J-S53043-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LINDA C. MATEY,                                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOHN G. MATEY,

                            Appellant                  No. 333 WDA 2014


                    Appeal from the Order January 29, 2014
               in the Court of Common Pleas of Allegheny County
                       Family Court at No.: FD097870006


BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED OCTOBER 31, 2014

        Appellant, John G. Matey (Husband), appeals from the trial court’s

order of equitable distribution, dismissing his exceptions to the special

master’s report and adopting the recommendation of the special master,

following the entry of a decree in divorce. We affirm in part, vacate in part,

and remand with instructions.

        The trial court summarized the factual history of this case as follows:

              Husband and . . . Linda C. Matey (Wife) were married on
        September 23, 1995, separated on September 4, 2009, and
        divorced on January 29, 2014. They have one son[.] . . . Wife
        has a B.A. in history from Brown University and a M.S. in library
        science from the University of Pittsburgh. At the time of the
        marriage, Wife was working full time as a librarian at the
        Greensburg Hempfield area library. The parties agreed that Wife
        would work part time at the library during the marriage. Upon
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      separation, Wife returned to work full time at the same library.
      Wife’s salary in 2011 was $21,794. The [s]pecial [m]aster set
      her net [monthly] income for purposes of child support at
      $1,899. Husband is a civil engineer and also has a Master’s
      Degree. His net monthly income was set at $4[,]268 per month.

(Trial Court Opinion, 5/05/14, at 1-2).

      On April 2, 2012, the trial court appointed a special master (Master)

who held two hearings on August 23 and October 3, 2012. On November

27, 2012, the Master filed a report (Master’s Report) “recommending a

60/40 split in Wife’s favor of a marital estate valued at $629,995.” (Trial Ct.

Op., at 2; see also Master’s Report, 11/27/12, at 16).        Specifically, the

Master determined that Husband’s earning capacity was more than two

times greater than Wife’s earning capacity. (See Master’s Report, 11/27/12,

at 16). The Master treated Wife’s inheritance as separate property, but did

include an investment return rate of three percent on the cash portion in her

net income. (See id. at 6).

      At the hearing, the parties disputed the value of the marital residence

and each produced expert appraisals. Ultimately, the Master accepted the

appraisal of Wife’s expert and valued the marital residence at $121,000 in

2012. (See id. at 10).

      Additionally, the Master awarded Wife counsel fees based on: (1) three

court orders each awarding $1,000 in counsel fees that were deferred to

equitable distribution; (2) the disparity of the parties’ income; and (3) the

number of individual assets in Husband’s name. (See id. at 19).




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       Husband     filed   sixty-two    exceptions   to   the   Master’s   Report   on

December 14, 2012. The trial court heard argument on the exceptions on

June 20, 2013.       On August 5, 2013, the trial court dismissed Husband’s

exceptions and entered the Master’s Report as a final order.

       On August 27, 2013, Husband filed an appeal. On October 11, 2013,

this Court quashed Husband’s appeal as interlocutory because there was no

final divorce decree entered. A final divorce decree was entered on January

29, 2014. Husband timely filed an appeal on February 25, 2014.1

       Husband raises the following issues for our review:

       1.    Whether the trial court erred when it refused to treat
       Wife’s inheritance as income despite her testimony that she
       treated if [sic] as income?

       2.   Whether the trial court committed an abuse of discretion
       when it awarded Wife attorney’s fees?

       3.    Whether the trial court erred in its valuation of the pre-
       marital residence of Husband?

       4.    Whether the trial court committed an abuse of discretion in
       not imputing a higher earning capacity to Wife?

       5.    Whether the trial court erred in awarding Wife 60% of the
       marital estate?

       6.    Whether the trial court erred in accepting the Master’s
       calculations of Husband’s pre-marital assets?

(Husband’s Brief, at 4).

