
     . \ ,.1�
              \
                                                                 -- DIVORCE CODE --
     w                   vs.
                                                                 Docket# 16 D 5574
                   RICHARD C. NEWCOMER,
                                  Defendant                                                                        !
                                                                                                                 ·... ·}
                                             Lori Schafer Guzick, Esquire - for Plaintiff                \   .
                                              Arlen R. Day, II, Esquire - for Defendant
                                                   Kent Watkins, Esquire - Master

                                                             DECISION

                   RUSSELL, J.

                         Both Plaintiff Tracy S. Newcomer and Defendant Richard C. Newcomer complain

                   about the Master's report and recommendations in this divorce action. The Master's

                   findings and recommendations, except as otherwise noted, follow.



                                                         Master's Findings

                         The Master finds that Plaintiff was born October 19, 1966, resides with the

                   parties' three children - born May 12, 2000, March 28, 2002 and July 23, 2005 - with

                   Defendant sharing custody of the two younger children. Plaintiff and the children are in

                   good health.

                         Plaintiff has a bachelor's degree in business administration and a master's

                   degree in human resources which were earned before the marriage. Plaintiff has been

                   employed at Country Meadows Retirement Community the last eight years, earning




                                                                  1
Page 2   o�   32            Schuyikiil County Government




                   about $120,000.00.1 Defendant was born December 15, 1969, resides in the former

                   marital residence, is self-employed as a landscaper and tree trimmer, can operate

                   various equipment and has a COL. Defendant contends that he is limited in

                   employment opportunities due to having back problems. Plaintiff has been paying

                   Defendant alimony pendente lite since August 27, 2014.

                            The parties agree2 on the date of separation values of the following assets and

                   liabilities:

                                   PSECU account#9592 (Plaintiff) - $7,413.00

                                   PSECU account #8356 (Plaintiff) - $93,695.00

                                   Country Meadows 401(K) (Plaintiff)- $57,181.003

                                   29 shares Met Life stock (Plaintiff) - $1,563.004

                                   Contents of marital home removed by Plaintiff - $2,400.00

                                   [From the above accounts cash was withdrawn by Defendant in

                                   the amount of $2,400.00 and 2013 real estate taxes on the

                                   marital home in the amount of $5,366.00 were paid]

                                   Marital home - $381,000.00

                                    187 Sunline Trailer - $300.00

                                   2900 Wilderness Camper - $1,800.00

                                   2003 EZ Dump Trailer - $2,500.00

                                   2.003 Ford Truck - $10,000.00

                   1
                     The Master also reports that Plaintiff earns in excess of $130,000.00 annually. Plaintiff testified at the
                   December 28, 2016 hearing that she earned about $140,000.00 per year.
                   2
                     The record does not indicate agreement by the parties on all assets identified.
                   3
                     It is not evident how this figure was determined. The date of separation was April 30, 2013 and per
                   documentation in lhe record the balance of the account on March 31, 2013 was $46,047.20 and on June
                   30, 2013 it was $49,417.41. Plaintiff, however, agrees with the figure assigned by the Master.
                   � The parties have not disputed the classification of the asset as marital. The record indicates Plaintiff
                   possessed a pre-marital asset which resulted in the stock issuance.

                                                                         2
Pagel   of   32   Schuylki�l County Government




                         2003 Hawk Trailer - $2,500.00

                         1995 Ford Pick-Up Truck - $500.00

                         1988 Ford Truck - $1,000.00

                         1978 International Scout - $400.00

                         2005 Dodge Ram 1500 - $1,509.00

                         Honda motorcycle - $450.00

                         Lawnmower- $80.00

                         2005 Chipper - $5,000.00

                         2007 Tire Machine/Balancer - $450.00

                         Air compressor - $450.00

                         Rototiller - $800.00

                         Miscellaneous tools, saws and sprayers - $1,500.00

                         55" Sony TV and stand - $600.00

                         Bed - $250.00

                         PSECU account #9004 (Defendant) - $317.00

                         PSECU account #0180 (Defendant)-$12,120.00

                         Metro Bank account #4763 (Defendant) - $914.00

                         Metro Bank account #9544 (Defendant} - $1,450.00

                         Santander Bank account #9650 (Defendant) - $9,680.00

                         Santander Bank account #4913 (Defendant) - $4,826.00

                         Santander IRA (Defendant) - $600.00

                         1955 Chevrolet Bel Air - $2,000.00

                         2013 HD Soft Tail - $10,203.00



                                                       3
Page 4   of   32           Schuyl.kill County Government




                                  Contents remaining in marital home - $2,500.00

                                  Crawler Roto (sold by Defendant) - $3,800.00

                                   1978 truck (sold by Defendant) - $600.00

                                  2000 Kawasaki motorcycle (sold by Defendant) - $400.00

                                   F250 truck (sold by Defendant) - $500.00

                                  2005 John Deere backhoe - $12,500.00

                                   1997 Bucket truck - $10,500.00

                                   1999 Jeep Cherokee- $1,000.00

                                  2005 Kawasaki 4-wheeler - $2,000.00

                                   SP Construction trailer - $100.00

                                   Ricky's bedroom furniture • $500.00



                                   Chase Bank mortgage - $72,000.00

                                   Metro Bank Heloc - $1,969.005



                           The parties married on Juty 11, 1998 and separated on April 30, 2013. This is

                   the first marriage of each party. Both parties contributed to household duties during the

                   marriage.

                           UPS stock owned by Plaintiff redeemed during the marriage was used to pay

                   marital debts and expenses, all of Plaintiff's life insurance policies are term with no cash

                   value and the real estate purchased by Plaintiff after separation is not marital property.



                   5
                      The Master made no finding about the Cabela's card referenced in Defendant's brief. No exception was
                   filed about the card despite Defendant's argumenl Nevertheless, testimony indicated the debt was paid
                   in full prior to separation.

                                                                      4
Page 5   or   32           Schuylki.l Co\Dlty Governmmit




                           The marital portion of Plaintiff's Wells Fargo IRA is $7,290.70, Plaintiffs UPS

                   401 K retirement plan has a marital value of $187, 125.00 and the balance remaining of

                   Plaintiffs UPS stock does not represent an increase in value during the marriage. The

                   Master finds that Defendant's testimony "on the whole" was not credible and that his

                   claim that there was $40,000.00 in cash in the parties' closet and that Plaintiff's

                   employer paid her "for more than the outstanding loan balance on her car...•,a

                           Although the parties stipulated that the Metro Bank home equity line of credit had

                   a balance of $1,969.64 at separation, the current balance is $50,000.00 because

                   Defendant took an advance on the line of credit. Therefore, the liens against the marital

                   residence total $122,000.00.

