J-A08013-15

                                  2015 PA Super 145

SAMUEL A. MORGANTE,                               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

KELLY S. MORGANTE,

                            Appellee                  No. 1088 MDA 2014


                  Appeal from the Order Entered June 9, 2014
               In the Court of Common Pleas of Lycoming County
                       Civil Division at No(s): 11,20,065


BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.

OPINION BY SHOGAN, J.:                                 FILED JUNE 26, 2015

       Appellant Samuel A. Morgante (“Husband”) appeals from the order

denying his exceptions to a Master’s report and recommendation regarding

equitable distribution of property acquired during his marriage to Kelly S.

Morgante (“Wife”).1 We affirm.

       The trial court summarized the factual and procedural history of this

case as follows:

             The parties were married on May 16, 1987 and separated
       on February 14, 2010. Husband served in the Navy for twenty-
       three years, eighteen of which were during the parties’ marriage.
       Husband now receives a military pension and an additional $871
       per month of Veterans Administration disability pay.       Since
       Husband has been receiving disability he has generally worked
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    We note that a Decree in Divorce was entered on January 14, 2014.
J-A08013-15


     full time. The Master through her amended report set Husband
     with a net earning capacity of $3,000.00 per month due to his
     culinary skills and certifications. Wife[’s] net monthly income is
     $2,278.08.

            A Master’s Hearing in regard to Equitable Distribution was
     held on August 31, 2012; October 12, 2012; December 9, 2012;
     supplemented by an Order of Court dated March 5, 2013. A
     Master’s Report and Recommendation in regard to Equitable
     Distribution was filed on June 25, 2013. On July 10, 2013,
     Husband filed a Motion to Re-Open/Clarify the Record.
     Subsequently, Husband filed Exceptions on July 10, 2013 and
     Amended Exceptions on July 15, 2013. A hearing was scheduled
     before the Family Court Hearing Officer in regard to the Motion
     to Re-Open/Clarify the Record on August 23, 2013, regarding
     Husband’s request. On September 5, 2013, the [trial court]
     heard argument from both parties in regard to the Exceptions
     filed by Husband on July 10, 2013, and Amended Exceptions
     filed by Husband on July 15, 2013.

           The primary issue in Husband’s Motion to Re-Open/Clarify
     the Record concerned Husband’s income and inclusion of his
     Navy Retirement and Disability payment in his income. This was
     a very similar issue to the issue raised in Husband’s Exceptions.
     The Court had been advised by the Family Court Hearing Officer,
     who took the additional evidence on Husband’s Motion to Re-
     Open/Clarify the Record, that an Amended Master’s Report
     would be issued based upon the additional evidence that was
     received.    The Court, therefore, deferred ruling on the
     Exceptions which were filed by Husband until such time as the
     Amended Master’s Report was issued in light of the fact that the
     Court anticipated that the Amended Master’s Report may or may
     not resolve the Exceptions or may create new exceptions in the
     matter.    The Court indicated that, upon the entry of the
     Amended Master’s Report, the Court would conduct a telephone
     conference with counsel for Husband and Wife to determine how
     the parties wished to proceed on the outstanding Exceptions.

           An Amended Master’s Report on Equitable Distribution was
     issued on November 19, 2013. The Court, thereafter, conducted
     a phone conference with counsel on November 22, 2013, to
     determine counsel’s position on how the Court should proceed
     with the outstanding Exceptions in light of the Amended Master’s


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       Report on Equitable Distribution being issued. All parties agreed
       that additional argument would be necessary.
             On November 20, 2013, Husband filed Exceptions to the
       Amended Master’s Report. On December 30, 2013, the [trial
       court] heard argument by the parties on the outstanding
       Exceptions. On June 9, 2014 this Court issued an Opinion and
       Order ruling on Husband’s Exceptions. The Court’s Opinion and
       Order were prepared without the benefit of a transcript as
       neither party had paid for its preparation. Both parties agreed
       that the Court would review the Master’s notes in making
       determinations regarding personal property.

Trial Court Opinion, 8/29/14, at 2–4.2            The trial court granted some of

Husband’s exceptions and denied others.           Order, 6/9/14.   Husband filed a

notice of appeal on June 20, 2014, and an amended notice of appeal on

July 9, 2014. Husband and the trial court complied with Pa.R.A.P. 1925.

       On appeal, Husband presents the following questions for review:

       [1] Whether the trial court failed to distribute Husband’s military
       retirement plan consistent with Pennsylvania and Federal law
       when it ordered Husband to indemnify Wife and maintain a set
       monthly amount if her share was reduced either because he
       elected to take a disability waiver or for any other reason?

