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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  CHRISTIAN ZIMMERMAN                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                       Appellant


               v.


  CHERYL ZIMMERMAN                          :   No. 450 MDA 2018
                         Appeal from the Decree April 4, 2018
                    In the Court of Common Pleas of York County
                     Civil Division at No(s): 2013-FC-001196-15

BEFORE:    OTT, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY OTT, J.:                                   FILED JULY 16, 2019
      Christian Zimmerman ("Husband") appeals from the decree in divorce

entered on April 3, 2018,1 in the York County Court of Common Pleas related

to the dissolution of his marriage to Cheryl Zimmerman ("Wife"). The court
entered the decree after granting in part, and dismissing in part, the parties'

exceptions to the report and recommendation of a master determining Wife's


* Retired Senior Judge assigned to the Superior Court.

1 We note that at the time Husband filed his notice of appeal, on March 9,
2018, no divorce decree had been entered on the record. This Court has made
clear "a pre -divorce decree distributing marital property [and awarding
alimony] is interlocutory ... [and] cannot be reviewed until it has been
rendered final by the entry of a decree in divorce." Wilson v. Wilson, 828
A.2d 376, 378 (Pa. Super. 2003) (citation omitted). Accordingly, on April 5,
2018, this Court directed Husband to show cause why this appeal should not
be quashed. Husband filed a timely response, and attached an updated docket
sheet, which denoted a divorce decree was entered on April 3, 2018.
Therefore, we will consider this appeal as properly filed after the entry of the
divorce decree. See Pa.R.A.P. 905(a)(5).
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claim for alimony. On August 22, 2018, the court entered an order directing

Husband to pay Wife $1,800.00 per month in alimony for an indefinite period

of time. On appeal, Husband sets forth 11 bases upon which he argues the
trial court committed either an error of law or abuse of discretion in directing

him to pay Wife $1,800.00 per month in alimony. For the reasons below, we

vacate the trial court's August 22, 2018, order awarding Wife alimony, and
remand for a recalculation of Wife's net monthly income, and further
consideration of the tax ramifications of Husband's alimony payment. In all

other respects, we affirm the decree in divorce.

      The facts and relevant procedural history underlying this appeal are as

follows. On July 3, 2013, Husband filed for divorce from Wife after 27 years
of marriage. Wife subsequently filed a petition for claims on July 17, 2013,
seeking, inter a/ia, alimony and attorneys' fees. A Master was later appointed

to determine the parties' claims regarding equitable distribution and alimony.

On June 14, 2017, the parties filed a stipulation as to the equitable distribution

of their assets,2 and agreed the Master's hearing would focus only on issues

of alimony, counsel fees, costs, and expenses. See Stipulation, 6/14/2017.
The Master's hearing was conducted on May 31, 2017. At that time, Husband

was 52 years old and employed full-time, earning approximately $60,000.00


2 Wife received 61% of the marital property, including the marital residence,
as well as an inherited non -martial rental property, valued between
$119,000.00 and $120,000.00 Husband retained his 401(k) and an employee
stock option plan. Husband also expected to receive a non -marital inheritance
from his father's estate worth approximately $100,000.00. See Stipulation,
6/14/2017.
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per year.   Wife was 57 years old, and unemployed. She claimed she was
unable to work due to physical infirmities. Wife's only income was $300.00
per week that Husband voluntarily paid her in spousal support, and $1,200.00

per month in rental income she received from the inherited property.

      On October 2, 2017, the Master filed his Report and Recommendation.

In summary, the Master determined Husband's net monthly income was
$3,691.38, based upon his salary.       After considering conflicting evidence
regarding Wife's ability to work, the Master determined Wife was partially
disabled, and imputed to her a net monthly income of $1,714.46, which
included her rental income, plus the wages of a part-time minimum wage
employee. Accordingly, the Master calculated an alimony award of $790.77
per month in favor of Wife "until the earliest that Wife can withdraw from
Husband's Social Security Retirement (when Husband reaches 62 years of
age)." Report and Recommendation of Master, 10/2/2017, at 10.