                           In his review of the factors relative to equitable distribution, the Master includes

                   the following additional information.

                           Defendant appears under-employed based upon his skills and training and he

                   has taken no steps to increase his earning power since separation. Neither party

                   contributed to the education, training or increased earning power of the other. Neither

                   party offered testimony about the opportunity of either for future acquisition of capital

                   assets. Plaintiff has steady income with medical, retirement, insurance and other

                   benefits for herself and the children. Defendant will be obligated to purchase his

                   medical insurance and finance his retirement, insurance and other benefits. Both

                   parties contributed to the acquisition and appreciation of marital property and to the

                   maintenance of the household and had a middle class lifestyle during the marriage.

                   6
                    The sentence is-incomplete. However, it is assumed that the Master meant to Indicate that the claims
                   by Defendant about cash and Plaintiff's employer were not credible. Likewise, it is believed the Master
                   meant to find that Defendant's contention that Plaintiff took many thousands of dollars· worth of personal
                   property was unfounded since while contending that Plaintiff took much marital furniture when she left
                   Defendant, the latter also claimed that Plalntlff bought new furniture after separation.

                                                                        5
l?age 6   of   32           Sohuylk��l County Government




                    The encumbering of the marital real estate with an additional $50,000.00 debt by

                    Defendant dissipated the equity in the property and would have to result in a deduction

                    in his share of equitable distribution. Prior to equitable distribution, Plaintiff has

                    substantial value in real estate and bank accounts in her name.

                            Plaintiff is in a more stable economic circumstance than Defendant. The parties

                    "submitted speculation" as to the tax ramifications applicable to equitable distribution but

                    no account was presented.

                            Defendant set forth speculative expenses for sale, transfer or liquidation "with a

                    particular" of the marital real estate7 but no testimony, cross-examination or rebuttal was

                    offered. The Master recognizes that transfer tax and a realtor's commission would be

                    involved in the sale of the marital residence.

                            Defendant requests counsel fees and permanent alimony. Alimony is to

                    rehabilitate a party in need. Defendant made no effort toward any rehabilitation beyond

                    the skills he has and did not present a plan as to why he should be receiving additional

                    alimony. The fy'laster recommends finding that permanent alimony is not necessary

                    based upon equitable distribution. Since 2014, Defendant has been receiving alimony

                    pendente lite which award, the Master observes, is to enable a party to maintain a

                    divorce action and is not a substitute for income when the party is employed or

                    employable. Additionally, Defendant borrowed $50,000.00 against the marital real

                    estate since separation. Therefore, the Master recommends that the request for

                    counsel fees be denied.

                            The Master recommends that Plaintiff receive:


                    1                 .
                     It appears the Master meant to state a particular asset of the estate rather than refer solely to the real
                    estate.

                                                                          6
Page 7   o:f'   32   Schuyl.kil.l. Co\Ulty Goverrooent




                             PSECU account #9592

                             PSECU account #8356

                             Country Meadows 401 (K)

                             29 Shares of Met Life Stock

                             2000 Wilderness Camper

                             2003 Ford Truck

                             Honda Motorcycle

                             1955 Chevrolet Bel Air

                             2005 Kawasaki 4-Wheeler

                             Personal Property in Plaintiff's Possession

                             UPS 401(K)



                     The Master recommends that Defendant receive the following:

                             M�rital home subject to the condition that he refinance

                             the existing debt on the marital home within one hundred

                             twenty (120) days from the final Divorce Decree in order to

                              remove Plaintiff's name from any obligations associated with

                             the real mortgage with Chase Bank and the Home Equity

                              Line of Credit with Metro Bank

                              1987 Sunline Trailer

                             2.000 Wilderness Camper

                              3000 EZ Dump Trailer

                              2003 Ford Truck



                                                           7
Page 8   of   32   Sohuyl..lti�i county Government




                           2003 Hawk Trailer

                           1995 Ford Pick-Up Truck

                           1988 Ford Truck

                           1978 International Scout

                           2005 Dodge Ram 1500

                           Honda Motorcycle

                           Lawnmower

                           2005 Chipper

                           2007 Tire Machine/Balancer

                           Air Compressor

                            Rototiller

                           Miscellaneous tools, saws and sprayers

                           55" Sony TV and Stand

                            Bed

                           Cash removed from PSECU account #9592 ($2,400.00)

                            PSECU account #9004

                            PSECU account #0180

                            Metro Bank account #4 763

                            Metro Bank account #9544

                            Santander Bank account #9650

                            Santander Bank account #4913

                            Santander IRA

                            1955 Chevrolet Bel Air



                                                        8
Page 9   or   32          Schuyl.kill. County Government




                                 2013 HS Soft Tail

                                  2005 John Deere Backhoe

                                  1997 GMC Bucket Truck

                                  1999 Jeep Cherokee

                                  2005 Kawasaki 4-Wheeler

                                  SP Construction Trailer




                          In determining the exceptions, the Court reviewed the record, the Master's report,

                   the parties' briefs and the pertinent statutory provisions, the latter which include the

                   following.

                          With respect to equitable distribution, the Divorce Code provides, in part, as

                   follows:

                                  (a) General rule.--Upon the request of either party in an
                                  action for divorce or annulment, the court shall equitably
                                  divide, distribute or assign, in kind or otherwise, the marital
                                  property between the parties without regard to marital
                                  misconduct in such percentages and in such manner as the
                                  court deems just after considering all relevant factors. The court
                                  may consider each marital asset or group of assets independently
                                  and apply a different percentage to each marital asset or group
                                  of assets. Factors which are relevant to the equitable division
                                  of marital property include the following:

                                          (1) The length of the marriage.

                                          (2) Any prior marriage of either party.

                                          (3) The age, health, station, amount and sources of
                                          income, vocational skills, employability, estate,
                                          liabilities and needs of each of the parties.

                                          (4) The contribution by one party to the education,


                                                                  9
Page 10   o�   32    Schuylkill County Government




                                  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.

                                   (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).




                    The Divorce Code states, in part, the following relative to an award of alimony.

