J-A09010-17


                             2017 PA Super 207

CAROL J. HARVEY                                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RICHARD H. HARVEY

                        Appellant                  No. 1466 MDA 2016


                 Appeal from the Decree August 31, 2016
               In the Court of Common Pleas of York County
                 Civil Division at No(s): 2013-FC-1193-02
                              2013-FC-1193-15


BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

OPINION BY OTT, J.:                                  FILED JULY 03, 2017

     Richard H. Harvey (Husband) appeals from the Decree in Divorce

entered August 31, 2016, in the Court of Common Pleas of York County, that

severed the bonds of matrimony between the parties, and made final and

appealable the equitable distribution orders entered January 23, 2014, and

April 25, 2016. Husband contends: (1) The Honorable Harry Ness abused

his discretion and committed an error of law in his Order, dated January 17,

2014, and entered January 23, 2014, wherein he determined the marital

residence was marital property subject to equitable distribution; and (2) The

Honorable N. Christopher Menges abused his discretion and committed an

error of law in his Order, dated and entered April 25, 2016, wherein he

awarded Carol J. Harvey (Wife) 60 percent of the escrowed funds from the

sale of the marital residence, and 40 percent to Husband. See Husband’s
J-A09010-17



Brief at 4.     Based upon the following, we affirm the Decree in Divorce,

vacate the Orders of January 23, 2014, and April 25, 2016, and remand to

the trial court for an order awarding each party 50% of the escrowed

proceeds from the sale of the marital residence.

       Both issues raised in this appeal concern the marital residence.    On

June 29, 1993, prior to their marriage, the parties purchased the marital

residence as joint tenants with the right of survivorship. Subsequently,

             [t]he parties were married on September 10, 1993.[1] On
       September 2, 1993, the parties entered into a valid prenuptial
       agreement. [Wife] reviewed the prenuptial agreement with
       Attorney Robert Stickler prior to signature.

             [Wife] is seventy-two (72) years old. [Wife] suffers from
       diabetes, fibromyalgia, osteoarthritis and high blood pressure
       and takes multiple medications for these conditions. [Wife] has
       medical insurance coverage through Medicare and secondary
       insurance coverage through Aetna.

             [Husband] is seventy-eight (78) years old. [Husband]
       suffers from coronary artery disease, peripheral neuropathy, and
       spinal problems and takes multiple medications for these
       conditions.

             Both parties are currently retired. [Wife] is on a monthly
       fixed income from Social Security of $1,806 and three (3)
       Horace Mann annuities that total $934 per month. [Husband] is
       on a monthly fixed income from Social Security of $1,545 and
       PSERS pension of $2,406 per month.

             The parties split all material expenses fifty-fifty (50/50)
       during the marriage. Specifically, from the date of the parties’
____________________________________________


1
  The marriage was Wife’s third marriage, and Husband’s fourth.            See
Report and Recommendation of the Master, 12/8/2015, at 2.



                                           -2-
J-A09010-17


      marriage until [Wife] filed for divorce, each party paid fifty
      (50%) of each mortgage payment. Each party paid fifty (50%)
      of all real estate taxes and homeowner’s insurance. Each party
      paid fifty (50%) percent of all household utilities.

              The parties equally contributed to the purchase of the
      marital residence. At the time the parties purchased the marital
      residence, [Wife] did not have fifty percent (50%) of the down
      payment and closing costs to contribute towards the ma[rital]
      residence. [Wife] therefore executed a judgment note to
      [Husband] in the amount of $44,169.72 representing her half of
      the down payment. After the parties’ marriage, [Wife] sold her
      premarital residence and paid [Husband] in full the amount owed
      in full under the Judgment note.

Trial Court Opinion, 4/25/2016, at 1–3.

      Wife filed a Complaint in Divorce on July 3, 2013.      Thereafter, on

December 6, 2013, she filed a Petition for Special Relief.

      In her Petition, Wife asserted: “The parties executed a Prenuptial

Agreement. The parties agree that the Prenuptial Agreement covers most of

the property of the parties that would otherwise be marital. They disagree

as to whether it covers the marital residence[.]” Wife’s Petition for Special

Relief, 12/6/2013, at ¶4.

