J. A11029/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ROBERT A. RYAN,                           :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                          Appellant       :
                                          :
                   v.                     :        No. 1249 WDA 2013
                                          :
PATRICIA A. RYAN                          :


                 Appeal from the Order Entered July 2, 2013,
               in the Court of Common Pleas of Fayette County
                    Civil Division at No. 2797 of 2009, G.D.


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED OCTOBER 14, 2014

      Robert A. Ryan (“Husband”) appeals from the July 2, 2013 order of the

Court of Common Pleas of Fayette County which adjudicated the parties’

economic issues in a bifurcated divorce proceeding. We affirm.

      The pertinent factual and procedural history of the case as taken from

the certified record follows.    Husband and Patricia A. Ryan (“Wife”) were

married on April 17, 2004. The marriage was the second for Husband and

the fourth for Wife.       The parties do not have any children together.

Husband, a high school graduate, had been working as a carpet installer for

23 to 25 years at the time of the marriage.        At the time of equitable

distribution   hearings     in   2011,   Husband   was   receiving   workers’

compensation.     At the time of the marriage, Wife was working at
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Ruby Memorial Hospital while attending LPN school to obtain her RN which

she attained in 2005.

     The parties separated in September of 2009.               Husband filed a

complaint in divorce on October 6, 2009, including counts for alimony and

equitable   distribution   of   marital    property.   Wife   filed   an   answer.

Amber N. Shipley, Esq., was appointed special master; and hearings took

place on July 8, 2011, July 27, 2011, and August 8, 2011. Attorney Shipley

filed her report on March 14, 2012, recommending a 60/40 division of the

marital assets in favor of Wife. Husband filed exceptions, and oral argument

occurred on May 29, 2012, before the Honorable Ralph C. Warman.                On

January 7, 2013, the trial court bifurcated the divorce action. On March 8,

2013, the trial court granted the parties a divorce under Section 3301(d) of

the Divorce Code. On July 2, 2013, the trial court entered an order denying

Husband’s exceptions and affirming the report of the special master

regarding the parties’ economic issues. This appeal followed.

     Husband raises the following issues for our review:

            I.    DID THE LOWER COURT ERR AND ABUSE ITS
                  DISCRETION BY FAILING TO CONSIDER ALL
                  OF THE PARTIES’ ASSETS IN ITS EQUITABLE
                  DISTRIBUTION AWARD, FAILING TO PROPERLY
                  IDENTIFY AND VALUE CERTAIN ASSETS, AND
                  FAILING   TO  APPROPRIATELY   ATTRIBUTE
                  CERTAIN ASSETS TO THE RESPECTIVE PARTY
                  SUCH THAT WIFE WAS AWARDED 60% OF THE
                  MARITAL ESTATE AND HUSBAND ONLY 40%.

                  A.       DID THE LOWER COURT ERR AND
                           ABUSE   ITS  DISCRETION  IN


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                      FINDING THAT WIFE DID MORE TO
                      PRESERVE MARITAL ASSETS THAN
                      HUSBAND?

                 B.   DID THE LOWER COURT ERR AND
                      ABUSE ITS DISCRETION IN NOT
                      CREDITING    HUSBAND    WITH
                      PAYMENTS ON THE 2007 DODGE
                      NITRO AND FAILING TO CREDIT
                      HUSBAND WITH THE BALANCE
                      DUE ON SAID NITRO AT THE TIME
                      OF DISTRIBUTION[?]

                 C.   DID THE LOWER COURT ERR AND
                      ABUSE ITS DISCRETION IN NOT
                      INCLUDING     CERTIFICATE   OF
                      DEPOSIT IN THE AMOUNT OF
                      $15,000.00 AS A MARITAL ASSET?