       [2] Whether the trial court erred in its method of valuing and
       distributing Husband’s military retirement plan?

       [3] Whether the trial court violated the Equal Protection and
       Supremacy Clauses of the Constitution by ordering Husband to
       indemnify Wife for any reductions in her share of the military
       retirement pay?

                                          * * *

____________________________________________


2
   The transcripts from the August 23, 2013 Master’s hearing and the
September 5, 2013, and December 30, 2013 arguments before the trial
court are not included in the certified record.



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       [7] Whether the trial court erred in adopting credibility
       determinations of the Master regarding the ring, which were not
       supported by the record[?]

Appellant’s Brief at 5.3

       We apply the following standard in reviewing an equitable distribution

order:
          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 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.

       Biese v. Biese, 979 A.2d 892, 895 (Pa.Super.2009). Moreover,
       it is within the province of the trial court to weigh the evidence
       and decide credibility and this Court will not reverse those
       determinations so long as they are supported by the evidence.
       We are also aware that 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.



____________________________________________


3
    Appellant has withdrawn issues 4, 5, and 6. Appellant’s Brief at 5.



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J-A08013-15


Childress v. Bogosian, 12 A.3d 448, 455–456 (Pa. Super. 2011) (most

internal citations and quotation marks omitted).

       Husband’s first three issues concern his Navy retirement pay and

Veterans Affairs (“VA”) disability pay, 38 U.S.C. §§ 1101–1163.         These

issues implicate the interplay of federal and state law.      The Uniformed

Services Former Spouses’ Protection Act (“USFSPA” or “The Act”), 10 U.S.C.

§ 1408, refers to military retirement pay as “disposable retired pay” and

defines that term as: “the total monthly retired pay to which a member is

entitled less amounts which . . . (B) are deducted from the retired pay of

such member as a result of . . . a waiver or retired pay required by law in

order to receive compensation under title 5 or title 38 [(Veterans Affairs)].”

10 U.S.C. § 1408(a)(4)(B).4 To prevent duplication of benefit payments, a

retired service member may only receive VA benefits if he waives a

corresponding amount of disposable retired pay. 38 U.S.C. §§ 5304–5305.

The Act further provides that a service member’s “disposable retired ... pay”

may be treated “as property solely of the member or as property of the

member and his spouse in accordance with the law of the jurisdiction.” 10

____________________________________________


4
   We note that the Master regularly refers to Husband’s Navy retirement
pay as a pension. However, Husband testified that, unlike a pension, which
is paid until death, “the military retirement pay is a pay that can stop or
start at any time. So basically if I go back on active duty, the pay stops.”
N.T., 10/12/12, at 161. We shall use the statutory term “disposable retired
pay.”    10 U.S.C. § 1408; see also Wife’s Brief at 4–8 (discussing
“disposable retired pay”).



                                           -5-
J-A08013-15


U.S.C. § 1408(c)(1). In Pennsylvania, disposable retired pay is classified as

marital property, divisible upon divorce.   Major v. Major, 518 A.2d 1267

(Pa. Super. 1986).

      Both federal and Pennsylvania law provide that marital property does

not include the portion of military retirement pay waived to receive VA

disability benefits. In Mansell v. Mansell, 490 U.S. 581 (1989), the United

States Supreme Court held, “[The Act] does not grant state courts the power

to treat, as property divisible upon divorce, military retirement pay that has

been waived to receive veteran’s disability benefits.”       Id. at 594–595.

Following the directive in Mansell, the Pennsylvania Superior Court stated in

Martin v. Martin, 561 A.2d 1231 (Pa. Super. 1989), “[T]o the extent

Pennsylvania’s Divorce Code allows equitable distribution of VA disability

retirement pay, or pay waived to receive disability pay, the Code is pre-

empted by federal law and cannot be given effect.” Id. at 1235. See also

Miller v. Miller, 577 A.2d 205, 207–208 (Pa. Super. 1990) (discussing

Mansell and Martin); cf. Goodemote v. Goodemote, 44 A.3d 74, 77 (Pa.

Super. 2012) (holding that where VA disability payments were deposited and

held in investment account, increase in value of investment that accrued

during marriage is marital property subject to equitable division).

      Husband first argues that the trial court violated federal and state law

in distributing his disposable retired pay when it ordered him to indemnify




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J-A08013-15


Wife and maintain a set monthly payment amount. Husband’s Brief at 13.

