J-A27034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID A. JONES                                      IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                      v.

ELAINE K. JONES, NOW KNOWN AS
ELAINE K. BUCHANAN

                            Appellant                   No. 1859 WDA 2014


               Appeal from the Order Entered October 20, 2014
               In the Court of Common Pleas of Mercer County
                        Civil Division at No: 2011-3446


BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.                                   FILED JUNE 20, 2016

     Elaine K. Buchanan, Wife, appeals from the divorce decree filed in the

Court of Common Pleas of Mercer County dated October 20, 2014, which

made final its order of the same date dismissing her exceptions to the July

9, 2014 Report of the Family Law Master. Upon review, we affirm in part,

vacate   in   part,   and    remand     for   proceedings   consistent   with   this

Memorandum.

     Wife and Husband, David A. Jones, were married on June 29, 1974.

They separated on September 18, 2011 when Husband vacated the marital

residence.    After the parties had been separated for approximately one

month, Husband filed a complaint for divorce on October 20, 2011 alleging
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“irretrievable   breakdown       of   the      marriage   pursuant   to   23   Pa.C.S.A.

§ 3301(c).”1     Husband’s Complaint at 1.          After nine months of separation,

Wife filed a counterclaim on July 18, 2012. On May 23, 2013, Wife filed a

petition for alimony pendente lite (APL). The parties convened with counsel

for a hearing on Wife’s APL petition on July 31, 2013. Wife and Husband,

however, reached a “private agreement” that APL would be paid at the rate

of $7,400 per month and the hearing was canceled.2

       Hearings before a Family Law Master were held on January 20, 21 and

22, 2014, on the issues of divorce, equitable distribution, alimony, and

attorney fees and expenses. After conclusion of the hearings, the Master

issued a July 9, 2014 Report wherein he made detailed findings of fact and

conclusions of law. In his Report, the Master recommended the divorce be

granted upon mutual consent, that a distribution of marital property be

based upon the percentage of 55.9% to Wife and 44.1% to Husband, and

that Wife be awarded alimony and additional sums for attorney fees and

costs. Of concern to the present appeal, the Master, as a part of equitable

____________________________________________


1
  Appellee’s complaint alleges “irretrievable breakdown” as grounds for
divorce, and cites 23 Pa. C.S.A. § 3301(c). The correct citation for divorce
due to irretrievable breakdown is found at section 3301(d), 23 Pa. C.S.A. §
3301(d).
2
  Our review of the certified record reveals that this “private agreement” is
documented only in a July 31, 2013 order of the trial court that canceled the
July 31, 2013 hearing upon the basis that “the parties have reached a
private agreement regarding alimony pendente lite".



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distribution, awarded Husband real estate located in Ontario, Canada, which

the parties agreed had an appraised value of $180,000. With respect to the

award of alimony, the Master first awarded Wife COBRA health insurance

coverage for thirty-six months after divorce to be paid by Husband. The

Master next acknowledged that Wife was receiving voluntary APL payments

of $7,400 per month.      Due to the long term of the marriage and other

factors, the Master awarded Wife graduated alimony payments as follows:

$7,400 per month for thirty-six months followed by thirty-six months of

alimony of $5,000 per month, thirty-six months at $4,000 per month, and

thirty-six months at $2,000 per month.

      Both parties filed exceptions to the Master’s Report. Those exceptions

in pertinent part were as follows. Husband alleged error by the Master in

determining that the entire fair market value of the real estate in Ontario,

Canada, valued at $180,000, be included in his part of the equitable

distribution award, since Husband held only a one-half interest as a tenant in

common in the property.      Husband also claimed the Master erred by not

crediting the voluntary APL he paid Wife towards the alimony award. Wife

assigned error on the Master for not requiring Husband to designate Wife an

irrevocable beneficiary on a life insurance policy to protect her alimony.