                           (a) General rule.- Where a divorce decree has been entered,
                           the court may allow alimony, as it deems reasonable, to either
                           party only if it finds that alimony is necessary.



                                                          10
Page 11   of   32   Schuylk�ll County Government




                          (b) Factors relevant.--ln determining whether alimony is necessary
                          and in determining the nature, amount, duration and manner of
                          payment of alimony, the court shall consider all relevant factors,
                          including:

                                  (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, expense
                                  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


                                                          11
Page 12   of   32           Sohuylkil1 County C3overnment




                                          to alimony ...

                                          {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 (a).(b).




                          Finally, the Divorce Code states that in "proper cases," the reasonable counsel

                    fees and expenses may be allowed. 23 Pa.C.S. 3702.




                                                            Exceptions

                          Plaintiff and Defendant both complain that the Master erred by proposing that five

                    items of personal property be distributed to both parties. Those items are:

                                  2000 Wilderness Camper: valued at $1,800.00

                                  2003 Ford Truck: valued at $10,000.00

                                  Honda Motorcycle: valued at $450. 00

                                  1955 Chevrolet Bel Air: valued at $2,000.00; and,




                                                                 12
Page 13   of   32             Schuylkill County Government




                                    2005 Kawasaki 4-wheeler: valued at $2,000.00.8

                            The parties stipulated to the values of the items with the exception of the 4-

                    wheeler. Neither specifically objects to the value the Master placed on that item. Both

                    parties suggest that Defendant be awarded the items as Defendant either possesses or

                    disposed of them. The Court will sustain the exceptions and award the items to

                    Defendant. The balance of Defendant's exceptions will be addressed next.

                            Defendant complains that the Master erred in finding the marital portion of

                    Plaintiffs Wells Fargo IRA to be $7,290.70, with the pre-marital portion being $1,133.47.

                    Defendant contends that the marital portion is $10,211.99. Defendant argues that

                    Exhibit D-11 indicates that the IRA value was $8,424.17 as of May 31, 2013. However,

                    Exhibit D-43 indicates that the value was $11,345.46 on December 31, 2016. Plaintiff

                    claims the Master did not err in the valuation as the value at separation was $8,424.17.

                    Neither party addressed the reason for the increase in value or specifically argued why

                    the date of separation or that nearer to the final hearing of December 28, 2016 was the

                    proper valuation date.

                            In light of the facts, it appears no marital funds were contributed to the IRA post-

                    marriage. Consequently, the Master's valuation date is accepted as 23 Pa.C.S.

                    3501 (a.1) provides that the increase in value during the marriage of nonmarital property

                    should be measured from the date of marriage to either the date of separation or that

                    closest to the equitable distribution hearing depending on which date results in a lesser


                    8
                      In his brief, Defe'r1dant claims the Master erroneously referred to a 2000 Kawasaki which does not exist.
                    The Master identified a 2000 Kawasaki motorcycle valued at $400.00 and the twice-awarded 2005
                    Kawasaki 4-wheeler valued at $2,000.00. Although Defendant briefed the claim, he did not file a specific
                    exception about the alleged error. The Court could find no reference to the motorcycle which the Master
                    indicated had been sold in the hearing record. However, the record indicates Defendant testified to
                    selling a Honda XR dirt bike for $400.00 resulting in any error of identification by the Master irrelevant to
                    the proposed distribution.

                                                                         13
Page 14   of   32               Schuylkill County Govenm,ent




                    increase.9 Additionally, Defendant contends that the Master erred in not distributing the

                    Wells Fargo IRA of $10,211.99. Plaintiff contends that she was the owner of the IRA

                    prior to marriage and there was no need to recommend a distribution. Although it could

                    be argued that the Master erred in not mentioning the disposition in his proposed award,

                    any potential error is harmless as the asset belongs to Plaintiff.

                              Defendant also complains that the Master determined the marital portion of

                    Plaintiff's UPS Savings Plan to be $187,125.00 and contends that the amount should be

                    $258,429.38. Defendant claims that Plaintiff stipulated that the value of the UPS

                    Savings Plan was $285,588.56, as indicated in Exhibit D-21 (Transcript, December 28,

                    2016, page 95). He contends that the value as of the date of the marriage was

                    $27, 159.18. Defendant argues that the difference supports his valuation of the marital

                    portion. Plaintiff argues that the balance in the savings plan at separation was

                    $214,284.18 and since $27, 159.18 was pre-marital, the marital portion is $187, 125.00.

                    She cites her Exhibit #6 and testimony from the October 10, 2016 hearing, transcriot at

                    pg. 40, in support of her posltion. The Court finds the pertinent marital value to be

                    $258,429.38 as the valuation date closest to the last hearing on equitable distribution is

                    the most equitable as no evidence indicates either party did anything following

                    separation to affect the value of the asset.

                              Defendant claims the Master erred in not finding that the UPS stock had a marital

                    value of $8,014.56. He argues that as of the date of marriage, Plaintiff had 2,653

                    shares of UPS stock valued at $90,202.00, that during the marriage Plaintiff obtained

                    additional UPS stock - namely, 5,822.0533 shares - and that during that time she sold

                    8,401.39 shares of stock, the latter totaling $560,321.91. According to Defendant, the
                    9
                        The decrease in the nonmarital UPS stock account, nevertheless, offsets this increase.

                                                                         14
Page 15   of   32           Schuylkill County Government




                    remaining 73.663 shares were acquired by Plaintiff during the marriage in 2006 and

                    2007. Plaintiff argues that she owned 2,653 shares of stock when she married

                    Defendant, that she owned 73.6633 shares at separation, that the last sale occurred in

                    2008, and that the values of her stock were $90,202.00 at the date of marriage and

                    $6,266.32 at separation, respectively. Plaintiff claims that the value of the asset which

                    she terms nonmarital decreased by $83,935.68.

                          The record indicates that Plaintiff held UPS stock in an account at marriage. The

                    stock split, shares were sold, purchased and given to charity. Defendant did not identify

                    evidence in the record to indicate that the account decreased to "O" or any figure less

                    than "74" shares at any time during the marriage such that the remaining shares may be

                    directly traceable to marital purchases. As the value of the entire account decreased

                    over the marriage, it was not error for the Master to consider the remaining value of the

                    asset as nonmarital.

