J   -A16009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DUSTIN SANDERS                                  IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                      Appellant


                 v.


    KAREN SANDERS                             :     No. 1988 MDA 2018

               Appeal from the Order Entered November 6, 2018
     In the Court of Common Pleas of Clinton County Civil Division at No(s):
                                        441-2017

BEFORE:       LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:                               FILED AUGUST 12, 2019

        Dustin Sanders ("Husband") appeals from the order, entered in the

Court of Common Pleas of Clinton County, divorcing Husband and Karen

Sanders ("Wife") from the bonds of matrimony and distributing the parties'

marital estate.       On    appeal, Husband       challenges the court's equitable

distribution order. After careful review, we affirm based on the opinion of the

Honorable Michael     F.   Salisbury.

        The parties were married in 2008 and separated in December 2016.

Husband is 39 years old, and Wife is 42 years old; they are both in good

health.     The parties share legal and physical custody of their three minor

children.

        On April 5, 2017, Husband filed a complaint in divorce, 23 Pa.C.S. §§

3301(c) -(d), and requested equitable distribution of the marital property. The

trial court held hearings on April 17, 2018, and May 31, 2018.


      Former Justice specially assigned to the Superior Court.
J   -A16009-19



        The marital home was valued at $186,000.00, subject to        a   mortgage of

$132,260.70 at the date of separation.          The marital portion of Wife's Public

School Employee's Retirement System ("PSERS") pension was valued at

$24,012.01.1

        The trial court relied upon the Wife's business evaluator to determine

the value of the Husband's scrap business. Wife retained Joseph Fedeli

("Fedeli"), who valued the business at $41,000.00.              Fedeli analyzed the

historical profitability of the business by using the parties' tax returns. Fedeli

did not consider goodwill and found that it was        a   commodity -based type of

business when determining his valuation.

        Following the hearings, the trial court entered an order on September

14, 2018, dividing the equity in the marital estate equally (50/50 division) to

Husband and Wife. Husband filed        a   motion for reconsideration of the court's

September 14, 2018, order.2       This timely appeal followed.      Husband raises

the following issues for our review:

        1. Did the court err and abuse its discretion in     valuing Wife's
           PSERS pension by using the contributions and     interest as the
          value instead of using the "total value" or "present value" figure
          as noted in the annual PSERS' statements?




1 At the date of separation, Wife's PSERS pension was valued at $45,980.85,
less the value at the date of marriage ($19,484.11), less the amount from
date of separation to the final statement ($2,484.53), resulting in $24,012.01.

2 On November 6, 2018, Judge Salisbury entered an amended order,
correcting an error that awarded the 2003 Subaru vehicle to Wife instead of
Husband and denying the remaining modification requests.

                                           -2
J   -A16009-19


        2. Did the court err and abuse its discretion in failing to reduce
           the equity in the marital home by the customary six percent
           realtor's commission and one percent transfer tax as is
              required by 23 Pa.C.S.   §   3502(a)(10.2)?

        3. Did the court err and abuse its discretion in adopting Wife's
              expert's valuation of Husband's business?
Appellant's Brief, at 8.

        Our role in reviewing equitable distribution awards is well settled.

        Our standard of review in assessing the propriety of a marital
        property distribution is whether the trial court abused its
        discretion by a misapplication of the law or failure to follow proper
        legal procedure. An abuse of discretion is not found lightly, but
        only upon a showing of clear and convincing evidence.

McCoy v. McCoy, 888 A.2d 906, 908 (Pa. Super. 2005) (internal quotations

omitted). We have further stated:

        An abuse of discretion requires a showing of clear and convincing
        evidence. We 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.
        To determine the propriety of an equitable distribution award,
        courts must consider the distribution scheme as a whole. [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.

Smith    v.    Smith, 904 A.2d 15,     19 (Pa. Super. 2006) (internal citations and

quotations omitted). See also Schenk v. Schenk, 880 A.2d 633, 639 (Pa.

Super. 2005).

        Husband first argues that, in calculating its distribution award, the court

should have relied upon "total" instead of "current" valuation of Wife's PSERS

pension.        Appellant's Brief, at 19.        Husband presented no evidence to

                                            -3
J   -A16009-19



substantiate his claim that Wife's PSERS pension was undervalued, as there

was no appraisal conducted. N.T. Hearing, 5/31/18, at 66. Instead, Husband

chose to rely on the documentation that Wife provided.           During the hearing,

Husband questioned Wife regarding amounts stated on her PSERS pension

report, but he did not dispute them.           Id. at 65-66.    Because the court's

distribution scheme did not require any allocation to Husband of the marital

portion of Wife's pension, the court was not required to decide between an

immediate offset or deferred distribution method. See 23 Pa.C.S.          §   3501(c).

We conclude, therefore, that the trial court did not abuse its discretion in the

valuation of Wife's PSERS pension. See Trial Court Opinion, 9/14/18, at 8.

