J-S39034-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

MATTHEW JOHN DAYMUT,                      :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
             Appellee                     :
                                          :
      v.                                  :
                                          :
ANNE MARIE DAYMUT,                        :
                                          :
            Appellant                     :    No. 1840 WDA 2016

                   Appeal from the Order November 3, 2016
              in the Court of Common Pleas of Armstrong County
                    Civil Division at No(s): 2011-1897-Civil

BEFORE:     BENDER, P.J.E., BOWES, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED SEPTEMBER 06, 2017

      Anne Marie Daymut (Wife) appeals from the November 3, 2016 order

that decreed her divorced from Matthew John Daymut (Husband) and set

forth the equitable distribution of the parties’ marital assets. We affirm.

      The parties were married in August 2003; Husband filed a complaint in

divorce in November 2011.     Economic claims were assigned to a master by

order of October 29, 2015. The master conducted a hearing on March 23,

2016, and filed a report on May 23, 2016. Therein, the master determined

that the value of the marital estate was $33,240.99, and recommended a

50/50 split. Master’s Report, 5/23/2016, at 13 (pages unnumbered).

      Wife and Husband filed exceptions and cross-exceptions, respectively,

on which the trial court entertained argument on October 25, 2016.            The

trial court disposed of the exceptions by order of November 1, 2016.          On

*Retired Senior Judge assigned to the Superior Court.
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November 3, 2016, the trial court entered a divorce decree, and adopted the

master’s proposed scheme of distribution of the marital assets.1

      On December 1, 2016, Wife timely filed a notice of appeal. Both Wife

and the trial court complied with Pa.R.A.P. 1925.         Wife presents the

following three issues for this Court’s review.

      I.   Did the trial court err in accepting the master’s general
      scheme of distribution, given all the statutory factors?

      II.   Did the trial court err in failing to properly and fully
      consider Wife’s contribution to the marital estate in the purchase
      of the marital residence, while not properly considering
      Husband’s non-marital assets, specifically his inheritance?

      III. Did the trial court err in failing to properly and fully
      consider the disparity of the parties’ income, disparity of the
      parties’ future income, and the disparity in currently available
      and future benefit packages?

Wife’s Brief at 4 (unnecessary capitalization and suggested answers

omitted).

      We consider Wife’s questions mindful of the following.

      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


1
  The only change from the order proposed by the master was, as a result of
the trial court’s grant of one of Wife’s exceptions, to give Wife 30 days from
the date of the refinancing or sale of the marital residence, rather than 90
days from the entry of the divorce decree, to pay Husband his remaining
share of the marital value of the equity in the home.
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     the law has been overridden or misapplied or the judgment
     exercised was manifestly unreasonable, or the result of
     partiality, prejudice, bias, or ill will, as shown by the evidence in
     the certified record. In determining the propriety of an equitable
     distribution award, courts must consider the distribution scheme
     as a whole. We measure the circumstances of the case against
     the objective of effectuating economic justice between the
     parties and achieving a just determination of their property
     rights.

Reber v. Reiss, 42 A.3d 1131, 1134 (Pa. Super. 2012) (quoting Biese v.

Biese, 979 A.2d 892, 895 (Pa. Super. 2009)).

           In fashioning an equitable distribution award, the trial
     court must consider, at a minimum, the eleven factors set forth
     in 23 Pa.C.S.[] § 3502…. These factors require the trial court to
     consider the relative economic positions of the parties and the
     nature of the parties’ relationship. The section 3502 factors are
     not a simple formula, rather they serve as a guideline for
     consideration. The facts of a particular case mandate how the
     section 3502 factors will be applied.

Gates v. Gates, 933 A.2d 102, 105 (Pa. Super. 2007).               The factors

enumerated in section 3502 are as follows.

     (1) The length of the marriage.

     (2) Any prior marriage of either party.

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

     (4) The contribution by one party to the education, training or
     increased earning power of the other party.

     (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.

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     (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 record supports the following factual findings made by the special

master, adopted by the trial court, and/or acknowledged by Wife in her brief.

Wife, age 37 at the time of the hearing, has a master’s degree in

environmental management and earned $51,505 per year. She had a non-

marital IRA with a balance of more than $5,500, and stocks inherited from

her mother.    Wife contributed $12,000 to the purchase of the marital

residence, which had a market value of $64,000 and an outstanding

mortgage balance of $40,000.      Wife continued to reside in the marital



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residence after Husband moved out; she desired to stay in the marital

residence, where she has primary custody of the parties’ two children (ages

17 and 10).