      Wife’s Petition for Special Relief further stated:

            The Divorce Master provided a summary of the recent
      proceedings in a Memorandum dated December 3, 2013 as
      follows:

               At the [Discovery Conference], the parties advised
         that there is a valid Antenuptial Agreement in this case.
         While the parties agree that the Agreement is valid, they
         disagree as to the interpretation of it. Husband argues
         that the agreement precludes the creation of marital
         property and equitable distribution. He further argues that
         the marital residence was purchased by the parties prior to
         marriage and thus is excluded per the agreement. Wife

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J-A09010-17


         argues that when the marital residence was deeded to the
         parties as tenants by the entirety during the marriage, it
         constituted a gift to the marital estate and became marital
         property subject to equitable distribution. If the court
         interprets the agreement in the same manner as Wife,
         Husband’s separate estate will be relevant and thus,
         discovery regarding it appropriate. If, however, the court
         interprets the agreement in the same manner as Husband,
         then discovery is not appropriate. Therefore, the master
         will place the discovery appointment on hold while the
         parties seek a determination of the appropriate
         interpretation of the agreement.

Id. at ¶6.

      Wife averred that “[t]he marital residence was purchased by the

parties as joint tenants with a right of survivorship just prior to the

marriage”, and “[a]nother Deed was executed by the parties after the

marriage on September 24, 2002 as part of a refinancing that converted the

marital residence into tenants in the entireties.”    Id. at ¶¶8-9.    Wife

requested the court’s interpretation of the parties’ Antenuptial Agreement,

“specifically, whether the Deed executed by the parties on or about

September 24, 2002 constituted a gift to the marriage making the marital

residence marital property subject to [the equitable] distribution.”    Id.

(Wherefore Clause).

      A hearing on the Petition was scheduled for January 16, 2014.     On

January 15, 2014, Wife filed a Memorandum of Law, and Husband filed a

Brief in Support of Terms of Antenuptial Agreement.




                                   -4-
J-A09010-17



       In advance of the hearing, the parties entered into a Stipulation of

Facts for the January 16, 2014, hearing.2          The Stipulation set forth, in

relevant part:

       7. The parties were married on September 10, 1993 in York,
       Pennsylvania.

       8. On September 2, 1993 the parties executed an Antenuptial
       Agreement, a copy of which is attached hereto and incorporated
       herein as Exhibit “A”.

                                               …

       12. The parties jointly purchased the marital residence on June
       29, 1993 in anticipation of their marriage. The June 29, 1993
       deed names the parties as Richard H. Harvey and Carol J. Baker
       (Wife’s prior name) as joint tenants with the right of
       survivorship.

       13. At the time the parties purchased the residence, Wife did not
       have 50% of the down payment and closing costs to contribute
       toward the marital residence. Wife therefore executed a
       Judgment Note to Husband in the amount of $44,169.72
       representing her half of the down payment and closing costs for
       the purchase of the marital residence.

       14. After the parties’ marriage, Wife sold her premarital
       residence and paid Husband in full the amount owed in full under
       the Judgment Note.[3]
____________________________________________


2
  See Joint Stipulation of Facts, 6/26/2015, at ¶5 and Exhibit “C” (“On or
about January 16, 2014, the parties through counsel agreed to a Joint
Stipulation of Facts for a January 16, 2014 hearing before Judge Ness
regarding [Wife’s] Petition for Special Relief. A true and correct copy of this
Stipulation is attached hereto as Exhibit “C” and incorporated herein by
reference.”).
3
  The record does not disclose the date of the sale of Wife’s premarital
residence and the date of her satisfaction of the judgment note.



                                           -5-
J-A09010-17



      15. The marital residence was subject to a mortgage when the
      parties purchased the marital residence.

      16. On September 24, 2002 the parties refinanced the house
      and obtained a lower interest rate. The September 24, 2002
      mortgage was in the amount of $87,000.

      17. At the time that the parties refinanced the marital residence
      on September 24, 2002, the parties executed a new deed to the
      marital residence and the grantee clause reads: “Richard H.
      Harvey, Sr. and Carol J. Harvey, husband and wife, of
      Manchester Township, York County, Pennsylvania.” From the
      date of the parties’ marriage until Wife filed the Complaint for
      Divorce, each party paid 50% of each mortgage payment. Each
      party paid 50% of all real estate taxes and homeowner’s
      insurance. Each party paid 50% of all household utilities.

Joint Stipulation of Facts, 6/26/2015, Exhibit “C” (Stipulation of Facts for

January 16, 2014 Hearing, at ¶¶7-8, 12–17).