        Husband next argues that section 3502(a)(10.2) of the Divorce Code

requires the trial court to credit him for customary expenses associated with

the sale of the marital home.         Appellant's Brief, at 25.      This Court has

recognized "adjustment in the value of         a   residence for expenses associated

with    a   contemplated sale may be an appropriate consideration in some

equitable distribution cases. We neither forbid nor require the practice." See

Zeigler     v.    Zeigler, 530 A.2d 445, 447   (Pa. Super. 1987).    Here, Husband

asked for the property, it was awarded to him, and at no point in the record

is   there any indication that he planned to sell the home. The court, therefore,

awarded the marital home to Husband without deductions for transfer tax and

brokerage fees.        We find no abuse of discretion.      See Trial Court Opinion,

supra at     7.




                                         -4
J   -A16009-19



        Lastly, Husband argues that the valuation of his business conducted by

Fedeli was fatally flawed. Appellant's Brief, at 29. Husband takes issue with

the fact that this was Fedeli's first time testifying in       a   divorce case, that he

had never prepared another evaluation of a scrap business, and he did not

include good will in his valuation.     Id.      However, Husband did not object to

the admission of Fedeli's valuation report, nor did he object to the qualification

of Fedeli as an expert in the field of accounting and business valuations. See

N.T. Hearing,    5/31/18, at 7-8.       Fedeli explained how he arrived at the

valuation of the business. Id. at 23-32. He sourced the information entirely

from documents provided by both parties, mainly from Husband.                        Id.
Husband and Wife provided separate valuations and the trial court found

Fedeli's report more compelling.

        This Court has consistently held that,       "[i]n determining the value of
marital property, the court   is   free to accept all, part or none of the evidence

as to the true and correct value of the       property." Smith v. Smith, 904 A.2d
15, 22 (Pa. Super. 2006).      See Verholek v. Verholek, 741 A.2d 792 (Pa.

Super. 1999) (Divorce Code does not contain specific method for valuing

assets; trial court must exercise discretion and rely on estimates, inventories,

records of purchase prices, and appraisals submitted by parties, and court is

free to accept all, none, or portions of testimony regarding true and correct

value of property). Trial courts are afforded great discretion in evaluating the

parties' valuation methods and determining which          is   most reliable. Thus, we

defer to the factfinders' discretion in weighing the evidence and assessing the

                                         - 5 -
J   -A16009-19



credibility of the witnesses.    Carney v. Carney, 167 A.3d 127, 132 (Pa.
Super. 2017).      We find no error or abuse of discretion.      See Trial Court

Opinion, supra at 8-11.

        In conclusion, we find no merit to Husband's claims that the trial court

abused its discretion in valuing the parties' marital assets. Accordingly, we

affirm the trial court's order based on Judge Salisbury's opinion dated

September 14, 2018. We instruct the parties to attach    a   copy of that decision

in   the event of further proceedings.

        Order affirmed.




Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 08/12/219




                                         -6
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                                                                                                                      Circulated 07/15/2019 01:34 PM
                                                                  IN THE COURT OF COMMON PLEAS OF CLINTON COUNTY, PENNSYLVANIA
                                                                                       CIVIL ACTION - LAW


                                                               DUSTIN SANDERS,             )      No. 441-2017
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                                                                                 FINDINGS OF FACT, OPINION AND ORDER

                                                                                                    BACKGROUND

                                                                      The parties, Plaintiff, Dustin Sanders, hereinafter "Husband", and Defendant,

                                                               Karen Sanders, hereinafter "Wife'\ were married on June 28, 2008. The parties

                                                              separated in December of 2016. On April 5, 2017, Husband filed a Complaint in

                                                              Divorce requesting the entry of a divorce decree pursuant to 23 Pa. C.S. §3301 (c)(d) as

                                                              well as equitable distribution of the parties' marital property and debt.

                                                                     The matter came before the Court for final hearings on April 17, 2018 and May

                                                              31, 2018.

                                                                     The Court has also received and considered the parties' Memorandums of Law

                                                             . submitted to the Court in support of their respective positions.

                                                                     Accordingly, the Court is now poised to publish the following Findings of Fact,

                         MICHAEL          F, SALISBURY        Opinion and Order.
                                      JUOG£

                          C:OI.IAT   or   COMMON 1'1,£.,\$
                                                                                                 FINDINGS OF FACT:
                           2$'rtt JUDICIA.1. QISYfUCT
                              or, ,.f.NtfS:t'LVANIA.
                                 COUIIT'l40US�
                                                                     1.     Plaintiff, hereinafter "Husband", is Dustin Sanders.
                          t.OCK HAVE.'l, P" 1771.5


                                                                     2.     Defendant, hereinafter "Wife", is Karen Sanders.

                                                                     3.     Husband and Wife were married on June 28, 2008 .



                                                                                         .. Append ix B
k. __   ......                                                                                    .         .
                                                          4.     The parties are the natural parents of three minor children, (Carson

                                                  Sanders, born July 2009; Gabrielle Sanders and Sophia Sanders. born March 2012),

                                                  and currently exercise a 50/50 legal and physical custody arrangement with respect to

                                                  all three children.

