J-S68040-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    STANLEY E. ROMANOSKI,                 :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellant               :
                                          :
             v.                           :
                                          :
DEBRA E. GRAD,                            :
                                          :
                  Appellee                :           No. 982 EDA 2014

                Appeal from the Order entered on March 3, 2014
             in the Court of Common Pleas of Philadelphia County,
                  Domestic Relations Division, No. D 09068496

BEFORE: ALLEN, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED DECEMBER 15, 2014

        Stanley E. Romanoski (“Husband”) appeals from the Order equitably

distributing the marital property owned by Husband and his former wife,

Debra E. Grad (“Wife”). We affirm.

        Husband and Wife married on July 1, 2001, and separated in April

2009.     The parties had two children together during their marriage.

Additionally, Wife has a daughter, Rachel, from a previous marriage. After

the initiation of the divorce proceedings,1 the Divorce Master issued a Report

and Recommendation concerning equitable distribution of the parties’ marital

property in September 2013. In response, Husband filed a Praecipe for Trial

De Novo with the trial court.



1
  We observe that Husband sought and was granted alimony pendente lite
(“APL”). Husband continues to receive a monthly APL payment from Wife of
$550.00.
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      On February 18, 2014, the trial court conducted a de novo hearing on

the economic issues in the divorce proceedings. Subsequently, on March 3,

2014, the trial court issued a Decree and Order, divorcing the parties from

the bonds of matrimony, and distributing their marital property.         Both

parties filed Motions for Reconsideration. On April 11, 2014, the trial court

conducted a hearing (hereinafter “reconsideration hearing”), at the close of

which the court denied both parties’ Motions for Reconsideration. 2        In

response, Husband timely filed a Notice of Appeal, and a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal,

after which the trial court issued a Pa.R.A.P. 1925(a) Opinion.

      On appeal, Husband presents the following issues for our review:

       1. Whether the trial court erred in excluding the balance of
          TruMark Account No. 2266430 from the marital estate
          and by concluding that Wife overcame the presumption
          that said account was marital in nature[?]

       2. Whether the trial court erred in attributing debt solely
          to Husband as to Bank of America Credit Card No. 5445
          and AT&T Credit Card No. 1800[,] and by finding that
          Wife overcame the presumption that said debt is marital
          in nature[?]

       3. Whether the trial court erred in attributing an erroneous
          value to the parties[’] Charles Schwab account[,] in
          disregard of the weight of the evidence[?]



2
  At the reconsideration hearing, the trial court judge found as follows
regarding Husband’s continued receipt of APL: “I am putting it on the record
that I think part of this appeal and part of this reconsideration and part of
everything is [H]usband’s attempt to continue receiving APL.”           N.T.,
4/11/14, at 36.


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       4. Whether the trial court erred in failing to award
          Husband separate items of personalty owned by
          Husband prior to the marriage[, and w]hether the trial
          court erred in failing to award Husband any items of
          marital personalty as requested[?]

Brief for Husband at 5.

      We review an equitable distribution order according to the following

standard:

             The equitable distribution of marital property is within the
      sound discretion of the trial court and its decision will not be
      disturbed on appeal absent an abuse of discretion. Under the
      abuse of discretion standard, we are not to usurp the trial court’s
      duty as the finder of fact. An abuse of discretion is not found
      lightly, but only upon a showing of clear and convincing
      evidence. However, an abuse of discretion will be found by this
      Court if the trial court failed to follow proper procedure or
      misapplied the law.

Dean v. Dean, 98 A.3d 637, 640 (Pa. Super. 2014) (citation and ellipses

omitted). “Furthermore, the determination of whether an asset is a marital

asset is a matter with the sound discretion of the divorce court.” Nagle v.

Nagle, 799 A.2d 812, 818 (Pa. Super. 2002).

      “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.”   Childress v. Bogosian, 12 A.3d 448, 455 (Pa. Super.

2011) (citations, brackets and quotation marks omitted).




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      In equitable distribution disputes, “[t]he finder of fact is entitled to

weigh the evidence presented and assess its credibility.” Smith v. Smith,

904 A.2d 15, 20 (Pa. Super. 2006). In so doing, “[t]he fact finder 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.”      Id. (citation

omitted).   Finally, it is well established that, “[i]f supported by credible

evidence of record, the trial court’s findings of fact are binding upon the

appellate court.” Green v. Green, 69 A.3d 282, 285 (Pa. Super. 2013).