          II.    DID THE LOWER COURT ERR AND ABUSE ITS
                 DISCRETION IN DETERMINING THAT THE
                 DEBT INCURRED BY WIFE COMMENCING
                 SEPTEMBER 30, 2009 UNTIL OCTOBER 14,
                 2009 WAS MARITAL DEBT SINCE THE SAME
                 WAS INCURRED FOLLOWING THE DATE OF
                 SEPARATION BY WIFE ONLY WITHOUT
                 HUSBAND’S KNOWLEDGE?

          III.   DID THE LOWER COURT ERR AND ABUSE ITS
                 DISCRETION IN GIVING WIFE CREDIT FOR
                 APPROXIMATELY $12,540.24 REP[R]ESENTING
                 WORKER’S       COMPENSATION     ANNUITY
                 MONTHLY PAYMENTS MADE TO HUSBAND AND
                 COUNTED AS INCOME IN DETERMINATION OF
                 WIFE’S OBLIGATION TO SUPPORT HUSBAND
                 IN CONTRAVENTION OF THE COURT’S ORDER
                 OF JULY 15, 201[1]?

          IV.    DID THE LOWER COURT ERR AND ABUSE ITS
                 DISCRETION IN NOT AWARDING ALIMONY
                 AND EXPENSES TO HUSBAND?

          V.     DID THE LOWER COURT ERR AND ABUSE ITS
                 DISCRETION  IN  NOT   SETTING  FORTH


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                  HUSBAND’S NON-MARITAL PROPERTY ON
                  EXHIBIT 12 AND MAKING PROVISION FOR HIM
                  TO OBTAIN THE SAME?

Husband’s brief at 5-6.        Husband’s sub-issues I(B) and I(C) were not

addressed in his brief. Therefore, we consider them abandoned.

      Husband’s first three claims of error relate to the trial court’s equitable

distribution order.   Our standard of review of a trial court’s equitable

distribution award is well settled:    “The trial court has broad discretion in

fashioning [equitable distribution] awards, and we will overturn an award

only for an abuse of that discretion.”     Wang v. Feng, 888 A.2d 882, 887

(Pa.Super. 2005).      An abuse of discretion is not merely an error of

judgment.    Rather, we will find an abuse of discretion only if “the law is

overridden   or   misapplied    or   the   judgment   exercised   is   manifestly

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

by the evidence or the record[.]” Id., quoting Zullo v. Zullo, 613 A.2d 544,

545 (Pa. 1992). “[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.”          Lee v. Lee, 978 A.2d 380, 382

(Pa.Super. 2009) (citation omitted).

      “In fashioning an equitable distribution award, the trial court must

consider, at a minimum, the [13]1 factors set forth in 23 Pa.C.S.A. § 3502,



1
  Since Section 3502 was enacted, the legislature has added two additional
factors to be considered when forming an equitable distribution award.


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Equitable division of marital property, (a) General Rule.” Gates v. Gates,

933 A.2d 102, 105 (Pa.Super. 2007). “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.”

Lee, supra at 383 (citation omitted).         Rather, “[i]n determining the

propriety of an equitable distribution award, the court must consider the

distribution scheme as a whole.” Wang, supra at 887, quoting Schenk v.

Schenk, 880 A.2d 633, 643 (Pa.Super. 2004) (examining equitable

distribution award as a whole to determine trial court did not abuse its

discretion in awarding wife 60% of marital property).

       In his first issue, Husband complains the equitable distribution scheme

proposed by the special master and accepted by the trial court did not

achieve economic justice.    (Husband’s brief at 21.)    Husband claims that

according to the relevant factors set out at Section 3502, Husband should

have been awarded 50% of the marital assets with Wife receiving the

remaining 50%.     Instead, Husband was awarded 40% with Wife receiving

60%.

       Husband’s complaint centers on the weight given to those factors. We

observe:

            [T]here is no simple formula by which to divide
            marital property. The method of distribution derives
            from the facts of the individual case. The list of
            factors [in the Code] serves as a guideline for
            consideration, although the list is neither exhaustive
            nor specific as to the weight to be given the various


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             factors. Thus, the court has flexibility of method and
             concomitantly assumes responsibility in rendering its
             decisions.

