J-A07028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CRAIG A. ZACHERL                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

TINA E. ZACHERL

                            Appellee               No. 1524 WDA 2014


                  Appeal from the Decree September 8, 2014
                In the Court of Common Pleas of Clarion County
                     Civil Division at No(s): 1505 CD 2009


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JULY 13, 2015

       Craig A. Zacherl (“Husband”) appeals from the final decree in divorce,

entered September 8, 2014, relating to the equitable distribution of the

marital property between Husband and Tina E. Zacherl (“Wife”). After our

review, we affirm.

       The parties were married on July 28, 2001, and they separated on

September 8, 2009. Husband filed for divorce on November 2, 2009. The

parties have three minor children.1 Wife subsequently filed a counterclaim,

seeking a no-fault divorce, alimony, alimony pendente lite, counsel fees and

costs. A Divorce Master was appointed and, following a hearing on February

____________________________________________


1
  Child custody issues are pending before the trial court in an ancillary
proceeding. Husband pays Wife monthly child support in the amount of
$897.00.
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20, 2014, the Master filed a report and recommendation. Both parties filed

exceptions, and the Honorable Paul H. Millin issued an order that sustained

in part both parties’ exceptions.

         Husband appealed, and he raises one issue for our review:

         Did the trial court abuse its discretion and commit an error of
         law in its application of section 3501(a.1) of the Divorce Code
         (23 Pa.C.S.A. § 3501(a.1)) when it calculated a decrease in
         value of [Husband’s] nonmarital real estate and failed to offset
         the full amount of the marital mortgage debts against the
         marital increase in value of the [Husband’s] nonmarital real
         estate?

         The trial court set forth the relevant facts as follows:

               The former marital home located at 1153 Route 157,
         Venus, Washington Township, Clarion County, was owned by the
         Husband prior to the date of marriage. As of the date of
         marriage the marital home consisted of real estate with a mobile
         home, with an estimated market value of $147,900.
         Subsequent to the marriage, a house was constructed and the
         fair market value of the home and property at time of separation
         was $408,600. Therefore the increase in value was $260,700.
         The record reflects that the parties stipulated that the appraised
         increase in value of the marital home and real estate for
         purposes of distribution was $260,700. The parties further
         stipulated that the balance owed on the [F]irst United National
         Bank mortgage for the marital home as of the date of separation
         for purposes of distribution was $196,680.38.          The parties
         further stipulated that the balance owed on the Citizens Bank
         mortgage on the marital home as of the date of separation for
         purposes of distribution was $113,070.06.         Subtracting the
         indebtedness of $310,558.44 from the increase in value of
         $260,700 the master determined that the former marital real
         estate had equity of $-49,858.44.[2] This valuation was not
____________________________________________


2
     Fair market value of marital home at date of marriage -    $147,900.00
    Fair market value of marital home/property at separation-   $408,600.00
    Increase in value (parties stipulated)-                     $260,700.00
    Balance owed on two mortgages (parties stipulated) -        $310,558.44
    Equity     (negative) -                                     -$ 49,858.44



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J-A07028-15


     challenged by the husband at the time the husband filed
     exceptions to the master’s report. It was the wife who excepted
     to the master utilizing the negative value of the marital
     residence to offset the value of marital property coming to the
     wife. One could argue that the full increase in value of the
     former marital residence of $260,700 should be utilized subject
     to the indebtedness being assumed by the husband subtracted
     separately, but the husband made no exception to the manner in
     which the master calculated that value. This court sustained the
     wife’s exception to the master’s report only to change the finding
     of the master utilizing a negative value for the non-marital
     property, as the negative value may not be used to offset the
     value of other assets according to the statute.

Trial Court Opinion, 10/21/14, at 3-4 (emphasis added).

     The relevant statute, 23 Pa.C.S.A. § 3501(a.1) provides:

         (a.1) Measuring and determining the increase in
        value of nonmarital property. – The increase in value of
        any non-marital property acquired pursuant to subsection
        (a)(1) and (3) shall be measured from the date of
        marriage or later acquisition date to either the date of final
        separation or the date as close to the hearing on equitable
        distribution as possible, whichever date results in a lesser
        increase. Any decrease in value of the non-marital
        property of a party shall be offset against any
        increase in value of the non-marital property of that
        party. However, a decrease in value of the non-marital
        property of the party shall not be offset against any
        increase in value of the non-marital property of the other
        party or against any other marital property subject to
        equitable distribution.

23 Pa.C.S.A. § 3501(a.1) (emphasis added).

     Here, the marital home was owned by Husband prior to the marriage.

