J. A20004/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MICHELLE L. RYBNER                       :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
JACOB RYBNER,                            :         No. 1790 MDA 2018
                                         :
                        Appellant        :


             Appeal from the Decree Entered September 26, 2018,
              in the Court of Common Pleas of Lancaster County
                       Civil Division at No. CI-10-03913


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:          FILED: MARCH 18, 2020

      Jacob Rybner (“Husband”) appeals from the September 26, 2018

divorce decree entered in the Court of Common Pleas of Lancaster County.

We affirm.

      The record reflects that Husband and Michelle Rybner (“Wife”) married

on December 2, 2000. Wife filed for divorce on April 15, 2010. The trial court

appointed a divorce master with respect to Wife’s claims for equitable

distribution, alimony,1 attorney’s fees, costs, and expenses.      The divorce

master held hearings on April 27, 2016 and October 19, 2016. On the date

of the first hearing, both parties were 40 years old. Wife was a college student

and worked as a house cleaner. Husband was self-employed and worked as


1The record reflects that Wife subsequently abandoned her claim for alimony.
(See notes of testimony, 4/27/16 at 73-74.)
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a real estate developer, constable, and used car dealer. The parties had three

children born of the marriage, who were then 15, 12, and 10 years old.

      The divorce master filed her report on January 16, 2018.            The

trial court summarized the report, which divided the marital property into

eight categories, as follows:

            1.    Husband’s Real Estate Businesses

                  The Divorce Master valued Husband’s real
                  estate businesses at $202,369.07. This was
                  based upon the evidence that could be retrieved
                  and presented to the Divorce Master. The
                  Divorce Master noted that it was incredibly
                  difficult for her to obtain clear, verifiable
                  information about these businesses from
                  Husband because he ignored both her and
                  Wife’s counsel’s request for documentation to
                  support the dealings of these businesses.
                  Information     received   was    often    later
                  contradicted    by    Husband,   thus    adding
                  confusion. Wife did present testimony to
                  support     Husband’s    many     large    cash
                  transactions which indicated to the Divorce
                  Master that Husband had access to greater
                  financial assets than he alleged prior. There
                  was no formal business valuation introduced by
                  either party, only convoluted and contradictory
                  testimony, much of which relied on the
                  credibility of Husband. The Divorce Master
                  arrived at the $202,369.07 number as
                  Husband’s portion of the real estate businesses
                  because that was the amount he paid to his
                  brother, Leon, when they ceased joint business
                  operations.

            2.    Proceeds from the Sale of the Marital Residence
                  at 1939 [Kendale] Place

                  The marital residence was sold on February 14,
                  2014, and each party received approximately


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               $12,708.14 from the proceeds of the sale for a
               total of $25,416.29.      The Divorce Master
               recognized that Husband again desired to have
               these amounts offset by the “losses” he suffered
               on this property, though Husband did not
               present adequate evidence or testimony to
               establish any valid losses sustained. Further,
               this property was owned by Husband and Wife
               and not by any of the businesses so any housing
               expenses or mortgage payments would not be
               deducted from the proceeds of the sale to
               determine net equity.

          3.   Proceeds from the Sale of the Marital Property
               located at Old Delp Road

               When this property was sold the proceeds
               deposited into the escrow accounts were in the
               amount of $206,833.49 and approximately
               $23,180.00. These amounts are what the
               Divorce Master used for valuation of the marital
               property for equitable distribution. The Divorce
               Master recognized that Husband desired to have
               these amounts offset by the “losses” he suffered
               on this property, though Husband did not
               present adequate evidence or testimony to
               establish these alleged losses.

          4.   Rent Received from Marital Property located in
               East Brunswick, New Jersey

               The parties owned the Old Bridge Turnpike
               property in East Brunswick for several years.
               This property was originally their marital
               residence and then was later intended to be
               developed for a profit. The nature of the
               ownership of this property was unclear, whether
               it was a personal or business property. The
               property was owned jointly by Husband and
               Wife and Husband received rental income of
               approximately $2,000 a month which he did not
               share with Wife. In November 2015, Husband
               stopped paying the mortgage and taxes on the
               property. Nevertheless, Husband continued to


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               receive rental income from November 2015 until
               February 2017, which amounts to $32,000.
               Husband claims that during the recent years,
               the property maintenance costs exceeded the
               rental income; thus, he should be credited with
               the losses during those years. Husband did not
               produce evidence to adequately substantiate
               these losses. Conversely, substantial evidence
               was presented that Husband received rental
               income from this marital property. The Divorce
               Master divided the $32,000 equally between
               Husband and Wife in her recommended
               distribution.