      The hearing on Wife’s Petition was held on January 16, 2014. The trial

judge, the Honorable Harry Ness, determined that if testimony was

unnecessary, an order would be entered based on the briefs and stipulation

of facts.   See N.T., 1/16/2014, at 2.     Thereafter, counsel presented legal

argument to the court, and the trial judge confirmed with counsel he would

enter an opinion based upon the joint stipulation of facts. Id. at 8-9.

      By order dated January 17, 2014, and entered January 23, 2014,

Wife’s Petition was granted, as follows:

      1. The parties’ marital residence … constitutes marital property
         subject to equitable distribution;

      2. The matter is remanded to the York County Divorce Master’s
         Office. The parties shall proceed as appropriate before the
         same; and


                                     -6-
J-A09010-17


        3. The parties’ marital residence … shall be listed for sale within
           thirty (30) days of the date of this Order.

Order, 1/23/2014.

        The opinion accompanying the trial court’s order explained that when

the parties refinanced the mortgage on September 24, 2002, and executed a

new deed that changed the parties’ ownership from joint tenants with right

of survivorship to tenants by the entireties, “this transfer to both parties as

tenants by the entireties constituted a gift to the marital [estate].”        Trial

Court Opinion, 1/23/2014, at 5.4

        Husband filed an Affidavit of Consent on October 1, 2014, and Wife

filed an Affidavit of Consent on October 22, 2014.          The Divorce Master

issued a Report and Recommendations on December 8, 2015. The Master

recommended that each party receive 50% of the escrowed proceeds from

the sale of the marital residence. The Master concluded:

____________________________________________


4
    The trial judge further opined:

        [O]n remand to the Divorce Master’s Office, the operative and
        ultimate question will be what division of property will constitute
        as “equitable.” While the predominant framework under 23 Pa.
        Cons. Stat. § 3502 must be evaluated when making such a
        determination, we suggest that it is important to consider that
        the plain language of the [Antenuptial] Agreement seems to
        indicate that the parties intended to have a fifty-fifty allocation
        of property between them.         We believe that such intent
        extended to the marital residence and should have weight in the
        Master’s decision.

Trial Court Opinion, 1/23/2014, at 6.




                                           -7-
J-A09010-17


       Just as each party contributed 50% to the purchase, the
       mortgage, insurance, taxes and utilities throughout the course of
       their marriage, and, given all facts as presented, and factors as
       considered under Section 3502(a) of the Divorce Code, each
       party should take 50% of the escrowed proceeds from the sale
       of the marital home. To skew this distribution to Wife’s favor
       and not Husband’s in any greater amount, this Master would find
       to be anything but equitable under the specific facts and
       circumstances of this case.

Master’s Report, 12/08/2015, at 17.

       Wife filed exceptions on December 28, 2015, and Husband filed an

Answer to Wife’s Exceptions on January 27, 2016. On April 25, 2016, the

Honorable N. Christopher Menges denied Wife’s exceptions in part, and

granted the exceptions in part, and divided the marital property 60/40,

awarding 60% of the escrowed funds from the sale of the marital residence

to Wife and the remaining 40% to Husband. On August 31, 2016, the trial

court issued the final decree in divorce, and this appeal followed.5

       In his first issue, Husband challenges the Order entered January 23,

2014. Specifically, Husband contends Judge Ness abused his discretion and

committed an error of law in determining Husband made a gift of his equity

in the marital residence when the parties refinanced the mortgage on the

residence in September of 2002, and executed a new deed that changed the

parties’ ownership from joint tenants with right of survivorship to tenants by

the entireties.

____________________________________________


5
 Husband filed a concise statement pursuant to Pa.R.A.P. 1925(b) together
with his notice of appeal.



                                           -8-
J-A09010-17



      This claim centers on the trial court’s interpretation of the Antenuptial

Agreement with regard to the marital residence.      Therefore, the following

legal principles guide our review:

      The determination of marital property rights through prenuptial,
      post-nuptial and settlement agreements has long been
      permitted, and even encouraged. Where a prenuptial agreement
      between the parties purports to settle, fully discharge, and
      satisfy any and all interests, rights, or claims each party might
      have to the property or estate of the other, a court’s order
      upholding the agreement in divorce proceedings is subject to an
      abuse of discretion or error of law standard of review. An abuse
      of discretion is not lightly found, as it requires clear and
      convincing evidence that the trial court misapplied the law or
      failed to follow proper legal procedures. We will not usurp the
      trial court's fact-finding function.