      Both Husband and Wife filed timely exceptions to the Master's Report
and Recommendation. The trial court heard oral argument on the exceptions

on January 26, 2018.     Thereafter, on February 8, 2018, the court issued
findings of fact concerning the exceptions. Specifically, the court recalculated

Wife's net monthly income as $734.46 per month, and Husband's net monthly

income as $3,991.38 per month. The court then determined the amount of
alimony by subtracting Wife's income from Husband's income, and multiplying

the result by 40%.    After making another adjustment for health insurance
costs, the court directed Husband to pay $1,833.80 per month in alimony to

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Wife for an indefinite period of time, modifiable by the parties. See Order,
2/8/2018. Husband appealed that order.3

      While that appeal was pending, the trial court requested this Court
remand the matter because "it erred in its method of calculation." Motion for

Remand, 5/8/2018. This Court granted the trial court's application on July 5,

2018, and remanded the matter to the trial court "for a period of 30 days for
further proceedings." Order, 7/5/2018. On August 22, 2018, the trial court
issued supplemental findings of fact, and an amended order, which reduced

Husband's alimony payment to $1,800.00 per month, but "ratified and
confirmed" all other aspects of the February 8, 2018, order. We now proceed

to a review of the claims Husband raises in his brief.

      On appeal, Husband asserts the trial court abused its discretion and
committed an error of law in the following manner:

      1) failing to engage in a need based analysis in determining what
      amount of alimony is necessary;
      2) utilizing the spousal support formula to determine the amount
      of alimony;
      3) directing the alimony award to be indefinite;
      4) failing to give proper deference to the Master's report and
      recommendation with regard to the alimony amount awarded;
      5) failing to consider the economic impact of the award on
      Husband;



3 On April 6, 2018, the trial court ordered Husband to file a concise statement
of errors complained of on appeal.        Husband complied with the court's
directive, and filed a concise statement on April 26, 2018.

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      6) failing to consider the parties' stipulated division of property;
      7) determining Wife's rental income from her inherited property
      was only $220 per month;
      8) adding one-half of Wife's estimated health insurance costs to
      the alimony award;
      9) determining Wife is partially disabled;
      10) failing to consider how Wife's real estate property could be
      used to meet her financial needs' and
      11) increasing Husband's net monthly income by 20% for tax
      savings when the new tax law eliminates a deduction for alimony
      payments.
See Husband's Brief at 5-8.4

      Preliminarily, we note Husband's second issue is now moot following the

trial court's issuance of supplemental findings of fact. Indeed, the trial court

recognized that it utilized an incorrect method to calculate the alimony award,

and rectified   that error   in   its supplemental opinion by considering the
seventeen factors listed in Section 3701 of the Divorce Code. See 23 Pa.C.S.

§ 3701(b).

      Moreover, with regard to his third issue, which challenges the indefinite

length of the alimony award, Husband failed to provide any discussion of that



4 Although Husband lists 11 separate issues in both his concise statement and
appellate brief, he addresses the claims in one argument, stating they are
"inextricably intertwined." Husband's Brief at 16. This is improper under the
Rules of Appellate Procedure. See Pa.R.A.P. 2119(a) ("The argument shall be
divided into as many parts as there are questions to be argued; and shall have
at the head of each part --in distinctive type or in type distinctively displayed-
-the particular point treated therein, followed by such discussion and citation
of authorities as are deemed pertinent."). However, it does not hamper our
review.


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claim in the argument section of his brief. "[W]here an appellate brief fails to

provide any discussion of a claim with citation to relevant authority or fails to

develop the issue in any other meaningful fashion capable of review, that claim

is waived."    Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011)
(quotation omitted), appeal denied, 47 A.3d 848 (Pa. 2012). Accordingly,
Husband's third issue is waived.

      With regard to Husband's remaining claims, our review of a trial court's

alimony award is guided by the following:

      Awards of alimony, counsel fees, and property distribution are
      within the sound discretion of the trial court and will not be
      disturbed absent an error of law or abuse of discretion.
                                     ***

         Following divorce, alimony provides 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. An award of alimony should be
         made to either party only if the trial court finds that it is
         necessary to provide the receiving spouse with sufficient
         income to obtain the necessities of life. "The purpose of
         alimony is not to reward one party and punish the other, but
         rather to ensure that the reasonable needs of the person
         who   is unable to support herself through appropriate
         employment are met."
         "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 pay."
         An award of alimony may be reversed where there is an
         apparent abuse of discretion or there is insufficient evidence
         to support the award.
      In determining "whether alimony is necessary and to establish the
      appropriate nature, amount, and duration of any alimony
      payments, the court is required to consider all relevant factors,
      including the 17 factors that are expressly mandated by statute."