      On October 20, 2014, the trial court issued its Memorandum Opinion

granting in part and denying in part Husband’s exceptions and denying

Wife’s exception. The trial court found Husband owned the Ontario, Canada

cottage as a tenant in common with his aunt and, based on its hypothetical

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that Husband would be entitled to only half of the property in a partition

action, the trial court reduced the marital value of the cottage to

$90,000.00.     Trial Court Opinion (T.C.O.), 10/20/14, at 4.       The trial court

agreed with the Master’s determination that Wife was entitled to long-term

alimony, but deemed Wife’s alimony to have begun on the day Husband

began making voluntary APL payments on July 31, 2103, to incentivize Wife

to conclude the divorce quickly.3         T.C.O., 10/20/14, at 8.   The trial court

denied Wife’s exception that Husband be required to name her as an

irrevocable beneficiary on a life insurance policy to ensure her long-term

alimony payments.        Id. at 3-4.     Wife timely appealed to this Court.   Wife

filed a Pa.R.A.P. 1925(b) statement and the trial court filed a Pa.R.A.P.

1925(a) opinion.

       Wife raises three issues on appeal.

       1.     When a wife with a limited education and minimal earning
              capacity is awarded 12 years of alimony following a divorce
              from her husband of 37 years, did the court violate
              established law and abuse its discretion by crediting
              Husband for 16 months of voluntary alimony pendent lite
              payments based on an unidentified “policy” and thereby
              punish Wife by reducing her alimony by $118,400?


____________________________________________


3
  The trial court deemed Wife’s alimony to have begun on July 1, 2013. See
T.C.O., 10/20/14, at 4; Rule 1925(a) opinion, 12/19/14, at 1. However, the
trial court also stated that it deemed Wife’s alimony to have begun on the
day Husband began paying Wife voluntary APL. Id. Pursuant to the parties’
private APL agreement, this was July 31, 2013 and not July 1, 2013. We will
refer to July 31, 2013 as the date the trial court intended.



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      2.    If the parties stipulate to the $180,000 fair market value of
            marital real estate and Husband’s credible testimony
            indicates that he considered the cottage owned by joint
            tenants with right of survivorship to be his alone and then
            conducted himself as the sole owner by paying all
            demolition, reconstruction and maintenance expenses with
            marital funds, did the court abuse its discretion by
            reducing the marital value of the property to $90,000?

      3.    When a Wife is awarded alimony for twelve years based, in
            part, on the significant disparity between her earning
            capacity and that of her husband[] and the court denies
            her request to require her husband to protect the alimony
            payments with life insurance, has the court abused its
            discretion.

Wife’s Brief at 6.

      We review a trial court’s order for APL, alimony, and property

distribution for abuse of discretion.   Jayne v. Jayne, 663 A.2d 169, 176

(Pa. Super. 1995); Braderman v. Braderman, 488 A.2d 613, 615-16 (Pa.

Super. 1985). Absent an abuse of that discretion by clear and convincing

evidence, this Court will not reverse, nor interfere with, the determinations

of the trial court. Id. “However, an abuse of discretion will be found by this

court if the trial court failed to follow proper legal procedures or misapplied

the law.” Id.

      In her first issue, Wife contends the trial court abused its discretion by

crediting APL payments made by Husband against Wife’s long-term alimony

award. Wife’s Brief at 11. Wife asserts that by deeming Husband’s alimony

payments to have begun on July 31, 2013, the trial court reduced her

alimony by sixteen months, amounting to $118,400.00.          Wife alleges the

trial court did so to punish her, as it believed she had not proceeded with the


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divorce with due diligence, and argues she was not required to file a

counterclaim by law. Wife’s Brief at 17. Wife argues the trial court based its

ruling on a misinterpretation of the Divorce Code and a policy, which the trial

court admitted, is not found in any appellate case law. Wife’s Brief at 9, 15.

      APL and alimony are not one and the same under the Divorce Code.

There are important differences between them. As explained by this Court

in Spink v. Spink, 619 A.2d 277, 279 (Pa. Super. 1992),

            Alimony pendente lite is based on the need of one party
      to have equal financial resources to pursue a divorce
      proceeding when, in theory, the other party has major assets
      “which are the financial sinews of domestic warfare.” DeMasi
      v. DeMasi, 408 Pa. Super. 414, 420, 597 A.2d 101, 104
      (1991). Under the Divorce Code, however, the trial court
      may allow alimony to either party only if it finds alimony is
      necessary. 23 Pa.C.S.A. § 3701(a). Accordingly, alimony is
      not available until after the divorce decree has been entered.
      Id. “[Alimony] is based on need and may be reduced or
      terminated upon remarriage or change in economic
      circumstances of the party receiving it.”       Id. (citing 23
      Pa.C.S.A. § 3701(e), 3706, and 3707).