                           Defendant complains that the Master failed to factor dividends of about $800.00

                    from the UPS stock received by Plaintiff following separation into the distribution

                    scheme. Plaintiff does not address the latter issue. The amount presumably was

                    included in calculating Plaintiff's earnings for consideration in the award of child support

                    and alimony pendente lite which Defendant has received since 2014 as Plaintiff testified

                    that the dividends were included in her income for tax purposes. The Master's

                    exclusion of the limited income received by Plaintiff applicable to the nonmarital asset

                    post-separation is not found in error. Accordingly, the exception is denied.

                           Defendant contends that the Master erred in discounting his testimony regarding

                    his health issues. Defendant argues that the Master failed to consider that the record



                                                                 15
P1>ge 16   of   32          Schuylki.11 county Government




                     contained no evidence disputing Defendant's testimony about his having back problems

                     and the degree they impacted and may impact his earnings and earning capacity.

                     Plaintiff counters by arguing that no medical testimony was offered to indicate that

                     Defendant could not work. Further, she states that Defendant testified to seeing a

                     doctor only once or twice a year and to not taking medication for his back. The Master

                     heard the testimony, evaluated the credibility of the witnesses, was in the best position

                     to judge their credibility and to assign weight to the respective testimony.

                            In light of the limited evidence offered on the matter, it is not found that the

                     Master erred as claimed by Defendant especially since the Master found Defendant not

                     to be a credible witness. Nevertheless, it is noted that testimony or other evidence

                     specifically contradicting Defendant's claims about suffering a back problem were not

                     elicited. Defendant testified to the labor involved in his work, how he takes time off from

                     work if he is in pain, that he does not desire to take medication to mask the symptoms

                     and has tried to avoid invasive procedures which may preclude his working in his

                     current occupation.    Defendant, however, engaged in the same work prior to and

                     throughout the marriage and following separation. The back problems have not

                     precluded him from continuing what the evidence indicates is a labor-intensive

                     business. Nevertheless. based on the evidence elicited, the Court may only speculate

                     what Defendant may specifically or, in general, earn in another field of endeavor.

                            Defendant contends that the Master erred in finding him under-employed since

                     he claims no evidence established he was able to obtain employment in a particular job

                     that was available to him which he could perform and which would increase his earnings

                     or earning capacity. Plaintiff argues that Defendant is forty-seven years old, in good



                                                                   16
Page 17   or   32            Schuylkill County Government




                    health, has been a self-employed landscaper since 1993 and has numerous skills. She

                    notes that Defendant testified to his having built two homes with the assistance of his

                    father, including the marital residence that has a stipulated value of $381,000.00.

                    Further, she argues Defendant ran a towing business during the marriage, has a

                    commercial driver's license, can operate numerous types of heavy equipment and

                    purchases and resells vehicles online and at auto shows for additional income. Despite

                    his numerous skills, Plaintiff argues Defendant only claimed $8,000.00 in income in

                    2015.

                            The Master's findings are not in error based upon the evidence he heard.

                    Although Plaintiff apparently signed income tax returns over the years verifying what the

                    parties were reporting Defendant earned, she did not testify that the returns were in

                    error or that she had complained about Defendant's lack of contribution to household

                    income despite his having all the skills she now argues he possesses. Nevertheless,

                    the record establishes Defendant is capable of engaging in numerous fields. As

                    Defendant testified that his self-employment is seasonal, he did not explain what he

                    more recently does in the off-season or why he is not engaged in some work at that

                    time. Clearly, he is now not employing all of his potential skills in a field - such as

                    commercial truck driver or tow truck driver - during that time. Defendant claimed that he

                    did various wo�k in prior years during the off-season which he no longer does. Although

                    he testified that was due, in part, to the cost involved, he offered no reason he could not

                    obtain off-season work in some field - whether working for someone else or otherwise.

                            Moreover, in light of all the evidence about Defendant's abilities, it would appear

                    his income is either underreported or some undisclosed facts explain his true financial



                                                                  17
Page 18   of   32           Sohuyl.k.il.l County Government




                    situation. Although the Master made no particular finding about Defendant's earning

                    capacity relative to his health and skills, as noted, the Master found Defendant not to be

                    a credible witness. Plaintiff offered no particularized information on the subject - such

                    as by identifying a salaried position or hourly wage work available and compatible with

                    Defendant's skills. As a result, the record does not enable the Court to find Defendant

                    capable of engaging in some specific work which is currently or likely to be available

                    and the salary or rate of pay for the position. However, it does establish that Defendant

                    is not working at his capacity.

                           Defendant claims that the Master erred in finding that neither party offered

                    testimony regarding his/her opportunity for future acquisition of assets and income. The

                    Master did not err relative to the presentation of testimony directed specifically to that

                    issue. However, the evidence did establish that based on the respective reported

                    incomes of the parties and their educational backgrounds, a finding can be and should

                    have been made that Plaintiff's current ability to acquire assets exceeds that of

                    Defendant at this time. It is noted that Defendant claims he is financially unable to

                    obtain another home from which to run his business and that impacts his ability to

                    acquire assets. However, no reasonable financial motive for him to maintain a home in

                    Schuylkill County valued at $381,000.00 so to enable a business which purportedly

                    results in income limited to about $8,000.00 net per year was provided.

                           Defendant complains that the Master erred in his findings regarding Defendant's

                    obtaining a line of credit which the Master somehow "factored as credit to Defendant

                    instead of a debt," when considering issues of alimony, attorney fees and costs.

                    According to Defendant, he had extended a $50,000.00 home equity line of credit



                                                                 18
Page 19   of   32            Schuylkill County Government




                    during the pendency of this action. The parties stipulated that the line of credit had a

                    balance of $1,969.00 as of the date of separation. Defendant argues that in considering

                    Defendant's request for an award of al!mony and attorney fees, the Master applied that

                    debt to reduce the value of the marital residence and recommended that Defendant pay

                    the money back in 120 days. Defendant argues that he incurred $26,338.23 in attorney

                    fees and costs, per Exhibit 0-42, and that he obtained the home equity line of credit to

                    maintain the litigation.

                           Plaintiff argues that she has been paying periodic alimony pendente lite to

                    Defendant in the amount of $1,473.84 since August 27, 2014 - totaling more than

                    $53,000.00 as of the date of her memorandum - which, she says, should have been

                    used for Defendant's litigation casts. Rather, Plaintiff claims Defendant purchased a

                    boat, a 4-wheeler, a $35,000.00 vehicle and pieces of equipment for his business during

                    separation, citing testimony received on December 28, 2016 at pages 136 and 206 of

                    the transcript. Further, Plaintiff complains that she produced hundreds of documents in

                    this litigation and that delays in the divorce proceedings were caused by the necessity

                    that she produce those documents upon the expectation that Defendant was calling an

                    accountant to �estify about them and that the delays only served to increase counsel

                    fees while Defendant called no accountant to testify. As a result, Plaintiff attributes

                    unspecified delays in the proceedings, the continued APL payments and the increased

                    attorney fees incurred by both parties to Defendant's conduct during the litigation.