According to Husband:

            This case is somewhat unique and may be a case of first
      impression, and not just in Pennsylvania. The vast majority of
      cases across the country dealing with waivers of military
      retirement, including Pennsylvania case law, involve property
      settlement agreements or consent orders. See Hayward v.
      Hayward, 868 A.2d 554 (Pa.Super. 2005).

                                    * * *

      Through an agreement Wife could have tried to protect herself
      with indemnity language and if Husband had agreed to it, then
      the court could certainly have enforced that agreement. Here,
      however, the parties were unable to negotiate a property
      settlement agreement. The court cannot attempt to secure for
      Wife indemnification regarding disability benefits of its own
      accord. See Halstead [v. Halstead, 596 S.E.2d 353, 355–356
      (N.C. Ct. App. 2004)]; Clauson [v. Clauson, 831 P.2d 1257,
      1264 (Alaska 1992)].

Husband’s Brief at 20–21.

      In response, Wife suggests that the trial court’s result is consistent

with “a growing number of cases” across the country. In those cases, even

in the absence of an express indemnity agreement, courts have preserved

the former spouse’s share of the service member’s disposable retired pay

when the service member chooses to accept disability pay, “by guaranteeing

a specified payment from the retirement pay or from any other source

available.” Wife’s Brief at 11 (citing cases) (emphasis in original). In further

support of her position, Wife relies on the following summary of the VA

waiver issue penned by Colonel Mark Sullivan, U.S. Army, ret.:




                                     -7-
J-A08013-15


      Numerous states have addressed the post-decree VA waiver
      situation. The large majority of states allow a judge to use
      equitable remedies to prevent a retiree from effecting a
      unilateral reduction of military retired pay granted to the other
      spouse in the settlement or divorce decree. The claim of the
      military retiree that he is somehow protected by the USFSPA and
      the Mansell decision in his post-divorce election of VA benefits,
      and the resulting loss to the former spouse, should fail in most
      jurisdictions.

Wife’s Brief at 12–13 (quoting Mark E. Sullivan and Charles R. Raphun,

Dividing Military Retired Pay: Disability Payments and the Puzzle of the

Parachute Pension, 24 J. AM. ACAD. MATRIM. LAW 147, 159 (2011)) (emphasis

in original).

      Here,     the   Master   calculated   the   marital   portion   of   Husband’s

disposable retired pay for equitable distribution purposes as $1,090,539.94.

Report and Recommendation, 6/25/13, at 14.             No one disputes that this

amount does not include the $871.00 per month of Husband’s VA disability

pay. For her share of Husband’s disposable retired pay, Wife requested that

the Master award a fixed dollar amount rather than a percentage.               N.T.,

12/19/12, at 160. Her reasoning was that:

      the VA [pay] is not considered an income and if his disability
      level increases [then] his retirement benefit from the Navy
      decreases in the percentage amount even though he would be
      receiving the same amount just in two different venues. That I
      could receive considerably less to nothing. . . . [T]he percentage
      would stay the same, but the amount that I would get –– it
      would be a smaller amount taken the percentage amount out of.

Id.   In awarding Wife her share of Husband’s disposable retired pay, the

Master complied with Wife’s request, as follows:



                                       -8-
J-A08013-15


            The single largest marital asset in this case is Husband’s
     Navy [disposable retired pay].       It is from this course that
     Husband will need to make payment to Wife to effectuate the
     distribution of the marital estate. Wife has requested that these
     payments be made not as a percentage of the monthly
     [disposable retired pay], but as an actual dollar figure awarded
     to Wife on a monthly basis. After division of the marital property
     as set forth below, the payment from Husband to Wife will be
     $568,629.78. After subtracting from this the $1,428.52 credit
     awarded to Husband for monies deposited into the joint account
     and used by Wife after separation, this amount is reduced to
     $567,201.26, which is 47.652% of the present value of the Navy
     [disposable retired pay].       Wife will therefore be awarded
     47.652% of the current monthly [disposable retired pay], or
     $911.11 monthly.

Report and Recommendation, 6/25/13, at 21–22.

     The trial court analyzed the Master’s recommendation as follows:

            The Master did not err in regard to section [sic] 23
     Pa.C.S.A. §3501 (a)(6).         The Master noted Husband was
     collecting $871.00 per month in Veterans’ Administration
     disability benefits.     This was not held an asset subject to
     Equitable Distribution.      The Master properly considered the
     disability benefits as income.