      Husband first argues that the trial court improperly excluded from the

marital estate the funds in an account that Wife held, in her name alone,

with TruMark under account number 2266430 (hereinafter “the TruMark

Account”). See Brief for Husband at 8-11. Husband points out that

      [t]he [trial] court reasoned that the funds [in the TruMark
      Account] originated from [Wife’s] former spouse[,] in the nature
      of child support for [Wife’s] child[, Rachel,] and reasoned that
      this was sufficient to exclude the funds from the marital estate.
      [Husband] disagrees that this is permissible reasoning under the
      law.

Id. at 8.   Husband asserts that the funds in question were undisputedly

acquired during the parties’ marriage, and points out that there is a

statutory presumption that all property acquired by either party during the

marriage is marital property, unless one of the enumerated statutory

exceptions applies. Id. (citing 23 Pa.C.S.A. § 3501(b)).

      In its Pa.R.A.P. 1925(a) Opinion, the trial court addressed this claim as

follows:


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      The TruMark Account … was titled in Wife’s sole name. Based on
      the evidence presented and testimonies of both parties, the [trial
      c]ourt found that this account was earmarked specifically for the
      support of Rachel, a child not of the marriage …. This was
      confirmed by Husband during his testimony, [wherein he stated]
      “that was an account I believe [Wife] put child support from her
      first husband in.” [N.T.,] 2/18/2014[,] at 28[.] It should also
      be noted, no testimony was presented that the [TruMark
      A]ccount was used for marital purposes nor used for any
      household purpose.

            Moreover, at the … reconsideration hearing, the [trial
      c]ourt found [that], “based on the testimony of the parties, th[e]
      money [in the TruMark Account] was clearly earmarked for child
      support of [Rachel]. [Wife] and the father of [Rachel] agreed
      that they would take that money and put it in the account for the
      benefit of [Rachel,] and that’s what th[e trial c]ourt i[s] finding.”
      [N.T.,] 4/11/2014[,] at 14[.]

Trial Court Opinion, 6/13/14, at 4. Our review confirms that the trial court’s

factual findings are supported by the record.      The money in the TruMark

Account belongs to Rachel, and is not marital property. Accordingly, the trial

court properly ruled that this money was not subject to equitable

distribution. See Nagle, supra (stating that “the determination of whether

an asset is a marital asset is a matter with the sound discretion of the

divorce court.”).

      Next, Husband argues that the trial court erred by attributing solely to

him debt that the parties had on two of their credit cards, which were titled

in Wife’s name alone: a Bank of America credit card (“the BofA Card”); and

an AT&T credit card (“the AT&T Card”).       See Brief for Husband at 11-13.

Specifically, Husband challenges the trial court’s finding that the charges he

placed on these credit cards were used solely for the benefit of Husband and


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his separate business, and that Wife had no knowledge that Husband had

made some of these purchases. Id. at 11-12. According to Husband, the

trial court improperly ignored evidence of record that many of the purchases

were for improvements to the parties’ home, and regular household

expenses.   Id. at 12.   Additionally, Husband argues, “[s]ince the charges

were incurred during the parties[’] marriage and prior to separation, all of

the debts are marital, including any for Husband’s business[,] from which

[Wife] benefitted.” Id. at 13.

     In its Opinion, the trial court addressed Husband’s claim as follows:

            The [BofA] Card … had a balance of $3,986.00 on the date
     of separation …. [T]he parties shall equally divide this amount.
     In the ensuing month, charges were incurred on [the BofA Card]
     amounting to $13,000.00. However, after review of the charges
     incurred on this account, the [trial c]ourt finds that [] Husband
     used this account to his benefit, for his business, without the
     consent or knowledge of Wife. Therefore, Husband will be solely
     liable for the increase in debt that occurred thereafter. Husband
     will have to reimburse Wife the sum of $12,034.00 ($16,020.00-
     $3,986.00).

            The [trial c]ourt noted [at the reconsideration hearing
     that] “the court painstakingly went down each and every single
     transaction. A lot of these charges were late payments, and I’m
     going to attribute every single late payment to [Husband]
     because he changed the address to the account, and [W]ife
     didn’t even know that he was getting bills.” [N.T.,] 4/11/2014[,]
     at 22[.] [The trial court further found at the hearing that]
     “[Wife] found out when she started getting calls from the credit
     card company that there were non-payments, aside from the
     fact that … 90 percent of the charges – at a minimum 90 per
     cent – were for [H]usband’s business.” [Id.] at 23[.]

