J-A06039-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    JOSEPH L. TOPEL,                         :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
            Appellant                        :
                                             :
                        v.                   :
                                             :
    OLIVIA J. TOPEL,                         :
                                             :   No. 1211 WDA 2017
            Appellee                         :   No. 1283 WDA 2017

                 Appeal from the Decree Entered July 31, 2017
                  in the Court of Common Pleas of Erie County
                       Civil Division, at No(s): 12544-2012

BEFORE: BENDER, P.J.E, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY: STRASSBURGER, J. FILED APRIL 13, 2018

        Joseph L. Topel (Husband) appeals from the July 31, 2017 divorce

decree that, inter alia, provided for the equitable distribution of the marital

assets of Husband and Olivia J. Topel (Wife).1 We affirm.

        Husband and Wife began their relationship in Virginia. The parties each

had a child from a prior marriage, and they had two children together. The

parties decided to move to Pennsylvania, and Wife purchased a house in

Waterford in January 2007, where they ultimately resided together with their

children.




1 Wife filed a cross-appeal at 1283 WDA 2017 which this Court sua sponte
consolidated with Husband’s appeal. However, Wife has decided not to pursue
arguments for reversal of the trial court’s rulings, and instead supports
affirmance. Wife’s Brief at 2.
* Retired Senior Judge assigned to the Superior Court.
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      The parties married in February 2008.         It was Husband’s fourth

marriage, Wife’s third. They sold their respective residences in Virginia, with

Wife contributing $96,000 to Husband to enable him to pay off his mortgage,

which had an outstanding balance greater than the market value of the

property.   Wife was a stay-at-home mother during the marriage until she

resumed working outside the home in August 2011.           Husband and Wife

separated in February 2012.

      Husband filed for divorce in July 2012; Wife filed for economic support

and was awarded alimony pendente lite (APL). As the trial court aptly noted,

this litigation now has lasted far longer than the marriage, with rounds of

master hearings, exceptions, an interlocutory appeal and cross-appeal

quashed by this Court sua sponte,2 and now the instant timely-filed appeal.

As Husband and the trial court have complied with Pa.R.A.P. 1925, this Court

will address the following questions raised by Husband.

             I.    Whether the lower court erred in entertaining a
      division of marital assets and issuing an order regarding same in
      light of the fact that no valid decree in divorce was entered prior
      to the distribution of marital property by the court.

            II.   Whether the lower court erred in its application of the
      factors enumerated in the divorce code and in its application of
      the doctrine of equitable reimbursement thereby failing to
      equitably divide the marital estate.




2Order, 1/13/2017, filed in both 1864 WDA 2016 (Husband’s appeal) and
1923 WDA 2016 (Wife’s cross-appeal).

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            III. Whether the lower court erred in refusing to terminate
      the APL order requiring husband to pay [APL] through the appeal
      process and upon any remand.

Husband’s Brief at 8 (suggested answers and unnecessary capitalization and

emphasis omitted).

      Husband first contends that the master and trial court lacked jurisdiction

to take evidence or address in any way the equitable distribution of the marital

property before the divorce decree had been entered. Husband’s Brief at 25-

27. In support, Husband cites several cases for the proposition that there can

be no equitable distribution of marital property outside the context of divorce

proceedings.     Husband’s Brief at 25 (citing, inter alia, Drumheller v.

Marcello, 505 A.2d 305, 306 (Pa. Super. 1986), rev’d, 532 A.2d 807 (Pa.

1987)).

      Husband is correct that a trial court’s jurisdiction to distribute property

flows from its power to terminate marriages in divorce, as “[e]quitable

distribution is an incident of divorce, not marriage.” Campbell v. Campbell,

516 A.2d 363, 366 (Pa. 1986). However, that does not mean that a court in

which divorce proceedings are pending is unable to take any action on the

economic claims until after the divorce decree is entered.

      Trial    courts   are   “empowered     to   make       equitable    distribution

contemporaneously         with   or   subsequent   to    a    decree     in   divorce.”

Waddington v. Waddington, 624 A.2d 657, 660 (Pa. Super. 1993) (citation

and internal quotation marks omitted; emphasis added). It follows that, in

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order for the economic claims to be resolved contemporaneously with the

entry of the divorce decree, the court may entertain proceedings concerning

the economic issues prior to the entry of that decree. Indeed, our Supreme

Court has entertained the merits of an appeal from an interlocutory “pre-

divorce decree distributing marital property” after the distribution was

rendered final by the subsequent entry of the divorce decree. Campbell, 516

A.2d at 366.