Isralsky v. Isralsky, 824 A.2d 1178, 1191 (Pa.Super. 2003), quoting

Fonzi v. Fonzi, 633 A.2d 634, 638 (Pa.Super. 1993) (brackets in the

original).

      The record indicates that the special master considered each of the

Section 3502 factors.2 (See report, 3/14/12 at 5-12.) The special master

then went on to explain her reasoning for the 60/40 split:

             While [Husband] has a slightly lower earning
             capacity than [Wife], [Wife] has preserved what little
             marital assets the parties have from being dissipated
             by paying the marital debts, insurance, the property
             taxes on the parties’ property alone since the parties’
             separation and contributed more of the assets to the
             marriage. Specifically, since the marital home was a
             gift from [Wife’s] mother to the couple, it is apparent
             that [Husband] did not contribute anything to the
             acquisition of that asset. While [Husband] tried to
             show that he made significant improvements on the
             property by introducing numerous photographs as
             Exhibits, the Special Master determines that she is
             unable to discern how much of an improvement he
             contributed since she was not provided with both
             before and after photographs.        Thus, it is the
             determination of the Special Master that [Husband]
             did not make any significant contribution to the
             worth of the marital home.        Additionally, as to
             [Husband’s] earning capacity, he has testified that
             he is “able and available to work,” thus, the Special
             Master determined that he has the ability to find
             employment to support his monthly expenses.



2
  In the interest of brevity, we will not set forth the 13 factors herein, but
instead refer to the subsection listing the factors.


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Id. at 19 (footnote omitted).

      Based on the above, the special master placed added weight on the

fact that Wife preserved the most significant of the marital assets, i.e., the

marital home.

      Here, Husband’s disagreement with the weight assigned to the

statutory factors affords him no relief.       In Gates, we rejected a similar

argument where appellant argued for a reweighing of the factors.           We

stated: “[I]t is apparent appellant is urging us to simply reweigh the section

3502 factors in the hope the scales will tip in his favor the second time

around. We cannot do so in the absence of an abuse of discretion, which

appellant has failed to demonstrate.”         Gates, supra at 106.   See also

Mercatell v. Mercatell, 854 A.2d 609, 612 (Pa.Super. 2004) (the weight

assigned to each of the statutory equitable distribution factors is at the

discretion of the trial court).

      In the present case, Husband has failed to demonstrate an abuse of

discretion in the trial court’s application of the Section 3502 factors beyond

its failure to assign more weight to certain factors that Husband deems to be

in his favor.   As such, we cannot reweigh the Section 3502 factors and

substitute our judgment for that of the trial court.

      In his next issue, Husband takes issue with certain debts that were

characterized as marital.         He contends those debts were Wife’s alone

because they occurred after the parties separated. According to Husband,



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the debts occurred on September 30, 2009, to Centra Bank for $12,143.22;

on October 8, 2009, to PNC Bank, formerly known as National City Bank, for

$9,875; and on October 14, 2009, to First Federal Bank for $7,537.24. The

total amount of the three debts is $29,555.46. This amount was deducted

from the total value of the marital estate ($245,791.05 minus $29,555.46

equals $216,235.59).

      Wife testified that the three debts were incurred to purchase the

property located at 395 North Gallatin Avenue in 2008 while the parties were

married. (See notes of testimony, 8/8/11 at 500-505.) Wife testified she

continued to make payments on the debt after the parties’ separation. (Id.)

On the above dates, September 30, 2009, October 8, 2009, and October 14,

2009, the balance showing on each bank loan was the amount still owed for

the debt.   The trial court determined “the debt incurred to purchase the

property located at 395 North Gallatin Avenue is tied to ownership of that

property, which clearly is a marital asset.” (Trial court opinion, 7/2/13 at 3.)