           The Master did not fail to utilize the coverture fraction to
     establish the marital portion of Husband’s Navy [disposable
     retired pay]. The Master valued the marital portion of Husband’s
     Navy [disposable retired pay] as $1,090,539.94. This amount
     takes into consideration the marital coverture. The Master’s
     well-reasoned report outlines that the Navy [disposable retired
     pay] is the parties’ largest marital asset and the way in which
     the split was divided in order to offset other monies. The split of
     47.652% to Wife is appropriate.

           The Master through use of a fixed-dollar amount sought to
     indemnify Wife from any changes of Husband’s income from
     Navy [disposable retired pay] to disability pay. The Master erred
     by not entering the award as a percentage to allow Wife the
     benefit of any cost of living adjustments to which Husband may
     become entitled. 23 Pa.C.S.A. § 3501(c) specifically allows for a
     spouse to be entitled to post separation enhancements. . . . .

                                    -9-
J-A08013-15


       Further the use of the fix-dollar award does not in this case
       necessarily protect Wife from an inequitable result. Should
       Husband’s Navy [disposable retired pay] be reduced to a less
       than $911.11 monthly payment, Wife would not be able to
       enforce her order.

Trial Court Opinion and Order, 6/9/14, at 5–6.

       Having corrected the Master’s fixed-dollar-award error, the trial court

added an indemnification provision regarding Wife’s share of Husband’s

disposable retired pay:

             If [Husband’s] Navy [disposable retired pay] is reduced in
       any way which reduces the amount or share of retried [sic] pay
       to which [Wife] is entitled, such as the receipt of disability pay,
       then he will promptly make direct payments to [Wife] to
       indemnify her and hold her harmless from any reduction, costs
       or damages which she may occur [sic]. The minimum payment
       which Wife shall receive either directly from the Navy
       [disposable retired pay] and/or through direct payment from
       Husband is $911.11 per month, plus consideration of the
       associated COLAs.[5]

Trial Court Opinion and Order, 6/9/14, at 6. The trial court further analyzed

the Master’s recommendation and its resolution of Husband’s first issue in its

Pa.R.A.P. 1925(a) opinion to this Court:

       The Master found the marital value of the Navy [disposable
       retired pay], excluding the current disability, to be
       $1,090,539.94. This represents over 80% of the total marital
       estate at $1,334,930.43.        The Master determined Husband
       should be awarded 45% of the marital estate and Wife should be
       awarded 55% of the marital estate. In order to effectuate this
       split and after accounting for the split of other marital assets and
       credit to Husband, the Master determined the total payment due
       to Wife by Husband in equitable distribution was $567,201.26.
____________________________________________


5
    Cost of Living Adjustments.



                                          - 10 -
J-A08013-15


      The Master initially ordered this payment to be made monthly
      from Husband’s Navy [disposable retired pay] in the set dollar
      amount of $911.11 per month. The use of the set dollar figure
      was at the request of Wife due to her concern that Husband’s
      benefit would be reduced by disability and consequently reduce
      her own entitlement. Husband through his Exceptions raised
      that the set amount was an error and the award should instead
      be entered as a percentage. This Court agreed and granted
      Husband’s Exception, finding a percentage is the most equitable
      resolution.

Trial Court Opinion, 8/29/14, at 5.

      Husband acknowledges that the trial court “properly deducted the

disability benefits Husband currently receives from his military retirement

and only awarded Wife a portion of his military retirement as it existed on

the date of separation.”         Husband’s Brief at 16.   Husband complains,

however, that the trial court improperly “circumnavigated the mandate of 10

U.S.C. § 1408 and Pennsylvania Law by giving Wife an indemnity for any

reduction to the military retirement which occurred because of receipt of

disability in the future.” Id.

      In response to Husband’s argument, the trial court explained that:

      [t]he indemnification language does not seek to nor does it
      impact Husband’s protected Veteran’s Disability Benefits.
      Disability Benefits are not subject to Equitable Distribution. The
      Master found that Husband owed to Wife a payment of
      $567,201.26 in Equitable Distribution. Instead of ordering a
      lump sum payment, this Court allowed for payments to be made
      monthly and directly from the Husband’s Navy retirement
      benefits. In the event Husband[’s] Navy retirement benefits do
      not cover this payment, he must use his outside funds.
      Throughout Husband’s disability he has worked full time.
      Additional assets were awarded to Husband. Husband would be
      able to use either his income or his separate assets to meet the
      obligation under the indemnity clause. The Master’s and this
      Court’s determination represent an equitable distribution of the

                                       - 11 -
J-A08013-15


      parties’ marital assets as accrued at the date of separation. The
      Court cannot speculate on an increase or decrease in the value
      of investment account[s] or any other asset over time. Before
      the Court today is that Wife is owed a payment of $567,201.26
      to effectuate equitable distribution[;] potential future changes in
      Husband’s status beyond COLAs does not and should not be
      allowed to affect the award.