                           The record reveals that the litigation was indeed delayed due to Defendant's

                    insistence on receiving documents from Plaintiff or about her assets. The parties

                    should have been prepared for the Master's hearing when first scheduled. Plaintiff



                                                                 19
Page 20   of;   32             Schuylk�l.l. County Government




                     correctly notes that no expert witness was called by Defendant to testify. The first

                     Master's hearing was held on October 10, 2016, the second was held on December 6,

                     2016, and the third was held on December 28, 2016. The Master did not err in

                     considering delays in the proceedings sought by Defendant, Defendant's purchasing a

                     $4,500.00 boat and various motor vehicles while receiving alimony pendente lite and his

                     contending that he needed the APL, together with the approximate $50,000.00 line of

                     credit extension, to live and continue the litigation. Nevertheless, the record indicates

                     the delays between hearings were limited and based upon Defendant's requests for

                     financial documents which did result in the production of relevant information. Although

                     the record does not support a finding that the requests were unwarranted, neither party

                     explained why the information had not been obtained or provided earlier or why it took

                     over three year� for this divorce action to proceed to hearing.

                             The Master certainly could consider that Defendant failed to credibly explain why

                     he purchased the various items of personalty during the litigation while in the difficult

                     financial situation he claimed to face.10 The Master appropriately assigned the increase

                     in the line of credit which resulted in increasing the lien against the marital residence as

                     Defendant's responsibility. He further properly considered the surrounding facts

                     involving Defendant's financial claims.

                             In this regard, the Master found the marital line of credit debt to be $1,969.00.

                     He proposed that since Defendant extended the home equity line of credit which

                     resulted in increasing the lien against the marital residence without Plaintiffs




                     10
                       In his testimony, Defendant did not clearly identrfy the amount of attorney fees and costs incurred
                     specifically related to the divorce action, separate from the parties' custody dispute.

                                                                         20
Page 21   of   32           Schuylk:i.l.l. County Gove=t




                    knowledge, Defendant, who the Master proposed receive the home, should be

                    responsible to satisfy the entire debt. No error exists in that recommendation.11

                            Defendant complains that pursuant to 23 Pa.C.S. 3502(a)(10.1), the Master was

                    required to consider tax ramifications associated with each asset to be distributed or

                    divided. Defendant claims that he testified that he would incur an eighteen percent

                    income tax consequence if a business asset were sold, including the marital residence.

                    According to Defendant, he had claimed depreciation of over fifty percent of the

                    $101,500.00 which he assigned as business use of the marital residence. Further, he

                    complains that the Master did not factor the one percent real estate transfer tax that

                    would be incurred if the residence were sold- namely, $3,810.00.

                            Plaintiff argues that the testimony about tax consequences was not worthy of

                    belief as Defendant did not possess the pertinent knowledge to offer a tax opinion,

                    Defendant testified that he relied upon an accountant for tax assistance and he did not

                    express an int�ntion to sell the marital residence or any other asset. In fact, Defendant

                    testified that he desired to maintain the residence. His income reported for tax

                    purposes has been limited and nothing established Defendant's expertise to opine

                    about tax consequences and the effect of an asset's sale at an unknown time in the

                    future upon his income tax liability. As a result, the Master did not err in not considering

                    the income tax consequences of the sale of any asset based on the record established

                    by Defendant. It is, however, expected that if Defendant refinances the debt on the

                    home or must sell the home, that expenses will be incurred. It is appropriate that if such




                    '' ln the event Defendant - who desired to be awarded the home - is unable to satisfy the debt by
                    refinancing or otherwise in the period proposed by the Master, the property may be sold with Defendant
                    receiving the net proceeds.

                                                                      21
Page 22   ot   32               Schuylkill. Co\Ulty Government




                    event arises due to his compliance with the equitable distribution award, that the

                    reasonable settlement expenses incurred be shared.

                               Defendant complains that the Master did not suggest an award of alimony be

                    granted to him. Defendant claims he does not have funds to obtain the education he

                    desires. Defendant actually testified that he did not desire to obtain further education

                    until his children were no longer in school. Defendant also claims that upon divorce, he

                    would incur health insurance expenses in excess of $750.00 per month. Defendant

                    testified to what he believed the cost would be to obtain health insurance similar to that

                    provided to him through Plaintiffs employment without apparently having looked for

                    insurance coverage limited to medical coverage or based upon his income. Plaintiff

                    provides medical, dental and optical coverage for the entire family at a cost of about

                    $445.00 per month. Defendant argues that he makes about $25,000.00 per year, is

                    proposed to be awarded no retirement or financial accounts as per the Master's

                    recommendation and yet must pay $122,000.00 in debt within 120 days while trying to

                    obtain health insurance and pay his attorney fees.12

                               Defendant argues that he should receive indefinite alimony of $2,500.00 per

                    month or receive financial assets in the divorce action so he can pay off the mortgage

                    and home equity line of credit. Specifically, Defendant testified that he-wanted to be

                    awarded the $381,000.00 house, plus $287,000.00, and all of the personal property in

                    his possession, or, the $381,000.00 house, all personal property in his possession, the

                    PSECU account of $93,695.00 and $2,500.00 per month in alimony indefinitely.

                               Alimony is to be awarded if "necessary." The Master identified the relevant

                    factors under 23 Pa.C.S. 3701 and, except as observed herein, did not err in doing so.
                    12
                         The attorney fee bills submitted into evidence ir.dicate almost complete satisfaction.

                                                                           22
Page 23   of   32           Sohuy1.k�11 County Government




                    The parties were married only fifteen years and are relatively young. The Master found

                    both to be healthy. The parties share custody of two children and Plaintiff is the primary

                    custodian of the third. Plaintiff earns much more than Defendant, who, however, has

                    not satisfactorily explained his only reporting limited income despite his skills, many

                    years of employment and accumulated assets. Plaintiff had educational degrees prior

                    to marriage and while Defendant says he would like to obtain a degree, he does not

                    desire to make an effort to do so in the near future. Both parties - primarily Plaintiff -

                    brought property into the marriage which was utilized to maintain their life style and to

                    build their home. Plaintiff pays the children's medical bills and provides for their

                    numerous activities the costs of which are not insignificant. Plaintiff had placed money

                    in educational accounts for the children until the parties' separation. Plaintiff purchased

                    a home upon separation and mortgages exist on that home and the marital home.