     Husband, age 36 at the time of the hearing, has a bachelor’s degree,

was working as a public school teacher under contract earning $72,736 per

year, and was paying Wife $650 per month in child support.         He has a

pension, the marital portion of which is $9,240.99.        In August 2009,

Husband and his brother inherited from their father real estate worth

$81,420, along with an annuity with a total value of $30,000.

     The parties kept separate bank accounts during the marriage. At the

time of separation, Wife drove a 2010 Mini worth approximately the amount

owed on it; Husband drove a 2006 BMW, also having no equity in it.

     From this, the master determined that from the $24,000 in equity in

the marital residence and the marital portion of Husband’s pension, there

was $33,240.99 in marital property to be distributed. Upon consideration of

the subsection 3502(a) factors, the master recommended that the parties

retain the personal property that they had amicably divided; that Wife retain

the marital residence; and that there be a 50/50 split of the marital estate,

achieved by Wife paying Husband $7,379.50, which is Husband’s share of

the residence minus Wife’s share of Husband’s pension.      Master’s Report,

5/23/2016, at unnumbered 13.




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      Wife filed exceptions to the master’s report concerning, inter alia, the

issues she raises on appeal. Wife argues that the decision is not based upon

a full consideration of Husband’s non-marital assets, particularly his

inheritance from his father, given that Wife used funds inherited from her

mother before the marriage for a down payment on the marital residence. 2

Wife’s Brief at 10-11.    She acknowledges that, because Husband’s father

died approximately one year before the parties’ separation, “there is

probably a very minimal amount of this property that would be considered a

marital asset.” Id. at 11. Nonetheless, Wife contends that contrasting the

treatment of the two inheritances shows that a 50/50 division of the marital

assets is not just. Id.

      Wife also contends that there was insufficient consideration of the

parties’ current and future economic opportunities. Id. at 12. Specifically,

she states as follows.

             Given the disparity of the parties’ income now and in the
      future, the disparity in the parties’ access to health insurance
      and other benefits, combined with the fact that Wife has primary
      care of the parties’ minor children, it cannot be said that a 50/50
      division accomplishes economic justice in this matter.

Id. at 14.

      The trial court offered the following explanation of its decision to

accept the master’s recommendation notwithstanding Wife’s exceptions.


2
  Wife concedes that, by using the money as a down payment on the marital
residence, “that asset, even to the extent that it was premarital, became a
marital asset.” Wife’s Brief at 10.
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            Wife argues … that the master erred in failing to consider
     as an equitable factor Husband’s inheritance from his father.
     Husband’s father died in 2009 and bequeathed to Husband and
     his brother a home and certain additional property. Husband
     later refinanced the home and bought out his brother’s interest.
     The mortgage on the residence, where Husband currently
     resides, is of an undisclosed value, and therefore the actual
     equity in the home is not indicated in the record. Further, the
     master concluded that the increase in value of the residence
     from the date of Husband’s father’s death to the date of
     separation, a period of just over one year, would be negligible.
     The court agrees. The master, particularly on the record before
     him, appropriately did not attribute significant value to this asset
     because it is non-marital and does not significantly change the
     parties’ economic circumstances. Nor did he have any evidence
     before him to attribute a real value to it.2
            _____
            2
              The Court notes that no discovery was conducted by Wife
            prior to the master’s hearing, despite being granted leave
            to do so by order entered December 1, 2015. … Wife
            contends that the master failed to consider certain values
            and/or assets as part of his equitable distribution
            determination. Wife did not introduce any evidence to the
            master to support such considerations, and the court will
            not find error or abuse of discretion where the master did
            not have a sufficient factual basis to conclude otherwise.

                                    ***

            The master did indeed consider Wife’s contribution of
     $12,000.00 to the marital residence, but concluded that no
     additional credit was due to Wife because she had remained in
     exclusive possession of the residence for five years after the
     parties’ separation and requested that she remain in possession
     after the divorce was granted. …

           … The parties resided together prior to the marriage and
     prior to purchasing the marital residence, which they financed
     together. Wife did contribute the down payment toward the
     purchase from premarital funds, but the home always was joint
     marital property. Further, although Wife paid the mortgage
     during the parties’ marriage, the payments were made from
     Wife’s income earned during the marriage, not with pre-marital

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     funds. The mortgage was then refinanced after the parties’
     separation, to which Husband agreed even though he had not
     resided there for several years.     Finally, Wife has been in
     exclusive possession of the residence for a least five years and
     she has not had to secure other housing.