                                      ****

      As    to   interpretation,  enforcement,    and     remedies,   in
      Pennsylvania, antenuptial agreements are interpreted in
      accordance with traditional principles of contract law. Generally,
      the parties are bound by their agreements, absent fraud,
      misrepresentation or duress. They are bound without regard to
      whether the terms were read and fully understood and
      irrespective of whether the agreements embodied reasonable or
      good bargains.

       When interpreting an antenuptial agreement, the court must
      determine the intention of the parties. When the words of a
      contract are clear and unambiguous, the intent of the parties is
      to be discovered from the express language of the agreement.
      Where ambiguity exists, however, the courts are free to construe
      the terms against the drafter and to consider extrinsic evidence
      in so doing.

Sabad v. Fessenden, 825 A.2d 682, 686, 688 (Pa. Super. 2003)

(quotations and citations omitted).




                                      -9-
J-A09010-17


     Where property or an account is placed in the names of a
     husband and wife, a gift and the creation of an estate by the
     entireties is presumed even though the funds used to acquire the
     property or to establish the account were exclusively those of
     the husband[.] … In order to overcome the presumption that an
     estate by the entireties exists and that a complete gift ensued
     therefrom, there must be clear, and convincing evidence to the
     contrary.

Holmes Estate, 200 A.2d 745, 747 (Pa. 1964) (citation omitted).

      Here, there is no dispute regarding the validity of the Antenuptial

Agreement. Therein, the parties agreed:

     WHEREAS, each party has agreed by virtue of the terms of this
     Agreement to waive the impact of the marital contract on the
     assets of each other owned at the time of the marriage and
     subsequently acquired after the date of the marriage; and

     WHEREAS, each of the parties by virtue of this Agreement
     hereby agrees to waive the right to any increase in value of any
     property owned by the parties at the time of marriage or which
     may be acquired by them subsequent to the marriage by virtue
     of gift, bequest, devise of descent.

     NOW THEREFORE, in consideration of the mutual covenants and
     disclosures herein contained, their intended marriage, and
     intending to be legally bound hereby, the parties hereto agree as
     follows:

                                   ****

     4. Nothing herein shall be construed as preventing either of the
     parties from giving any of his or her property or estate to the
     other by deed, gift, will or otherwise. Provided, nevertheless,
     that with regard to the real or personal property interest of the
     parties no gift of the assets of either one will be recognized as
     valid unless the same is executed in writing or evidenced in
     writing.

     5. After the solemnization of their prospective marriage, each
     party shall separately retain all rights in his or her own property
     whether now owned and/or hereafter acquired irrespective of the

                                   - 10 -
J-A09010-17


       source or manner in which such property may be acquired. Each
       of them shall have the absolute and unrestricted right to dispose
       of such property during his or her lifetime and upon death free
       from any claim that may be made by the other by reason of their
       marriage and with the same effect as if no marriage had been
       solemnized between them. The provisions of this paragraph shall
       be fully applicable even though the pertinent laws providing for
       marital rights may change after the execution of this Agreement
       with the result that presently existing rights may be reduced,
       eliminated or expanded and new rights may come into being.
       The provision of this paragraph specifically waives the definition
       of marital property under the prevailing Pennsylvania “Divorce
       Code” as to Section 401(e) Subparagraphs (2) and (3)[6] ….

       6. Each party does hereby waive and relinquish any and all
       rights which he or she might otherwise have thereto or therein
       as spouse or surviving spouse of the other under present
       statutes or under statutes hereinafter in effect in any jurisdiction
       or by virtue of the divorce laws of this or any other jurisdiction
       whether by way of property settlement, equitable distribution,
       alimony, support, alimony pendente lite, maintenance and care,
       a distributive share in the event of intestacy, the right of election
       to take against a will or against an estate, the right to act as
       administrator or executor, dower, curtesy, or otherwise, and
       each of the parties does hereby release all rights whatsoever
       which he or she might now have or hereafter otherwise acquire
       in said property of the other by reason of the contemplated
       marriage between them.

Antenuptial Agreement, 9/2/1993, at 1–4.

       Judge Ness found that based on Paragraph 6 of the Antenuptial

Agreement, “on its face, the Agreement seems to preclude classifying the

marital residence as marital property subject to equitable distribution.” Trial

Court Opinion, 1/23/2014, at 3. However, he further reasoned:

____________________________________________


6
 23 P.S. § 401(e) had been repealed at the time the parties executed the
Antenuptial Agreement. See 23 Pa.C.S. § 3501.