The property, therefore, is nonmarital property. The increase in the value of




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that nonmarital property during the marriage is marital property.          See 23

Pa.C.S.A. § 3501(a)(1).3

        After apportioning assets and debts, the Master found Husband had a

net equity of $48,266.17, and Wife had a net equity of $15,562.64. Thus,

the total equity was $63,828.81.               Although both mortgages are marital

debts, the Master assigned both mortgage debts to Husband, as well as the

increase in value of the marital home.

        Using a 50/50 distribution, the Master determined that each party

should receive $31,914.40 ($63,282.81 ÷ 2).              Because Wife’s equity was

less than one-third of Husband’s, $15,562.64 as compared to $63,828.81,

the Master recommended that Wife be entitled to an additional $16,351.76

to effect an equal distribution.

        Wife filed exceptions to the Master’s use of the negative value of the

marital home to offset the value of the marital property coming to Wife. The

trial court, in disposing of exceptions, agreed with Wife that the “decrease in

value of the nonmarital property of the party shall not be offset against any

increase in value of the nonmarital property of the other party or against

any other marital property subject to equitable division.”          23 Pa.C.S.A. §

3501(a.1).     Since the decrease was in Husband’s nonmarital property, as

assigned by the Master, that decrease could not be offset against “any other


____________________________________________


3
    Wife’s name was never added to the property deed.


                                           -4-
J-A07028-15


marital property subject to equitable division.” Id. It could only be offset

against the increase in value of Husband’s nonmarital property.

      A trial court has broad discretion when fashioning an award of

equitable distribution. Dalrymple v. Kilishek, 920 A.2d 1275, 1280 (Pa.

Super. 2007). Our standard of review when assessing the propriety of an

equitable distribution order is “whether the trial court abused its discretion

by a misapplication of the law or failure to follow proper legal procedure.”

Smith v. Smith, 904 A.2d 15, 19 (Pa. Super. 2006) (citation omitted). A

finding of an abuse of discretion requires a showing of clear and convincing

evidence. Id.

      This Court will not find an “abuse of discretion” unless 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.” Wang v. Feng, 888 A.2d 882, 887 (Pa. Super.
      2005). In determining the propriety of an equitable distribution
      award, courts must consider the distribution scheme as a whole.
      Id. “[W]e 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.”
      Schenk v. Schenk, 880 A.2d 633, 639 (Pa. Super. 2005)
      (citation omitted).

Biese v. Biese, 979 A.2d 892, 895 (Pa. Super. 2009). See also Childress

v. Bogosian, 12 A.3d 448 (Pa. Super. 2011).

      As the comment to subsection (a.1) explains, the offset language in

the second sentence (highlighted above), “ensures that only the net increase

in value of all of a party’s nonmarital property is considered part of the

marital estate.”   23 Pa.C.S.A. § 3501 - Jt. St. Govt. Comm. Comment –


                                    -5-
J-A07028-15


2004. To calculate the net increase in the value of nonmarital property, “the

increases in value of a party’s nonmarital assets are offset by the decreases

in value of that party’s nonmarital assets.” Id. (emphasis added). That is

what the trial court did in this case.

       We agree with Wife that in order to effect economic justice between

the parties here, the court properly determined Wife should not be

responsible for the mortgage debt associated with Husband’s nonmarital

property. 23 Pa.C.S.A. § 3502. This Court has noted that it is “within the

trial court's discretion to credit marital expenses to one of the parties and

take such credit into account when dividing marital property.” Winters v.

Winters, [512 A.2d 1211, 1216 (Pa. Super. 1986). See also Biese, supra

(assigning half of credit card debt to wife was not required by master’s goal

of 50/50 split of the marital estate); Hicks v. Kubit, 758 A.2d 202, 204 (Pa.

Super.    2000)    (debt    characterization     as   “marital”   is   not   necessarily

determinative of which party is liable for its satisfaction).

       Here, the Master attributed all of the increase in value of the property

(marital asset) and all of the mortgage debt (marital debt) to Husband. The

trial court, in granting Wife’s exception, changed the negative equity in the

home, - $49,858.44, to “0” in Wife’s column, resulting in an additional

distribution of $41,280.98 to Wife.4 In doing so, the court relied on section

____________________________________________


4
  The court noted in its order, which amended the Master’s Report, that
assets available for distribution equaled $113,687.25, and that a 50/50
(Footnote Continued Next Page)

                                           -6-
J-A07028-15


3501(a.1). We agree that this was appropriate under the statute and within

the court’s discretion. See Biese, supra; Winters, supra.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/15




                       _______________________
(Footnote Continued)

distribution resulted in $56,843.62 for each party. Since Wife had already
received a distribution of $15,562.64, she was due an additional
$41,280.98.


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