          5.   Real Estate Located in East Brunswick, New
               Jersey

               The Divorce Master used the amount of
               $100,000 as the marital value of the Old Bridge
               Turnpike property in East Brunswick in light of
               the parties’ testimony that the property would
               be sold to Serge Shapiro for $100,000 to
               extinguish an outstanding loan Serge had with
               Husband. The nature of the ownership of this
               property was unclear, whether it was a personal
               or business property. It was deeded in Husband
               and Wife’s name, but the mortgage was in
               Husband’s name alone.        The property was
               bought in 2004 for $650,000.00 with a plan to
               develop the property to make a million dollars.
               Husband never obtained the necessary
               approvals to develop the land. As of February
               2016, the mortgage balance was $354,800.00.
               After the cost of sale and assuming that they
               could sell the property for appraisal value, the
               net equity would be $249,700.00. Husband
               testified to massive losses he sustained on the
               property, but did not produce adequate
               evidence for the Divorce Master to adequately
               determine those loss amounts. When asked
               what he would like the Court to do in equitable
               distribution, Husband replied, “the property in
               Jersey, I’d like to write off to Serge for the
               money that’s owed to him and wish him good


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                  luck with it.” Accordingly, the Divorce Master set
                  the marital value of the East Brunswick property
                  at $100,000.00, which is the amount that
                  Husband testified he owed to Serge.

Trial court opinion, 9/26/18 at 1-5 (record citations omitted). The divorce

master identified the remaining three categories of marital property subject

to equitable distribution as the marital portion of Husband’s whole life

insurance policy, a 2005 Dodge Caravan, and the parties’ personal property,

which were all determined to have no value for purposes of equitable

distribution. (Id. at 5.)

      The divorce master valued the marital estate at $589,798.85.2           The

divorce master recommended that Husband be awarded the marital value of

the real estate businesses in the amount of $202,369.07 and the parties’

New Jersey real estate valued at $100,000 and that Wife be awarded the

proceeds of the sale of the marital property located at Old Delp Road, totaling

$230,013.49.    The divorce master recommended an equal division of the

proceeds from the sale of the marital residence at Kendale Place and the rent

received from the marital property located in New Jersey, which amounted to

$28,708.15 to each party. In order to effectuate an equitable distribution of

53 percent of the marital estate to Wife and 47 percent to Husband, the

divorce master recommended that Husband make a $50,000 cash payment to




2 We note that the divorce master also included other debts and credits that
did not affect the value of the marital estate for equitable distribution purposes
and that are not germane to this appeal.


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Wife so that Husband would receive $281,077.21 and Wife would receive

$308,721.64.       The divorce master also recommended that Husband pay

$15,000 toward Wife’s attorney’s fees and pay the fees and costs associated

with the divorce action.

      Husband filed exceptions to the divorce master’s report. Following a

hearing, the trial court denied the exceptions, affirmed and adopted the

divorce master’s report, and entered the divorce decree.        Husband filed a

timely appeal. The trial court ordered Husband to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).           Husband

timely complied. The trial court filed a Rule 1925(a) opinion that relied upon

the opinion it filed with the divorce decree on September 26, 2019.

      Husband raises the following issues for our review:

            [1.]    Whether the multiple factual errors made by the
                    Lower Court establishes [sic] its racial bias and
                    prejudice against Husband?

            [2.]    Whether the Lower Court erred in finding that
                    the record supports the determination of the
                    value of the marital estate?

            [3.]    Whether the Lower Court erred in not including
                    the $25,000 payment in the Equitable
                    Distribution analysis?

            [4.]    Whether the Lower Court erred in awarding
                    attorney’s fees when the Husband was forced to
                    provide discovery materials for five (5) years
                    including multiple requests for the same
                    documents and information?

Husband’s brief at 2.



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            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.

