J. S16044/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COLIN SANKEY,                              :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                        Appellee           :
                                           :
                  v.                       :
                                           :
LORRAINE SANKEY,                           :
                                           :
                        Appellant          :     No. 2267 EDA 2015

                Appeal from the Order Entered June 22, 2015
               In the Court of Common Pleas of Monroe County
                 Domestic Relations at No(s): 11378 CV 2008
                                              1219 DR 2008

BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                              FILED APRIL 13, 2016

      Appellant, Lorraine Sankey, (Wife) appeals from the June 22, 2015

Order of the Court of Common Pleas of Monroe County denying Wife’s

Exceptions to Divorce Master’s Report and ordering that Appellee, Colin

Sankey, (Husband) did not have to pay alimony to Wife.          After careful

review, we affirm on the basis of the trial court opinion.

      Husband and Wife were married on March 24, 2002 in Stroudsburg,

Pennsylvania and separated in January of 2008 after an alleged lengthy

affair by the Husband and one physical altercation between the parties. Trial

Ct. Op., dated 9/8/15, at 1.        On November 21, 2008, Husband filed a

Complaint for Divorce. Id. The parties had no minor children at the time

the Complaint was filed. Id.
J. S16044/16


      On December 15, 2014, a hearing was held before Divorce Master

Robert C. Lear, Esquire, where the only issue presented to the Master for

consideration was the payment of alimony by Husband to Wife, as the

parties stipulated to other economic claims.        Id. at 2.     On February 12,

2015, the Divorce Master filed his Report denying Wife's request for alimony.

On March 4, 2015, Wife filed Exceptions to the Divorce Master's Report. Id.

On June 22, 2015, the trial court issued an order that, inter alia, denied

Wife's Exception to the Divorce Master's Report, denied alimony, and

granted divorce. Wife filed a timely Notice of Appeal.      Wife and trial court

both complied with Pa.R.A.P. 1925.

      Wife raises the following issues on appeal:

      a. Whether the trial court erred by failing to consider the relative
         liabilities of the parties in its decision regarding alimony?

      b. Whether the trial court erred by failing to consider the
         emotional condition of Wife in its decision regarding alimony?

Appellant’s Brief at 2.

      Our standard of review in spousal support cases is well settled – this

Court must determine whether the trial court has abused its discretion.

Dudas    v.   Pietrzykowski,    849   A.2d   582,    585   (Pa.    Super.   2004).

Specifically, this Court must decide whether the trial court has “misapplied

the law, or has exercised judgment which is manifestly unreasonable, or is

the product of partiality, prejudice, bias or ill will as demonstrated by the

evidence of record.” Id. (internal quotation marks and citation omitted).



                                      -2-
J. S16044/16


     The Divorce Code requires a trial court to consider seventeen factors

when determining whether to award alimony, and “the nature, amount,

duration and manner of payment of alimony,” 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, expenses or
            financial obligations of a party will be affected by reason of
            serving as the custodian of a minor child.
     (8)    The standard of living of the parties established during the
            marriage.
     (9)    The relative education of the parties and the time
            necessary to acquire sufficient education or training to
            enable the party seeking alimony to find appropriate
            employment.
     (10)   The relative assets and liabilities of the parties.
     (11)   The property brought to the marriage by either party.
     (12)   The contribution of a spouse as homemaker.
     (13)   The relative needs of the parties.
     (14)   The marital misconduct of either of the parties during the
            marriage. The marital misconduct of either of the parties
            from the date of final separation shall not be considered by
            the court in its determinations relative to alimony, except
            that the court shall consider the abuse of one party by the
            other party. As used in this paragraph, “abuse” shall have
            the meaning given to it undersection 6102 (relating to
            definitions).
     (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


                                     -3-
J. S16044/16


             under Chapter 35 (relating to property rights), to provide
             for the party's reasonable needs.
        (17) Whether the party seeking alimony is incapable of self-
             support through appropriate employment.