                                                          5.     Pursuant to stipulation, the parties separated on or about December 15,

                                                  2016.

                                                          6.     Husband was born in September of-1980.

                                                          7.     Wife was born in February of 1977.

                                                          8.     This marriage is the only marriage for either party.

                                                          9.     Husband is a high school graduate.

                                                          10.    Wife possesses a Bachelor's Degree.

                                                          11.    Husband worked as a CNC machinist from 1998 through 2014 and

                                                  received on-the-job training.

                                                          12.    Husband quit his job in 2014 to focus on his current business, which is

                                                  identified as "Sanders Scrap Collection".

                                                          '13.   At the time of Husband's voluntary quit in 2014, Husband was averaging

                                                  compensation at the rate of $18.00 per hour.

                                                          14.    Husband is capable of returning to work as a machinist.

                                                          15.    Husband's 2017 tax return listed Husband's annual income from his scrap

                                                  business at $17,775.00.

                                                          16.    Husband's expenses include the following:

                 MICHAEL F. SALISBURY
                                                                 (a)    Electric                                            $ 160.00 per month
                            JUCGE
                                                                 (b)    2016 F�350 Truck Loan                               $ 685.80 per month
                  �OURT OF' COMMON Jl'l.£A.S
                   2STH JUOICl,t,.\, OJSTJIUC'T                  (c)    Netflix                                             $  15. 00 per month
                                                                        House Phone/Internet                                $ 90.00 per month
                                                                 (d)
                         COUAtHOUSI:

                                                                        Cell Phone                                          $ 110.00 per month
                  LOCI( HAVEN, PA 177A$
                                                                 (e)
                                                                        Mortgage                                            $ 900.00 per month
                                                                 (f)
                                                                        Business Vehicle Expense                            $ 125.00 per month
                                                                 (g)
                                                                        Camper Payment                                       $   121.00 per month
                                                                 (h)
                                                                        Credit Card Payment                                  $    60.00 per month
                                                                 (i)


                                                                                  Appendix B
                                                                                                        .       ·-·   ...   ·-   ·-----   --:   .   -�-   --�·
                                                 Husband's Total Expenses                            $2,265.80 per month

                                        17.      Wife is employed at the Sugar Valley Rural Charter School as a teacher.

                                        18.      At the-time the parties were married, Wife was employed in the same

                              capacity with the same employer.

                                        19.      In 2012 the parties had twln daughters.

                                       20.       Pursuant to agreement, Wife worked until the end of the 2012 school year

                              at which time she resigned and stayed home until 2016 at which time she returned to

                              work as    a teacher at the Sugar Valley Rural Charter School.
                                       21.       Wife is a participant with the PSERS Retirement Program.

                                       22.       Wife's current salary is $1,614.23 bi-weekly, for an annual salary of

                              $41,969.98.

                                       23.       The parties filed joint tax returns for the years 2008 through 2016.      ·

                                       24.       The parties' standard of living during the marriage was upper middle

                              class.

                                       25.       The assets of the marital estate consists of the following, with assigned

                              values:

                                              (a) Marital Interest in "Sanders Scrap Collection"                    $ 41,000.00
                                                        (Discussion Below)
                                              (b) Military Memorabilia Collection                                   $ 7,000.00
                                                      (Discussion Below)
                                              (c)Camper ($9,350 less DOS payoff $9,087.45)                          $     262.55
                                              (d) 2016 F�350 Truck                                                  $(- 5,848.02)
                                                        ($42,871.00 less DOS payoff- $48,719.02)
                                              (e) 2003 Suzuki XL? SUV                                               $ 2,358.00
                                              (f) Marital Residence - 2500 E. Valley Rd., Loganton, PA              $ 53,739.30
                                                        ($186,000.00 Mortgage Balance less DOS payoff of $132,260.70)
MICHAEL F. SALISBURY
                                              (g) Wife's PSERS Retirement (DOS)                                     $ 24,012.01
          JUDGE
                                                        (DOS value $43,496.12 less DOM value of $19,484.11)
 COURT OF" COMMON "L.Q$
                                              (h) Husband's 401 K (DOS)
                                                                                                                    $ 7.510.23
                                                                                                                    $   335.00
  Z.,Ttt JUDfCIA'9 D1STfUCT
    or   ,0tNSYLVAHIA.
                                              (i) M&T Joint Checking Account (DOS)
       CO\lftTHOUSE
                                                                                                                    $   150.12
 l.00( H ...VEN, PA 17745
                                              (j) M&T Joint Savings Account (DOS)
                                                                                                                    $ 1,175.10
                                              (k) PSECU Joint Checking Account (DOS)
                                                                                                                    $   148.94
                                              (I) PSECU Joint Savlnqs Account (DOS)