           As with the aforementioned, the [trial c]ourt finds, after
     review of the charges incurred, that [the] AT&T Credit Card …
     had a balance as of May 2009 [in the amount of] $6,621.00, all


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      of which should be [] subject [to] reimbursement by Husband to
      Wife[,] as the [AT&T Credit C]ard was used solely by [] Husband
      for work[-]related expenses.

Trial Court Opinion, 6/13/14, at 4-5 (emphasis omitted).

      Our review confirms that the trial court’s above-mentioned factual

findings are supported by competent evidence of record; therefore, we are

bound by these findings. See Green, 69 A.3d at 285. Moreover, the trial

court credited Wife’s testimony that Husband had made many of the

purchases in question for the sole benefit of his business, without her

knowledge, and discredited Husband’s testimony to the contrary. See N.T.,

4/11/14, at 22-23.      We may not disturb the trial court’s credibility

determination or its weighing of the evidence. See Smith, 904 A.2d at 20.

Finally, we observe that regarding Husband’s claim that, since the charges in

question were made during the parties’ marriage, the debt created therefore

is necessarily marital debt, this claim lacks merit. Wife did not authorize the

purchases, which were made for Husband’s sole benefit.          Therefore, we

discern no error by the trial court in determining that the debt associated

with the AT&T Card and the BofA Card was solely attributable to Husband.

      In his third issue, Husband argues that the trial court erred in

attributing an erroneous value to the parties’ Charles Schwab account. See

Brief for Husband at 7, 14.      Husband asserts that “[t]he [t]rial [c]ourt

indicated that no evidence had been submitted by [Husband regarding the

Charles Schwab account], which is not factual, and instead relied on []



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documents submitted by [Wife] that did not evidence the value of the

account.” Id. at 7.

      At the reconsideration hearing, the trial court observed that Husband

and Wife had submitted two separate, “contradictory” written statements

concerning the amount of money in the Charles Schwab account, both of

which the court took into consideration. N.T., 4/11/14, at 27-28. Therefore,

there is no merit to Husband’s claim that the trial court failed to consider the

evidence he submitted to the court on this issue.       After considering both

parties’ statements, and hearing argument from their counsel regarding the

value of the Charles Schwab account, the trial court “f[ou]nd that [W]ife’s

evidence was more credible than [H]usband’s evidence[.]” Id. at 30. This

Court may not disturb the trial court’s credibility determination. See Smith,

904 A.2d at 20.

      Finally, Husband argues that the trial court erred by disregarding his

request that the court order Wife to return to Husband items of personal

property, which he had purchased prior to the marriage, and many items

that he and Wife jointly purchased during the marriage.          See Brief for

Husband at 15-16.

      A review of the testimony at the reconsideration hearing reveals that

Husband had requested an extensive list of items contained in the marital

household (hereinafter referred to as “the requested personalty”). See N.T.,

4/11/14, at 30-33; see also id. at 31 (wherein the trial court judge stated



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that “[Husband] doesn’t want everything; he just wants everything under

that roof.”).   The trial court also observed at the reconsideration hearing

that Husband had unilaterally removed from the marital household a large

quantity of tools worth approximately $3,500.00.     Id. at 34.   Concerning

Husband’s claim for the requested personalty, the trial court reasoned that

Husband’s having taken these valuable tools resulted in an “almost equal

trade.”   Id. at 34, 37; see also id. at 39 (wherein the court noted that

regarding Husband’s “testi[mony] that very few items were in the home

prior to the marriage, … I didn’t find him credible, because this was a

premarital home – [Wife’s] home, in which she lived.”).        The trial court

further noted that, regarding the list of the requested personalty that

Husband presented to the court, “[Husband] prepared the list and he never

presented the list to [] [W]ife until we came to this trial.    So, he never

afforded [W]ife the opportunity to return anything because she didn’t even

know the items that he wanted.” Id. at 38-39. Based upon the foregoing

evidence, and the trial court’s credibility determinations, we conclude that

the court properly exercised its broad discretion in refusing to order Wife to

give Husband the requested personalty.

      Because we discern no abuse of discretion or error of law by the trial

court in equitably distributing the parties’ marital property, and the court’s

factual findings are supported by the record, we affirm the Order on appeal.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/15/2014




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