      Here, the trial court entered the divorce decree on July 31, 2017,

expressly incorporating therein the scheme of division of marital property that

it had found to be equitable in a memorandum and order dated November 9,

2016. While the distribution order had been interlocutory before the entry of

the decree, which is why this Court quashed the earlier appeal from that order,

the order of equitable distribution was properly rendered final and appealable

as of July 31, 2017. Husband’s first issue is meritless.

      Husband next contends that the trial court failed to apply properly the

statutory factors applicable to determining the distribution of marital property,

resulting in an inequitable distribution. Husband’s Brief at 27. He also argues

that his having to pay Wife equitable reimbursement “is not fair.” Id. at 50.

      We consider Husband’s arguments mindful of the following.

      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

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     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.

Reber v. Reiss, 42 A.3d 1131, 1134 (Pa. Super. 2012) (quoting Biese v.

Biese, 979 A.2d 892, 895 (Pa. Super. 2009)).

           In fashioning an equitable distribution award, the trial court
     must consider, at a minimum, the eleven factors set forth in 23
     Pa.C.S.[] § 3502…. These factors require the trial court to
     consider the relative economic positions of the parties and the
     nature of the parties’ relationship. The section 3502 factors are
     not a simple formula, rather they serve as a guideline for
     consideration. The facts of a particular case mandate how the
     section 3502 factors will be applied.

Gates v. Gates, 933 A.2d 102, 105 (Pa. Super. 2007).              The factors

enumerated in section 3502 are as follows.

     (1) The length of the marriage.

     (2) Any prior marriage of either party.

     (3) The age, health, station, amount and sources of income,
     vocational skills, employability, estate, liabilities and needs of
     each of the parties.

     (4) The contribution by one party to the education, training or
     increased earning power of the other party.

     (5) The opportunity of each party for future acquisitions of capital
     assets and income.



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     (6) The sources of income of both parties, including, but not
     limited to, medical, retirement, insurance or other benefits.

     (7) The contribution or dissipation of each party in the acquisition,
     preservation, depreciation or appreciation of the marital property,
     including the contribution of a party as homemaker.

     (8) The value of the property set apart to each party.

     (9) The standard of living of the parties established during the
     marriage.

     (10) The economic circumstances of each party at the time the
     division of property is to become effective.

     (10.1) The Federal, State and local tax ramifications associated
     with each asset to be divided, distributed or assigned, which
     ramifications need not be immediate and certain.

     (10.2) The expense of sale, transfer or liquidation associated with
     a particular asset, which expense need not be immediate and
     certain.

     (11) Whether the party will be serving as the custodian of any
     dependent minor children.

23 Pa.C.S. § 3502(a).

     We do not evaluate the propriety of the distribution order upon
     our agreement with the court[’s] actions nor do we find a basis for
     reversal in the court’s application of a single factor. Rather, we
     look at the distribution as a whole, in light of the court’s overall
     application of the [23 Pa.C.S. § 3502(a)] factors…. If we fail to
     find an abuse of discretion, the [o]rder must stand.

Lee v. Lee, 978 A.2d 380, 383 (Pa. Super. 2009) (quoting Trembach v.

Trembach, 615 A.2d 33, 36 (Pa. Super. 1992)).

     In the instant case, the master enumerated the statutory factors in the

report filed March 1, 2016. Master’s Report, 3/1/2016, at 3-4. While not



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offering her findings in a factor-by-factor list, the master addressed and

discussed at length the relevant information, covering the parties’ ages,

offspring, and prior marriages; their educations, abilities, employment and

incomes; their respective contributions to the marriage, financial and

otherwise; and their separate and marital property. Id. at 4-10. Upon these

findings, the master recommended a 52% (Wife) – 48% (Husband) scheme

for dividing the property, with, inter alia, each party retaining his or her

respective vehicle, personalty, and credit card debt; specific properties and

accounts (or portions thereof) being awarded to each party; and Husband

paying Wife $46,000 “as additional equitable distribution,” payable in monthly

installments. Id. at 11.

      The trial court determined that the master’s “application of the

§ 3502(a) factors to the marital property in this case was appropriate, but fell

short in terms of fairly compensating Wife for her contribution to the

marriage.” Trial Court Opinion, 11/9/2016, at 14. The trial court thus ordered

equitable reimbursement.