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Cook v. Cook, 186 A.3d 1015, 1019-1020 (Pa. Super. 2018) (internal
citations omitted).   Furthermore, "a master's report and recommendation,
although only advisory, is to be given the fullest consideration, particularly on

the question of credibility of witnesses, because the master has the
opportunity to observe and assess the behavior and demeanor of the parties."

Childress v. Bogosian, 12 A.3d 448, 455-456 (Pa. Super. 2011) (quotation
omitted).

      In issues 1, 4, 5, 6, 8, 9, and 10, Husband challenges the underlying
bases of the trial court's determination that he should pay Wife $1,800.00 per

month in alimony, as they relate to the relevant factors in Section 3701(b).
He contends the court "engaged in a flawed need analysis." Husband's Brief

at 28.   Preliminarily, Husband insists the trial court failed to give proper
deference to the Master's findings when it increased the alimony award from

the Master's recommendation of $790.00 per month to $1,800.00 per month.

See id. at 23. He asserts the court abused its discretion when it determined
Wife's monthly expenses were $1,831.00 more than his monthly expenses,
insisting his expense statement was "bare -bones," but Wife's expenses were

"significantly overstated   and   double counted[.]"       Id. at 28-29,     31.

Accordingly, he argues his "reasonable expenses should be deemed to be at

the same level of [] Wife[.]" Id. at 31. Furthermore, he maintains that while
his standard of living has "decreased precipitously," Wife's standard of living

has remained the same. Id. at 39. Moreover, Husband argues Wife "should
be required to either borrow against or liquidate her inheritance [property] to

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meet her reasonable needs, rather than compelling Husband to shoulder the

burden[.]" Id. at 36. Husband also challenges the court's determination that
Wife is partially disabled and asserts the court failed to "acknowledge or
consider" the evidence presented by his expert witness concerning Wife's
ability to work. Id. at 34.
      We begin by acknowledging the trial court clearly erred in its initial
findings of fact when it calculated the alimony award by using the spousal
support formula, and failing to consider the 17 factors outlined in Section 3701

of the Divorce Code. Indeed, for this reason, the trial court asked this Court
to remand the matter so that it could conduct the proper review. See Motion

for Remand, 5/8/2018. The trial court's Supplemental Findings of Fact, and
amended order dated August 22, 2018, reflect the court's proper analysis
pursuant to Section 3701.

      Nevertheless, Husband argues this supplemental analysis was flawed.

We disagree. Our review of the court's supplemental findings of fact reveals
the court considered each of the requisite 17 factors before concluding an
award of alimony in the amount of $1,800.00 per month was reasonable and

necessary. See Supplemental Findings of Fact, 8/22/2018, at 2-4. Although
the court's award was significantly more than the Master's recommendation,

as will be discussed infra, this discrepancy was due, in large part, to the trial

court's recalculation of Wife's net monthly income.

      With regard to Husband's specific allegations, we first note the court
determined both Husband and Wife's monthly expenses by referring to their

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respective expense statements. The fact that the court accepted Husband's

"bare-bones"5 expense statement does not equate to an abuse of discretion.

The court subtracted legal fees from both parties' expenses, and properly
deducted the alimony payment from Husband's claimed expenses.                See

Supplemental Findings of Fact, 8/22/2018, at 1. With regard to Wife, the
court also deducted her claimed expense for a new refrigerator and renters'
insurance, although it added back in a reasonable renters' and auto insurance

amount. See id. Furthermore, contrary to Husband's assertion, the court did

not double count Wife's medical insurance expense. Rather, it deducted the

$734.00 expense she listed on her statement, but then added a $663.00
monthly health insurance estimated premium she had received.            Husband

provides no support for his assertion that the court should have ignored his
claimed expenses, and imputed to him reasonable expenses at the same
amount as Wife. Accordingly, we find no abuse of discretion or error of law in

the court's determination of the parties' monthly expenses.