                                   ***

           Wife argues that the master failed to consider the fact that
     she has primary custody of the parties’ two minor children….
     The master did make a finding that Husband currently pays $650
     per month in child support, but did not otherwise consider Wife’s
     primary custody in his equitable distribution recommendation.
     Wife contends that the master should have “considered” this, but
     does not propose how or on what basis the consideration should
     have been made. Wife did not introduce any evidence regarding
     additional expenses that she has incurred above what is paid in
     child support, nor did she introduce any evidence regarding any
     special needs of the children. Moreover, the eldest [sic] child…
     soon will be emancipated.

                                   ***

            Wife argues … that the master erred in “failing to consider
     the likelihood of future acquisition of assets and increased
     income for [Husband] as compared to [Wife].” Wife argues that
     because Husband’s current income is higher than her current
     income, and because his employment is secure and hers
     supported by year-to-year government grants, the master
     should have considered these factors in fashioning the equitable
     distribution award. Wife also argues that the master should
     have considered the parties’ disparate access to healthcare. The
     master concluded in this regard that both parties were employed
     full-time, have marketable skills and abilities, and have
     retirement plans. He accordingly concluded that they are on
     basically equal economic footing. The court finds no error in this
     conclusion. Although Husband’s current salary is higher than
     that of Wife, his salary is capped based on his education and will
     not exceed a particular amount. Wife has a more advanced
     degree than Husband and has a history of working for various
     kinds of entities. There is not any substantial economic disparity
     between the parties or their future prospects for gainful
     employment and acquisition of property, and the court does not

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      find persuasive Wife’s argument to the contrary. Moreover, and
      again, Wife did not introduce any evidence before the master
      that would permit him to make any more particular findings in
      this regard.

Memorandum, 11/1/2016, at 5-6, 4-5, 7-9 (unnecessary capitalization

omitted).

      The trial court offered additional discussion of Wife’s claims in its Rule

1925(a) opinion:

             I write here to further reiterate that the master’s hearing
      in this case proceeded for only one and one-quarter hours. The
      parties were granted leave to conduct discovery prior to the
      hearing.     Wife did not conduct any discovery; nor did she
      present any independent evidence at the master’s hearing to
      address the majority of issues she now raises. Further, although
      Wife … styles her issues on appeal as errors of the court to
      “properly consider” certain circumstances, Wife offered no
      alternative calculations on these matters and no evidence to
      support such calculations. Because this case is now more than
      five years old, and because Wife did not avail herself of her
      opportunity to make a more complete record to buttress her
      arguments, the court did not, and does not, find that remand to
      the master for further proceedings was warranted or necessary.
      The court thoroughly reviewed and read the entire record in this
      case and continues to conclude that the equitable distribution
      scheme fashioned by the master and affirmed by [the trial] court
      is fair, equitable, and works economic justice between the
      parties.

Trial Court Opinion, 1/5/2017, at 1-2 (unnecessary capitalization omitted).

      We discern no error or abuse of discretion by the trial court. First, this

Court will not engage in a factor-by-factor review of the trial court’s rulings.

As we have explained:

      We do not evaluate the propriety of the distribution order upon
      our agreement with the court[’s] actions nor do we find a basis

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      for reversal in the court’s application of a single factor. Rather,
      we look at the distribution as a whole, in light of the court’s
      overall application of the [23 Pa.C.S. § 3502(a)] factors…. If we
      fail to find an abuse of discretion, the [o]rder must stand.

Lee v. Lee, 978 A.2d 380, 383 (Pa. Super. 2009) (quoting Trembach v.

Trembach, 615 A.2d 33, 36 (Pa. Super. 1992)).

      Second, the record reflects that Wife failed to offer evidence to support

her claims that the master or trial court’s findings as to any factor were

erroneous. She does not point to anything in the record that compels the

conclusion that her economic future is significantly bleaker than that of

Husband, be it because of his non-marital inheritance, her status as the

custodial parent, or their respective incomes or related employment

benefits. See, e.g., Baker v. Baker, 861 A.2d 298, 302 (Pa. Super. 2004)

(“Where the evidence offered by one party is uncontradicted, the court may

adopt this value even though the resulting valuation would have been

different if more accurate and complete evidence had been presented.”);

Smith v. Smith, 653 A.2d 1259, 1268 (Pa. Super. 1995) (holding trial court

did not abuse its discretion in equitable distribution where husband failed to

offer evidence to show marital portion of the increase in value of wife’s

inheritance).

      As such, Wife has failed to convince this Court that the trial court’s

50/50 equitable distribution scheme is the product of the law’s being

“overridden or misapplied or [that] the judgment exercised was manifestly



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unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown

by the evidence in the certified record.” Childress v. Bogosian, 12 A.3d

448, 455 (Pa. Super. 2011) (citations and internal quotation marks omitted).

Accordingly, we affirm the trial court’s November 3, 2016 order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/6/2017




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