                                                                Appendix B
                                                 26.    Marital Liabilities:

                                                        {a)    M&T Credit Card                                           $   2,540.77
                                                        (b)    Bank of America Credit Card                               $   3,319.12
                                                        (c)    PSECU Credit Card                                         $   9,566.75
                                                        (d)    Sam's Club Credit Card                                    $   6,337.68
                                                        (e)    Appraisal Fee for Marital Residence (pd. by Husband)      $     300.00
                                                        (f)    Appraisal Fee for Military Collection (pd. by Husband)    $     287.50


                                                 27.    Wife has paid for Husband's medical and dental insurance through her

                                          employer at the rate of $74.05 per month ($1,340.55) from the date of separation.

                                                 28.    The parties sold their first marital residence.

                                                 29.    The parties relocated to the current marital residence and used the net

                                          proceeds of the sale of the first marital residence (approximately $30,000.00), to

                                          refinish all floors, replace carpeting, replace electrical switches and electrical work,

                                          update the plumbing, install a new shower unit, new toilets and a well, install a new·

                                          roof, furnace and central air unit and heat pump.

                                                 30.    The remainder of the net proceeds from the sale of the first marital

                                          residence were used for a family vacation.
                                                                                                 .
                                                 31.    During the marriage the parties remained current on their financial

                                          obligations including all afore-referenced credit cards .



•                                             CONCLUSIONS OF LAW/DISCUSSION AS TO EQUITABLE DISTRIBUTION:

                                                 In accordance with §3502 of the Divorce Code, the Court must consider the

                                          factors set forth below in determining equitable distribution of property. Upon
        MICHAEL F. SALISBURY
                                          consideration of the evidence presented at the hearing and the submissions of the
                    JUOOE

                  or COMMON
                                          parties and the Findings of Fact that previously appear in this publication, the Court has
         COUf'T                   PLEAS
-· ..     Z�TH .IUDfCIAL OISiAICT
            or    ,.f'>IHSYLV.A.N'.IA
               CoUPJTHOCJ,£
         LOCI( HA.VEN, P.t. 177411        considered the following when evaluating the parties' claim for equitable distribution:

                                                 1.     Length of the Marriage. The parties were married on June 28, 2008.

                                                 2.     Any Prior Marriages of Either Partv. None.


                                                                         Appendix B
                                                                                      r -
                                              3.     The Age, Health. Station, Amount and Sources of income. Vocation Skills

                                  and Employability. Estates, Liabilities and Needs of Each of the Parties.

                                                    (a)    Age: Husband is 37 years of age and Wife is 41 years of age.

                                                    (b)    Health: Each party is in good health.

                                                    (c)    Station: The parties enjoyed a middle class lifestyle while married.

                                                    (d)    Amount and Sources of Income: Wife is employed as a teacher

                                          with her benefit package at the Sugar Valley Rural Charter School. Husband is

                                          self-employed and operates a business known as "Sanders Scrap Collection".

                                                    (e)   Vocational Skills and Employability: Husband is a high school

                                          graduate. Wife possesses a Bachelor's Degree.

                                                   (f)    Estates: The Court did not receive any information at the time of

                                          the economic hearing that would permit it to make a finding that either party is

                                          expecting any substantial inheritance or legacy.

                                                   (g)    Liabilities and Needs: The parties are able to care for themselves.

                                         4.        The Contribution by One Party to the Education, Training or Increased
                                                                                                   I

                                Earning Power of the Other Party. The Court did not receive any information at the

                                time of the hearing that would permit the Court to utilize this factor in favor of either

                                party.

                                         5.        The Opportunity for Each Party for Future Acquisitions of Capital Assets

                                and Income. The Court finds Husband is able to return to work as a machinist at the

                                rate of $18.00 per hour should he so choose. Wife will remain a teacher with her
iAEl. F. SALISBURY
         JUDGE
                                benefit package at the Sugar Valley Rural Charter School.
 FlT 01"' COMMON Pt.EA$
,·K

or
      JUClCC:lA.l. Ol!iTfUC.T
       PtNNSYLVAHJ>.
                                         6.        The Sources of Income of Both Parties Including but Not Limited to
      COURTHOUSE                                                            -
:r, KA.YEN, PA 17745
                                Medical, Retirement. Insurance or Other Benefits. Husband is self-employed and

                                without benefits. Wife is employed as ·a school teacher with the Sugar Valley Rural

                                Charter School and will have healthcare coverage available to her. Husband did not



                                                                Appendix B
                                    present any testimony regarding the cost of healthcare. Wife is also covered under her

I                                   employer's retirement plan. Husband is without a retirement plan.

                                           7.     The Contribution or Dissipation of Each Party in the Acquisition,
I
                                    Preservation, Depreciation or Appreciation of the Marital Property Including the

I                                   Contribution of a Party as a Homemaker. Wife, with Husband's consent, ceased

                                    employment in 2012 to care for the parties' minor children and take care of the
I                                   homemaker duties and returned to employment in 2016.