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1
 Pursuant to the trial court’s order, Husband filed a Rule 1925(b) statement
on March 13, 2014. The court entered its Rule 1925(a) opinion on May 5,
2014. See Pa.R.A.P. 1925.



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      Our standard of review of a challenge to equitable distribution is well-

settled:

             A trial court has broad discretion when fashioning an
      award of equitable distribution. Our standard of review when
      assessing the propriety of an order effectuating the equitable
      distribution of marital property is whether the trial court abused
      its discretion by a misapplication of the law or failure to follow
      proper legal procedure. We do not lightly find an abuse of
      discretion, which requires a showing of clear and convincing
      evidence. This Court will not find an abuse of discretion unless
      the law has been overridden or misapplied or the judgment
      exercised was manifestly unreasonable, or the result of
      partiality, prejudice, bias, or ill will, as shown by the evidence in
      the certified record. In determining the propriety of an equitable
      distribution award, courts must consider the distribution scheme
      as a whole. [We] measure the circumstances of the case against
      the objective of effectuating economic justice between the
      parties and achieving a just determination of their property
      rights.

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

quotation marks omitted).

      Further, we note that this Court “must give fullest consideration to the

findings [of fact] of the master who had an opportunity to observe the

witnesses and is the best judge of credibility.”     Brojack v. Brojack, 561

A.2d 788, 789 (Pa. Super. 1989) (citation omitted).

      Husband first argues that the trial court erred by adopting the Master’s

recommendation not to treat Wife’s inheritance as income. (See Husband’s

Brief, at 8). We disagree.

      In Pennsylvania, “an inheritance [does not fit] into the statutory

definition of ‘income’ . . . [and] it may not be so included.” Humphreys v.



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DeRoss, 790 A.2d 281, 287 (Pa. 2002). However, “where the fact finder

determines that an inheritance affects a payor’s financial obligations by

making more income available for support, an upward deviation is

appropriate.” Id. at 288.

      In this case, the testimony at the hearing showed that Wife inherited

approximately $160,230 after her mother’s death in late September 2009.

(See N.T. Hearing, 8/23/12, at 114-21).        The court found the Master’s

recommendation to “include[] an investment return rate of 3% on the

$100,000 cash portion of Wife’s inheritance in her net income [to be

appropriate].” (Trial Ct. Op., at 4).

      Based on the applicable case law and facts of record, we conclude that

the court did not abuse its discretion when it dismissed Husband’s exception

to the Master’s recommendation not to treat Wife’s inheritance as income.

(See id.); see also Humphreys, supra at 287-88; Biese, supra at 895.

Accordingly, Husband’s first issue does not merit relief.

      In his second issue, Husband argues that the trial court erred by

adopting   the   Master’s   recommendation    of   awarding   Wife   $7,500   in

attorney’s fees. (See Husband’s Brief, at 10). We disagree.

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

            Counsel fees are awarded based on the facts of each case
      after a review of all the relevant factors. These factors include
      the payor’s ability to pay, the requesting party’s financial

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      resources, the value of the services rendered, and the property
      received in equitable distribution.

Busse v. Busse, 921 A.2d 1248, 1258 (Pa. Super. 2007), appeal denied,

934 A.2d 1275 (Pa. 2007) (citations and quotation marks omitted).

      Here, in accepting the Master’s recommendation, the court noted that:

      Wife received 60% of a modest marital estate . . . [and] utilized
      a large portion of her inheritance to pay her attorneys’ fees.
      Husband’s net monthly income is nearly three times that of Wife
      and he has amassed a large separate estate.

(Trial Ct. Op., at 4-5).

      Additionally, “[t]he [c]ourt found no abuse of discretion in the

recommendation of the [] Master that Husband pay roughly one-third of

Wife’s fees.” (Id. at 5; see also N.T. Hearing, 8/23/12, at 148-54; Master’s

Report, 11/27/12, at 19).   We agree and conclude that the court did not

abuse its discretion in adopting the Master’s recommendation of awarding

Wife $7,500 in attorneys’ fees. (See Trial Ct. Op., at 5); see also Biese,

supra at 895; Busse, supra at 1258. Accordingly, Husband’s second issue

does not merit relief.