             Alimony pendente lite is not dependent upon the status
      of the parties, but upon the status of the litigation. Id.
      Theoretically, alimony pendente lite terminates at the time of
      divorce. Id. However, “a divorce is not final for the purposes
      of [alimony pendente lite] until appeals have been exhausted
      and a final decree has been entered.” Id. at 420-21, 597
      A.2d at 104.      If an appeal is pending on the equitable
      distribution of the marital assets, alimony pendente lite will
      continue throughout the appeal process and any remand until
      a final order is entered. Id. at 421, 597 A.2d at 104.
      “[Alimony pendente lite] focuses on the ability of the
      individual who receives the [alimony pendente lite] during the
      course of the litigation to defend her/himself, and the only
      issue is whether the amount is reasonable for that purpose,



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      which turns on the economic resources available to the
      spouse.” Id. at 421-22, 597 A.2d at 105.

Id. at 279. Further, unlike APL, a list of statutory factors under the

Divorce Code must be considered when awarding alimony.             See 23

Pa.C.S.A. § 3701(b). When a court awards APL, however, applicable

rules require the amount awarded to be in accord with established

support guidelines.      See Pa.R.C.P. No. 1910.16-1(b).       Additionally,

“the purpose of alimony is not to reward one party and punish

another, but rather to ensure that the reasonable needs of the person

who   is   unable   to   support   himself/herself   through   appropriate

employment are met.” Jayne, 663 A.2d at 174.           “Entry of a divorce

decree does not alter the right of a former spouse to alimony pendente

lite or counsel fees or to a support or alimony award.”          Taylor v.

Taylor, 503 A.2d 439, 442 (Pa. Super. 1986). Moreover, when there

is an agreement between the parties, the Divorce Code provides:

      (c) Certain provisions not subject to modification.--In the
      absence of a specific provision to the contrary appearing in the
      agreement, a provision regarding the disposition of existing
      property rights and interests between the parties, alimony,
      alimony pendente lite, counsel fees or expenses shall not be
      subject to modification by the court.

23 Pa.C.S.A. § 3105(c).        Agreements subject to 3105(c) may not be

modified by a court.

      In addressing Wife’s and Husband’s exceptions to the Master’s alimony

recommendation, the trial court held “the twelve year period of alimony is

hereby deemed to have commenced on July [3]1, 2013, the date Husband

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began making voluntary alimony pendente lite payments to Wife in the

amount of $7,[4]00.00 per month” because, “as a policy matter, to do

otherwise would provide no incentive to Defendant/Wife to conclude this

divorce.”   T.C.O., 10/20/14, at 8.            The trial court clarified that, while this

policy “does not appear in any appellate cases,” it is derived from a long

established principal that “the spouse receiving alimony pendente lite should

not be permitted to prolong the action unreasonably in order to continue to

receive alimony pendente lite . . . .              [H]ence, alimony pendente lite is

intended to cover only the period in which the divorce proceeding may, with

due diligence, be prosecuted to a conclusion.”4                 Rule 1925(a) Opinion,

12/19/14, at 1-2 (citation omitted). The trial court concluded Wife had not

proceeded with due diligence, since Husband filed for divorce on October 20,

2011, and Wife only filed her counterclaim on July 18, 2012. Id. at 2. The

trial court explained that its alimony order was intended to “provide [Wife]

an incentive to conclude this divorce in a timely manner.” Id.

       We conclude the trial court erred in crediting Wife’s receipt of APL

against her award of alimony for several reasons.               First, as the trial court

noted, no authority exists that permits the fashioning of an APL award with


____________________________________________


4
   Neither Section 3702 of the Divorce Code, providing for allocation of
alimony pendente lite, nor Rule 1910.16-4, providing the guidelines for
calculation of APL, mention proceeding with due diligence as a requirement.
23 Pa.C.S.A. § 3702; Pa.R.C.P. No. 1910.16-4




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incentives to either encourage or discourage litigation of a matter. In doing

so, the trial court violated established law that court-ordered APL is awarded

based on need alone and not to punish the other spouse. See Schenk, 880

A.2d at 644-45; Jayne, 663 A.2d at 176; Pa.R.C.P. No. 1910.16-1(b),(c).