I                                          8.     The Value of Property Set Aside to Each Party. Wife possesses pre-

                                    marital interest in her PSERS Retirement Account in the amount of $19 ,484.11.
I                                          9.     The Standard of Living the Parties Established During the Marriage. As

I                                   previously noted, the parties lived a middle class lifestyle.

                                           10.    The Economic Circumstances of Each Party, including Federal. State and
I                                   Local Tax Ramifications, at the Time of Division of the PropectY is to Become Effective.

I                                   Husband offered testimony related to expenses to the sale of the real estate should that

                                    occur. The Court has considered that in arriving at its decision.
I                                          11.    Whether a Party Will Be Serving as the 8ustodian of Any Dependent

I                                   Minor Child(ren). There were three children born of this marriage. The parties equally

                                    share legal and physical custody of the minor children and, therefore, this factor is
I
                                    balanced equally.

I                                                                  EQUITABLE DISTRIBUTION

I   MICHAEL F. SALISBURY                   Marital property is not divided equally. Drake v Drake, 725 A.2d 717 (Pa. 1999);
               JVDGE.


I    <::OU AT OF CO!t4HON P'LE"AS
       i�Tt( JVOICIAL tllSTIUet
         OP l"'OiHSYLVAN'IA.
                                    Williamson v Williamson, 586 A.2d 967 (Pa. Super. 1991); Fratangelo v Fratangelo, 520
           t:OUll:fHOUS�

                                    A.2d 1195 (Pa. Super. 1987). The law of Pennsylvania does not recognize a
I
     LOCI< HAVEN, PA 177�5




                                    presumption of a 50/50 division .ot marital assets. Platek v Platek, 454 A.2d 1059 (Pa.

I                                   Super. 1982). ln fact, the trial court may not consider 50%-50% as a starting point.


I                                                                Appendix B
                                                                                              .       .
                                    Fratanqelo, above. The criteria for equitable distribution is set forth at 23 Pa. C.S.

                                    §3502(a); see Bachetta v Bachetta, 445 A.2d 1194 (Pa. 1982). The Court has

                                    previously reviewed the equitable distribution criteria.

                                           The Divorce Code grants the trial court a broad measure of discretion in deciding

                                    how to divide marital property. Drake v Drake, 725 A.2d 717 (Pa. 1999); Sutliff v Sutliff,

                                    543 A.2d 534 (Pa. 1988); Viese v Viese, 979 A.2d 892 (Pa. Super. 2009).

                                           The list of §3502 factors serves as a guideline for consideration, although the list

                                    is neither exhaustive nor specific as to the weight to be placed upon each factor. Fonzi

                                    v Fonzi, 633 A.2d 634 (Pa. Super. 1993); Sergi v Sergi, 506 A.2d 928 (Pa. Super.

                                    1986). The trial court may divide the marital property in any such proportions as it

                                    deems appropriate to effectuate economic justice between the spouses and may

                                    consider each marital asset independently, applying    a different percentage to each
                                    asset. Ruza v Ruza, 1 Pa. D & C 5th 25 (C.P. Delaware 2009).



                                                                          DISCUSSION

                                  Jt'Marital Home:

                                          The appraisal established the value of the marital residence at $186,000.00.

                                    Husband seeks credit for transfer tax and brokerage fee. There was no proposal from

                                   Husband to sell the property and, therefore, the house will be awarded to Husband

                                   without the deductions.

                                   Military Memorabilia Collection:
lAEL F. SALISBURY
    JUOGE
                                          Wife argues that Husband's Military Memorabilia Collection appraisal is defective
1
    fH 0,. C:O>hotOH P'\..£.A.$
•H .JUDICIAL. 01$Tlllc-t

OF' ��NSYLYA.NIA
                                   in that the appraiser failed to include the Japanese Declaration of War. The Court
      C0URT'HOU$€
:X H ...VEN. Pl\ 17745
                                   makes a specific finding that the appraisal included all items of memorabilia and,

                                   therefore. is valued at $7,000.00.




                                                                Appendix B
                                       Wife's PSERS Account:

                                              Husband requests that the Court find that Wife's date of separation value for the

                                       PSERS account is $90,644.00. Husband is misreading the statement. The PSERS

                                       statement for the date of separation value is $45,980.85 (end of June 2017).

                                              The Court accepts Wife's argument that there needs to be a reduction of

                                       $2,484.53 for the time period of December 16, 2016 (the parties' date of separation),

                                       through the date of the final statement. Accordingly, the date of separation value for

                                       the PSERS account is $43,496.12. Subtract from that the date of marriage value of

                                       $19,484.11, which results in the sum of $24,012.01 that is available for purposes of

                                       equitable distribution.