      Husband's argument concerning the parties' respective standard of
living since their separation also provides no basis for relief. Wife testified at

the Master's hearing that while she and Husband were together, they went on

a family vacation every year, they ate out once or twice a week, and she got

her hair cut once every two months. Since their separation, however, she
stated she is only able to vacation if "somebody else pays for" it, she "never


5 Husband's Brief at 28.

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go[es] out to eat," and she has "been cutting [her] own hair."             N.T.,

5/31/2017, at 118-119.      The trial court and Master determined that both
parties "will have to deal with a lower standard of living now that they are
separated," and found this fact was "neutral" with regard to alimony.
Supplemental Findings of Fact, 8/22/2018, at 3. See also Master's Report
and Recommendation, 10/2/2017, at 8. Husband has failed to demonstrate

how the court abused its discretion.

      With regard to the parties' inheritances, Husband maintains the trial
court failed to properly consider the unencumbered rental property Wife
received through an inheritance. He argues she should be required to borrow

against or liquidate that real estate to "mak[e] up the difference" between her

needs and her income.      Husband's Brief at 36.     However, he provides no
authority for this position.     Moreover, both the trial court and Master
recognized that Wife's inherited property, which she rents, is her only source

of income independent of alimony.         See Supplemental Findings of Fact,
8/22/2018, at 3; Master's Report and Recommendation, 10/2/2017, at 7. As
Wife explains in her brief, "there is no evidence on this record what the effect

of Wife liquidating her inheritance would have on her income, i.e., how long it

would last, what interest it might earn." Wife's Brief at 27.        We agree.

Accordingly, this claim, too, provides no basis for relief.

      Husband also contends the court ignored the evidence presented by his

expert witness that Wife is not disabled, and, therefore, capable of obtaining

full-time employment.      See Husband's Brief at 32-36.       We regard this

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argument as a challenge to the weight of the evidence. The Master provided

a summation of the expert evidence presented by both parties concerning
Wife's purported inability to work, and Wife's own testimony on the matter.
After considering the arguments, the Master made a credibility determination,

and concluded Wife was partially disabled. A review of the Master's Report
reveals he credited the testimony of both parties' witnesses. See Master's
Report and Recommendation, 10/2/2017, at 4-6. The trial court, in turn,
accepted the Master's credibility determinations. See Supplemental Findings

of Fact, 8/22/2018, at 2. Because the Master had the opportunity to "observe

and assess the behavior and demeanor of the parties[,]" and their witnesses,

we will not overturn the Master's credibility determination. Childress, supra,
12 A.3d at 456. Therefore, Husband's challenge to the court's Section 3701
analysis is meritless.

      However, Husband raises two additional claims which we must address.

First, in his seventh issue, Husband insists the trial court erred when it

determined Wife's rental income from her inherited property was only $220.00

per month. See Husband's Brief at 24-26. This was a significant decrease
from the Master's determination that Wife's rental income was $1,200.00 per

month. See Master's Report and Recommendation, 10/2/2017, at 3, 7. In its

original findings of fact, the trial court explained the basis for its determination

as follows:

      [W]hereas the Divorce Master found [W]ife's rental income to be
      $1200.00 per month, the Court finds, as a finding of fact[,] that
      [W]ife's 201[6] income tax return, on schedule E showed
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      expenses for the income producing real estate [that] total
      $10,575.00 per year which[,] when subtracted from the gross
     rents received of $13,200.00 per year[,] produced an actual profit
     from the rental property of $2,625.00 per year. The Court simply
      divided that by twelve to arrive at $220.00 per month of profit
     from the rental income and added that to the $514.46 per month
     earnings capacity for a total of $734.46 per month as [W]ife's net
     monthly income.
Findings of Fact, 2/8/2018, at 2.

      By way of background, Wife acknowledges that she receives $1200.00

per month in rent for the property in question. See Wife's Brief at 21. The
Master used this entire amount, and added $514.46 in earnings capacity, to

calculate Wife's net monthly income ($1,714.46). The trial court, however,
looked to Mother's 2016 tax return, which was introduced as Defendant's
Exhibit 9 at the Master's hearing. See N.T., 5/31/2017, at 102-103. The
Schedule E supplemental income attachment indicated that she received
$13,200.00 in rents from the inherited property, but subtracted from that
amount expenses totaling $10,575.00, including:       $1,999.00 in repairs,
$3,723.00 in taxes, $490.00 in miscellaneous expenses, and $4,363.00 in
depreciation. See id., Defendant's Exhibit 3, Wife's 2016 1040 Federal Tax
Return, Schedule E. Accepting those deductions, the trial court determined

Wife's net monthly rental income was $220.00 per month ($13,200 - $10,575

+ 12 months).