Trial Court Opinion, 8/29/14, at 7.

      Upon review, we acknowledge Husband’s concerns. Nonetheless, we

reject Husband’s conclusion that the trial court’s equitable distribution plan

“is a direct contravention of Federal law and an attempt to do through a

back door what the court cannot do outright.” Husband’s Brief at 22.

      The Master and trial court recognized that, in order to effectuate an

equitable distribution of the marital estate, Husband owed Wife a payment of

$567,201.26, an obligation Husband does not refute.           Calculating that

amount as equaling 47.652% of the present value of Husband’s disposable

retired pay, the Master improperly awarded Wife her share as a fixed

monthly payment of $911.11, thereby denying Wife the benefit of COLAs.

Report and Recommendation, 6/25/13, at 22.          Recognizing the Master’s

error, the trial court awarded Wife the $567,201.26 payment as a

percentage of Husband’s disposable retired pay. The trial court’s use of the

same monthly payment figure the Master proposed—$911.11—obfuscates

the fact that Wife received a percentage of Husband’s disposable retired pay,

but is not otherwise flawed.    Additionally, the trial court recognized that

Husband’s disposable retired pay was one source of income from which to


                                      - 12 -
J-A08013-15


pay his monthly obligation to Wife. As the trial court observed, “Throughout

Husband’s disability he has worked full time.          Additional assets were

awarded to Husband. Husband would be able to use either his income or his

separate assets to meet the obligation under the indemnity clause.”        Trial

Court Opinion, 8/29/14, at 7.

       Contrary to Husband’s assertions, the challenged indemnification

language does not impact his ability to waive his disposable retired pay for

disability pay; nor does it subject Husband’s disability pay to equitable

distribution.   The indemnification language merely directs Husband to use

his disposable retired pay, less his disability pay, and other assets to provide

Wife with her equitable share of the marital estate. If Husband’s disposable

retired pay decreases for whatever reason—including an increase in his

disability pay—Husband may meet his monthly obligation to Wife with other

assets.    The monthly payment of $911.11 allows Husband to meet that

obligation over time, rather than as a lump sum payment of $567,201.26.6



____________________________________________


6
   Husband asserts that he may one day “be living solely off of the disability
payments. If he does not have any other assets, then the order will have an
impact on his disability payments and run afoul of the Mansell decision, as it
will effectively award Wife a portion of Husband’s disability benefits.”
Husband’s Brief at 22–23. We reject Husband’s invitation to speculate as to
future circumstances. Presently, Husband’s disability pay is not subject to
the equitable distribution order.     If Husband’s forecasted change of
circumstances should occur, he could request modification of the order.




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J-A08013-15


       In sum, we conclude that the trial court entered an order of equitable

distribution that effectuates economic justice between the parties and

achieves a just determination of their property rights. Biese, 979 A.2d at

895.     Moreover, we are persuaded by Wife’s argument that our result is

consistent with the trend in other jurisdictions to equitably distribute a

service member’s disposable retired pay in a manner that protects both the

service member and the former spouse.             See Wife’s Brief at 9–18

(discussing cases). Thus, we discern no abuse of the trial court’s discretion

in distributing Husband’s disposable retired pay with an indemnification

provision for Wife.

       Next, Husband complains that the trial court erred in its method of

valuing and distributing Husband’s disposable retired pay. Husband’s Brief

at 25.    According to Husband, the trial court should have distributed his

disposable retired pay according to 23 Pa.C.S. § 3501(c)(1). That provision

reads as follows:

       (c) Defined benefit retirement plans.--

                                    * * *

          (1) In the case of the marital portion of a defined benefit
          retirement plan being distributed by means of a deferred
          distribution, the defined benefit plan shall be allocated
          between its marital and nonmarital portions solely by use
          of a coverture fraction. The denominator of the coverture
          fraction shall be the number of months the employee
          spouse worked to earn the total benefit and the numerator
          shall be the number of such months during which the
          parties were married and not finally separated. The benefit
          to which the coverture fraction is applied shall include all

                                     - 14 -
J-A08013-15


          postseparation enhancements except for enhancements
          arising from postseparation monetary contributions made
          by the employee spouse, including the gain or loss on such
          contributions.