23 Pa.C.S. § 3701(b).

        Wife’s first argument is that the trial court failed to consider the

relative liabilities of the parties in its decision regarding alimony, specifically

that the Master failed to consider “the underwater marital real estate

properties and the large home equity line of credit which Wife was acquiring

through the equitable distribution of marital property through the divorce”

Appellate Brief at 2, 7-8.   We have thoroughly reviewed the certified record,

Wife’s Appellate Brief, the applicable law, and the well-reasoned Trial Court

Opinion, and conclude that there was no abuse of discretion.                   The

comprehensive Trial Court Opinion properly disposes of the issue and we

affirm on the basis of that Opinion (concluding that Wife’s argument lacks

merit as the Master properly considered the required 17 alimony factors, 1

including relative assets and liabilities of the parties, and specifically

considered Wife’s expenses, among other evidence).            See Trial Ct. Op.,

dated 9/8/15, at 2-5, 7-8.

        Wife’s second argument is that the trial court erred when it failed to

consider her emotional condition when it denied alimony. Appellate Brief at

2. We have thoroughly reviewed the certified record, Wife’s Appellate Brief,


1
    23 Pa.C.S. § 3701(b).



                                       -4-
J. S16044/16


the applicable law, and the well-reasoned Trial Court Opinion.   We conclude

that Wife’s second issue merits no relief.    The comprehensive Trial Court

Opinion properly disposes of the issue and we affirm on the basis of that

Opinion (concluding that Wife’s argument lacked merit as she did not

present any direct evidence as to her emotional condition and the Master

properly considered indirect evidence including Husband’s alleged affair and

physical altercation with wife). See Trial Ct. Op., dated 9/8/15, at 2-7.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2016




                                     -5-
                                                        J-{Q'th {e_e;1   E; 03/22/2016
                                                                   Circulated          1 EAMi .
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                                                           lROECERWEIDl SEP !_ 4 20l5

            COURT OF COMMON PLEAS OF MONROE COUNTY
                  FORTY-THIRD JUDICIAL DISTRICT
                COMMONWEAL TH OF PENNSYLVANIA


COLIN SANKEY,                                   No. 1219 DR 2008
                                                No. 11378 CV 2008
             Plaintiff

             v.
LORRAINE SANKEY,                                DEFENDANT'S EXCEPTIONS
                                                TO DIVORCE MASTER'S REPORT
             Defendant                          AND RECOMMENDATION




                  STATEMENT PURSUANT TO Pa.R.A.P. 1925{a)


      This matter comes before the Court on Defendant Lorraine Sankey's

appeal of our Order dated June 22, 20i 5. The facts and procedural history of the

case are briefly summarized as follows.

      Plaintiff, Colin Sankey (hereinafter "Husband") and Defendant Lorraine

Sankey (hereinafter "Wife") were married on March 24, 2002 in Stroudsburg,

Pennsylvania. The parties separated in January of 2008 after an alleged lengthy

affair by the Husband, however, the parties remained in the marital home

together for several months until one night when an alleged physical altercation

occurred between the parties, and Husband thereafter moved out of the marital

residence. Husband filed a Complaint for Divorce on November 21, 2008. The

parties had no minor children at the time the Complaint was filed.

       A hearing was held before Divorce Master Robert C. Lear, Esquire on

December 15, 2014. At the Master's Hearing, the parties placed on the record a
stipulation of settlement of all economic claims between Husband and Wife, with

the exception of alimony. Therefore, the only issue presented to the Master for

consideration was the payment of alimony by Husband to Wife.