Between divorcing parties, debts which accrue to them jointly prior to

separation are marital debts.     Litmans v. Litmans, 673 A.2d 382, 391

(Pa.Super. 1996).    Husband’s argument that the debts occurred after the

parties’ separation is not supported by the record. Accordingly, there is no

merit to Husband’s claim, and we discern no abuse of discretion here.

      Husband’s next issue concerns his workers’ compensation settlement.

In early 2009, Husband sustained a back injury at work.              (Notes of



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testimony, 7/27/11 at 133.) A worker’s compensation claim was filed and

subsequently settled in early 2011.      (Id. at 135-136.)    Husband was

awarded an indemnity settlement of $70,000.      After attorney’s fees were

deducted, Husband was left with $56,000. (Id. at 136.) Husband elected to

receive annuity payments of $1,145.02 per month for four years.        (Id.)

According to Husband’s testimony, he started receiving the payments “two

or three months ago.” (Id. at 136-137.) Those payments were put in an

escrow account by court order. (Id. at 137.)

     Following a hearing on July 15, 2011, Judge Warman entered an order

releasing the monthly payments of $1,145.02 over the next four years to

Husband. The special master concluded that the settlement of $56,000 was

a marital asset and awarded it to Husband.     Husband complains the trial

court erred by including the entire sum of $56,000 as part of the marital

assets, especially in light of the following wording in the court’s July 15,

2011 order:

           it is further ORDERED and DIRECTED that the Master
           in the divorce proceedings will determine if any
           balance remaining on the workmen’s compensation
           settlement constitutes marital property or is the sole
           property of the [Husband].

Order, 7/15/11 at 2.

     Based on the above, Husband argues the special master should have

“backed out” of the equitable distribution award the payments already made

to him.   According to Husband, there are 18 payments left which total



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approximately $21,649.40, and that is the amount that should have been

listed as a marital asset rather than the full amount of $56,000.        (See

Husband’s brief at 33, 35-36.)

      On November 23, 2011, the Pennsylvania Supreme Court decided the

case of Focht v. Focht, 32 A.3d 668, 674 (Pa. 2011), which held that

settlement monies received by husband, post-separation from wife, in his

personal injury tort action, were marital property because his cause of action

accrued prior to separation.     Clearly, Husband’s $56,000 settlement is

marital property because his work-related injury that gave rise to the

settlement occurred before the parties’ separated.

      Wife counters Husband’s argument by asserting that to allow Husband

to receive the monthly annuity payments throughout the period of the

equitable distribution hearings and appeal would constitute a windfall to

Husband; specifically, he would receive a double benefit of having exclusive

use of those funds while depleting a marital asset. Wife maintains that to

reduce her interest in the funds while Husband has exclusive control of them

would be inequitable. We agree, and discern no abuse of discretion in the

assignment of this particular marital asset in the amount of $56,000 to

Husband.

      Next, Husband argues the trial court erred when it failed to award him

alimony or expenses.    Our standard of review in considering whether the

trial court erred in granting or denying alimony is whether the trial court



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abused its discretion or committed an error of law. Gates, 933 A.2d at 106;

Polito v. Polito, 655 A.2d 587 (Pa.Super. 1995).             As this court has

explained:

                [T]he 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.        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.
                Moreover, alimony 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.

                      In determining whether alimony is necessary,
                and in determining the nature, amount, duration and
                manner of payment of alimony, the court must
                consider numerous factors including the parties’
                earnings and earning capacities, income sources,
                mental and physical conditions, contributions to the
                earning power of the other, educations, standard of
                living during the marriage, the contribution of a
                spouse as homemaker and the duration of the
                marriage.

Gates, 933 A.2d at 106 (internal citation and quotations omitted) (emphasis

in original).