                                     � "Sanders Scra12. Collection":

                                              Both parties secured the services of a business evaluator for Husband's scrap

                                      business, "Sanders Scrap Collection", hereinafter "Scrap Business". Husband retained

                                      Dean P. Muller who based his valuation on tax returns for the years 2012 through 2016,

                                      which included personal tax returns and Schedule C, and Scrap Business financial

                                      statements for the years 2014 through 2016. In addition, Husband supplied Mr. Muller




•
                                      with transcripts from his two vendors for the years 2014 through 2016. The transcripts

                                      identified monies paid for merchandise.




•
                                             Mr. Muller was unable to find any representative sales of companies of like size




-
                                      and, therefore, could draw no conclusion from other market transactions. Mr. Muller

                                      also looked at the assets on the Schedule C report of the Scrap Business and

     MICHAEi. F. SALISBURY
                                      reconstructed a balance sheet based on cash amounts that were provided from the
j
               JUDGE

      COUIIT OF' C'OLIMOP., ,,_EAS
       UT11 JUC>ICI ..L DISllUCT      statements. Mr. Muller utilized inventory figures that were provided as well as the
          OF 'DIN$YL\'ANIA




II
            COURTHOUSE.
      LOCI( HAVEH, PA 17745           assets. which consisted of two vehicles, small hand tools and a pallet check. Finally,

                                      Mr. Muller calculated the debt that was attributable to the company. Mr. Muller found




                                                                   Appendix B
                                           that the Scrap Business had no value, finding that the liabilities exceeded the assets of

d                                          the company.

                                                 The Scrap Business collects specialized scrap. Approximately 90% of the

                                          business is oriented around scrap collected primarily from catalytic converters and

                                          circuit boards or other electronic instruments. Husband, in turn, sells these items to a

                                          refining company in New Jersey for extraction of precious metals that are found in the

                                          instruments. The remaining 10% of the business is scrap iron. The Scrap Business

                                          sells to Key Metal Refining in New Jersey and Penn Recycling in Williamsport. Mr.

                                          Muller confirms that the business is a one person operation being operated exclusively

                                          by Husband. Mr. Muller also opined that the goodwill in the business was personal

                                          goodwill and, therefore, was not subject to marital distribution.


lll                                              In response, Wife retained Joseph Fedeli to perform a business valuation on the

                                          Scrap Business. Mr. Fedeli is a certified public accountant and was recognized by the

II                                        Court as an expert in the field of accounting and business valuations. Mr. Fedeli


II                                        secured national information regarding scrap recycling as well as historical tax returns

                                          from the parties. Mr. Fedeli reviewed Mr. Muller's report and prepared his own report

II                                        for the economic hearing. Mr. Fedeli valued the business at $41,000.00 as of


II                                        December 31, 2016 (date of separation value).

                                                 In calculating the value of the business, Mr. Fedeli analyzed the historical

II                                        profitability of the business as reported on Schedule C, which were attached to the


II    MICHAEL F. SALISBURY
                                          parties' 1040 tax returns. Mr. Fedeli made certain adjustments that he considered

                                          appropriate to normalize and adjust the recorded profits and then used those profits,

II
                  JUDGE:

       COURT 01' COJ.IMOt,1' '1..£.11.$
        2STH .JUOJCIA\.. OIITIIICT        after deducting a reasonable salary for the operator of the business, to derive excess
           or   PE,,INSTLVA�t&..




II
              COURTtfOUSC
       LOO( HAVEN. PA 17?45               cash flow which was then discounted pursuant to a capitalization rate resulting in the

                                          $41,000.00 valuation.

ii
-                                                                     Appendix B
                                                                                         ,
                                                                                   - .....   -
Li
                                          Mr. Fedeli looked at the business, looked at the profits, stepped back and

                                   concluded that even deducting a reasonable salary for Husband's efforts, there was

I                                 enough cash flow for someone to make an investment in the business. Mr. Fedeli did

                                  not consider goodwill in arriving at his valuation. Mr. Fedeli reviewed Husband's 2017
I                                 income tax return, reviewed financial documents and tax returns, spoke to both parties

I                                 and went to the business location to do an on-site inspection. Mr. Fedeli has been an

                                  accountant for approximately forty years and has been valuating businesses for at least
I                                 twenty years. He has valued approximately one hundred businesses to date. Mr.

I                                 Fedeli has also performed forensic accounting.

                                          Mr. Fedeli also acknowledged that there was $15,000.00 that Husband put into
I                                 the business that was not properly reported on his tax returns.

I                                         Of utmost importance to the Court was Mr. Fedeli's testimony regarding the

                                  payment of expenses by the Scrap Business. Mr. Fedeli reviewed Husband's outlined
I                                 various income and expenses of the parties' household, which included a truck

I                                 payment, car payment, mortgage, household utilities, cable, food and the like. When

                                  those were added up and converted on a monthly basis, by simple arithmetic, it is
I                                 apparent that the 'income being generated from the wages of the parties did not

I                                 generate enough cash flow in order for them to pay those expenses. Accordingly, Mr.