Balicki v. Balicki, 4 A.3d 654, 662-663 (Pa.Super. 2010) (internal citations,

quotation marks, and brackets omitted).

      At the outset, we note that Husband’s brief is largely unintelligible, and

we could dismiss this appeal on that basis. See Pa.R.A.P. 2101 (authorizing

dismissal of an appeal when an appellant submits a substantially defective

brief). To add to the brief’s lack of clarity, Husband most often refers to the

divorce master as the “lower court” and appears to challenge her factual

findings when this appeal lies from the trial court’s equitable distribution order.

Despite the defects in Husband’s brief, because we are able to discern

Husband’s issues, we will address them on the merits.

      In his statement of questions presented, Husband first claims that the

“multiple factual errors made by the Lower Court establishes [sic] its


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racial bias and prejudice against Husband.” (Husband’s brief at 2 (emphasis

added).) In the argument section of his brief on this issue, Husband complains

that “[t]he numerous errors in the Opinion and Order establishes [sic] the

Lower Court’s intent to discriminate against the Husband based on his

religion.” (Husband’s brief at 4 (emphasis added).) Husband abandons his

racial bias claim and levels his bald allegation of religious bias against the trial

court and the divorce master. A review of Husband’s Rule 1925(b) statement

reveals that Husband failed to raise any claims of bias – racial, religious, or

otherwise.    Therefore, Husband waives all bias claims on appeal.             See

Pa.R.A.P. 1925(b)(4)(vii) (setting forth the rule that issues not included in an

appellant’s Rule 1925(b) statement are waived). Notwithstanding waiver, we

note that Husband entirely fails to substantiate either of these serious claims

with any record support. Our thorough review of the record reveals that there

is not one scintilla of evidence to support a claim of racial, religious, or any

other bias by either the trial court or the divorce master.

      Husband next complains that the record fails to support the valuation of

the marital estate. Once again, Husband baldly asserts that the “valuation

demonstrates the bias of the Lower Court against Husband.” (Husband’s brief

at 9.) Husband then accuses the “Lower Court” of “‘double dipping’ the value

of the business and real estate assets.”           (Id.)    Husband claims that

“[a]ssuming the martial [sic] business is worth $202,369.07, the value for

that business must be used to purchase subsequent properties owned by the



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parties” and the “Lower Court does not establish any source of the funds to

purchase” the Kendale Place and Old Delp Road properties.         (Id.)   In this

argument, Husband baldly claims that the down payments for                   the

Kendale Place and Old Delp Road marital properties should be deducted from

the marital value of these properties and credited to his real estate businesses.

Husband raises this issue for the first time on appeal and, therefore, waives

the issue on appeal. Pa.R.A.P. 302 (stating that “[i]ssues not raised in the

lower court are waived and cannot be raised for the first time on appeal”).3

      Husband next complains that the “Lower Court failed to take into

account Husband’s direct payment of $25,000 to Wife” . . . “in the Equitable

Distribution analysis.” (Husband’s brief at 10.) The record belies Husband’s

claim. The record reflects that, pursuant to a post-nuptial agreement entered

into between Husband and Wife, Wife received an advanced distribution of

$25,000 from an escrow account that held the proceeds of the sale of the

Old Delp Road marital property, which proceeds were awarded to Wife.

(Decree, 9/26/18 at 2 & n.1.) As aptly noted by the trial court, “Husband is

mischaracterizing this as a direct payment” that he made to Wife. (Trial court

opinion, 9/26/18 at 15.) Additionally, our review of the record reveals that




3 We note that when this matter was before the divorce master, Husband
baldly claimed that what he characterized as “losses” on marital property,
which included mortgage payments, real estate taxes, household expenses,
and fixtures, such as toilets, should be deducted from the value of the marital
property and credited to his real estate businesses. (See master’s report,
1/16/18 at n.7, 8 n.8; see also notes of testimony, 4/27/16 at 169-188.)


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the divorce master noted the advanced distribution made to Wife in her report.

(Master’s report, 1/16/18 at 10 & n.1.)

     Husband finally complains that Wife is not entitled to an award of

counsel fees because she engaged in “vexatious and abusive discovery.”

(Husband’s brief at 11.)