      In Husband’s third issue, he argues that the trial court erred by

adopting the Master’s recommendation of the valuation of the marital

residence. (See Husband’s Brief, at 11). We disagree.

      Husband believes that the value of the marital residence was closer to

$78,000 in 2012. (See N.T. Hearing, 10/03/12, at 11-13). Nevertheless,

Husband introduced a county tax form showing the 2012 tax assessed value

as $93,000 and an expert appraisal with a value of $96,000. (See id. at 12-


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14).   Wife’s expert appraisal valued the property at $121,000.       (See N.T.

Hearing, 8/23/12, at 12-13). Ultimately, the Master accepted the appraisal

of Wife’s expert and valued the marital residence at $121,000.             (See

Master’s Report, 11/27/12, at 10).

       Here, the court accepted the Master’s recommendation because

“[t]here was no evidence that [it] was based on prejudice, partiality or ill will

or that the Master misapplied the law.” (Trial Ct. Op., at 5). Furthermore,

“Husband provided no basis for the [c]ourt to overturn the Master’s factual

determination.” (Id.).

       We conclude that the court did not abuse its discretion in adopting the

Master’s recommendation and “accept[ing] the figures of [Wife]’s appraiser.”

(Id.); see also Biese, supra at 895.        Accordingly, Husband’s third issue

does not merit relief.

       In his fourth issue, Husband argues that the trial court erred by

adopting the Master’s recommendation not to impute a higher earning

capacity to Wife. (See Husband’s Brief, at 13). We disagree.

       Husband believes that Wife’s earning capacity should be higher

because “Wife has a Master’s Degree which affords her the opportunity to

earn an income similar to [his].”      (Id. at 14).    The court accepted the

Master’s recommendation because “[w]hile Husband raised an exception

that Wife’s earning capacity should be higher, he did not argue this in his

supporting brief.” (Trial Ct. Op., at 6). Nevertheless, the court noted that:




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      Wife was working as a librarian doing the same work at the
      same library for essentially the same pay when they met. She
      continued to work at the library throughout the marriage. When
      the parties’ son was born, Husband agreed that she should work
      part time. She testified that she applied for higher paying
      positions as a research librarian, but her degree does not qualify
      her for those jobs. Essentially she had the same earnings her
      entire working life and [H]usband never raised any objection.

(Id.; see also N.T. Hearing, 8/23/12, at 135-37, 140-41, 144-46).

      Based on our review of the record, we conclude that the court did not

abuse its discretion in adopting the Master’s recommendation not to impute

a higher earning capacity to Wife. (See Trial Ct. Op., at 6); see also Biese,

supra at 895; Brojack, supra at 789. Accordingly, Husband’s fourth issue

does not merit relief.

      In Husband’s fifth issue, he argues that the trial court erred by

adopting the Master’s recommendation to award Wife sixty percent of the

marital estate. (See Husband’s Brief, at 15). We disagree.

      Husband’s Rule 1925(b) statement claims that “the [c]ourt erred in

awarding [Wife] a 60/40 distribution in [Wife]’s favor as the parties earning

capacities are equivalent.”    (Husband’s 1925(b) Statement, 3/13/14, at

unnumbered page 2). Nevertheless, in his brief, Husband argues that “[i]t is

obvious that Wife earns less income than Husband but the marital estate

was fully funded by . . . Husband’s lifetime work . . . and the inheritance he

received . . . .”   (Husband’s Brief, at 16).   Husband abandoned his initial

claim of equivalent earning capacities and has raised a new issue; that he

fully funded the marital estate.    Furthermore, the court determined that



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“[a]t no time in these proceedings has Husband ever contended that Wife’s

earning capacity was similar to his.” (Trial Ct. Op., at 6); see also Pa.R.A.P.