            The courts of this Commonwealth have created the doctrine
      of “equitable reimbursement” as a method of compensating a
      spouse for his or her contribution to the marriage where the
      marital assets are insufficient to do so.       …     [E]quitable
      reimbursement is nothing more than a method of compensating a
      spouse for that which is fairly due to him or her. Whether this
      compensation is achieved via equitable distribution, or via
      “equitable reimbursement” as it is when there is insufficient
      marital property available to compensate the spouse, the result is
      the same.



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Schenk v. Schenk, 880 A.2d 633, 640-41 (Pa. Super. 2005) (citing Zullo v.

Zullo, 613 A.2d 544 (Pa. 1992), and Bold v. Bold, 574 A.2d 552 (Pa. 1990)).

     The trial court offered the following explanation for the propriety of

equitable reimbursement in the instant case.

           First, Wife contributed funds to the marriage that far
     exceeded Husband’s contributions. Specifically, Wife contributed
     funds to help get Husband out from debt. Husband was “upside
     down” on his premarital Virginia Home because the Virginia Home
     only sold for $520,000.00, which was less than what Husband
     owed on the mortgage. Accordingly, Husband needed $95,560.27
     to complete the sale. These funds were supplied by Wife. Wife
     refinanced and increased the mortgage on her premarital Dunn
     Valley Road Home by more than $75,000.00 and provided
     $20,000.00 of her cash to Husband so Husband could sell his
     Virginia Home. After a marriage of less than four years, the
     parties separated. At the time of separation, Husband was free
     and clear of his Virginia Home because of Wife’s assistance.
     However, Wife is compelled to continue paying the mortgage she
     had refinanced for Husband’s benefit. As a result, it is Wife [who]
     is now de facto paying for Husband’s devalued Virginia Home.
     Husband received this benefit, but Wife not only did not receive a
     benefit, she incurred more debt for Husband’s benefit. Out of
     fairness to Wife, Wife must be compensated for her contribution
     that enabled Husband to eliminate a premarital debt.

           Second, marital assets are insufficient to compensate Wife
     for her contribution.      As indicated by the Master in her
     Supplemental Report, the marital estate only totaled $75,319.00.
     The marital estate was therefore smaller than the $96,000.00 that
     Wife had contributed to Husband to sell his Virginia Home. Where
     marital assets are insufficient to compensate a spouse, equitable
     reimbursement is appropriate. Actually, although the marital
     estate was valued at $75,319.00, it was [] smaller than that
     because Husband cashed two marital assets [valued at
     $22,400.00 total] post separation and Wife received none of these
     assets. … Clearly, the parties’ marital estate was insufficient to
     compensate Wife for her $96,000.00 contribution.




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             Since Wife contributed funds to Husband and the marital
      assets were insufficient to compensate Wife for her contribution,
      equitable reimbursement [of $96,000 to Wife] is appropriate in
      this case. …

Trial Court Opinion, 11/9/2016, at 19-20 (citations and footnote omitted).

      In seeking to have this Court award him relief, Husband complains that

the master did not designate the $96,000 award to Wife as equitable

reimbursement rather than equitable distribution, and that it “is clear that the

[trial] court suggested to the [m]aster that her distribution scheme regarding

the $96,000[] was equitable reimbursement to compensate Wife for the

contribution of the funds from Wife to Husband regarding the sale of his pre-

marital home.” Husband’s Brief at 44.

      Husband cites no authority to suggest that the above constitutes

reversible error. As discussed above, our role is to determine whether the

trial court erred or abused its discretion in adopting the equitable distribution

that was ultimately ordered. Reber, 42 A.3d at 1134. Husband has failed to

persuade us that the trial court’s proper classification of the $96,000 as

equitable reimbursement after the master did not so designate it warrants any

relief from this Court.

      Husband also maintains that the master failed to consider that Wife was

the one who insisted that Husband sell his Virginia home, and that Husband

had made contributions to Wife’s pre-marital property during the marriage.

Id. at 44-45.    Husband points out that he was the one making all of the



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payments and financial contributions to the family for the majority of the

marriage, because he “was the sole bread-winner from the date of the

marriage until August of 2011, when Wife secured employment.” Id. at 50-

51.

      Husband filed an exception concerning the master’s failure consider his

payments on Wife’s Pennsylvania home. As Husband and the parties’ children

resided in that home during the marriage, the trial court rejected his

argument, finding “Husband is not entitled to any form of credit for paying the

mortgage on a house in which he and his family lived and derived benefit.”