      “The Divorce Code dictates that in determining the nature, amount,

duration and manner of payment of alimony, the court must consider all

relevant factors, including those statutorily prescribed for at 23 Pa.C.S.A.




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§ 3701, Alimony, (b) Relevant Factors (1)-(17).” Smith v. Smith, 904 A.2d

15, 20 (Pa.Super. 2006) (internal quotation marks and citation omitted).

      In the case sub judice, Husband argues that he should have been

awarded some alimony and expenses based on the parties’ disparity of

employability, income, and assets available.       (Husband’s brief at 39.)

Preliminarily, we observe that a review of the special master’s findings

reflects that she did consider the relevant factors identified in 23 Pa.C.S.A.

§ 3701(a).3    (See report, 3/14/12 at 25-28.)    The trial court adopted the

special master’s recommendation against alimony. The determination that

alimony was not warranted was explained by the special master in her

report as follows:

              While [Husband] has offered testimony that he is
              incapable of engaging in meaningful employment
              and providing for his reasonable needs, he also
              testified that he held himself out as “able and
              available” to work in order to receive unemployment
              compensation benefits.     It is the finding of the
              Special Master that [Husband] chose to receive
              unemployment compensation benefits to their
              exhaustion, and is now choosing to receive benefits
              from his worker’s compensation settlement, rather
              than to seek out and engage in appropriate
              employment. Based on the foregoing, the Special
              Master finds that [Husband] is capable of supporting
              his reasonable needs.

              . . . . The Special Master cannot recommend an
              award of alimony where there is no apparent need
              upon which to base such a recommendation. There
              simply was nothing to indicate that the same is

3
  In the interest of brevity, we will not set forth the 17 factors herein, but
instead refer to the subsection listing the factors.


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            necessary. Although [Wife’s] income is greater than
            [Husband’s], that factor alone is not determinative.
            Given that [Husband] is capable of self[-]support
            through appropriate employment, as well as the fact
            that [Husband] has received APL for a duration of
            time roughly half of the duration of the parties’
            marriage, the Special Master believes that a
            recommendation of an award of alimony would not
            be appropriate or just in fact contrary to the
            Pennnsylvania Divorce Code.

Id. at 28-29.

     There is sufficient evidence in the record to support the denial of

alimony.   We find no abuse of discretion on the part of the trial court in

adopting the master’s determination in this regard.

     Last, Husband argues the trial court failed to specifically identify his

separate property in Wife’s possession and make provisions for him to obtain

same. More specifically, Husband refers to his Exhibit 12 which is comprised

of five single-spaced, handwritten pages that list personal items, such as,

work coats, hunting coats, boots, electric razor, etc.; tools, such as, pipe

wrenches, levels, shovels, rakes, sockets, saw, post hole digger, carpet

seam iron, etc.; sporting equipment, such as, fishing pole, tackle box and

fishing supplies, turkey call, etc.; personal jewelry, such as, wedding ring

and watches, and other miscellaneous items. (See Exhibit 12.)

     In her report, the special master referred to Husband’s Exhibit 13

which was a one-page, handwritten list of items bought while the parties

were married.   The special master awarded all of the items on the list to

Husband except for pots and pans that Husband valued at $50.        (Report,


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3/14/12 at 16.) There was no specific mention of Exhibit 12 in the special

master’s report.    However, Husband points out that later in the special

master’s report, the master stated: “In addition, each of the parties shall

keep any of the property that they each brought into the marriage that has

not been deemed marital property by this decree.” (Id. at 22.)

     Our review of the record reveals Wife testified that many of the items

on Husband’s Exhibit 12 were either bought during the marriage or were

junk that Husband picked out of the trash. (Notes of testimony, 8/8/11 at

407-412). This contentious matter has been going on since October 2009.

It is now five years later. The items listed by Husband in Exhibit 12 were

not valued; however, any value is certainly diminished at this point in time.

We find no basis to remand. Accordingly, the order is affirmed.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2014




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