                                          - 11 -
J-A09010-17


           Title 23, Section 3501 of the Pennsylvania Consolidated
       Statutes excludes from the definition of marital property, in
       relevant part, the following:

           (2) Property excluded by valid agreement of the parties
           entered into before, during or after the marriage.

           (3) Property acquired by gift, except between spouses,
           bequest, devise or descent or property acquired in
           exchange for such property.

       23 Pa. Cons. Stat. Ann. § 3501(a).

              Our sister court has indicated that “[w]here a marital
       residence that has been purchased with the sole funds of one
       spouse prior to the marriage is transferred during the parties’
       marriage to both spouses jointly as tenants by the entireties a
       gift to the marital estate is created”. Burry v. Burry, 28 Pa. D.
       & C.3d 579 (Montgomery Ct. Comm. Pl. 1982). Absent clear and
       convincing evidence refuting this presumption, the value of the
       marital residence constitutes marital property subject to
       equitable distribution. See Id.

             In determining what constitutes adequate evidence to the
       contrary, our Superior Court in Lowry v. Lowry rejected a
       husband’s argument that his only intent in placing property in a
       tenancy by the entireties was to prevent his former spouse from
       taking the property. Lowry v. Lowry, 544 A.2d 972, 977 (Pa.
       Super. Ct. 1988). The Court indicated that “the fact that there is
       some financial gain to be had by the gifting spouse as a result of
       the gift, like a reduction in taxes, does not negate donative
       intent, but rather positively suggests it.” Id. Thus, “[t]he desire
       to achieve the financial goal is the source of the donative intent
       that supports a finding of a gift.” ld.[7]
____________________________________________


7
   We clarify the facts of Lowry, as follows. In Lowry, the husband
transferred his interest in real property purchased after marriage and held in
joint names into wife’s name alone. Lowry, 544 A.2d at 975. In discussing
the husband’s argument that he did not have donative intent because his
purpose was not to exclude the property from marital property, but rather to
shield the property from his former spouse, this Court held “the fact that
there is some financial gain to be had by the gifting spouse as a result of the
(Footnote Continued Next Page)


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J-A09010-17



          In the case at bar, parties stipulate that, when refinancing
      the marital residence on September 24, 2002, the parties
      executed a new deed to the marital residence which changed the
      parties’ ownership of the property from joint tenants with the
      rights of survivorship to tenants by the entireties. See
      Stipulation of Facts, ¶¶ 12, 17. We find that this transfer to both
      parties as tenants by the entireties constituted a gift to the
      marital residence [sic]. Our finding is supported by not only the
      weight of prior authority, but also by the Agreement. Paragraph
      [F]our of the same indicates that:

          Nothing herein shall be construed as preventing either of
          the parties from giving any of his or her property or
          estate to the other by deed, gift, will or otherwise.
          Provided nevertheless, that with regard to the real or
          personal property interest of the parties, no gift of the
          assets of either one will be recognized as valid unless the
          same is executed in writing or evidenced in writing.

           Such language indicates that the parties’ intent was to allow
      latitude for gifts between themselves. [Husband] does not
      indicate why the transfer of the marital residence lacks donative
      intent, but rather argues that the Agreement precludes the
      marital residence being treated as marital property subject to
      equitable distribution entirely.[8] See [Husband’s] Brief in
      Support of Terms of the Ante-Nuptial Agreement. [Husband]
      therefore has not come forward with sufficient evidence to rebut
      the presumption that the transfer of the marital residence to the
                       _______________________
(Footnote Continued)

gift, like a reduction in taxes, does not negate donative intent, but rather
positively suggests it.” Id. at 977.

       Lowry also involved the wife’s transfer of $13,000.00 from her
personal savings account into a joint savings account in both parties’ names.
In this regard, this Court held: “Where a spouse places separate property in
joint names, a gift to the entireties is presumed absent clear and convincing
evidence to the contrary.” Id. at 978.
8
  As will be discussed more fully below, Husband’s Brief in Support of Terms
of Antenuptial Agreement, filed on January 15, 2014, does address donative
intent.



                                           - 13 -
J-A09010-17


     parties as tenants by the entireties constitutes a gift to the
     marital estate. Accordingly, we find that the parties’ marital
     residence constitutes marital property that is subject to equitable
     distribution under Pennsylvania law.