                    Neither party has any unusual need and both have the abilities to support themselves

                    through appropriate effort and employment. Defendant will have sufficient property
                                    I



                    through equitable distribution and income via employment to provide for his reasonable

                    needs without an alimony award for an extended time. Under the circumstances, it is

                    found reasonable for him to receive alimony until December 31, 2017 in the amount

                    currently received in alimony pendents lite. During this period, Defendant will have time

                    to obtain insurance, refinance the home, if necessary, and prepare for the reduction in

                    funds now provided by Plaintiff.

                           Defendant complains that the Master erred in considering the entire value of

                    Defendant's business assets rather than simply the increase in value of the assets.

                    Defendant argues that as of the date of marriage, the assets of the business totaled



                                                                  23
Page 24   of   32            Schuylk5.ll County Gove=t




                    $28,346.00, according to Defendant's Exhibit 0-37, and he claims that the current value

                    is $57,009.00. With an eighteen percent tax consequence, Defendant contends the

                    marital value is.$23,504.00. Plaintiff argues that the only business assets considered

                    for equitable distribution during the litigation were the assets purchased during the

                    marriage, that none of Defendant's pre-marital assets or those gifted to him was

                    considered, and all items considered had been purchased with marital funds.

                    Defendant does not contest findings about any financial business assets but only

                    various items of equipment. It is not known what happened to all items of equipment

                    that may have existed at the date of marriage, how or when they were transferred or

                    disposed and what, if anything, occurred with any value attributed to any pre-marital

                    asset when disposed, transferred, etc. Had any pre-marital business asset existed at

                    separation, it would belong to Defendant unless the facts established otherwise. The

                    only evidence elicited supported a determination that the assets acquired during the

                    marriage became marital assets upon acquisition. As a result, there exists no error in

                    the Master's determination.




                            Plaintiffs exceptions 13 are as follows:

                            First, Plaintiff complains that the Master erred in recommending an off-set

                    distribution by awarding the equity of the marital home to Defendant and the retirement

                    accounts to Plaintiff. Plaintiff claims she needs the tax-free equity of the home because

                    being awarded retirement accounts does not help her current financial condition since


                    13
                      Per Plaintiffs brief, she wlthdraws her Exception #4 that the Master erred In falling to recommend that
                    the Wells Fargo Stock and UPS stock be distributed to her.

                                                                        24
Page 25   of   32             Scbuylki�l County Government




                    she cannot withdraw the financial funds until retlrernent." Plaintiff also claims that a

                    distribution of the retirement accounts would secure Defendant's financial future.

                    Plaintiff testified her monthly bills are $7,965.00. Similar to Defendant, Plaintiff

                    purchased assets, in particular, a $255,000.00 home, accumulated debt and dissipated

                    funds during separation. The evidence indicates the parties have disparate incomes.

                    Plaintiff does not incur typical vehicle expenses as her vehicle and related costs are

                    provided or covered, respectively, by her employer. Plaintiff receives a 3 - 5% salary

                    increase per year and has medical, optical and dental insurance available at some cost

                    through her employment. She has a 401K p!an provided by her current employer. As

                    of the October 10, 2016 hearing, she testified the value was $46,047.00. However, at

                    the December 28, 2016 hearing, she testified that the value was $76,304.50 as of

                    September 30_ 2016.

                            Plaintiff testified that she wants to be awarded $150,000.00 in cash from the

                    equity in the marital home, which would likely require that it be sold or refinanced, and

                    she does not want to be obligated to pay alimony to her husband who historically

                    reported earning little in comparison to her during the marriage - at least per the joint tax

                    returns of the parties. Defendant's being approved for the refinancing of about

                    $275,000.00 for the current liens of $122,000.00 and Plaintiff's desired award of

                    $150,000.00 and Defendant's ability to pay the refinanced mortgaged debt are all quite

                    questionable. Defendant, on the other hand, wants to receive the house, personal

                    property and a large sum of cash, or, the house, a lesser amount of cash, the

                    personalty, and alimony forever. Neither party is satisfied with the Master's nearly equal

                    14
                       Plaintiff claims she had to borrow money from her parents for a down payment on a $255,000.00 home
                    she purchased after separation. Plaintiff actually testified that her parents gave her $69,000.00 as a gift
                    to purchase the home.

                                                                        25
Page 26   of   32            Schuylkil.i County Government




                    distribution of assets 15 and likely will not be with the Court's. Despite the claimed

                    financial problems, pursuant to which each bases his/her reason to need cash, each

                    has accumulated rather significant assets and debts 16 following separation and each

                    believes the other should provide the cash. The Court is to divide, distribute or assign

                    assets in kind or otherwise in such manner as deemed just. Except as modified, the

                    recommendation of the Master results in justice to both parties under the

                    circumstances·. Neither has the cash available the other desires and such could not be

                    obtained without unnecessary cost or hardship to the payer.

                            Plaintiff next complains that the Master erred in failing to apply the decrease in

                    value of the UPS stock against the increase in value of the Wells Fargo IRA which

                    assets were both nonmarital per 23 Pa.C.S. 3501(a.1). As discussed previously,

                    Plaintiff contends that she owned 2,653 shares of UPS stock when first married and

                    73.6633 shares when separated and that she owned that number since 2008. At

                    marriage, she claims the stock was worth $90,202.00 and at separation it was worth

                    $6,266.32, resulting in a decrease in value of $83,935.68. Plaintiff also has a Wells

                    Fargo Bank IRA. She made an initial contribution of $1, 133.47 prior to the marriage and

                    its balance at separation was $8,424.17. Consequently, Plaintiff argues there was no

                    increase in nonmarital assets. Because the Master did not address the issue, she

                    claims it is not clear if the decrease was considered in the distribution of assets to each

                    party. The issue was considered by the Court herein and previously addressed with

                    Defendant's exceptions.