By reducing Wife’s alimony award based on its perception that Wife had not

proceeded with the divorce with due diligence, the trial court allocated

alimony in order to sanction, or punish, Wife, instead of awarding alimony

out of necessity and in accord with the alimony factors under section

3701(b) of the Divorce Code, 23 Pa.C.S.A. § 3701(b). See also Jayne, 663

A.2d at 174.    Second, the finding by the trial court that Wife was not

proceeding with due diligence in order to continue to receive APL is not

supported by the record. The trial court concluded Wife had not proceeded

with due diligence because she had not filed her counterclaim to Husband’s

October 20, 2011 complaint until July 18, 2012.        The record, however,

reveals that Wife was not receiving APL during this time. Further, Wife was

not required even to file an answer to Husband’s divorce complaint.

Pa.R.C.P. No. 1920.15.     Third, by crediting APL against Wife’s alimony

award, the trial court conflated the purpose each of these awards is to serve.

As stated, APL is awarded during divorce proceedings without fault and is

based upon the need of one party for support and to have equal financial

resources to pursue the divorce litigation. Alimony is intended to commence

after a final decree is entered and is based upon need and may be reduced

or terminated upon remarriage or change in economic circumstances of the

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party receiving it. DeMasi v. DeMasi, 597 A.2d 101 (Pa. Super. 1991)

(citing 23 Pa.C.S.A. §§ 3701(e), 3706, and 3707). By crediting APL against

alimony, the trial court improperly modified APL and reduced the amount of

alimony determined to be awarded to Wife without regard for the differences

between these two awards.       Additionally, while the trial court agreed with

the Master’s recommendation of twelve years of alimony based on the

Master’s “comprehensive analysis” of the section 3701(b) factors, the trial

court entered an order differing from the Master’s recommendation by over

one year and $118,400.00 without consideration of the 3701(b) factors.

T.C.O., 11/20/14, at 5-6.     Finally, to the extent the “private agreement”

between the parties established the amount of APL to be paid to Wife, the

trial court was without authority to modify that agreement under section

3105(c) of the Divorce Code, which expressly prohibits a court from

modifying agreements pertaining to, inter alia, APL. We therefore find that

the trial court abused its discretion and misapplied the law in crediting Wife’s

APL against the alimony award.

      In her second issue, Wife asserts that the trial court erred in

calculating the marital value of the cottage in Ontario, Canada. Wife claims

the trial court should have assessed the marital value of the cottage as equal

to its fair market value of $180,000.00, arguing Husband considered and

treated the property as his alone by demolishing the existing cottage,

rebuilding a new one with marital funds, and paying all taxes and expenses.

Wife’s Brief at 19-20. Wife also makes the bare assertion that the trial court

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erred in treating Husband as a tenant in common instead of as a joint tenant

with a right of survivorship.

         In 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. Where the evidence
         offered by one party is uncontradicted, the court may adopt this
         value even [though] the resulting valuation would have been
         different if more accurate and complete evidence had been
         presented.

Schenk, 880 A.2d at 642 (quoting Baker v. Baker, 861 A.2d 298, 302 (Pa.

Super. 2004)). Instantly, the trial court concluded Husband’s interest in the

Ontario, Canada cottage was as a tenant in common with his aunt, and,

therefore, Husband owned a one-half interest in the cottage. Rule 1925(a)

Opinion, 12/19/14, at 3.       The trial court made this finding principally upon

the record fact that Husband’s interest in the property was deeded as a

“joint    tenant.”     The   trial   court   further   reasoned   that   Husband’s

improvements were irrelevant, since improvements done by a joint tenant to

property are done at risk. Whether Husband would be entitled to more than

a one-half interest in a partition action is speculative. Here, the trial court

established Husband’s interest based upon record title.