      Husband does not challenge Wife's deductions for "annual repair
expense[s] of $1,999, taxes of $3,723 and other miscellaneous expenses of

$490."   Husband's Brief at 26.     Rather, he contends the court erred in


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deducting $4,363.00 from her annual gross rental income for depreciation.
We agree.

      It is well -settled that depreciation expenses, which are permitted under

federal income tax law, are not automatically deducted from a parties' gross
income for purposes of determining an alimony award. See Cunningham v.

Cunningham, 548 A.2d 611, 612 (Pa. Super. 1988), appeal denied, 559 A.2d

37 (Pa. 1989). Rather, the trial court must consider the "actual disposable

income of the parties[.]" Id. This Court held in Cunningham: "Depreciation
and depletion expenses should be deducted from gross income only where
they reflect an actual reduction in the personal income of the party claiming

the deductions, such as where, e.g., he or she actually expends funds to
replace worn equipment or purchase new reserves." Id. at 613 (emphasis
added). In that case, a panel of this Court affirmed the trial court's calculation

of the husband's net income, which             did   not account for his claimed
depreciation expense, when the deduction on his tax return "did not represent

any actual expenditures on his part." Id. (emphasis in original and footnote
omitted).

      Here, the trial court provided the following explanation for its decision
to deduct depreciation expenses from Wife's net monthly income:

      While we normally do not count depreciation as an expense in
      determining income available for support, in this case we did
      consider the $4,363.00 for the year 2016 in depreciation as a
      legitimate expense because [W]ife testified that the home was
      built in the 1940's, had a 40 year old roof and other very extensive
      repairs or improvements to the property that were needed[,] and
      it is reasonable to believe that she is going to spend actual money

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         of $4,363.00 per year for capital improvements and/or repairs
         over the next five years or so and, accordingly, we kept that
         number in as depreciation.
Findings of Fact, 2/8/2018, at 2.

         Although the court determined it was "reasonable to believe" Wife
planned to make capital improvements to the rental property in the next five

years, and she presented to the Master an estimate for these necessary
repairs, there was no evidence that she actually spent any money on the
improvements. To the contrary, Wife admitted she did not have the money
to make any of the repairs.       See N.T., 5/31/2017, at 104.        Accordingly,

pursuant to the holding in Cunningham, the trial court erred in deducting
from Wife's net monthly income depreciation expenses for possible future
capital    improvements when she did           not   "actually   expend[]   funds."

Cunningham, supra, 548 A.2d at 613. Therefore, we are constrained to
vacate the court's alimony award, and remand for a recalculation of Wife's net

monthly income.

         Although not raised by either party, we note that it appears the trial
court also improperly imputed to Wife a yearly gross rental income of
$13,200.00, as it appeared on her 2016 tax return, when the testimony
revealed she received $1,200.00 per month in rent from her tenants, which
equates to a yearly gross income of $14,400.00. On remand, we direct the
trial court to calculate Wife's monthly net income utilizing the proper starting
point.




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      In his last claim, Husband argues the trial court erred in adding to his
net monthly income "$300 per month of tax savings that Husband will accrue

as a result of paying $1,800 per month of alimony." Husband's Brief at 41.
He insists "recent changes to the federal tax code" will preclude him from
claiming a deduction for alimony after December 31, 2018.            Id. at 42.
Although he provides no authority for this claim, during oral argument on the

parties' exceptions, Wife's counsel acknowledged that Husband's ability to
deduct alimony would be affected in 2019, but stated, "if the order is in 2018

it would not." N.T., 1/29/2018, at 28. Further, in her brief to this Court, Wife
concedes: "Should the [a]ppellate [c]ourt remand for the entry of a new order

or should there be a new Order entered, it is agreed that the date of the Order

may prevent Husband from being able to deduct the alimony payments for
purposes of his Federal taxes." Wife's Brief at 30.

      Because we have concluded the court erred in calculating Wife's net
monthly income, and are remanding the matter for further proceedings, we
also direct the trial court to consider the tax ramifications of its new alimony
order, specifically, whether Husband is entitled to a reduction in his net
monthly income because he will no longer be eligible to deduct alimony
payments on his federal taxes.

      Decree affirmed. Order of August 22, 2018, directing Husband to pay
Wife alimony, vacated. Case remanded for further proceedings. Jurisdiction
relinquished.



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Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 07/16/2019




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