                    15
                       The record refers to additional equipment in Defendant's possession not identified by the Master such
                    as a $1,000.00 trailer. Any equipment in his possession not specifically identified is being awarded to
                    Defendant.
                    16
                       Plaintiff testified to dissipating a financial account and incurring over $40,000.00 in credit card debt.

                                                                         26
Page 27   of   32            Sohuylk�ll County Government




                           Plaintiff argues that the Master erred in not distributing the desk/hutch to the

                    child, Rachael Newcomer, on her eighteenth birthday. The complaint does not involve

                    equitable distribution between the parties. Assets of a child belong to the child and the

                    parties may agree to make no claim against a child's asset.

                           Plaintiff claims the Master erred in failing to explain the percentage of the estate

                    distributed to each party as it is too difficult for her to understand if the distribution

                    scheme is equitable. The Master dearly specified the assets that he recommended be

                    distributed to each party and identified the values of each asset. No singular asset was

                    divided nor was it necessary to assign present values or later distribution values to any

                    asset or a portion thereof. Each party will receive the financial accounts in his/her

                    respective name. Plaintiff will receive the tangible personal property she possesses and

                    Defendant will receive the house, encumbered by the liens which he must satisfy to

                    release Plaintiff from responsibility thereon, and the personal property in his possession

                    together with the proceeds previously obtained from the sale of the specified items of

                    property. The distribution results in a near equal split of property. Except as noted in

                    this determination, the Master properly addressed the pertinent issues affecting

                    equitable distribution, alimony and attorney fees and his proposal is being adopted with

                    some modification.




                                                                   27
                                                                           Circulated 03/22/2018 03:37 PM




    COURT ()F CUMMO'J PLCAS OF SCIIUYLK. L COUN rv .. cr.u, AC I ION-LAW


TRACY S NEWCOMER,                           No S 190• 2013
                     Pla.r.: r:
                                            ·· IJl'·JORCE CODE ••
       vs
                                            Oocket e 16 D 5574
RICH/\RD C ,EV1COMFR.
                     Oefendam

                        l or, Schafer Gt,z1ck tsqt.ue for Pia n!iff
                         Arlen R. Oa,. II, Esqu re . fo1 Defendant

                                 OPINION AND ORDER                                      ..
                              PURSUANT TO Pa.R.A.P. 1925


RUSSi:cLL •.

       Oefer,cfa11VApoellanl Richa1U C. Newcom�, filed an appeal rrc-n this co.m's order

of A:1vus1 3. 2017 wh ch clirectoo lhe d,stribu·,0° ol proper1y and debts awarded

alimony for a li11ited nrne 10 Appellart and errereo a decree in d1vo1ce After being

ordered to fi'e a concise statement of issues lntenoeo lo be raised on appeal. Appellant

filed a nine-page document extensively hst109 numerous complaints A lengthy

recitation of the pertinent histo,y. testimony, documentary evioence. master's report

excepte-rs and cot Hts analysis of the exceptions w, I not be recounted   in   response 10

Appellant's complaints as ,tis believed the decision of August 3, 2017 sets forth the

history and basis for the 1ulmgs on the exceptions.

       Due 10 the nature or u,e numerous complaints on appeal by Appellant. many of

which claim that this court did not properly coo sider a specmc statutory equitable

drstnbunon factor - all of which are to be consK:lered comprehensrvely, rather than in a




                                             1
       vacuum - some of the pages of this court's August 3, 2017 decision where particular

       exceptions were addressed are noted herein.

              As one of his later numbered complaints in his 19-25 statement, Appellant

       contends that the court discriminated against him, was biased in favor of Appel lee and

       that he had a hiqher burden of proof. The court accepted the master's determination

       that Appellant was nota credible witness in numerous respects. Simply because a

       party is not found credible does not render a court's determination biased.

       Nevertheless, this court reviewed the entire record in determining whether the master's

       credibility determination was well-grounded and analyzed the 'evidence pertinent to

       each exception.

              As his first complaint - with multiple subparagraphs - Appellant contends that this

       court did not consider the facts and applicable Divorce Code factors, including

       Appellant'salleged health issues, while having placed no burden on Appellee to

       contradict Appellant's testimony. With regard to Appellant's complaints at 1 (a) and (b)

       in his statement, this court discussed the_ record, the master's determination on the

       issue of Appellant's health, the master's finding that Appellant lacked credibility, noted

· ,;   the lack of specific contradictory evidence to Appellant's claim of his suffering back

       problems and the fact that Appellant, nevertheless, continued and wanted to continue to

       engage in his labor intensive self-employment (pages 15 and 16 of the decision).

              On pages 16 throu_gh 18 of the decision, this court addressed Appellant's working

       capacity, observed that the record did not enable the court to find him capable of

       engaging ir'f a speoflc job which was currently or likely available or the likely

       compensation for that position. The court noted, however, that Appellant testified that



                                                     2
his self-employment was seasonal and that he did not explain why he did not-engage in

work during theoff-season as he had in the past prior to the parties' separation.

Contrary to Appellant's complaint, those were the facts, not speculation. Simply-Stated,

Appellant - who in the off-season had plowed snow, towed vehicles, drove truck and

had a commercial driver's license - was capable of working in the off-season, had

worked in the off-season while the parties resided together and offered no basis for his

not seeking some employment during the off-season since the parties' separation.

       Contrary to Appellant's complaints, the differences in Appellee's earnings

through employment established by her W2 forms and Appellant's tax. return information

from hrs self-employment were discussed at several parts of the decision as were the

parties' liabilities. and needs.

       Similarly, the marital debt - being the real estate mortgage and home equity line

of credit against the home which Appellant requested be awarded to him - was clearly

discussed and set forth in the decision and in the final order (pages 4, 5). Likewise, the

employment benefit information is set forth in various sections of the decision. Both

parties incurred substantial debt following separation - Appellee purchased a home

encumbered by a mortgage, bought furnishings for the home and incurred credit card

debt in excess of $40,000.00, while Appellant extended the home equity debt against

the marital residence and purchased vehicles, including a new truck and a boat.

Contrary to Appellant's complaint, the decision details the purchases, debts, the pre-

marital property of Appellee and the property awarded in equitable distribution.