23 Pa.C.S. § 3501(c)(1).

       The trial court addressed this challenge succinctly:

       The value of the marital portion of Husband[’s] pension plan was
       determined using the coverture fraction. The Master considered
       the length of marriage during Husband’s naval service. The trial
       court has “the authority to divide the award as the equities
       presented in the particular case may require.” Drake v. Drake,
       555 Pa. 481, 725 A.2d 717, 727 (Pa. 1999). The distribution
       does follow the requirements of the statu[t]e.

Trial Court Opinion, 8/29/14, at 8 (citing 23 Pa.C.S. § 3501(c)). We agree.

       The record supports the trial court’s conclusion that the Master applied

the coverture fraction.         Trial Court Opinion and Order, 6/9/14, at 5.

Specifically, the Master found that Husband and Wife were married for

twenty-three years and eight months.7              Report and Recommendation,

6/25/13, at 3.      Also, the Master determined that 91.619% of Husband’s

disposable retired pay is marital. Id. at 4. The Master further found that

the $567,201.26 payment owed to Wife in equitable distribution is 47.652%

of the present value of Husband’s disposable retired pay. Id. at 22. Given

the deference due to a Master’s findings, Childress, 12 A.3d at 456, we

conclude that the Master complied with the requirements of 23 Pa.C.S.

____________________________________________


7
  The actual length of time from May 16, 1987, to February 14, 2010 is
twenty-two years, eight months, and twenty-nine days.



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J-A08013-15


§ 3501(c)(1). Accordingly, we further conclude that the trial court did not

err in valuing and distributing Husband’s disposable retired pay.

        Husband’s third question suggests that the trial court violated the

Equal    Protection    and    Supremacy        Clauses   of   the   state   and   federal

constitutions by ordering him to indemnify Wife “if her percentage of

Husband’s disposable military retired pay is reduced ‘for any reason.’ Wife

would be guaranteed a payment for her lifetime but Husband would not,

even though the court awarded the remaining military retirement benefit to

Husband in equitable distribution.”            Husband’s Brief at 30.8      According to

Husband:

        [T]he trial court created a difference in treatment between
        military members and their spouses. The trial court elected to
        protect spouses over the military members from forces beyond
        either party’s control. This disparate treatment of the members
        violates equal protection principles because it impermissibly
        treats similarly situation [sic] persons (persons with an interest
        in military disposable retired pay) differently.

Id. at 32. In response, Wife observes that:

        the trial court’s order, guaranteeing [Wife] a particular amount
        from [Husband’s] retirement pay does not violate federal law or
        state law, and is completely within the court’s power to effect an
        equitable distribution award. Because there is no violation of
        federal law or state law, the trial court does not “protect spouses
        over the military members” (Appellant’s Brief, p. 32), and there
        is no violation of the constitutional right of equal protection.
____________________________________________


8
   Husband acknowledges that he is not challenging the constitutionality of
23 Pa.C.S. § 3105(c) or 10 U.S.C. § 1408, only the trial court’s application of
those statutes to the case at hand. Husband’s Brief at 32.




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J-A08013-15



Wife’s Brief at 18 (citation omitted; emphasis in original).

      The trial court also disposed of this challenge succinctly:

            Husband[’s] third issue is similar to the first. “The Trial
      Court erred in violating the Constitutional Rights of Husband by
      not affording equal protection and refusing to uphold the
      supremacy of Federal law”. The Court above addressed that
      Husband’s Navy [disposable retired pay] is a marital asset under
      federal law and that his Veteran’s Disability entitlements are not
      disturbed by this Court’s ruling.

Trial Court Opinion, 8/29/14, at 8–9.

      We have explained, “There is no simple formula by which to divide

marital property; the method of distribution derives from the facts of the

individual case.”   Taper v. Taper, 939 A.2d 969, 974 (Pa. Super. 2007)

(citing Gaydos v. Gaydos, 693 A.2d 1368, 1376 (Pa. Super. 1997)).          In

making an equitable distribution of property, the court must consider all

relevant factors. See 23 Pa.C.S. § 3502 (Equitable division of marital

property).    “The courts attempt to split property equitably, instead of

equally, taking into consideration such factors as length of marriage, the

contributions of both spouses, ages and health of each spouse.” Taper, 939

A.2d at 974 (quoting Drake v. Drake, 725 A.2d 717, 721 (Pa. 1999)).