      On February 12, 2015, the Divorce Master filed his Report denying Wife's

request for alimony. Wife filed exceptions to the Divorce Master's Report on

March 4, 2015 raising two issues, one concerning marital real estate, and the

second involving alimony. The parties thereafter entered into An Addendum to

Stipulation of Counsel and Parties which resolved Wife's exception regarding

marital real estate. The Addendum to Stipulation was adopted by the Court on

June 2, 2015. As a result of the Addendum to Stipulation, the sole exception

remaining before the Court was the issue of alimony. After the submission of

briefs and oral argument, this Court entered an Order on June 22. 2015 denying

Wife's Exception to the Divorce Master's determination that Wife was not entitled

to alimony. Wife filed a Notice of Appeal on July 22, 2015. As directed by the

Court, Wife filed a Concise Statement of Errors Complained of on Appeal

pursuant to Pa.R.A.P. 1925(b) on August 17, 2015. We now file this Opinion

pursuant to Pa.R.A.P. 1925(a).



                                  DISCUSSION

       In her 1925(b) Statement, Wife claims that the Court erred in denying her

exception seeking the grant of alimony on the grounds that the Divorce Master

and Court failed to properly consider the "alimony factors" pursuant to "Section




                                         2
501 (b) of the Divorce Code," namely the emotional condition of Wife and the

relative assets and liabilities of the parties.

       In her 1925(b) Statement, Wife cites to "Section 501 (b) of the Divorce

Code" as the statute setting forth the "alimony factors" to be considered in

adjudicating a request for alimony. This statute, however, has been repealed for

some time.   The appropriate statute Wife presumably intended to cite to is 23

Pa.C.S.A. §3701, enacted in 1990. Out of judicial economy, we analyze the

"alimony factors" considered by the divorce master based upon the proper

statute set forth in Section 3701.

       In ruling on divorce exceptions, the divorce master's report and

recommendation, although only advisory, is to be given great deference. Fiorilli

v. Fiorifli, 198 A.2d 369, 370 (Pa. Super. 1964); Morschhauser v. Morschhauser,

5'16 A.2d 10 (Pa. Super. 1986).      A reviewing court has a duty to make a complete

and independent review of the proceeding below. Rollman v. Rollman, 421 A.2d

755, 758 (Pa. Super. 1980).

       In reviewing a master's considerations, however, the report should

be given "fullest consideration," particularly on issues of credibility. Kohl v. Kohl,

564 A.2d 222 (Pa. Super. 1989). The review is intended to discover inherent

improbabilities in the stories of the witnesses, inconsistencies and contradictions,

bias, interest, and opposition to incontrovertible physical facts by which credibility

may be ascertained.     Rollman, 421 A.2d at 758. However, because the master is

the person hearing the testimony and observing the demeanor and appearance

of the witness, any issue of credibility must be resolved by giving the master's



                                             3
findings the fullest r       :..it:?ration. Rorabaugh v. Rorabaugh, 448 A.2d 64 (Pa.

Super. 1982).



   I.       Alir
            -                \
                   Section..,,~               »sylvanla Divorce Code provides that

"[w]here a divorce decree has been e .. .:ered, the court may allow alimony, as it

deems reasonable, to either party only if it finds that alimony is necessary." 23

Pa.C.S.A.   §3701 (a). In determining the nature, amount, duration and manner of

payment of alimony, the court must consider all relevant factors, including those

statutorily prescribed.      lsralsky v. lsralsky, 824 A.2d 1 "178 (Pa.Super. 2003).

Those statutorily prescribed factors that a court must consider are:

                   (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, expenses or financial
                   obligations of a party will be affected by reason of serving as the
                   custodian of a minor child.

                   (8) The standard of living of the parties established during the
                   marriage.




                                               4
               (9) The relative education of the parties and the time necessary to
               acquire sufficient education or training to enable the party seeking
               alimony to find appropriate employment.

               (10) The relative assets and liabilities of the parties.

               (11) The property brought to the marriage by either party.

               (12) The contribution of a spouse as homemaker.

               (13) The relative needs of the parties.