Trial Court Opinion, 11/9/2016, at 23.         Husband offers no authority to

convince us that the trial court’s ruling was improper.

      Husband’s argument on this point also utterly devalues Wife’s

contribution to the family during that time of raising the parties’ two children.

The trial court acted within its discretion in weighing the different contributions

of Husband and Wife to the marriage. See, e.g., Fonzi v. Fonzi, 633 A.2d

634, 638 (Pa. Super. 1993) (rejecting the husband’s argument that he should

have received “a greater share of the marital estate because of his

employment efforts” where the trial court had “recognized the substantial

contribution of wife as homemaker” in bearing “the entire burden” of rearing

the parties’ children).

      In essence, Husband’s argument mainly consists of his offering his own

analysis of the statutory factors as the proper one, asking this Court to

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reweigh the evidence to reach his desired result. That we will not do. Busse

v. Busse, 921 A.2d 1248, 1260 (Pa. Super. 2007) (“The weight to be given

to the[] statutory factors depends on the facts of each case and is within the

court’s discretion.   We will not reweigh them.”) (internal citations and

quotation marks omitted)).

      The record shows that the trial court considered the relevant

information, and determined that the equitable result of this short marriage

was to split the marital property nearly in half, and to have Husband pay Wife

back the $96,000 she contributed to paying off his pre-marital mortgage.

Because Husband has failed to establish that the trial court’s order is the result

of any error of law or evidence of partiality, prejudice, bias, or ill-will on the

part of the trial court contained in the record, we will not disturb the equitable

distribution order. Accord Twilla v. Twilla, 664 A.2d 1020 (Pa. Super. 1995)

(holding monthly equitable reimbursement payments were appropriate to

compensate wife for husband’s dissipation of equity in the home).

      With his last issue, Husband claims that the trial court erred in requiring

Husband to continue paying APL throughout the appeal process. Husband’s

Brief at 52.

           We review APL awards under an abuse of discretion
      standard. APL is an order for temporary support granted to a
      spouse during the pendency of a divorce or annulment
      proceeding. APL is designed to help the dependent spouse
      maintain the standard of living enjoyed while living with the
      independent spouse. Also, and perhaps more importantly, APL is
      based on the need of one party to have equal financial resources

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      to pursue a divorce proceeding when, in theory, the other party
      has major assets which are the financial sinews of domestic
      warfare.

Carney v. Carney, 167 A.3d 127, 134 (2017) (internal citations and

quotation marks omitted).

      The award of APL is not dependent upon the status of the parties
      but on the state of the litigation. This means, in theory, that the
      APL terminates at the time of divorce which usually concludes the
      litigation. However, a divorce is not final for purposes of APL until
      appeals have been exhausted and a final decree has been entered.
      Thus, while APL typically ends at the award of the divorce decree,
      which also should be the point at which equitable distribution has
      been determined, if an appeal is pending on matters of equitable
      distribution, despite the entry of the decree, APL will continue
      throughout the appeal process and any remand until a final
      [o]rder has been entered.

DeMasi v. DeMasi, 597 A.2d 101, 104 (Pa. Super. 1991) (emphasis omitted).

      Here, Husband dos not challenge the amount of APL awarded by the

trial court. Rather, Husband argues that, with child support, past alimony

payments, individual assets, and an award of $10,000 in counsel fees, the

financial resources of the parties have already been “sufficiently equalize[d].”

Husband’s Brief at 53.

      The trial court disagreed, observing that, while Wife has received

substantial APL payments over the years that this case has been litigated, she

nonetheless still has a lower earning capacity than Husband, and this divorce

litigation has been long and complex. Trial Court Opinion, 7/3/2017, at 6.

Further, Husband’s litigation choices have dragged this case out, with the

proliferation of issues litigated. See, e.g., Trial Court Opinion, 11/9/2016, at

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21-31 (addressing Husband’s twenty exceptions and six additional exceptions

to the master’s report).   It appears that Husband is making good on his

statement, made when Wife filed for APL, that “he would make sure that he

cost [Wife] every penny that he paid [her]….”         N.T. Master’s Hearing,

8/3/2015, at 95. Under these circumstances, we discern no abuse of the trial

court’s discretion in holding that Husband has failed to show that early

termination of APL was warranted. Carney, 167 A.3d at 135 (“It is the burden

of the party seeking to modify an order of support to show by competent

evidence that a change of circumstances justifies a modification.”).

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 4/13/2018




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