“When reviewing an equitable distribution award, this court must consider

the distribution scheme as a whole.” Id. (citing Wang v. Feng, 888 A.2d

882, 887 (Pa. Super. 2005)).

      Here, we agree with Husband that “[t]he Equal Protection clause

guarantees equal application of the law.”     Husband’s Brief at 30 (citations

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omitted). However, after an exhaustive review of Husband’s arguments and

the certified record, we disagree with Husband’s premise that the trial court

treated the parties differently.       In arriving at an equitable distribution

recommendation, the Master examined each statutory factor set forth in 23

Pa.C.S. § 3502.   Report and Recommendation, 6/25/13, at 15–20.            Then,

after correcting the Master’s fixed-dollar-amount award to Wife, the trial

court distributed Husband’s disposable retired pay equitably based on the

Master’s section 3502 findings.       Considering the distribution scheme as a

whole, we discern no abuse of the trial court’s discretion.

      We also disagree with Husband’s claim that the “inequity of the trial

court’s decision guarantees Wife the benefit of the percentage by including

the COLAs, which can only be awarded through a percentage, but does not

require Wife to take any detriment.” Husband’s Brief at 33. In support of

his position, Husband forecasts a federal shutdown which would result in him

not receiving disposable retired pay, but still having to pay his equitable

distribution obligation to Wife.     Id. at 33.   Again, we decline to speculate

about future circumstances during which Husband might be deprived of his

disposable retired pay.

      We reiterate that the trial court afforded Husband the opportunity to

pay his equitable distribution obligation to Wife over time through monthly

payments,   rather   than   in   a   lump   sum.      Yet,   Husband   complains,

“[M]athematically speaking, this could not possibly be equitable distribution.


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At $911.11 per month, it would take . . . just under [fifty-two] years to pay

the figure of $567,201.26.” Husband’s Brief at 29; see also id. at 29 n. 6

“($911.11 per month is $10,933.32 per year.        $567,201.26 divided by

$10,933 = 51.878227 years.”). However, Husband fails to recognize that, in

its discretion, the trial court could have distributed Wife’s $567,201.26

award through a higher monthly payment by Husband.           Thus, the trial

court’s scheme inures to Husband’s benefit. Moreover, Husband is certainly

free to pay more per month, thereby reducing the duration of his payment

obligation to Wife.

      Husband’s final question concerns a 14-karat gold ring valued at

$7,268.00. Husband testified that his father purchased the ring at the time

of Husband’s birth and that his mother presented him with the ring at his

retirement, a few months after his father had passed away. N.T., 8/31/12,

at 63–64. Wife took the position that the ring belonged to the parties’ son,

Dominick. Id. at 68–69. The Master listed the ring as non-marital property

belonging   to   Dominick.    Report   and   Recommendation,    6/25/13,   at

Attachment 3.     Husband filed an exception to the Master’s determination

that the ring belonged to Dominick. Exceptions, 7/10/13, at ¶ 2.

      After reviewing the Master’s notes, the Court denied Husband’s

exception, stating:

            It is clear that the Master was presented with disputed
      testimony from both parties as to the owners of the above-listed
      items of property. The Master clearly did a thorough analysis of
      the personal property and made credibility determinations in

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     regard to whether the items belonged to Husband or belonged to
     the parties’ child, Dominick. The Court finds that the Master had
     sufficient evidence to make the determinations that she made in
     regard to the . . . ring. As the trier of fact, the [c]ourt must give
     deference to the Master’s determination in regard to credibility.

Trial Court Opinion and Order, 6/9/14, at 10. Initially, the trial court made

its “determination without benefit of the transcript prior to the June 9, 2014

[hearing].”   Trial Court Opinion, 8/29/14, at 9.       Subsequently, having

reviewed the transcripts:

     the [trial c]ourt [found] that the Master had sufficient evidence
     to make the determinations she made in regards to marital or
     non-marital property. [The trial court relied] on the credibility
     determination of the Master. The determination that the [ring
     was] non-marital does not equate to an award of the property to
     a third party, although [the court] mistakenly used the term
     “awarded.” The [c]ourt [did] not [order] any property be
     turned over to a third party; the [c]ourt simply made a
     determination as to marital or non-marital based on the
     determination of ownership.

Id. (emphasis supplied).

     On appeal, Husband argues as follows:

     Wife never testified about the ring.        Although her attorney
     proffered a statement, such is not          testimony.   Husband
     specifically presented testimony as to       the ring.  Thus, the
     credibility determination that the ring     was intended for the
     parties’ son and Wife’s assumption that     the son would get the
     ring [were] not supported by the record.