         Relying on Nicholson v. Johnston, 855 A.2d 97 (Pa. Super. 2004),

Wife claims that “[i]t is well settled in the law that in a partition action, a

joint tenant who makes a greater contribution to the property’s value may

assert an equitable claim for a greater share of the sales proceeds.” Wife’s

Brief at 21. Wife asserts that, in Nicholson, this Court affirmed the order of


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the trial court that “granted the defendant $60,000 more of the proceeds

based on his superior contribution to the property.” Wife’s Brief at 21. Wife

therefore concludes that if Husband’s aunt were to file a partition action,

Husband could recoup funds proportionate to his investment in the property.

Id. at 21-22. The defendant in Nicholson was able to recoup his greater

contribution to the property at issue because the Court determined the

defendant had made the contribution as a conditional gift contingent upon a

marriage that did not occur.         Nicholson, 855 A.2d at 101.         The Court

therefore held the defendant was entitled to the amount of his conditional

gift. Id.   As such, Nicholson is factually and legally distinguishable from

the instant case. Moreover, we are not here dealing with a partition action.

       We likewise reject Wife’s assertion that Husband’s interest as a joint

tenant should be treated as a joint tenant with a right of survivorship. “[I]n

order to engraft the right of survivorship on a co-tenancy which might

otherwise be a tenancy in common, the intent to do so must be expressed

with   sufficient   clarity   to   overcome     the   statutory   presumption   that

survivorship is not intended.” Edel v. Edel, 424 A.2d 946, 948 (Pa. Super.

1981). Wife has failed to produce evidence of any such clear intent. The

claim therefore is dismissed.

       Absent clear evidence that Husband held an interest in the property

beyond that of a joint tenant, we cannot find that the trial court abused its

discretion in concluding Husband’s interest in the property was as a tenant in

common with a one-half interest valued at $90,000.

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      In her third issue, Wife claims the trial court abused its discretion in

denying her request to have Husband protect her long-term alimony by

purchasing a life insurance plan and designating her as an irrevocable

beneficiary.   Wife argues “the [trial court’s] conclusion that Husband’s

payment of Wife’s health insurance for 3 years will permit Wife to pay

Husband’s life insurance for 12 years without impairing her standard of living

is purely speculative and not supported by the record.” Wife’s Brief at 24.

Wife argues “the loss of Alimony at any point during that term results in

significant loss of income to a former spouse who is unlikely to find gainful

employment to assist her in maintaining the standard of living the parties

established during the marriage.” Wife’s Brief at 25.

      Section 3502 of the Divorce code provides, in pertinent part, “Where it

is necessary to protect the interests of a party, the court may also direct the

purchase of, and beneficiary designations on, a policy insuring the life or

health of either party.”   23 Pa.C.S.A. § 3502(d) (emphasis added).         In

Balicki v. Balicki, 4 A.3d 654 (Pa. Super. 2010), this Court declined to find

error by the trial court in not ordering long-term life insurance to protect

alimony. In doing so, we noted that because alimony ceases at death under

Section 3707 of the Divorce Code, 23 Pa.C.S.A. § 3707, the trial court did

not abuse its discretion by refusing to require life insurance to secure an

alimony obligation that would not exist. Wife must establish that the refusal

to order life insurance to protect alimony is an abuse of discretion by clear

and convincing evidence. We do not find that Wife has done so here. In

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declining to order life insurance, the trial court reasoned that since Husband

was obligated to pay thirty-six months of health insurance, Wife would have

adequate resources to pay for 12 years of life insurance. While Wife claims

the trial court’s rationale was speculative, she offers no proof beyond

conclusory arguments that the overall economic scheme accomplished in the

equitable distribution award was unjust without the trial court ordering

payment of life insurance. Without demonstrating that the trial court abused

its discretion by clear and convincing evidence on this issue, we cannot

conclude that the trial court committed error.

      In conclusion, we affirm the trial court’s determination that Husband

holds a one-half interest valued at $90,000 in the Ontario, Canada cottage,

as well as its determination that Husband was not required to purchase a life

insurance policy naming Wife as an irrevocable beneficiary.      However, we

vacate the trial court’s alimony order.      As our disposition of the alimony

issue may alter the trial court’s equitable distribution scheme, we remand for

additional proceedings and for entry of an order consistent with this

Memorandum.

      Order affirmed in part, vacated in part, and remanded for proceedings

consistent with this Memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2016




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