       Appellant complains about the lack of contributions by Appellee. The court

discussed the acquisition of marital property and Appellant's involvement in the



                                            3
construction of the marital home (page 4). Contrary to Appellant's claim that Appellee

gffered no proof of contribution by her, the record contains paqes of testimony from

Appellee of her using a significant amount of pre-marital property, in particular, through

the sale of her stock, towards the costs of construction, including payment of

construction loans, for the marital home which the parties agreed had a fair market

Value of $381,000.00. Moreover, the issue of lack of contributions by Appellee was not

a subject of Appellant's exceptions to the master's award, and, therefore, has been

waived. Benson v. Benson, 515 A2d 917 (Pa. Super. 1986) (complaints waived if not

subject of exceptions). In fact, Appellant argued in his brief in support of his exceptions

that "both" parties contributed. (Appellant's brief, pg. 12 (May 19, 2017) ).

       Appellant complains that this court erred in not considering the value of property

set apart to each other. The court's award was entered following a consideration of the

nature and type of property and the value of each item.     The decision together with

-decree clearly identify the values of the items of property and specifies the particular

award to each party.

       With regard to Appellant's complaint about Appellee's Wells Fargo account, the

issue was addressed on page 13 of t1ile decision. The UPS Savings Plan determination,

about which Appellant complains, is set forth on pages 14 through 15 of the decision.

This court does not know the basis for Appellant's contention that the court threatened

him with termination of alimony pendente lite for his seeking delays in the proceedings.

Appellant also did not except to the master's award in this regard.

       Appellant complains that the court "counted" the home equity line of credit debt

against him twice. Following separation, Appellant extended the line of credit lien



                                              4
aqainst the real estate without informing Appellee or obtaining Appellee's consent. As a

result, the real estate is burdened   by additional debt. The court has no idea what

Appellant means by contending that this court factored the debt "twice" against him.

The lien was extended post-separation by Appellant. It serves toreduce the equity in

the marital home. Appellant claimed he used the funds for his expenses to live.

However, he also acknowledged buying various assets, including a truck and boat,

during the relevant period while also rec�iving his self-employment income and alimony

pendente lite. Those constitute the facts and are discussed in the court's decision at

several places including paces 18 through 21.

       Appellant contends that this court erred in factoring non-marital value into

Appellant's business. The evidence with regard to Appellant's business indicated that it

was not a corporate business and no good will or receivables were mentioned by the

parties. The only business assets addressed were items of tangible personal property

and bank accounts. The record supports the evaluation of the evidence by the master

as to the nature of those assets being marital property and the assignment of their

v_alues. 23 Pa.C.S. 3501 (a) (property acquired during the marriage is presumed marital

unless acquired by method specified).

       Appellant contends that this court erred in not properly considering the standard

of living of the parties. Both parties complained about their lack of resources to live in

the same manner in which they had while residing together. Both complained that they

had gone into debt during the pendency of the divorce. The master and court, including

at pages 24 through 26 of the decision, considered the liabilities incurred by both parties

during the separation and their standards of living.



                                              5
       Appellant complains that the court did not properly consider his economic

circumstances. Appellant says the equitable distribution award requires that he pay an

outs tanging debt. However. it was Appellant who desired to be awarded the

$381,000 00 home on which the pre-separation $72,000.00 mortgage and approximate

$2,000.00 home equity liens existed. The award requires that he satisfy the existing

debts to remove Appel lee's name from any obligations associated with the mortgage

and home equity line of credit. Obviously, Appellant may seek to have Appellee

released from liability on the debts by refinancing - with Appellee sharing in the costs to

do. so, as this court ordered - or by his reaching some other agreement With the

pertinent lien holders. Appellant complains that he is financially incapable of doing that.

The court could have directed that the home be sold and the net proceeds be awarded

to Appellant. However, the award of the home to Appellant coincided with his request

Nevertheless. the home may also be sold per the court's award if Appellant does not

desire to maintain it. He will then receive the net sales proceeds with both parties first

sharinp in the expenses of sale.

       Appellant complains that the court did not consider the tax ramifications. The

court evaluated the evidence regarding tax ramifications on pages 21 through 22 of the

decision. Appellant complains the court erred in not considering the costs of sale of the

marital residence, The court considered those costs in its decision on pages 21 through

22 and in the final order at paragraph 2 which provides for the sharing of settlement

charges for any refinancing and for any possible sale costs, including realtors

commission.
            Appellant complains about the award of alimony. The court has no idea what

     Appellant means by the complaint about the home equity line of credit debt. As

     indicated, Appellant incurred the post-separation debt which, however, serves as a lien

     against the marital estate. Similarly, Appellee complained that she had incurred a

     substantial amount of debt in obtaining a mortgage loan for the home she purchased,

     furnishings for the house, the children's medical expenses, their activities and other

     living expenses for herself and the children following the separation. Appel lee

     complained that she did not have funds to pay alimony to Appellant while Appellant was

     seeking alimony indefinitely. The discussion of alimony is set forth, in part, on pages 22

     through 23 of the court decision.

            Appellant complains that the court erred in failing to aware attorney fees and

     costs to him. Contrary to Appellant's allegation, the court did not apply the home equity

     loan against him in denying an award of attorney fees. The evaluation of an attorney

     fee award and the sup.porting evidence, and lack thereof, is set forth on page 22 of the

     decision.

            Appellant complains that this court erred in failing to set forth the reasoning for

,,   the equitable distribution award. The court evaluated the exceptions of the parties,

     analyzed each one .and determined that, with limited modifications,    the master's

     recommendation resulted in equitable justice to both parties. The basis of the award of

     mostly tangible personal property and real property to Appellant and financial assets

     held in Appellee's name to Appellee is encompa,ssed in the decision.

            Appellant contends that this court erred in not remanding the matter to the

     master with regard to the issue of the disparity for future acquisition of assets and



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incomes. The court addressed the issue of disparity on page 18 of the decision.

Further, the divorce action was filed in 2013, numerous continuances and several

master's hearings were held. The parties had ample time to complete the record,

Appellant never contended that the record was incomplete, that it was not sufficient for

the master to make a recommendation or for the court to rule on exceptions and neither

party requested a remand for the purpose of-submitting more evidence upon their filing

exceptions to the master's recommendation. Similarly, Appellant claims that because

he now believes that insufficient evidence of value existed in the record and clarification

was needed on tax consequences or sale costs, the court erred in not remanding the

case to the master for the purpose of having the parties submit more evidence. The

parties were well aware of the master's determination, both filed exceptions and

Appellant made no complaint about the state of the record which, nevertheless, was

more than sufficient to make a proper determination. No need exists to remand the

case to the master for him to hold further hearings· and any request to do so by

Appellant has been waived.




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