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Husband’s Brief at 37 (internal citations omitted; citing N.T., 8/31/12, at 68–

69). Husband does not challenge the trial court’s ultimate finding that the

ring was non-marital, just the basis for that finding.9

       Upon review, we          observe    that the     record supports Husband’s

assertion. During the three days of hearings, Wife did not, in fact, testify

about the ring; rather, her counsel informed the trial court of Wife’s position.

N.T., 8/31/12, at 68–69. Yet, the trial court “made a determination as to

marital or non-marital based on the [Master’s] determination of ownership,”

which, in turn, was based on the Master’s credibility determination.          Trial

Court Opinion, 8/29/14, at 9.

       This Court will not reverse credibility determinations as long as they

are supported by the evidence.                 Childress, 12 A.3d at 455 (citation

omitted). Moreover, this Court may affirm the trial court’s decision on any

valid basis, as long as the court came to the correct result.           Wilson v.

Transport Ins. Co., 889 A.2d 563, 577 n. 4 (Pa. Super. 2005). Here, given

the lack of Wife’s testimony regarding the ring, the Master’s acceptance of

Wife’s position as credible and determinative of ownership is not supported

____________________________________________


9
  Wife retorts, “[Husband] cannot now claim that Wife did not testify when it
was he who specifically refused to provide a transcript to the trial court, and
instead asked the trial court to rely on the master’s notes.” Wife’s Brief at
19. This argument ignores the fact that the trial court subsequently reviewed
the transcripts and determined that “the Master had sufficient evidence to
make the determinations she made in regards to marital or non-marital
property.” Trial Court Opinion, 8/29/14, at 9.



                                          - 21 -
J-A08013-15


by the record.       Consequently, the trial court’s reliance on the Master’s

credibility determination is not supported. Husband’s unrebutted testimony

as to the pre-marital origin of the ring supports his claim of ownership.

More importantly, Husband’s testimony also supports the trial court’s

ultimate determination that the ring was non-marital property.           N.T.,

8/31/12, at 63–64, 71–72.             Thus, we reject the Master’s unsupported

determination of ownership and the trial court’s reliance thereon. However,

we affirm the trial court’s ultimate determination that the ring was non-

marital property based on the testimony that was presented.10

       Lastly, we address Husband’s complaint that the Master and trial court

erred by imposing the equitable distribution award through a QDRO versus

DRO.11 Husband’s Brief at 21, 26, 27, 33. We note, however, that Husband

____________________________________________


10
   In doing so, we note our agreement with the trial court that it “did not
order any property be turned over to a third party.” Trial Court Opinion,
8/29/14, at 9.
11
    The Pennsylvania Commonwealth Court has distinguished these terms, as
follows:

       Generally, a qualified domestic relations order, or “QDRO,” is
       defined as:

          a domestic relations order which creates or recognizes the
          rights of an alternate payee to receive all or a portion of
          the benefits payable to a participant under the plan. To be
          “qualified,” the order must contain certain required
          information and may not alter the amount or form of plan
          benefits.

(Footnote Continued Next Page)


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did not raise this issue in his Pa.R.A.P. 1925(b) Statement of Errors

Complained of on Appeal or in his Statement of Questions Presented. Rule

1925(b) Statement, 7/9/14; Husband’s Brief at 5. Thus, it is waived. See

Pa.R.A.P. 302(a) (“General rule. Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”); Green v.

Green, 69 A.3d 282 (Pa. Super. 2013) (applying Rule 302(a) where

Husband failed to object to trial court’s use of wife’s exhibit which was not

formally admitted).

      In sum, the trial court did not abuse its discretion in distributing the

marital estate. Husband’s contrary claims do not warrant relief.

      Order affirmed.

                       _______________________
(Footnote Continued)

      Berrington v. Berrington, 534 Pa. 393, 397 n. 3, 633 A.2d
      589, 591 n. 3 (1993), quoting Wilder, Mahood, and
      Greenblatt, Pa. Family Law Practice and Procedure (2d ed), §
      14-10. A DRO is:

          a judgment, decree or order, including approval of a
          property settlement agreement by the court, which relates
          to the provision of child support, alimony payments or
          marital property rights of a spouse, former spouse,
          child or other dependent of a plan participant and is made
          pursuant to a state domestic relations law.

      Id. at n. 4, 633 A.2d at 591 n. 4.

Maloney v. Maloney, 754 A.2d 36, 38 n.3 (Pa. Cmwlth. 2000) (emphasis

supplied).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2015




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