Trial Court Opinion, 1/23/2014, at 4–6.

     Based on our review, we find that the trial judge misapplied the law in

concluding that, under the facts of this case, Husband failed to rebut the

presumption that the transfer of the marital residence to the parties as

husband and wife constituted a gift to the marital estate, making it marital

property.

     Because the parties jointly acquired the marital residence prior to their

marriage and owned the property as joint tenants with the right of

survivorship at the time the new deed was executed, donative intent in the

creation of a tenancy by the entireties is a mutual issue. However, Wife’s

Petition for Special Relief makes no averment regarding her own donative

intent in signing the new deed.     Rather, the question presented by the

Petition was “whether the [d]eed executed by the parties on or about

September 24, 2002 constituted a gift to the marriage making the marital

residence marital property[.]” Wife’s Petition for Special Relief (Wherefore

Clause).

     However, at the Master’s hearing that was held following Judge Ness’s

determination that the marital residence was marital property subject to

equitable distribution, Wife testified the new deed was executed because (1)

her name changed, and (2) the bank required it. See N.T., 9/10/2015, at

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J-A09010-17


50. The parties, through counsel, stipulated that the parties “didn’t discuss

whether it was or was not a gift.” Id. at 101. The parties, through counsel,

also stipulated that “the parties signed this deed because the bank required

it for purposes of refinancing the loan on the marital residence.”       Id. at

101.9

        Furthermore, when the issue came before Judge Ness, Husband

disputed donative intent, stating:

        The parties’ action in executing a deed on September 24, 2002
        was not to make a gift to the marriage. The sole reason for the
        deed was to have title in the property match the names on the
        mortgage that was to be entered into. Without the refinancing,
        the deed never would have been executed.

Husband’s Brief in Support of Terms of Antenuptial Agreement, 1/15/2014,

at 7. The record supports Husband’s position.

        It is important to note that in Burry, supra, cited in the trial court’s

opinion, the marital residence was purchased by one spouse prior to the

marriage, and transferred after the marriage to both spouses as tenants by

the entireties. Here, however, both parties acquired the marital residence

prior to the marriage as joint tenants with right of survivorship. 10 As such,

____________________________________________


9
  While this testimony was presented to the Master on the issue of equitable
distribution, the orders of Judge Ness and Judge Menges are intertwined in
this case.
10
  As discussed above, the parties stipulated that at the time the parties
purchased the marital residence, Wife executed a Judgment Note to
Husband in the amount of $44,169.72 representing her half of the down
(Footnote Continued Next Page)


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J-A09010-17


the subsequent change of ownership in this case, to a tenancy by the

entireties, was not an acquisition of property by either party.      Here, both

parties jointly owned the whole property with right of survivorship before

and after the change in the deed. See Madden v. Gosztonyi Sav. & Tr.

Co., 200 A. 624, 627–628 (Pa. 1938) (stating that “a tenancy by entireties

resembles a common law joint tenancy in that each spouse owns the whole

and therefore is entitled to enjoyment of the entirety and to survivorship[;]

it differs in that neither one has any individual portion which can be

alienated or separated, or which can be reached by the creditors of either

spouse.”).

      It is also important to note that in Lowry, supra, the husband

transferred property held in both spouses’ names to his wife’s name for

financial protection from his former spouse, thereby evidencing a financial

gain that this Court concluded “positively suggest[ed]” donative intent.

Lowry, 544 A.2d at 977.            Further, the husband stated his intent was to

prevent his former spouse from taking the property.          Id. at 977.   Here,

however, even though the parties refinanced to obtain a lower interest rate,

the new deed was executed as required by the bank to reflect Wife’s current


                       _______________________
(Footnote Continued)

payment and closing costs for the purchase of the marital residence, and
repaid this amount to Husband after the marriage when she sold her
premarital residence.




                                           - 16 -
J-A09010-17


married name.        Thus, the signing of the new deed does not establish

donative intent on the part of Husband or Wife.

       Furthermore, the parties continued their arrangement that “each party

paid 50% of each mortgage payment,” “[e]ach party paid 50% of all real

estate taxes and homeowner’s insurance,” and “[e]ach party paid 50% of all

household utilities.”11 This 50/50 allocation of expenses between the parties

also contradicts donative intent to make a gift to the marital estate.