                                  Fedeli made a $10,000.00 adjustment which he identified as income that was
I                                 unreported from the business.

I                                        Mr. Fedeli found that because the business at issue is a commodity-based type
     MICHAEL F. SALISBURY
                                  of business and, therefore, the total value of $41,000.00 is attributed to the business
I
               JUDGC

      eou,rr o, c:OMHON PLEA5
       i�TH JUDICIAL. Dl5TIUC"f   and is not attributed at all to good_will.
         Qr "tNN$Yl,.VANtA




I
            C:OUATtiOUSt:
      LOCK HAVE.N, PA 17745              The Court found Mr. Fedeli's explanation of how he arrived at his valuation to be

                                  the most persuasive. It is clear to the Court that the parties' monthly net expenses

                                  exceeded the reported household income. After taxes, the parties needed $48,000.00


                                                                  Appendix B
                                                                                           .      .
                                     per year to cover their mortgage, electric, telephone, lunches, gas, vehicle payments

                                     and other related expenses. Husband denied being involved in any other activity that

                                     generated income. Therefore, since Wife was a salaried employee with the Sugar

                                     Valley Charter School, the only other explanation for the parties' ability to meet their

                                     monthly expenses was unreported income from Husband's business.

                                              The Court would note that Wife signed the joint income tax returns and was

                                     complicit if there was any fraudulent reporting.
   I                                          The Court rejects Husband's testimony that outside monies were introduced


   I                                 through the business by way of the net proceeds resulting from the sale of their

                                     previous marital residence. As noted in the Findings of Fact, the Court accepts Wife's
  I                                  explanation that the net sales proceeds from the first marital residence were used for


  I                                  home improvements to the current marital residence. Those improvements as well as

                                     the parties' family vacation were outlined in the Findings of Fact.
  I                                           The Court declines to equitably divide the appraisal expenses. The parties are


 I                                   equally responsible for any fraud as it relates to the business and will be held
                                                                                              •
                                     responsible for their own appraisal costs. The cost of the military memorabilia appraisal
 I                                   will be borne exclusively by Husband and is not subject to equitable distribution or an


 I                                   award of costs.

                                              The parties have only been married from 2008 through the end of 2016. Based
 I                                   on   the parties'   respective incomes as determined by the Court, it ls appropriate that the


 I                                   parties split the assets and liabilities 50/50 given the Statutory Factors that were
       MICHA.EL F. SALISBURY
                                     previously discussed.
I
                 JUDGE



                                              Husband has an earning capacity equivalent to Wife. The parties are equally
        COIJRT OF COMMON l'\.EAS
        2SYH .JU DtCIA\. 015TftlCT
           OF .PENHfiiYLYANtA..



I
             COURTHOUSE
        LOCK HA.Vl;N, PA 1774!;
                                     sharing custody of their three minor children.

                                             Accordingly the Court will issue the following Order:
I
I.II
�
                                                                      Appendix B
                              IN THE COURT OF COMMON PLEAS OF CLINTON COUNTY, PENNSYLVANIA
                                                             CIVIL ACTION - LAW


                            DUSTIN SANDERS,            )       No. 441R2017
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                                  This matter comes before the Court on Plaintiff's Motion for Reconsideration                                   I.


                            from the Opinion and Order published September 14, 2018. The Court received

                            argument this date on the issues raised in Plaintiff's motion.
                                  The parties agree that the Court awarded non-marital property in the form of a

                            2003 Subaru vehicle to Wife when, in fact, it should have been awarded to Husband.

                            The Court will make this correction.

                                   For reasons set forth on the record, the Court denies the remaining modification

                            requests addressed in Plaintiffs Motion for Reconsideration and will issue the following

                            Amended Order:

                                                             AMENDED ORDER

'EL F. SALISaURY
                                   AND NOW, this 5th day of NOVEMBER, 2018, following hearlng on Plaintiff's
    JUDGE;


'T OP COM MON M..E'Jl,..S   Motion for Reconsideration, IT IS HEREBY ORDERED as follows:
t JUDICIAi. PISTIUCT
f' PENHS.VLVANIA
 COUltTHOUSE
; HAVEN, P" 17745
                                   1.     Plaintiff, Dustin Sanders, and Defendant, Karen Sanders, are divorced

                            from the bonds of matrimony.