           Inasmuch as appellant challenges the award of
           counsel fees, our standard of review is, once again, an
           abuse of discretion. Furthermore:

                 The purpose of an award of counsel fees
                 is to promote fair administration of justice
                 by enabling the dependent spouse to
                 maintain or defend the divorce action
                 without being placed at a financial
                 disadvantage; the parties must be on par
                 with one another.

                 Counsel fees are awarded based on the
                 facts of each case after a review of all the
                 relevant factors. These factors include
                 the payor’s ability to pay, the requesting
                 party’s financial resources, the value of
                 the services rendered, and the property
                 received in equitable distribution.

           Counsel fees are only to be awarded upon a showing
           of need.      In essence, each party’s financial
           considerations dictate whether such an award is
           appropriate.

Gates v. Gates, 933 A.2d 102, 109 (Pa.Super. 2007) (internal citations and

quotations omitted).

     Husband takes a kitchen-sink approach to his argument on this issue.

Husband first claims, without any supporting record references, that Wife is

not entitled to counsel fees because she engaged in “vexatious and abusive


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discovery.” (Husband’s brief at 11.) Husband waives this issue on appeal for

failure to comply with procedural rules requiring the brief to contain citations

to the record. Pa.R.A.P. 2119; see also Irwin Union Nat’l Bank & Trust

Co. v. Famous, 4 A.3d 1099, 1103 (Pa.Super. 2010), appeal denied, 20

A.3d 1212 (Pa. 2011) (reiterating that where deficiencies in the brief hinder

meaningful appellate review, issues are waived, and noting that it is not this

court’s responsibility to comb through the record to find record support for a

claim). Notwithstanding waiver, we note that the divorce master summarized

what the record reflects:

            Husband’s behavior during the pendency of the
            divorce proceedings was obdurate and vexatious.
            Husband’s behavior caused delay, frustrated the
            divorce proceedings, and created unnecessary
            additional expense. The docket demonstrates the
            necessity of repeated attempts to return to Court to
            request the Court direct discovery and compliance
            with previous motions and direction. Throughout the
            hearing, the Master continued to be frustrated by
            Husband’s lack of ability or willingness to provide the
            Court with information which would allow the Court to
            make sense of Husband’s personal and business
            dealings and accountings, as stated multiple times in
            this Master[’s] Report.

Master’s report, 1/16/18 at 32 (record citations omitted).

      Husband next erroneously, and without citation to legal authority,

claims that his payment of spousal support “over a seven year period of

approximately $400.00 per month” was “designed to level the playing field

between the parties and allow the Wife to have access to counsel and lifestyle

enjoyed during marriage.” (Husband’s brief at 12.) Husband waives this claim


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on appeal for failure to cite to legal authority.    See Estate of Haiko v.

McGinley, 799 A.2d 155, 161 (Pa.Super. 2002) (reiterating that an appellant

must support each question raised by discussion and analysis of pertinent

authority; absent reasoned discussion of law in an appellate brief, this court’s

ability to provide review is hampered, necessitating waiver on appeal).

Despite waiver, we note that, contrary to Husband’s assertion, the purpose of

spousal support is to assure a reasonable living allowance to the party

requiring the support. Hainaut v. Hainaut, 599 A.2d 1009, 1011 (Pa.Super.

1991). Conversely, “the purpose of an award of counsel fees is to promote

fair administration of justice by enabling the dependent spouse to maintain or

defend the divorce action without being placed at a financial disadvantage.”

See Gates, 933 A.2d at 109.

      Husband finally complains that

            [t]he determination of Husband’s income by the Lower
            Court is simply conjecture and speculation. The
            lifestyle assigned to Husband is based simply on the
            biased belief of the Lower Court. Any comparison of
            Husband and Wife’s lifestyle and/or earning capacity
            should only be completed after a new hearing to
            properly determine his income and lifestyle.

Husband’s brief at 13. Husband waives these final claims for failure to develop

a legal argument capable of any meaningful appellate review. See Butler v.

Illes, 747 A.2d 943, 944-945 (Pa.Super. 2000) (holding appellant waived

claim where she failed to set forth adequate argument concerning her claim

on appeal; argument lacked meaningful substance and consisted of mere



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conclusory statements; appellant failed to explain cogently or even tenuously

assert how trial court abused its discretion or made error of law).

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/18/2020




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