       In sum, we find that the facts established by the Joint Stipulation of

Facts for January 16, 2014 Hearing — that the parties jointly owned the

marital residence as joint tenants with right of survivorship prior to the

marriage, that the new deed transferring ownership of the marital property

to the parties as “husband and wife” was executed as part of the refinancing

process, and that during the entire marriage until Wife filed the Complaint in

Divorce the parties paid 50% of each mortgage payment, and paid 50% of

all expenses related to the marital residence — are clear and convincing

evidence that rebuts the presumption of a mutual gift of the marital

residence in the creation of a tenancy by the entireties.        See Holmes,

supra. Accordingly, we vacate the Order entered January 23, 2014.



____________________________________________


11
  Joint Stipulation of Facts, 6/26/2015, Exhibit “C” (Stipulation of Facts for
January 16, 2014 Hearing, at ¶17).




                                          - 17 -
J-A09010-17


      The second issue raised by Husband challenges the April 25, 2016,

Order of Judge Menges that resolved the issue of equitable distribution of

the marital property by fashioning a 60%/40% distribution scheme in favor

of Wife.

      Because we have vacated the Order of January 23, 2014, it follows

that the Order of April 25, 2016, regarding equitable distribution of the

marital residence pursuant to the Divorce Code, cannot stand. Nevertheless,

if we were to address Husband’s second issue, we would find merit in

Husband’s contention that the trial court abused its discretion in ordering a

60/40 division of the marital property.

      The Divorce Code provides that it is the policy of the Commonwealth

to “[e]ffectuate economic justice between parties who are divorced or

separated . . . and insure a fair and just determination and settlement of

their property rights.” 23 Pa.C.S. § 3102(a)(6).

      In reviewing equitable distribution orders,

           [our standard] of review . . . is limited. It is well
           established that absent an abuse of discretion on the part
           of the trial court, we will not reverse an award of
           equitable distribution. [In addition,] when reviewing the
           record of the proceedings, we are guided by the fact that
           trial courts have broad equitable powers to effectuate
           [economic] justice and we will find an abuse of discretion
           only if the trial court misapplied the laws or failed to
           follow proper legal procedures. [Further,] the finder of
           fact is free to believe all, part, or none of the evidence
           and the Superior Court will not disturb the credibility
           determinations of the court below.




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            We do not evaluate the propriety of the distribution order
            upon our agreement with the court[’s] actions nor do we
            find a basis for reversal in the court’s application of a
            single factor. Rather, we look at the distribution as a
            whole, in light of the court’s overall application of the [23
            Pa.C.S.A. § 3502(a)] factors [for consideration in
            awarding equitable distribution]. If we fail to find an
            abuse of discretion, the [o]rder must stand.

Lee v. Lee, 978 A.2d 380, 382-383 (Pa. Super. 2009) (citations omitted).

        Here, the trial court, in fashioning the 60/40 distribution scheme,

pointed to the “disparity in the parties’ individual assets,”12 and concluded

that “[a]fter twenty (20) years of marriage, to consign Wife to such a

substantially lower standard of living goes contrary to the social policies and

legislative intent of the Divorce Code.”13 However, the trial court overlooked

the fact that the only marital asset in this case is the marital residence, and

that throughout the marriage the parties each paid 50 percent of the related

expenses, including the purchase price, mortgage payments, real estate

taxes, homeowner’s insurance and utilities.

        We conclude “economic justice” and “a fair and just determination and

settlement” require that neither party benefit to the detriment of the other

with regard to the equitable distribution of this marital property. 23 Pa.C.S.

§ 3102(a)(6). As the Master recognized in recommending a 50/50 division

of the escrowed proceeds from the sale of the marital residence, “[t]o skew
____________________________________________


12
     Trial Court Opinion, 4/25/2016, at 15.
13
     Id. at 14.



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J-A09010-17


this distribution to Wife’s favor and not Husband’s in any greater amount, …

would    …   be   anything   but    equitable   under   the   specific   facts   and

circumstances of this case.”       Report and Recommendation of the Master,

12/8/2015, at 17.

        Accordingly, based on the above discussion, we affirm the Decree in

Divorce, vacate the Orders of January 23, 2014, and April 25, 2016, and

remand to the trial court for an order awarding each party 50% of the

escrowed proceeds from the sale of the marital residence.

        Decree in Divorce affirmed; Equitable Distribution Orders of January

23, 2014, and April 25, 2016, vacated.           Case remanded.          Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2017




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