                                                        Appendix A
                                      2.        The Court will enter an Order distributing the parties' marital assets and

                             debts such that fifty percent (50%) of the total marital equity is allocated to Husband

                             and fifty percent (50%) of the total marital equity Is allocated to Wife as follows:

                                           A The marital assets are distributed as follows:

                             Marita.I Asset                                 Value           Husband            Wife

                             Sanders Scrap Collection                       $ 41,000.00     $41,000.00
                             Miiitary Memorabilia                           $ 7,000.00      $ 7,000.00
                             Camper                                         $      265.55   $    265.55
                             ($9,350.00 less DOS payoff of $9,087.45)
                             2016 F350 Truck                                $(·5,848.02)    $(-5,848.02)
                             2003 Suzuki XL7 SUV                            $ 2,358.00                         $ 2,358.00
                             Marital Residence                              $ 53,739.30     $ 53,739.30
                             ($186,000.00 less DOS payoff of $132,260.70)
                             Wife's PSERS Retirement                        $ 24,012.01                        $24,012.01
                             (DOS value $43,496.12 less DOM value of $19,484.11)
                             Husband 401 K (DOS value)                      $ 7,510.23      $ 7,510.23
                             M&T Bank Joint Checking               (DOS)    $     335.00    $   335.00
                             M&T Bank Joint Savings coos>                   $     150.12    $   150.12
                             PSECU Joint Checking (DOS)                     $ 1,175.10                        $ 1,175.10
                             PSECU Joint Savings (DOS)                      $     148.94                      $ 148.94
                             Husband's M&T                                  $(-2,540.77)    $(-2,540. 77)
                             Credit Card coos)
                             Wife's Bank of America         $(-3,319.12)                                      $(-3,319.12
                             Credit Card coos>                           •
                             Wife's PSECU Credit Card (DOS) $(-9,566.75)                                      $(-9,566.75
                             Wife's Sam's Club              $(-6,337.68)                                      $(-6,337.68
                             Credit Card (DOS)



                                      3.       All household and personal items identified in Defendant's Exhibit No. 2,

                             which is attached hereto, shall be returned by Husband to Wife within thirty (30) days ,

                             the date of this Order and said property shall become the sole and exclusive property

MrcHAEL F. SAL1seuRY         Wife.
         JUDGE

 COURT OF COMMON f'LUS
 2S-Ttf JUDICIAL DI-STIUCT           4.        Each party shall retain and exercise sole ownership of any other item of
    0,. Pli:HNSVLVANIA
      COURTHOUSE
 LOCI( HAVEN, PA 1n45
                             personal property in said party's possession.




                                                                   Appendix A
                                      5.     The parties1 opposing requests for reimbursement of appraisal costs are

                              denied. Each party Is responsible for their own appraisal fees and costs.

                                     6.      Husband shall take appropriate steps to have Wife's name removed from

                              the mortgage within ninety (90) days of the date of this Order. In the event Husband is

                              unable to comply with this directive, the marital residence shall be placed for sale with

                              an agreed upon realtor at the listing price of $186,000.00, unless otherwise agreed. In

                              the event the parties are unable to agree on a realtor, the Court will make the final

                              decision. In the event the marital property is sold, all closing costs including but not

                              limited to realtor's fees, transfer tax and necessary closing expenses shall be divided

                              equally by the parties.

                                     7.     The Court finds that the 1999 F-350 truck Is non-marital and is the

                              separate property of Husband.

                                     8.     (a) The Court finds that the 2003 Subaru vehicle Is non-marital and

                              is the sole and exclusive property of Husband.

                                            (b) For purposes of clarification, Wife is authorized to retain her

                              PSERS Retirement Account and Husband Is authorized to retain his 401 K

                              account.
                                     9.     Husband shall (Jay to Wife the sum of $46,570.46 within ninety {90) days

                              of the date of this Order, representing Wife's portion of the equitable distribution award.

                                     10.    In addition to the equitable distribution award, Husband shall pay to Wife
MICHAEL F. SALISBURY
          JUOGE:
                              the sum of $1,340.55 representing one-half (1/2) of Wife's expenses for Husband's
 COUlftT C>F COMMON f'LEA'i
  ZSTH JUC>ICtAL DISfAleT
    0,. i-DIHSYLVAtlfA.
                              healthcare from the date of-separation through the date of the entry of this Divorce
       COUPlTHOVSC
 LOCK H"VEN, PA 177A5
                              Decree. This amount is payable within ninety (90) days of the date of this Order.




                                                         Appendix A
                                       11.    Each party shall cooperate with the other in the preparation and execution

                                of any and all deeds or titles necessary to complete the equitable distribution award.

                                The party requesting the document shall be responsible for the costs, filing or recording

                                fees for the same. Each party, upon request of the other, shall execute the required

                                documents within seven (7) days of the request.

                                       12.   Any remaining economic claims raised by either party are dismissed.




                                cc:   .Zrian V. Manchester, Esquire
                                       ,0ustln Sanders, Plaintiff, 2500 East Valle                         747
                                      )'t6norable Craig P. Miller, President Judge




I   MICHAEL. F. SALISBURY
             JUDGE

     COURT OF COMMON P\...£A$
      UTH JUDICIAL OJSTIUCT
        OF PEN� SYLVANIA
          COUIO'ltOUSE
     LOCK HAVEN, PA 17?4S




                                                            Appendix A


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