               (14) The marital misconduct of either of the parties during the
               marriage. The marital misconduct of either of the parties from the
               date of final separation shall not be considered by the court in its
               determinations relative to alimony, except that the court shall
               consider the abuse of one party by the other party. As used in this
               paragraph, "abuse" shall have the meaning given to it under section
               6102 (relating to definitions).

               (15) The Federal, State and local tax ramifications of the alimony
               award.

               (16) Wl1ether 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.A.   §3701(b).    0

       'The purpose of alimony is not to reward one party and to punish the

other, but rather to ensure that the reasonable needs of the person who is unable

to support himself or herself through appropriate employment, are met." Twilla v.

Twilla, 664 A.2d 1020, 1022 (Pa. Super. 1995). Alimony "is based upon

reasonable needs in accordance with the lifestyle and standard of living

established by the parties during the marriage, as well as the payor's ability to



                                           5
pay." k!,. Moreover, "[a]limony following a divorce is. a secondary remedy and is

available only where economic justice and the reasonable needs of the parties

cannot be achieved by way of an equitable distribution award and development

of an appropriate employable skill."   kl


       A. Wife's Emotional Condition as a Factor

       Wife alleges that we erred in denying her exception to the Divorce

Master's Report and Recommendation because the Master failed to take into

consideration Wife's emotional condition as a factor in his determination of

alimony. We disagree.

       Preliminarily, we note that Wife did not present any direct evidence as to

her emotional condition. The record is completely devoid of any such evidence.

As there is no direct evidence of Wife's emotional condition contained in the

record that the Master could consider as a factor for Alimony, Wife's assignment

of error is without merit.

       Furthermore, despite the failure of Wife to present evidence of this issue,

the Master did take into consideration Wife's allegations of marital adultery by

Husband as a factor to be considered in determining Alimony. [Notes of

Testimony, at pgs. 19; 33; & 51, Transcript of Proceedings before the Divorce

Master, January 261 2015 (hereinafter N.T. _).]. The Master also heard

testimony by Wife as to allegations of a physical assault and abuse by Husband.

[N.T., p. 21]. Such conduct may have arguably affected Wife's emotional state.

As such, we find that the Master did take into consideration indirect evidence of



                                            6
Wife's emotional condition in rendering his recommendation to deny Wife's

request for alimony.

      For the above reasons, we request that the Superior Court affirm our

decision denying Wife's Exception to the Report and Recommendation of the

Divorce Master.



      8. The relative assets and fiabilities of the Parties

      Wife argues that we erred in denying her exception to the Divorce

Master's Report and Recommendation because the Master failed to consider the

parties' assets and liabilities in recommending Wife be denied alimony. Wife's

argument lacks merit.

      The Master did expressly indicate in his report that he considered

the 17 "alimony factors" under Section 3701 of the Pennsylvania Divorce Code

[Master's Report, pgs. 5 -   81 which   includes the "relative assets and liabilities of

the parties." And specifically, the Master stated that he considered the "income

and expense" of the parties in determining alimony. [Master's Report, pgs. 15

and 23]. Throughout the entire proceedings, the Master heard testimony about

the "relative assets and liabilities" of both Wife and Husband. [N.T., pgs. 5 thru

55]. The Master expressly considered the past; present and expected future

earnings and employment of Wife and Husband [Master's Report, pgs. 4-5; 7-8;

N.T.]; the current standard of living of Wife [Master's Report, p. 7]; the tax returns

of Wife and Husband for the relevant years [Master's Report, pg.5]; and Wife's

expenses [Master's Report, pgs. 7-8].



                                              7
      It is clear from the record that the Master did in fact consider the relative

"assets and liabilities" of Wife and Husband in making his determination of

alimony. Thus, we do not find that we erred in denying Wife's Exception to the

Report and Recommendation of the Divorce Master. We respectfully request the

Superior Court affirm our decision.




Dated: September 8, 2015


cc:    Kimberly A. Fedrigon, Esq.
       Kathleen E. Walters, Esq.
       Robert C. Lear, Esquire, Master
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