302(a) (stating that issues not raised in the lower court are waived).        We

conclude that Husband has abandoned his 1925(b) claim that their earning

capacities are equivalent and waived the argument that he contributed

significantly to the marital estate. See Pa.R.A.P. 1925(b)(4)(vii).

      Moreover, his issue would not merit relief. The court noted that, “Wife

is a librarian and has always worked in a profession which Husband

describes as minimum wage, low stress, employment.” (Trial Ct. Op., at 6

(internal   quotation   marks   omitted);   see   also   Husband’s       Pre-Trial

Statement, 8/09/12, at unnumbered page 2; Husband’s Amended Pre-Trial

Statement, 8/16/12, at unnumbered page 2).

      Accordingly, after our review, we conclude that the record supports the

court’s findings and the court did not abuse its discretion in adopting the

Master’s recommendation to award Wife sixty percent of the marital estate.

(See Trial Ct. Op., at 6); see also Biese, supra at 895; Brojack, supra at

789. Therefore, Husband’s fifth issue does not merit relief.

      In his final issue, Husband argues that the trial court erred by adopting

the Master’s calculation of Husband’s pre-marital assets.       (See Husband’s

Brief, at 17). We agree in part and disagree in part.

      Husband argues that he “had substantial pre-marital assets which

exceed[ed] the amount awarded to him by the court.”            (Id.).   Moreover,

Husband claims that the marital estate has a value of $201,921.00 and not

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$629,995.00 as the Master calculated.          (See id. at 19). Wife agrees that

the Master miscalculated the marital value of Husband’s PNC stock at

$14,873.00 in “merely a typographical error.”          (Wife’s Brief, at 9).   The

value of Husband’s PNC stock should have a value at the date of the

marriage of $19,455.78, and the marital portion is worth $19,662.22. (See

id.).

        The court noted that:

        [Husband] does not specify which assets were erroneously
        valued. The value of the marital residence has been addressed.
        In exceptions, Husband raised the pre-marital value placed on
        the National City IRA and PNC stock. As to the National City
        IRA, Husband contended that the [] Master erred in accepting
        Wife’s higher date of separation value. Both parties submitted a
        statement dated December 31, 2009 for the National City IRA.
        Husband’s statement had a value of $55,337.82, while Wife’s
        statement showed a value of $84,611. The statements looked
        substantially similar and the [] Master expressed frustration with
        the failure of either party to call a witness from National City to
        address the discrepancy. . . .

(Trial Ct. Op., at 6-7; see also N.T. Hearing, 8/23/12, at 203-04; N.T.

Hearing, 10/03/12, at 238).

        The court accepted the Master’s recommendation because:

        Ultimately the Master determined that Wife’s statement was
        more accurate. . . . Husband provided no basis for setting aside
        this determination. . . . He had every opportunity to provide
        testimony from National City supporting the validity of his
        statement, but failed to do so.

(Trial Ct. Op., at 7).

        However, the court recognized that the Master made a calculation

error and that the parties stipulated to the pre-marital value of the PNC


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stock as $19,455.78. (See Trial Ct. Op., at 7). The court did not correct the

order to reflect this error when Husband filed exceptions. Because the court

did not correct the error, we conclude that the portion of the order adopting

the Master’s valuation of the PNC stock must be vacated.                This case is

remanded and the trial court is directed to enter an order reflecting the

stipulated value of the PNC stock and consequently the marital estate.

      Although Husband disagrees with the Master’s valuation of his pre-

marital assets, Husband has failed to identify any specific error or that the

court’s conclusions are manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill will.     See Biese, supra at 895.           Accordingly, we

conclude that the court did not abuse its discretion in adopting the Master’s

recommendation of the value of Husband’s pre-marital assets, other than

the value of the PNC stock. See id.

      Order   affirmed    in    part,   vacated   in   part,   and   remanded   with

instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2014




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